What We Know About Mass Incarceration

The following is the full text of a speech given by ACLU of Pennsylvania Executive Director Reggie Shuford at the Beyond the Walls Healthcare and Reentry Summit , part of the 23rd Annual AIDS Education Month on June 28, 2017 at the Pennsylvania Convention Center.

I thought I would spend my time this morning discussing What We Know About Mass Incarceration. At this point, we know a lot, but I think there is always more to learn. We know what works, and we know what doesn’t work. And we are learning more every day, as more people, individuals and politicians alike, from across the political spectrum, begin to devote more attention and resources to reversing this trend of locking up people, many of whom don’t deserve to be there.

One thing we know is that mass incarceration is a form of social control. It is an intentional and complex web of institutions, laws, policies and values used to control black and brown bodies. Mass incarceration follows in the footsteps of its older cousins. First there was slavery, then convict leasing, then Jim Crow. We now have the New Jim Crow. Each version is like a shape-shifting monster that accommodates the social, economic and political mores of the time. When racial control through chattel slavery was outlawed after the Civil War, it was reborn through the criminal justice system. Convict leasing — selling the labor of state and local prisoners to private interests for state profits — became commonplace. Passage of the Black Codes by state legislatures ensured there were many petty crimes that could be used to convict blacks in order to sell their labor. And, of course, the language of the 13th Amendment itself prohibited slavery and involuntary servitude, “except as a punishment for crime.”

When convict leasing fell out of fashion, it was replaced with Jim Crow, of which lynching was a prominent feature. Bryan Stevenson’s organization, The Equal Justice Initiative, documented more than four thousand racial terror lynchings between 1877 and 1960 in the twelve southern states where they happened most frequently. Lynching was used to terrorize black people and, of course, keep them under control. With the New Jim Crow, use of the criminal justice system continues to keep black and brown people under control. And while lynching doesn’t occur like it used to, I think many people of color would argue that they are still being terrorized by the criminal justice system.

After lynching declined, the use of capital punishment increased: In the states of the Old South, the very same states where lynching primarily occurred, you are 11 times more likely to get the death penalty if the victim is white than if the victim is black and 22 times more likely to get it if the defendant is black and the victim is white.

We know that America is addicted to incarceration. In 1972, there were 300,0000 people in jails and prisons. Today, there are 2.3 million. The United States has the highest incarceration rate in the world. There are an additional five million people on probation or parole. And it’s an expensive addiction, costing roughly $80 billion per year.

America has over 7400 prisons and jails.

It’s not just men: one-third of women and girls incarcerated worldwide are in the United States.

We know that the criminal justice system is replete with racial disparities. Think about the different responses to the crack and opioid epidemics. Everyone, then and now, deserved and deserve a bit of grace and compassion.

Sixty percent of incarcerated people are racial and ethnic minorities. One out of every three black men between the ages of 18 and 30 is in jail, in prison, on probation or parole.

In some major cities, Philadelphia included, the majority of young men of color, upwards of 50–60%, is in jail, prison or on probation or parole.

At the end of 2014, the imprisonment rate among black men was nearly six times that of white men, and the rate for black women was double that of white women.

The commonwealth of Pennsylvania and the city of Philadelphia are also addicted to imprisonment.

Pennsylvania has the highest incarceration rate in the northeast, and the 4th highest in the country. It has the seventh largest prison population in country — more than 50,000 inmates, larger than the capital city of Harrisburg. And when you add probation or parole, it inches up to number 5.

Pennsylvania also has the highest percentage of people on parole; 1 out of 7 people on parole in the entire country lives in Pennsylvania.

Nearly half of all admissions to prison are for technical parole violations. Pennsylvania has the second-longest length of stay in the United States.

Seven out of 10 new commitments are for nonviolent offenses.

And two-thirds of all inmates are parents.

Things aren’t great in Philadelphia either. The City of Brotherly Love has the highest incarceration rate of the 10 largest U.S. cities, with over 6 out of every 1000 people behind bars, which is a recent improvement thanks to the $3.5 million from the MacArthur Foundation.

There is a lot more work to be done, of course. Three-quarters of the jail population waits six months before trial, the vast majority detained for nonviolent offenses. Seventy-two percent are black.

Further, as detailed in a New York Times study, Philadelphia ranks third behind New York and Chicago of cities with the most missing black men due to incarceration and early death. In Philadelphia, 36,000 African-American men are missing.

And the poorer you are, the longer your stay in jail is likely to be. As Bryan Stevenson points out, “wealth, not culpability, determines outcomes.” Philadelphia holds more people in jail on cash bail than comparable cities like New York and Washington, DC. That’s on top of a court system that already moves slowly. Nearly 80% of people held in Philadelphia’s jails are simply waiting for their cases to be brought to trial. Throughout the country, 97% of inmates don’t even make it to trial. They plea.

