The United States Justice System



The United States Justice System:

Cycle of Poverty and Crime through Mass Incarceration

Emily Patterson

PVS-101, Drs. Gandolfo and Shelley

Spring 2009

Cycle of Poverty and Crime through Mass Incarceration

“…unjust social arrangements are themselves a kind of extortion, even violence…”

- John Rawls

The United States incarceration rate has skyrocketed in the past three decades. Currently, more than one fourth of the adult population in America has criminal records. One in every twenty African American males over the age of eighteen is in a state or federal prison, compared to one in every one hundred and eighty whites.[1] Prison is viewed as a punishment and very rarely as a reformative means to reintegrate individuals back into society upon release. Instead, once convicted of a felony, former inmates suffer an “invisible punishment” for the rest of their lives after release from prison. The US justice system in such practices as its sentencing and law enforcement policies disproportionately target low-income and minority neighborhoods and urban areas. In our democratic country, it is crucial as responsible and knowledgeable citizens to address these injustices that the less fortunate suffer.

The United States has about six percent of the world’s population, but it has about twenty-five percent of the world’s incarcerated population.[2] Why does our society deem it necessary to place so many behind bars? Many cite a great concern with safety. If this is the true concern, incarceration does not seem to be the answer because currently American citizens are not the safest in the world. The US homicide rate is approximately four times the rate of most nations in Western Europe.[3] Much of this increase in incarceration populations come from the homeless, the addicts, and those with mental disabilities rather than the violent who are a threat to the safety of our society.

Since 1970, the number of prisoners has grown by over six hundred percent to almost one and half million incarcerated people. Although the year 2007 experienced a slower growth rate in the prison population than from 2000 to 2006, the incarcerated population grew more quickly than the general population.[4] The economic costs of the increase have overwhelmed all aspects of the judicial system. Federal prisons are now operating thirty percent over full capacity.[5] According to the US Department of Justice, the average annual operating cost per State inmate in 2001 was $22,650,[6] which compares rather pathetically to US annual expenditures per primary student ($8,305) or secondary student ($9,590) in 2006.[7] Most scholars will agree that although public defenders are equally well qualified as private attorneys, their caseloads are simply too much to provide similar quality of representation. As Stephen Henry, a local lawyer who has served on a public defenders board, states, “The only downside to court appointed representation is whether they have the time to spend on that case.”[8] Justice Hugo Black wrote in Griffin v. Illinois, 351 U.S. 12 (1956) that “there can be no equal justice where the kind of trial a man gets depends on the amount of money he has” and since this Supreme Court decision all defendants charged with felony convictions must be provided with representation by the State if the defendant is unable to provide for one himself. Due to the great costs of providing the representation, often limited public attorneys have an overwhelming caseload that is not conducive to adequate representation.

The costs of incarceration are not only incurred by the state and inmate. The families of inmates suffer greatly, such as through lost income and help with childcare as well as worries for the loved ones in prison.[9] The majority of inmates (fifty-five percent in State prisons and sixty-three percent in Federal prisons) reported having a minor child under the age of eighteen and forty-six percent of parents reported living with their children prior to incarceration. Over half of the incarcerated parents were black compared to about a quarter that was white. Most parents (forty percent of fathers and sixty percent of mothers) had at least weekly contact with their children. The difficulty in maintaining this contact lies within the great distance that most prisons are from the inmates’ home communities (sixty-two percent of State and eighty-four percent of Federal prisoners are held more than a hundred miles from their last household). One of the worst problems for families is that America’s almost two million “prison orphans” are six times more likely than their peers to spend time in prison themselves.[10]

Mr. Stephen Henry, director of the non-profit Law-in-Action that addresses many of the shortcomings in the justice system of Greenville county, attributes the drastic increase in incarceration rates to mandatory sentencing practices for drug offenses,

“The legislators run on these platforms of getting tough, like Nixon successfully did on a national scale. Then they have to produce and they have to pass more and more mandatory sentencing laws… Mandatory sentences are an allusion presented by representatives to their constituents to make them feel better about the war on drugs. It has very little impact. Then they increase jury trials since you are going to get a mandatory sentence anyways… [Additionally], it greatly hurts whatever chances the jail has to control the inmate because the sentencing is not affected by conduct as an inmate.”[11]

Stances on mandatory sentencing have slightly softened recently.[12] Many states have removed these impractical laws and many more are beginning to take similar actions. Most recently, New York has repealed the strict mandatory minimum prison sentences that were implemented in the 1970’s for lower-level drug felons in order to provide judges with more discretion and encouragement to send first-time offenders to a treatment program instead of prison.[13]

