Mass Incarceration

  • June 13, 2012
    Guest Post

    By Inimai M. Chettiar, Policy Counsel, and Vanita Gupta, Deputy Legal Director, at the American Civil Liberties Union. Ms. Gupta directs the ACLU’s Center for Justice and its Safe and Fair Initiative to End Overincarceration. Ms. Chettiar serves as national legislative counsel coordinating the Initiative, and is incoming Director of the Justice Program at the Brennan Center for Justice at NYU School of Law.


    Elderly prisoners are the least dangerous group of people behind bars but the most expensive to incarcerate. Yet despite this truth, the number of elderly prisoners is skyrocketing. Harsher sentencesfor less serious crimes – one defining characteristic of our failed “tough on crime” and “war on drugs” policies – are responsible for this staggering increase in the number of older prisoners, and taxpayers are taking the hit.

    You may be shocked to learn how much money states are dumping into housing aging prisoners who pose little safety risk. Today the American Civil Liberties Union released a report, “At America’s Expense: The Mass Incarceration of the Elderly,” which details the growth of our aging prisoner population, the low public safety threat elderly prisoners pose and the fiscal impact of incarcerating them. Strikingly, the report estimates that the average aging prisoner costs taxpayers about twice as much as the average prisoner.

    The report is co-authored by the ACLU’s fiscal policy analyst and in-house economist, Will Bunting. He conducted a fiscal impact analysis, weighing the cost of incarcerating the average aging prisoner against the burden releasing that same prisoner would impose on public benefit programs. Even taking into consideration the cost of state payments for Medicaid, supplemental security food stamps, energy assistance, and other public assistance benefits, the report estimates that states could save $66,000 per year for each aging person released from prison. To put this number in context, the average American household makes $40,000. The money thus saved could be redistributed to more worthwhile and cost-effective state goals like education and infrastructure.

    A look at the grander scheme of things is even more startling: in 1988, the United States spent about $11 billion on the entire corrections system. Today, we spend about $16 billion annually on the aging prisoner population alone.

  • April 19, 2012
    Guest Post

    By Christina Swarns, LDF Director of the Criminal Justice Practice, and Eva Paterson, Equal Justice Society President and Co-Founder. Paterson is also a member of the Bay Area Lawyer Chapter Board of Advisors.


    Few cases involving the intersection of race, criminal law, and procedure have had the reach and impact of McCleskey v. Kemp, a United States Supreme Court decision decided 25 years ago, on April 22, 1987. This decision set the stage for more than 20 years of dramatically increasing racial disparities within the criminal justice system.

    In McCleskey, the Supreme Court declared that a criminal justice system that treats Blacks worse than whites is “inevitable” and that the Constitution is only violated by instances of intentional racial discrimination by individual actors in specific cases. 

    Specifically, the Court refused to set aside the death sentence of Warren McCleskey, an African American man who was sentenced to death in Georgia for the killing of a white person, despite the fact that statistical evidence demonstrated that in Georgia capital cases, African Americans were more likely to receive a death sentence than any other defendants, and that African American defendants who killed white victims were the most likely to be sentenced to death.

    The implications of the McCleskey decision are profound. Because of McCleskey, there is no remedy for – and, indeed, no constitutional problem with – the fact that Blacks are disproportionately stopped, searched, arrested, held on bail, charged with serious crimes (including death-eligible offenses), denied plea bargains, convicted, and sentenced to prison or execution. 

    There is no constitutional basis for challenging the fact that one in three African American males will enter state or federal prison at some point in his lifetime; and that although African Americans make up only 12 percent of the U.S. population, they amount to 44 percent of sentenced inmates – the largest group behind bars. 

  • April 3, 2012
    Guest Post

    By Inimai Chettiar, Policy Counsel at the American Civil Liberties Union, where she serves as national legislative counsel to end mass incarceration in states across the country.


    Yesterday a divided Supreme Court ruled in Florence v. Burlington that any person arrested can be subject to a strip search - even for a minor offense or traffic violation – without any reason to suspect that they may be carrying a weapon or contraband. (Read the ACLU press release here.)

    As disturbing as the practice of subjecting people accused of minor offenses to degrading strip searches is, it wouldn’t be a problem if those people weren’t thrown behind bars in the first place. Unfortunately, U.S. jails are full of people accused of minor, nonviolent crimes. One such person was Albert Florence (pictured), a 35-year-old Black man erroneously arrested in 2005 for failing to pay a traffic fine he had already paid –  and whose experience is the center of the case decided by the Court.

