The Crime in Criminal Justice

Lawyering for Social Change

100 Year Rule
What was legal
but unjust

100 years ago?

Women won
right to vote
in 1920
Child labor was outlawed in 1938
with Fair Labor Standards Act
1935 Right of Workers to Organize
Protected by Wagner Act
1948 Universal Declaration of
Human Rights
Segregation legal in US until 1960s
Voting Rights
Act
1965
1965 Medicare and Medicaid
1970 Clean Air Act
 1990
Americans with Disabilities Act
 Analyze
Criminal Justice
System
 Key Question:

Are these facts mistakes of an

otherwise good system
or
Is the system working
exactly as intended?
Last Several Decades
Explosion in
Criminal Justice System
 One in every 31 adults
(more than 7 million people)
were behind bars
on probation
or on parole.

Pew Center on
States
 In Pennsylvania
1 in 28 adults
is under correctional control.

PA ranks 13th in adults in probation

and parole – 258,000

PA ranks 31st in adults in

prison and jails – 87,000 pew
U.S. Criminal Justice in
International Context
What is going on?
Violent crime going up?
Gun crimes from 1973-2006 USDOJ key facts
Is this race neutral crime?
 Process for
Putting People
into
Criminal Justice System
Review the system:
Use of Drugs
Police Stops
Arrest
Bail Bond
Representation
Trial
Sentencing
Prison
Parole
Freedom
Drug Use
 “blacks and
whites engage
in drug
offenses-
possession and
sales-
at roughly
comparable
rates”
May 2008 Targetting Blacks: Drug Law Enforcement and Race in the US - HRW
Police Stops
 Driving while black?
California ACLU found blacks three
times more likely to be stopped than
whites.
Ian ayres, aclu s cal LA stops july 2003-june 2004
 DOJ reports similar percentages
stopped. But percentage of drivers
stopped whose vehicles
were searched:
Hispanic 10%; Black 7%; White 1%
2005 April US DOJ Bureau of Justice statistics report
From 2005 to 2008, 80% of NYPD
Stop and Frisk actions
were of Blacks and Latinos
(who make up 53% of population).

Once stopped
85% of Blacks and Latinos were
frisked compared to 8% of whites.
Results of Stop & Frisk?
Arrest
“State-by-state data
from 2006 show that
blacks were arrested
for drug offenses at
rates in individual
states that were
2 to 11.3 times
greater than
the rate for whites”
March 2, 2009 Decades of Disparity HRW
 African Americans comprise
13% of population and
14% of monthly drug users but
37% of persons arrested for drug
offenses.
May 21 2009 testimony before Congress of Marc Mauer The Sentencing Project
So blacks, who use drugs at same
rate as whites, are arrested
200% to 1110% more.
Result?
Bail Bond
 Blacks are 33% more likely to be
detained awaiting felony trials than
whites facing felony trials in some
parts of NY state. NYState division of

criminal justice services, 1995 study in disparities in processing felony arrests.

Representation
Once arrested, 80% get
“All too often, defendants plead guilty,
even if they are innocent, without really
understanding their legal rights or what
is occurring…
The fundamental right to a lawyer that
America assumes applies to everyone
accused of criminal conduct
effectively does not exist in practice
for countless people
across the United States.”
American Bar Association 2004
Gideon’s Broken Promise
Trial
Only 3-5% of criminal cases go to
trial – rest are plea bargained.
 “Who wouldn’t rather do three
years for a crime they didn’t do
than risk 25 years for a crime
they didn’t do?”
 Sentencing?

Since 2005
(US v Booker)
Black and Latino
men receive
federal sentences
10-23% longer
than whites.
Report - March 2010
 African Americans are:
21% more likely to receive mandatory
minimum than white defendants; and
20% more likely to be sentenced to
prison than white drug defendants. May 21, 2009 testimony to

congress of Marc Maurer on unfairness of federal cocaine senetencing.

Two-thirds of crack cocaine users
are white or Latino.
But 80% of the people sentenced
for crack cocaine in US federal
system are African American.
of Mar Maurer to Congress on unfairness of federal cocaine sentencing. Sentencing project.
may 21, 2009 testimony
 ? 100-1 Disparity between
sentencing for crack cocaine and
powder cocaine reduced
to 18-1 ratio. March 2010. ?
Two-thirds of people in US with life
sentences are non-white.
In NY, it is 83%.sentencing project – july 2009 – no exit
Result?
Prison
 African Americans comprise
13% of population and
14% of monthly drug users but
37% of persons arrested for
drug offenses, and 56% of
people in state prisons for drug
offenses.
May 21 2009 testimony before Congress of Marc Mauer The Sentencing Project
 Two-thirds of people in state
prisons for drug offenses are
African American or Latino.
Project – changing racial dynamics of the war on drugs
2009 April Sentencing
 Mental illness is
200% to 600% higher
among prisoners
than outside.
National reentry resource center facts
 Chance of Black male born in
2001 of going to prison – 32%;
Hispanic male has a 17%;
white male has 6% chance.
Bureua of Justice Statistics, Prevalence of Imprisonment in US population 1974-2001.
bonczar, T.P. (2003)
 Impact
of
Mass
Incarceration
Exempted from the prohibition on
slavery, prisoners are on way to
being non-human objects
Rights of Prisoners?
?Private for profit prisons?
?Impact of increased costs for
Incarceration?
Parole
 5,095,200
people were on
Probation or Parole in 2008.

