Race to Incarcerate

In recent years, the number of adult Americans in jail or prison has grown at an unprecedented rate. According to the Bureau of Justice Statistics, America’s jails and prisons held approximately 578,800 people in 1980. By 1990, that number had grown to 1,148,702 inmates. In 1998, by mid-year, our prison and jail population had risen to over 1.8 million persons. These numbers delineate an increase in our use of incarceration that would have been hard for most observers to imagine twenty years ago.

This essay focuses on Race to Incarcerate, Marc Mauer’s recent contribution to the growing literature on America’s obsession with prison and punishment. Mauer is well known for his work with the Sentencing Project, an effort that has resulted in the publication of a number of influential studies that are particularly well known for calling attention to problems of racial disparity in the justice system. The Sentencing Project grew out of pilot projects organized by the National Legal Aid and Defender Association and the National Council on Crime and Delinquency in the early 1980s. Incorporated in 1986, it provides information and technical assistance to individuals and organizations interested in promoting alternatives to incarceration. Since its start in the 1980s, the Sentencing Project has played a role in sentencing reform initiatives in twenty states. Race to Incarcerate represents an extension of that effort and offers a fairly comprehensive introduction to the philosophy that animates Mauer’s work with the project.

In its general outlines, Mauer’s understanding of sentencing policy is now shared by many. For Mauer growth in our prison population has been fueled by periods of steeply rising crime rates, by the media’s assembly line approach to the production of news stories that distort the reality of crime, and by cynical political efforts to capitalize on citizens’ fear. It has been fashionable to focus attention on gang members, drive-by shootings, “drug kingpins,” and serial killers. Rather than address the underlying causes of crime, legislators have responded to the media’s vision of our crime problem with a “war on drugs,” and with “get tough” sentencing policies that include “three-strikes” laws, mandatory minimum sentences, and juvenile waiver laws that allow young offenders to be processed as adults. Supporters describe these initiatives as efforts to reduce crime by getting dangerous people off the streets and by setting a stern example for those who might otherwise choose to pursue criminal activities.

We know that crime rates have fallen in recent years. The FBI’s Uniform Crime Reports for 1997 show that murder rates have fallen from a peak of 10.2 per 100,000 in 1980 to 6.8 in 1997. Overall rates of violent crime, as reflected in the FBI’s index crime statistics, fell from a high of 758 per 100,000 in 1991 to 610 per 100,000 in 1997, the lowest number recorded since 1987. Property crime rates have also fallen. The Uniform Crime Reports for 1997 show a 14 per cent decline in property crimes since 1988.

Some will argue that this is a result of “get tough” policies, but in reality it is not clear how much of the recent reduction in crime rates can be attributed to our increased willingness to incarcerate offenders. While rates of violent crime have certainly declined in recent years, Mauer points out that an examination of long-term trends shows that crime rates have both risen and fallen as the prison population has increased. And violent crime rates today are still much higher than they were in the years preceding the expansion of the correctional system. For these and other reasons, many criminologists believe that factors other than the increased use of incarceration have contributed to a reduction in crime rates. Moreover, those persons who are usually incarcerated as a result of “get-tough” policies do not seem to be the drive-by shooters, “drug kingpins,” serial killers, or other violent and dangerous predators featured on the evening news. The majority of those incarcerated in recent years have been nonviolent offenders, imprisoned for property crimes, public order offenses, and the possession, distribution, and use of controlled substances. Increasingly, prisons are being used to house petty thieves, the deinstitutionalized mentally ill, and addicts who support their habits by working at the lowest levels of illegal drug distribution networks.

According to Mauer, a substantial portion of the increase in our prison population is accounted for by the confinement of drug offenders, having important implications for criminal justice policy. Because to a great extent our war on crime has been a war on drugs, it has been a de facto war on America’s minority community. In recent years, many of the drug crimes that have resulted in prison sentences have involved the use of crack cocaine, a substance that is believed by many in law enforcement to be the drug of choice in African-American neighborhoods.

It seems unlikely that anyone in law enforcement ever conspired to fill prison beds with blacks by targeting low-level drug dealers and users in African-American communities. Even so, this has clearly been the result of criminal justice policies in the late twentieth century. This is true in spite of the fact that there is compelling evidence to suggest that, overall, African-Americans use illegal drugs at a rate that is similar to that of white Americans.

As Mauer and his colleagues at the Sentencing Project point out, on an average day, one in three African-American men between 20 and 29 years of age are under some form of correctional supervision. While perhaps not consciously racist in conception, our crime policies have been unequivocally racist in effect. Today, while African-American men make up less than 7 per cent of the overall population, they account for almost one-half of those incarcerated in America.

Because good data on other minority communities are often lacking, Mauer focuses primarily on the African-American experience of the criminal justice system. He does so recognizing that the experience of African-Americans is similar in fundamental ways to that of many other minority groups. In some minority communities, many observers fear that prison experience has become an expected right of passage for young, economically disadvantaged men. We have no formula with which to calculate the harm experienced when families and communities lose so many fathers, sons, and brothers to the criminal justice system. But this loss, coupled with recent growth in incarceration