How to Really End Mass Incarceration

N.Y. Times, Aug. 14, 2013

By Vanita Gupta

Washington — In 2003, I represented dozens of African-American residents in Tulia, Tex., who had been convicted after a botched drug sting. Jason Jerome Williams, a 22-year-old with no prior criminal record, had been sentenced to 45 years in prison for four sales of an eighth of an ounce of cocaine. Freddie Brookins Jr., 25, had received 20 years for a first-time offense of selling less than four grams of cocaine. Joe Moore, a 56-year-old hog farmer, had gotten 90 years for two cocaine sales totaling under five grams. Others accepted plea deals to try to avoid such lengthy prison terms.

The convictions, in 1999 and 2000, were based on the flawed testimony of an undercover officer. The prosecution offered no physical evidence of marked bills, weapons, narcotics or drug paraphernalia — things you would expect to find in a sophisticated drug ring.

It took years of advocacy by many lawyers to win their release, but this hard-fought vindication was just a flash in the pan. Starting in the 1970s, a domestic “war on crime” dominated by antidrug policies and racial profiling fueled a prison-building binge that is morally — and now financially — bankrupt. Both political parties embraced draconian policies like mandatory minimum sentences, three-strikes laws and wide disparities in sentences for possession of crack versus powder cocaine. The result: by 2003, the United States had 4.6 percent of the world’s population but 22.4 percent of its prison population — even though violent crime started dropping in the 1990s. Prospects for reform looked bleak.

So I was elated when Attorney General Eric H. Holder Jr. announced on Monday that the government would commit to reducing the bloated prison population. This is without precedent: the nation’s top law enforcement official directed all federal prosecutors to exercise their discretion toward ending the relentless warehousing of inmates — the vast majority of whom are minorities — in federal prison for low-level drug crimes.

But the immediate impact will be very limited at best. First, federal inmates accounted for just 14 percent of the nation’s 1.6 million prisoners last year. Second, Mr. Holder has limited authority to enact permanent reforms without Congressional action. Third, it’s unclear how federal prosecutors will enforce his plan. To maximize its impact, the Justice Department needs to track implementation by the 93 United States attorneys around the country and hold them accountable for enforcing the policy.

For lasting national impact we need to look at the states, where most criminal defendants are sentenced. Over the past few years, a quiet revolution has been brewing in state capitals. Historically low crime rates and shrinking state coffers have led to a nascent consensus among lawmakers and advocates across the ideological spectrum that our addiction to incarceration is not sustainable, effective or humane. Republican governors in cash-strapped states have been among those leading the charge. States as varied as Texas, New York, Colorado and Michigan have passed reforms that have stabilized or significantly reduced prison populations without increasing crime.

What Mr. Holder has done is turn up the dial, lending his imprimatur to a growing sense of national urgency and moral necessity. The muted reaction to his announcement from ardent conservatives is a reflection of the shift in debate.

But this is no time to rest. Those who seek a fairer criminal justice system, unclouded by racial bias, must at a minimum demand that the government eliminate mandatory minimum sentences, which tie judges’ hands; rescind three-strikes laws, which often make no distinction between, say, armed assault and auto theft; amend “truth in sentencing” statutes, which prohibit early release for good behavior; and recalibrate drug policies, starting with decriminalization of marijuana possession and investment in substance-abuse prevention and treatment. Federal aid to state and local agencies, like the Edward Byrne Memorial Justice Assistance Grant and the Community Oriented Policing Services, must prioritize diversion and rehabilitation over arrest and incarceration.

I am not naïve about the challenge, or of the needs of crime victims. In 1992, as I was finishing high school, my 71-year-old paternal grandmother was murdered in a house robbery in Sahibabad, India. The killing remains unsolved, and the anguish it caused my family will never fade away. But in America, our criminal justice system has too often focused on vengeance and punishment (and racial suspicion) rather than on crime prevention, restitution for victims and the social and economic reintegration of released prisoners into our communities so that they do not turn to crime again.

The buildup of our prison-industrial complex was a bipartisan process that unfolded over decades, and digging ourselves out of this hole will require unlikely political alliances. (For instance, the American Civil Liberties Union is working on sentencing reform with Right on Crime, a conservative initiative, and the American Legislative Exchange Council, an organization whose stances on immigration, voting and other civil rights policies we are fighting tooth and nail.) And where there is a lack of political will, we need to bring litigation of the kind that drove down prison populations in California and New Jersey and organize to make our voices heard.

The work ahead is daunting, but Mr. Holder’s announcement holds out hope that we have crossed a threshold, that there is no longer any serious argument about whether there is a problem with criminal justice in America. It’s sad it took so long for this moment to arrive — and that the impetus has come as much from budget pressures as from concerns about justice — but we need to seize it.