    A New Jersey state trooper pulled over Florence’s pregnant wife as she was driving Florence and their four-year-old son to dinner to celebrate their purchase of a home.  Because Florence owned the vehicle, the officer ran his license and discovered a warrant for an outstanding noncriminal traffic fine. Despite the fact that Florence had already paid the fine and carried an official letter proving it, the police handcuffed and arrested him and dragged him off to jail.  He was incarcerated for six days and subjected to two invasive strip searches. As Florence recounts, "I was just told, 'Do as you're told.' Wash in this disgusting soap and obey the directions of the officer who was instructing me to turn around, lift my genitals up, turn around, and squat." The next day a judge freed Florence, confirming that he had in fact paid his fine.  (You can hear more from Florence in an ACS podcast interview. )

    In a 5-4 opinion, the Court held that two New Jersey county jails had not violated the Fourth Amendment by routinely strip searching all new detainees including those, like Albert Florence, who had been arrested for minor offenses and were unlikely to spend more than one night in jail. With 13 million Americans jailed each year, the decision could have far reaching consequences. 

    At the same time, the Court was careful to note that the strip search policies it upheld did not involve any physical contact with the detainee, and only applied to detainees who were housed with the general population. Whether those reservations prove to be meaningful constraints on the power of prison officials to strip search detainees remains to be seen. More significantly, perhaps, at least 10 states already prohibit routine strip searches without reasonable suspicion, including New Jersey. (Read the ACLU’s amicus brief submitted on behalf of former attorneys general of New Jersey.)

    Yesterday’s ruling provides the country with an opportune moment to reflect on our epidemic of mass incarceration. There are six million people currently in prison or under correctional supervision in the U.S. — more than were in Stalin’s gulags.

  • January 27, 2012

    by Joseph Jerome

    The ACLU’s Inimai Chettiar recently explained in an ACSblog post how downsizing our system of mass incarceration would be good for fairness, safety, and our wallets. Another benefit of shrinking our prison population is that it could also diminish our reliance on solitary confinement, which the UN Special Rapporteur on Torture has called “a harsh measure which is contrary to rehabilitation” that “can amount to torture or cruel, inhuman or degrading treatment.” Some corrections experts also make the case that the use of solitary confinement is costly, and not effective. 

    Currently, more than 25,000 prisoners are held in isolation in American supermax prisons across 44 states.  Countless thousands more are kept in restrictive segregation units at a cost of two to three times more than conventional prison units.

    According to some experts, an “exploding prison population” is to blame for the increased use of solitary confinement over the past three decades.  “Unfortunately, too many inmates today fear for their lives and their safety,” the Cato Institute’s Roger Pilon explains. He concedes that the psychological well-being of prisoners in solitary confinement is a concern, but that “it must be balanced with a concern for the safety of other inmates.”

    Others assert there is little empirical evidence that the use of solitary confinement improves prison safety. The ACLU has found that the “levels of violence in American prisons may have more to do with the way prisoners are treated and how prisons have been managed.” In fact, placing prisoners into solitary confinement may actually increase prison violence.  As one prison psychologist told Human Rights Watch, “if you put people in isolation, they will go insane.” 

  • January 11, 2012
    Guest Post

    By Inimai Chettiar, the Policy Counsel at the American Civil Liberties Union, where she serves as national legislative counsel to end mass incarceration in states across the country. She has published scholarship on using economic analysis to advance progressive policies, most recently co-authoring Smart Reform is Possible: States Reducing Incarceration Rates and Costs While Protecting Public Safety and Improving Budget Analysis of State Criminal Justice Reforms: A Strategy for Better Outcomes and Saving Money.


    It’s no secret that the United States is the largest incarcerator in the world. It’s also no secret that our government selectively enforces criminal laws disproportionately against poor people and people of color, resulting in the mass incarceration of black and brown Americans. Now, one in nine black children has a parent in prison; there are more black men under the control of corrections than were enslaved in 1850.  Our addiction to incarceration has decimated the social and economic futures of generations of Americans.

    What might be a secret to most Americans, however, is how the budgetary practices of state legislatures may actually be contributing to the mass incarceration problem. A report released today by the Center for Budget and Policy Priorities and the American Civil Liberties Union explains how poorly performed state evaluations of the budgetary consequences of criminal justice legislation are causing some states to spend unnecessarily on prisons while cutting other vital state programs. The report, Improving Budget Analysis of State Criminal Justice Reforms: A Strategy for Better Outcomes and Saving Money, details how a change to the way states perform budget evaluations of proposed legislation could help reduce our incarceration rate – and save states money.

    Across the nation, state governments are mired in economic crisis. Unfortunately, many states have taken a short-term attitude toward solving their economic problems: in order to balance budgets in the current year, they cut spending on essential public programs like schools, public assistance, and infrastructure. At the same time, almost all states have increased their spending on prisons. Over the last 25 years, state corrections spending grew by 674 percent, outpacing the growth of other spending to become the fourth-largest category of state spending. Currently, almost $70 billion of our annual collective tax dollars go to our penal system, often toward incarcerating people who pose little or no safety risks.