May 7, 2014

The Immorality of Mass Incarceration

Guest Post, Mass Incarceration, NAACP, Smarter Sentencing Act, Vincent Southerland

by Vincent Southerland, Criminal Justice Practice, NAACP Legal Defense and Education Fund

America is finally starting to take its first small steps on the path to curing its decades-long addiction to mass incarceration. Recently, the nation’s top law enforcement officer, Attorney General Eric Holder, testified before the United States Sentencing Commission and called for reductions to federal sentences for certain drug offenses. In doing so, Attorney General Holder declared that “over-reliance on incarceration is not just financially unsustainable, it comes with human and moral costs that are impossible to calculate,” a statement many of us—who for years have been raising the alarm bell about America’s mass incarceration problem—have long known to be true.

Attorney General Holder’s comments strike at the heart of the problem: mass incarceration has devastated African-American communities, families, and lives all around the country. Sustained changes to the policies and attitudes that created this epidemic, however, are the real key. In order for that change to happen, our nation’s moral orientation with mass incarceration and criminal justice will have to adjust accordingly.

At bottom, criminal justice reforms need to be driven by the moral imperative of repairing all that is wrong with the current system. As advocates for change, we must make sure that the reform narrative includes the human costs of mass incarceration and a broken criminal justice system, not just the concern over dollars and cents. The Moral Monday movement—a multi-issue, grassroots, multiracial campaign active in the courtroom, streets, and the ballot box—offers a salient example of how ethics and the lived experiences of real people can drive change and incite action. The movement shifted North Carolina’s political discourse toward morality while focusing on individual stories and the damage done to real people by real, and unjust, policies.

To date, the financial crisis and the Great Recession have forced a closer look at the financial costs associated with America’s incarceration of 5 percent of the world’s population and 25 percent of the world’s prisoners. Prisons and jails are overcrowded—in the federal system alone, they are operating at 40 percent beyond capacity. Counsel for the poor are under-resourced and over-worked. And across the country, police departments are stretched beyond capacity, having committed resources to America’s misadventure with mass incarceration. 

To be sure, the financial incentives for progressive change are incredibly powerful. Conservatives and liberals alike have voiced concerns about the expense of continuing down a path of perpetual incarceration. In fact, there has been much discussion over the savings borne of reforms that could be reinvested to improve public safety and police practices, particularly as the costs of prisons and incarceration constitute an increasingly disproportionate share of state and federal budgets. And change—at least in the direction we seem to be slowly moving—is definitely a good thing. Ohio, Georgia, Texas, Kentucky, South Carolina and New York serve as examples of states that have worked to reduce their prison population without sacrificing public safety. 

Even Congress is getting into the act. Partisan rancor and age-old arguments about the size and role of government have—at least in one instance—have begun to yield to legislative action on mass incarceration.  The Smarter Sentencing Act, a piece of bipartisan legislation co-sponsored by Senators Dick Durbin (D-Ill.) and Mike Lee (R-Utah) and supported by senators like Ted Cruz (R-Texas) and Jeff Flake (R-Ariz.), recently cleared the Senate Judiciary Committee, making it ripe for consideration by Congress. The Smarter Sentencing Act would reduce mandatory minimums for federal drug offenses, expand the discretion and authority of federal judges to craft appropriate sentences for low level offenders, and give full effect to Congress’ 2010 reduction of the manifestly unjust and discriminatory 100-to-1 sentencing ratio which treated crack cocaine 100 times more severely than powder cocaine. Currently, nearly 9,000 individuals—almost 90 percent of whom are African-American—are serving federal prison sentences under that old 100-to-1 regime.

Yet the impetus for these changes will be short-lived unless America faces the harsh realities—and staggering moral consequences—of its obsession with mass incarceration. For decades, we have responded to a public health problem—drug addiction and abuse—with a criminal justice remedy, failing to fully understand the complex web of conditions that spur drug abuse. In Attorney General Holder’s words late last year, we have grown “coldly efficient” at warehousing generations of people—the majority of them young men of color. Stark racial disparities are apparent at every stage of the system, from encounters with police, to the severity of charges sought by prosecutors, to the sentences handed down by judges. These systems have ravaged communities, hurt families and relegated generations to a hopeless form of second-class citizenship, devoid of any real political or economic power.

As the dollars once again begin to flow in the wake of the nation’s financial recovery, the real barometer of change will be America’s continued willingness to grapple with its addiction to incarceration and other criminal justice practices that fuel unfairness and calcify discrimination. Hopefully, we will still be willing to do the right thing—not only because it is fiscally prudent, but because it is simply the right thing to do.