38% African American

19% Hispanic
41% white.
Glaze and Bonczar – Probation and Parole in the US 2008, US DOJ, BJS, 12-09
 Nearly one in three
young black males
is under correctional supervision.
2009 Criminal justice primer – Sentencing Project
 YOUTH
Black youth are 16% of population,
28% of juvenile arrests,
37% of youth in juv jail, and
58% of youth sent to adult prisons.
project, criminal justice primer 2009
Sentencing
 The US Department of Justice
reported that in 2008
7.3 million people
were under “correctional
supervision”
jail or prison, parole or probation.
http://bjs.ojp.usdoj.gov/content/pub/pdf/ppus08.pdf
 African Americans are nearly three
times as likely to get their probation
revoked as whites, especially for
drug offenses.
http://www.wi-doc.com/PDF_Files/Revocation%20Study_Exec%202-Pg%20-%20FINAL.pdf
Freedom
 Even after
release,

Prisoners
never regain
full human and
civil rights
 Ex-offender employment?

Among applicants with criminal

records, employers called back
17% of white applicants and
5% of black applicants.
Devah Pager Study 2002
 Consequences for Drug Felons
• No public housing
• OK to discriminate against in private housing
• OK to yank right to vote
• OK to discriminate in employment
• No food stamp assistance
• No jury service
• Prohibitions on associating with others
 ?IMPACT ON DRUG USE?

More than two decades of incarcerating drug

offenders has apparently had little impact on the
demand for illicit drugs. In surveys carried out
during the years 1991-1993, an average of 5.8
percent of persons surveyed reported using an
illicit drug during the previous month. In the same
survey carried out in 2006, 8.3 percent of
persons said they had used an illicit drug in the
previous month.
HRW – Targetting Blacks 2008
 What will people think
100 years from now
about our
criminal justice system?
Analysis of System
 Key Question:

Are these facts mistakes of an

otherwise good system
or
Is the system working
exactly as intended?
 1700s - Birth of Slavery
1863 - Death of Slavery

1877 - Birth of Jim Crowwithdrawl of federal troops

1950s-60s - Death of Jim Crow

1980s - Birth of Mass

Incarceration
 From 1981 to 1991 – War on Drugs

FBI Antidrug $ increased from

$38 m to $181 m

DOD Antidrug $ increased from

$33m to $1042m

DEA anti-drug spending increased from

$86m to $1026m
source: p 49 The New Jim Crow
 Criminal Justice is:

Racialized
System of
Social Control
 Stigma of criminality functions in
much the same way as Jim Crow:
• Legal boundaries between them and us;
• Social and economic boundaries between
them and us;
• Cannot vote;
• Can legally discriminate in jobs and
housing;
• Warehouse a disposable population;
Poor whites and people of other
ethnicity are also subjected to
this system of social control
because if they are out of line
they are treated just like poor
blacks –
the worst possible treatment
 Criminal Justice System is
Integral Part of the
Domestic War on Marginalized
 Because of globalization
there is an excess of people.

Those people are not productive, not

needed, not wanted, and are not human
beings entitled to the same rights as us.

Essentially, the must be controlled and

dominated. They must be either
intimidated into compliance with their
inferior status or removed.
Criminal Justice System is Part of
the White Supremacist
Domestic War on Marginalized
 Domestic War relies on
Technology of Domination
(Criminal Justice System)
for

Capture
Immobilization
Punishment
Liquidation
 Criminal Justice System
is working just fine
doing its part in the
Domestic Racist State Violence or
War at Home
 Thus Abu Ghraib,
Guantanamo, US jails &
prisons
are all the same – domestic
& international versions
of domination
 So,
what to do?
 Adopt a
100 year
perspective on
law and justice
A radical approach to injustice
means to go to the
root of the problem
not trimming the leaves
not pruning the branches
but ripping up by the roots
the injustice.
First, open our hearts and
liberate our minds
 We are all entitled to be safe
but is that what
this criminal justice system is?
Find and support alternatives.
“Nothing short
of a major
social
movement can
dismantle this
new caste
system.”
What about President Obama?
If the system is broken perhaps the
administration can help fix
small parts of it.

But is there evidence that

this administration intends to
reverse the explosion of the
criminal justice system?
Join the Movement
Restorative Justice
Study Prisons in Criminal Law?
 Support Prisoner
Organizing and Resistance
 Resist in Place:
Prosecutors, Defenders, Judges
If there is
no
struggle,

there is no
progress.
Seek Out
Hope
Joy
Love
Wherever you
find tragedy
and injustice

You will also

find
resistance
and
inspiration
 Liberation
is up to us.
bquigley@ccrjustice.org