October 19, 2021

By Bill Berkowitz

When George Floyd was brutally murdered by Minneapolis police officer Derek Chauvin in 2020, hundreds of thousands of people marched in cities across the country to demand that police be held accountable for the murder of Floyd and others killed by the police. There were calls for radical reassessment and transformation of the country’s criminal justice system. A year later, after Chauvin was convicted for Floyd’s death -- a rarity for law enforcement officers who kill unarmed citizens -- the struggle for racial justice within the criminal legal system continues, albeit without as many demonstrations and as much fanfare.

There are more than 1.2 million people held in state prisons around the country. While it is not shocking, it is nevertheless startling to read The Sentencing Project’s new report titled “The Color of Justice: Racial and Ethnic Disparity in State Prisons” which points out that “Black Americans are incarcerated in state prisons across the country at nearly five times the rate of whites, and Latinx people are 1.3 times as likely to be incarcerated than non-Latinx whites.” The report “documents the rates of incarceration for whites, African Americans, and Latinx individuals, providing racial and ethnic composition as well as rates of disparity for each state.”

As the report notes, the causes of disparity did not fall from the sky: “Three recurrent explanations for racial disparities emerge from dozens of studies on the topic: a painful and enduring legacy of racial subordination, biased policies and practices that create or exacerbate disparities, and structural disadvantages that perpetuate disparities.”

Going to prison changes lives, not only for the person sentenced, but also for their families and communities. For many, these changes become permanent obstacles to building stable lives. According to “The Color of Justice” -- authored by Ashley Nellis, Ph.D., Senior Research Analyst at The Sentencing Project -- getting sentenced to prison makes finding post-incarceration employment and safe housing much more difficult, and “reduces lifetime earnings and negatively affects life outcomes among children of incarcerated parents.”

Here are the reports “Key Findings”:

• Black Americans are incarcerated in state prisons at nearly 5 times the rate of white Americans.

• Nationally, one in 81 Black adults per 100,000 in the U.S. is serving time in state prison. Wisconsin leads the nation in Black imprisonment rates; one of every 36 Black Wisconsinites is in prison.

• In 12 states, more than half the prison population is Black: Alabama, Delaware, Georgia, Illinois, Louisiana, Maryland, Michigan, Mississippi, New Jersey, North Carolina, South Carolina, and Virginia.

• Seven states maintain a Black/white disparity larger than 9 to 1: California, Connecticut, Iowa, Maine, Minnesota, New Jersey, and Wisconsin.

• Latinx individuals are incarcerated in state prisons at a rate that is 1.3 times the incarceration rate of whites. Ethnic disparities are highest in Massachusetts, which reports an ethnic differential of 4.1:1.

The report states: “It is clear that the outcome of mass incarceration today has not occurred by happenstance but has been designed through policies created by a dominant white culture that insists on suppression of others.” It also notes that “The totality of the research literature on race and ethnic differentials in imprisonment leads to a similar conclusion: a sizable proportion of disparity in prison cannot be explained by patterns in criminal offending.”

It makes these “recommendations”:

• Eliminate mandatory sentences for all crimes.
  Mandatory minimum sentences, habitual offender laws, and mandatory transfer of juveniles to the adult criminal system give prosecutors too much authority while limiting the discretion of impartial judges. These policies contributed to a substantial increase in sentence length and time served in prison, disproportionately imposing unduly harsh sentences on Black and Latinx individuals.

• Require prospective and retroactive racial impact statements for all criminal statutes.
  The Sentencing Project urges states to adopt forecasting estimates that will calculate the impact of proposed crime legislation on different populations in order to minimize or eliminate the racially disparate impacts of certain laws and policies. Several states have passed “racial impact statement” laws. To undo the racial and ethnic disparity resulting from decades of tough-on-crime policies, however, states should also repeal existing racially biased laws and policies. The impact of racial impact laws will be modest at best if they remain only forward looking.

• Decriminalize low-level drug offenses.
  Discontinue arrest and prosecutions for low-level drug offenses which often lead to the accumulation of prior convictions which accumulate disproportionately in communities of color. These convictions generally drive further and deeper involvement in the criminal legal system

The momentum for criminal justice reforms spurred by the police murders of George Floyd, Breonna Taylor, and others have been slowed. Some states appointed Task Forces to study the issues. Some state legislatures have passed criminal justice reform legislation, while some states have disregarded recommendations made to it.

[The Gonzaga University’s “Say Their Name” project lists the names of unarmed Black people killed by the police from 2009 to the present.]

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