With debtors’ prisons and money bail, we are criminalizing people for being poor and warehousing people for years who haven’t been convicted of any crime.

In addition to adults of color and poor people, we know that certain other members of our society are also targeted:

The criminalization of youth of color starts young, with the school to prison — or cradle to grave, according to some — pipeline, through stop and frisk and racial profiling. This society sees black boys as older and more threatening than they are.

It’s the same with black girls. A recent study out of Georgetown found that adults view black girls as less innocent and more adult-like than their white peers, especially in the age range of 5–14. Specifically, compared to white girls of the same age, survey participants perceive that: black girls need less nurturing; black girls need less protection; black girls need to be supported less; black girls need to be comforted less; black girls are more independent; black girls know more about adult topics; and black girls know more about sex.

And we know all too well that these perceptions can lead to dangerous and deadly outcomes in encounters with the police: Tamir Rice, Jordan Edwards, Mike Brown, Trayvon Martin, and the list goes on and on.

Speaking of youth, Pennsylvania has the highest number of juvenile lifers in the country. Thanks to a recent victory by the Juvenile Law Center, we hope that number will come down.

Sex workers, LGBT people, especially trans women of color people (e.g., for Walking While Trans), those with HIV and non-violent drug users are also targeted for criminalization.

Thirty-four states have HIV criminalization laws. While Pennsylvania does not, the Crimes Code does have a few HIV-specific sentence enhancements, including in prison and sex work contexts. Assault by an HIV+ prisoner can result in sentence enhancement. Also, engaging in prostitution while HIV+ is a felony, instead of the usual misdemeanor.

Many folks know about the case of Michael Johnson, known to some as Tiger Mandingo, the former college athlete sentenced to more than 30 years in jail after being convicted of four counts of HIV exposure and one count of HIV transmission in Missouri. With a sentence of that length, longer than the maximum sentence for voluntary manslaughter, it’s hard to ignore issues of race, homophobia and HIV stigma.

The ACLU currently represents a transgender woman who is housed at a maximum security men’s prison and who, like many other such prisoners, has been the repeated victim of sexual and physical abuse by other inmates and guards.

And thanks to the war on drugs, which is the engine most responsible for driving mass incarceration, we know that 60% of those in federal prisons are non-violent offenders.

We certainly know that not everyone who is incarcerated should be incarcerated, including the poor, people with mental illness, immigrants and non-violent drug users. In some places, like Cook County Jail in Chicago, the poor and people with mental illness constitute half of the jail population.

This is all a bit depressing. I don’t profess to have all the answers, but I do know that we have to do something. Thankfully, in the area of criminal justice reform, there is cause for optimism. At a moment where individuals, advocates and elected officials from across the political spectrum are interested in reducing incarceration, there are concrete things to do.

Here are a few ideas:

Ending stop and frisk and other police practices that disproportionately channel poor people and people of color into the city’s jails.

Holding officers involved in the shooting deaths of our brothers and sisters fully accountable.

Eliminating the unjust pressure on defendants to accept plea bargains.

Addressing overcrowding and other human rights abuses by keeping people at home while they await trial.

Increasing access to alternatives to incarceration that address harm, violence, and loss in a way that will lead to real transformation and healing.

Supporting the ACLU’s effort to reduce the jail and prison population by 50% over the next several years.

We need sentencing reform, bail reform, parole reform and prosecutorial reform.

We have to demand transparency and accountability to end rampant overcharging in the DA’s office. The ACLU and many of our allies are attempting to do that in Philadelphia. We did a “Get Out The Vote” campaign in May’s District Attorney Primary to educate Philadelphia residents on the power wielded by DAs and the general lack of accountability accompanying that power. We hired nearly 50 canvassers to knock doors — 95% of whom were returning citizens.

We have to work hard to end the collateral consequences that are imposed on people living with a criminal record. Each year, 600,000 people nationwide return from prison to immense challenges — including nearly 50,000 federal, state and local legal restrictions that make it difficult to reintegrate back into society.

We can do better. Bryan Stevenson says — and I agree — that the true character of a society is judged by how it treats the poor, the condemned, the incarcerated. We know that fighting back or taking to the streets can make a difference. You have to be in the fight, though, to even stand a chance at winning.

We also know what DOESN’T work: the failed tough-on-crime policies of yesterday that Attorney General Jeff Sessions is itching to bring back.

Finally, we know that history repeats itself and that if we don’t dismantle and reconstruct the current system, it will rise again, in some other form. Speaking about her documentary film, 13th, Ava DuVernay said that we, the people, can do anything we want to fix our broken system. So, we must use our power to continue to fight, to resist, together, the criminalization of ALL of our brothers and sisters.

Thank you.