Justice in Black and White
Updated: Mar 23
Part 2 in a 2 Part Series
In part one of our two-part series, BCT Partners focused on how we got to this tipping point in our criminal justice system, and the fact that reform is crucial if America ever wants to achieve true social justice. According to the Brennan Center, “The U.S. federal prison population has increased by more than 700 percent since 1980, disproportionately impacting African American, Native American, and Latino communities”. In part two, we explore some of the solutions that could have a profound effect on millions of Americans.
1. The First Step Act (FSA)
Passed by Congress in December of 2018, it is the first comprehensive criminal justice reform legislation in a generation. The goal of the law is to shorten mandatory minimum sentences for some drug offenses and to improve conditions for those already in prison. Another component of the law is the FSA Risk and Needs Assessment System (RNAS) which enables incarcerated individuals to earn credits toward an earlier release date by participating in education and vocational training as well as drug treatment programs. FSA also allows inmates to earn early release through good behavior. The National Institute of Justice (NIJ) is working with federal partners, specifically the Bureau of Prisons, on prioritizing who should receive evidence-based recidivism reduction programming and determining who may be eligible for early release into the community. Their recommendations are based on empirical evidence: Which recidivism reduction programs and activities work best? How are these programs assessed, and can we strengthen the best programs, and improve or end the worst? This aspect of the policy has resulted in more than 3,100 people being released from federal prisons. While the full impact of this law remains to be seen with some critics expressing concern about oversight and funding, at least it represents a step in the right direction toward reform.
2. Changing Penalties for Drug Offenses
Half of the people in federal prisons are serving time for drug offenses. The “War on Drugs,” initiated during the 1970s under the Nixon Administration, has lingered across decades and been largely responsible for mass incarceration in America. The “war” led to policies based on the false premise that prison would be a deterrent to drug usage. A key failure of the program was the fact that it failed to distinguish between those who possessed drugs and those who sold drugs. Rather than investing in treatment and mitigation efforts, the U.S. judicial system focused on punitive measures and locked up millions of addicts. For example, in 2016 there were more than 1.5 million drug arrests in the U.S. with the vast majority, more than 80%, for possession only. Unfortunately, people of color are more likely to be stopped, searched, arrested, convicted, harshly sentenced and saddled with a lifelong criminal record, particularly true for drug-related offenses, so sentencing reform is a priority to these communities.
Fortunately, policies are starting to change in states like California where the passage of. Prop 47 made many drug possession offenses punishable as a misdemeanor with some people convicted of drug possession being ineligible for state prison sentences. These new misdemeanor provisions do not apply to persons with one or more prior convictions for offenses specified under Penal Code section 667 (e) (2) (C) (IV) or Penal Code section 290(c).
Prop 47 also allows those serving time in state prison for drug possession charges to petition the court for re-sentencing. In addition, the State of California also decriminalized recreational marijuana with Prop 64. Other states have made possession a misdemeanor as well such as Utah, Connecticut, Alaska, and Oklahoma. These reforms may set a trend for more states to follow in fairly and sensibly prosecuting drug offenses. A recent analysis of state corrections and public health data found no relationship between imprisonment rates and rates of drug use, overdose deaths, or arrests for drug law violations, so simply locking people up clearly is not the answer to these issues.
U.S. Senator Cory Booker and U.S. House Representative Karen Bass have introduced bicameral legislation to create a sentence review procedure to allow Federal judges to consider petitions for people serving sentences longer than ten years in federal prison. The legislation would also create a rebuttable presumption of release for petitioners who are 50 years of age or older, meaning the burden shifts to the government to demonstrate why the petitioner should remain behind bars. Despite the fact that recidivism rates are significantly lower for people released from prison who are 50 and older, roughly 250,000 individuals aged 50 and above remain behind bars, costing taxpayers about $16 billion annually.
As we have seen over recent years, there is not only a high likelihood that many people in prison were unjustly sentenced but that some were also completely innocent of the charges. When mandatory sentencing laws took effect, it created horrible injustices with people serving long sentences for minor offenses. For example, consider the case of Cynthia Powell. She wasn’t an addict nor a dealer. She sold 35 of her diabetes pills to a confidential informant—for $300 because she had a low income and needed funds desperately. She was arrested, convicted, and sentenced to twenty-five years for the crime. It would be almost impossible to argue that justice was served in this case. Cynthia has been incarcerated for more than 14 years which is just one-year shy of the total sentence she would have received had she sold two fewer pills. Sadly, Cynthia Powell is not the only person serving an incredibly long sentence for a relatively minor drug infraction. In addition to the Second Look Act, many organizations such as FAMM.org have also been working on sentencing reforms and have helped more than 312,000 people with reforms that they have championed.
Prior drug policies in the United States have not substantially reduced the use of drugs but have instead created a system of mass incarceration that has further destroyed the lives of millions of people and their families. America’s children definitely feel the impact of the heavy sentencing practices. A 2017 Annie E. Casey report found that nearly six million American children had a parent in prison which contributes to issues such as child poverty hunger, and even abuse. As stated previously in this blog, mass incarcerations have disproportionately affected African Americans. A 2015 study found that 1 in 9 black children had a parent in prison. In 2017, the Washington Post reported that an estimated 6 million people were unable to vote, including 1 in 13 blacks because of laws that disenfranchise people with felony convictions. At BCT, we are pleased to see the tide shifting toward a more just society because equity cannot be achieved soon enough to prevent further harm to future generations.
Read more BCT Blogs
Find out more about BCT’s work on diversity and inclusion