Inside the prisons, many injustices are displayed in color. African Americans are disproportionately arrested, convicted, and sentenced for drug possession and use than whites. African Americans compose thirty-five percent of those arrested for drug crimes and an overwhelming fifty-three percent of those convicted with drug offenses. Research on the current “War on Drugs” that has driven this increase in prison populations has shown that African Americans are not the nation’s average drug user. In fact, they compose approximately thirteen percent of the nation’s monthly drug users.[14]

These unjust figures arise from the current drug policies with a law enforcement approach in low-income and colored communities and a treatment orientation in white and suburban neighborhoods. In state prisons, four out of every five drug offenders are either black or Latino.[15] Less than a third of prisoners have completed high school and less than half of them had an annual income of $10,000 in the year prior to incarceration. In the southern states, these figures are even worse.[16]

While serving time in prison, most inmates receive little to no help for their addictions that landed them behind bars. As Lawrence Y., a prisoner at Southport Correctional Facility, stated, “I’ve been in the box since 2004 on one drug ticket after another. I’m going to max out my sentence in here. I’ll go home with the same habit I came in with.” Simply excluding people from society will not end the drug problem in our country. The New York State Assemblyman Jeff Aubry, chair of the Committee on Corrections, summarizes the problem in his statement,

“Most inmates will eventually return to our communities and we must ensure strong and effective treatment programs during incarceration in order to increase the likelihood of their success upon release. Denying treatment to inmates who suffer from a drug dependence is illogical and counterproductive to the goal of rehabilitation.”[17]

Approximately half of the prison population suffers from drug abuse or dependence, but less than twenty percent of those receive formal treatment for their addiction.[18] One study of the Delaware State prison system found that prisoners in a treatment plan and continued their treatment in a work-release program were seventy percent less likely to return to drugs and be rearrested than their nonparticipant counterparts.[19]

The years in prison that ensure offenders pay for their crimes and physically separate prisoners from society are evident to everyone, but the most damaging forms of social exclusion, the “invisible punishments,” occur upon the prisoner’s release into society. At least ninety-five percent of those in State prisons will be released from prison at some point.[20] Ex-felons are ineligible for public benefits, such as welfare and public housing. The Personal Responsibility and Work Opportunity Act (PRWORA) of 1996 legalized the ideological shift of citizenship from civic virtues to social contract in which the undeserving, including ex-felons, were now excluded from society’s benefits.[21] Part of the 1996 welfare reform included a lifetime ban on eligibility for TANF assistance and food stamps for ex-felons convicted of drug use, possession, and distribution and a ten-year ban to individuals convicted of welfare fraud. States have the choice to opt out of this ban, but only eight have chosen to do so and another twenty have chosen to enforce the ban but to also exempt those who enter treatment after prison.[22] Unlike the welfare laws that specifically targeted drug offenders, the Anti-Drug Abuse Act of 1988 placed a ban on eligibility for public housing that extends to all previous felons. These restrictions were emphasized and made stricter in the Housing Opportunity Program Extension Act of 1996, the Quality Housing and Work Responsibility Act of 1998, and the 1996 law that founded the U.S. Department of Housing and Urban Development’s (HUD) “one strike and you’re out” Initiative intended to emphasize the public housing’s stance on those with prior felony convictions. The good intention to create a safe environment within public housing has created more difficulties for ex-felons returning to the community, punished not only the ex-felon but also the entire family (and thus has made reunification after a parent is released from prison much more improbable), and has overwhelmed caseloads in shelters.

The removal of these safety nets hinder ex-felons from truly being able to reintegrate into society, which often leads them to act in further crimes and increases the rates of recidivism. Their limited mobility also hinders their ability to find a decent job that will pay a decent wage since they are unable to receive any public assistance if they have a job without a wage high enough on which to live.[23] Unfortunately, these rates have not been improving over time (Figure 1). [24]

Furthermore, the Adoption and Safe Families Act of 1997 implemented new termination of parental rights conditions and time limits to ensure that foster care is not a long-term solution for a child with parents who are incapable of caring for the child. Accordingly, the state must file for the termination of parental rights and begin the process of searching for an adoptive family of any child that has been in the foster system for fifteen of the past twenty-two months without contact with the child. There have been significant consequences on parental inmates or prior felons serving as stable foster or adoptive parents. “As a result [of the initial implementation of the Adoption and Safe Families Act], children’s advocates and some government officials contend, youngsters are being removed from otherwise stable foster homes without regard to their parents’ fitness.”[25] The law has taken away all discretion that would allow ex-felons the opportunity to prove themselves as a changed individual and a worthy parent. For parental inmates, many are deemed incapable of raising their own children (refer to “The Case of Marie and Her Sons” by Bergner for a case study of an African American mother[26] and “After Losing Freedom, Some Immigrants Face Loss of Custody of Their Children” by Thompson for an article on the difficulties immigrants suffer in keeping their children while being held in detention prior to deportation[27]).