========

Vanita Gupta is a deputy legal director at the American Civil Liberties Union.

Racial Profiling Lives On

N.Y. Times, Aug. 14, 2013

By Devon W. Carbado, Cheryl I. Harris, and Kimberlé W. Crenshaw

Los Angeles — The historic ruling by Judge Shira A. Scheindlin that the stop-and-frisk practices of the New York Police Department violate the Constitution is being applauded as a major victory against unreasonable policing.

Mayor Michael R. Bloomberg, meanwhile, is bitterly disappointed. “This is a very dangerous decision made by a judge who I think does not understand how policing works,” he said after the decision was handed down Monday.

But if unrestrained policing is, for Mr. Bloomberg, policing that works, it turns out that he can still have it. The ruling by Judge Scheindlin, of the Federal District Court in Manhattan, does nothing to disrupt the authority the Supreme Court has given police officers to target African-Americans and Latinos with little or no basis. Despite the Fourth Amendment’s protection against unreasonable searches and seizures, the Supreme Court’s interpretation of that provision gives the police frighteningly wide discretion to follow, stop, question, frisk and employ excessive force against African-Americans and Latinos who have shown virtually no indication of wrongdoing.

That might sound hyperbolic. But consider these 10 actions a hypothetical Officer Bloomberg could still take against a hypothetical black man, Tony.

First, Officer Bloomberg can follow Tony without any hint that Tony had done anything wrong. The officer could ask: “What’s your name? What are you doing here? What have you got in the bag? May I see some identification?” The Supreme Court would rule that because the suspect was free to walk away, the Fourth Amendment doesn’t apply.

Officer Bloomberg could ask Tony for permission to search his person or his belongings. He would not be required to tell Tony that he has the right to refuse consent or walk away — the Supreme Court has held that people do not have a right to know that they can say no to an officer’s request to conduct a search.

Despite this week’s decision, Officer Bloomberg could stop and frisk Tony for weapons based on the officer’s “reasonable suspicion” — a standard the Supreme Court defines as more than a hunch but less than probable cause. Nothing in Judge Scheindlin’s opinion challenges this standard, one that is relatively easy for the police to meet.

For example, the Supreme Court has made clear that simply being in a “high crime” (which often means a predominantly black or Latino) area can be a factor in determining whether a person is armed and dangerous.

And suppose Tony ran away upon seeing Officer Bloomberg? The officer would be free to chase Tony, even if he had no reason to believe that Tony had violated any law. The Supreme Court has ruled that people who are chased and captured by the police are not “seized” within the meaning of the Fourth Amendment.

Moreover, Tony’s running away would be counted in determining reasonable suspicion, and if he fled in a “high crime” area, the standard would likely be met.

This all assumes Tony was on foot. If he was driving, Officer Bloomberg could easily stop and arrest him if he had probable cause that Tony had committed a traffic infraction, no matter how minor. Even if Officer Bloomberg specifically targeted Tony for arrest because he was black, the Fourth Amendment is not a bar, as long as probable cause exists.

If Tony were a Latino, Officer Bloomberg could argue that Tony “looked Mexican,” and therefore believed that Tony was undocumented. Under a 1975 Supreme Court decision that remains good law, apparent Mexican ancestry can be a factor in determining whether a person is undocumented. Lots of local police departments, not just those in Arizona, regularly take race into account in enforcing immigration laws.

Upon arrest, no matter how minor the charge, Officer Bloomberg could handcuff Tony, conduct a full search of his person and haul him off to the police station.

In each of the preceding examples, Officer Bloomberg could successfully argue that he did not impermissibly rely on race. In immigration enforcement, using race is permitted, and the Supreme Court has largely ignored the role of race in ordinary policing.

Finally, even if Tony, like Rodney G. King or Oscar Grant III, didn’t resist, but was beaten or shot and killed by Officer Bloomberg, the likelihood of winning an excessive-force claim would be difficult. Courts and jurors defer to police judgments, even if those judgments are inflected by racial stereotypes that inevitably render an unarmed black man more dangerous than an armed policeman.

None of this is to say that Judge Scheindlin’s ruling is unimportant. But she was ruling on a particular policy. The victory leaves in place a higher body of law, Supreme Court doctrine, that continues to expose African-Americans and Latinos to surveillance, harassment, violence — and death.

========

Devon W. Carbado and Cheryl I. Harris are law professors at the University of California, Los Angeles. Kimberlé W. Crenshaw is a law professor there and at Columbia University.

© 2013 New York Times