Another instrument of alienation for ex-felons is disenfranchisement, the ineligibility to vote. Supporters for the disenfranchisement laws believe that ex-felons would vote for politicians and laws that would help criminals and endanger the safety of society. In an 1884 Alabama case, the court deemed it essential to safeguard the “purity of the ballot box” from the “invasion of corruption.” Theodore Roosevelt captured the late nineteenth century Progressive viewpoint in his call for “‘relentless and unceasing warfare against lawbreaking black men’ on the grounds that ‘laziness and shiftlessness… and above all, vice and criminality of every kind, are evils more potent for harm to the black race than all acts of oppression of white men put together.”[28] In another case in New York, Judge Friendly wrote that “It can scarcely be deemed unreasonable for a state to decide that perpetrators of serious crimes shall not take part in electing legislators who make the laws, the executives who enforce these, the prosecutors who must try them for further violations, or the judges who are to consider their cases.”[29]

However, their experience and opinions in the judicial system would make them the ideal candidates to encourage policy change that reflects the needs of low-income communities. As Justice Thurgood Marshall stated in a dissenting opinion in Richardson v. Ramirez, 418 U.S. 78, “[Ex-felons] are as much affected by the actions of government as any other citizen, and have as much of a right to participate in governmental decision-making. Furthermore, the denial of a right to vote to such persons is hindrance to the efforts of society to rehabilitate former felons and convert them into law-abiding and productive citizens.”

Currently, two percent of the general population and fourteen percent of black men are unable to vote due to prior felony convictions.[30] This act of denying many their basic right to participate in our democratic state is detrimental to the reintegration of inmates into our society and to their basic dignity as can be seen in the quote of a prisoner with a felon charge for her drug dependency, Pamela,

“It’s just like a little salt in the wound. You’ve already got that wound and it’s trying to heal and it’s trying to heal, and you’re trying to be a good taxpayer and be a homeowner… Just one little vote, right? But that means a lot to me… It’s just loss after loss after loss. And this is just another one. Another to add to the pile... When I said salt in the wound, the wound’s already there. Me being able to vote isn’t going to just whip up and heal that wound… But it’s like it’s still open enough so that you telling me that I’m still really bad because I can’t [vote] is like making it sting again. It’s like haven’t I paid enough yet?... You can’t really feel like a part of your government because they’re still going like this, ‘Oh, you’re bad. Remember what you did way back then? Nope, you can’t vote.’”[31]

Several states have deemed individuals with felony charges “bad” for life with the extent of their disenfranchisement laws.

Since African Americans and low-income individuals are disproportionately imprisoned,[32] the political outcome of such disenfranchisement laws is staggering with such a percentage of the group unable to vote. Historically, many of these laws were adopted in the Southern states as a means to exclude minorities. Current disenfranchisement laws trace their foundation to the post-Reconstruction era in which states, particularly those in the South, changed their laws to exclude African Americans by “tying the loss of voting rights to crimes alleged to be committed primarily by blacks while excluding offenses held to be committed by whites.”[33] As the author of the Alabama provision stated in the estimate “the crime of wife-beating alone would disqualify sixty percent of the Negroes.”[34] While most other forms of blocking minorities from the ballot box have been proven unconstitutional and terminated, this continues to hinder the power of the minority vote to a large extent. Since the majority of inmates, blacks and poor or working-class whites, typically vote Democratic, studies have emphasized the possibility that without these laws, the recent close elections could have been swayed due to the many more Democratic votes.[35]

Research shows that those who feel excluded from society are more likely to be rearrested, reconvicted, and resentenced in a vicious cycle of crime that only spirals downward. Statistics show that sadly, within three years from release, fifty-one percent of prisoners will be back in prison.[36] The “invisible punishments” of social exclusion make it even harder for ex-felons to reintegrate and become connected to their communities.