The US prides itself on being a nation built on freedom, justice, and individual rights. And yet the evolution of its system of mass incarceration — a system that cannot be defined without reference to shocking racial disparities — seems to directly contradict these founding principles.
The US prison population dwarfs those of nearly every other country. As of Dec. 2023, the US had some 1.8 million incarcerated individuals. China trailed with just under 1.7 million — but these figures are incomparable when factoring in the fact that China’s general population size is more than quadruple that of the US.
And among the US prison population, more than 37 percent of those incarcerated are Black. This is particularly unnerving because Black people make up only 13 percent of the country’s total population.
How did we get here?
Beginning in the 1970s, the idea of protecting public safety by implementing policies that were “tough on crime” became increasingly politically valuable. Philosophy Professor Shari Stone-Mediatore describes these policies as “stiff criminal codes, long prison sentences, laws that facilitate police search and seizure, laws that make it more difficult to challenge a wrongful conviction, and stringent parole boards.” Taken together, these policies laid the groundwork for the expansion of the US criminal justice system.
It was against this backdrop that President Richard Nixon launched his so-called “War on Drugs,” aimed at combatting drug addiction through punitive measures, and formed the Drug Enforcement Agency (DEA), which enforces drug laws and works to limit drug supplies. Years later, the Sentencing Reform Act of 1984 created longer sentences for people convicted of drug crimes. Mandatory minimum sentencing laws and harsh penalties that arose from the “tough on crime” policies combined to cause a surge in the number of people incarcerated for drug offenses — a trend that continues to this day.
This heightened criminal enforcement occurred in the aftermath of the deinstitutionalization movement — US policies aimed at reducing the number of individuals confined to psychiatric institutions. During the 1950s and 1960s, the number of patients committed to such facilities was approximately triple that of the country’s prison population, according to a 2013 journal article published by the University of Chicago. As pressure mounted to reduce inpatient populations, pressure also increased to impose harsh sentences against drug users, leading legal scholars Steven Raphael and Michael A. Stoll to conclude at the time that “a sizable portion of the mentally ill behind bars would not have been incarcerated in years past.”
In 1975, the incarcerated population surpassed the committed population and has continued to rise in the ensuing decades. Since the start of the 1970s, the US prison population has expanded by 500%.
As prison populations began to grow, was racial disparity always a key issue?
Mass incarceration has always been marked by racial disparity, with legal historians like Michelle Alexander describing it as the “New Jim Crow,” a reference to segregation laws enacted in southern states following the Civil War.
Evidence of this can be found explicitly and implicitly throughout the relevant policies.
In a 2016 interview, former Nixon advisor John Ehrlichman claimed the presidential administration had always linked Black people with heroin use in developing its War on Drug policies. “The Nixon White House had two enemies: the antiwar left and Black people,” he said, adding that conflating drugs and racial profiling enabled law enforcement officials to: “disrupt [Black] communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.”
Racial profiling also figured into the expansion in the 1980s of mandatory minimum sentences, as exemplified by the staggeringly different mandatory minimums for crack cocaine and the comparatively expensive powder cocaine. In the 1970s and 1980s, crack was commonly associated with urban, predominantly Black communities, while powder cocaine was seen as a luxury reserved for relatively affluent users. The Anti-Drug Abuse Act imposed far harsher penalties for crack than cocaine, with Sec. 1002 (a) imposing the same sentence for five grams of crack as for 500 grams of powder cocaine.
The impact of this was not relegated to theory; in practice Black people were more often convicted of crack cocaine-related offenses, carrying a much higher sentence than convictions for the majority-white offenders who were found guilty of possessing powder cocaine. Ultimately, in the ‘90s, the American Civil Liberties Union (ACLU) found that after the introduction of these mandatory minimum sentences for drugs, Black people were facing 49 percent higher sentences than white people.
Organizations like the ACLU have called on governors and presidents to pardon individuals convicted of some non-violent drug crimes to undo the racial disparities that stem from these mandatory minimum sentences.
There have been numerous instances of Black people receiving unduly harsh sentences, as well. For instance, Kemba Smith received a 24-year prison sentence after taking the fall for her then-boyfriend’s drug-related crimes. She later received a pardon from former President Bill Clinton before his final term ended. Her conviction occurred shortly after the federal government introduced new mandatory minimum sentences for those convicted of drug offenses with the expansion of the War on Drugs by former President Ronald Reagan.
In an interview with NPR, Alexander explained:
Today, there are more African-Americans under correction control – in prison or jail, on probation or parole – than were enslaved in 1850, a decade before the Civil War began. In major American cities today, more than half of working-age African-American men are either under correctional control or branded felons and are thus subject to legalized discrimination for the rest of their lives.
How has public discourse whifted with respect to incarcerated people?
FWD.us, an advocacy group that focuses on criminal justice reform to combat mass incarceration and prevent people from entering the prison system, recently introduced initiatives to spur further policy change.
One of their main initiatives is the People First campaign, which aims to change the way people speak about those who have had interactions with the criminal justice system. For example, their research found that words like “felon” and “inmate” elicit a negative response from people, with individuals often viewing people with those labels as “dangerous,” “scary” and “serious criminals.” However, their research showed that when language centers the person first, a more positive connection is associated with the person. Terms like “person with a felony” instead of “felon” are thus helpful to remove the stigma that surrounds people who have had interactions with the criminal justice system. From this change in language, FWD.us explains that “there is now research demonstrating that these terms [like felon and criminal] are biasing the public in favor of mass incarceration and its outcomes.” Therefore, FWD.us argues that by changing language, the political landscape will become more favorable to push out reforms of the criminal justice system to mitigate mass incarceration.
Additionally, FWD.us takes a data-driven approach to fight for reforms they view as necessary to reduce harm that befalls families that have a member who is incarcerated. For instance, FWD.us reports that 50 percent of people in the US have had a family member incarcerated. This means that more than 160 million people have been impacted by mass incarceration, whether they themselves were in prison or they had a family member who is/was, making it an issue that affects a significant portion of the population. By stressing the numbers, their research shows that more people can get on board to fight for reforms to end mass incarceration.
How have federal policies shifted in response to mass incarceration?
Recently, the United States Sentencing Commission (USSC) updated federal sentencing guidelines, reducing the potential sentences for people who have marijuana convictions, as well as reductions in sentence length for people who have never had a run-in with the criminal justice system, known as “first time offenders.” The latter policy change will only decrease the sentence so long as the person convicted does not have any aggravating circumstances, which can include lack of remorse or if the conviction is for a hate crime. FWD.us’ Executive Director Zoë Towns praised the USSC on its amendments, stating, “These kinds of tested, evidence-based policy goals are necessary and reachable. Democrats and Republicans alike have advanced similar reforms in states across the country to secure the many benefits of reduced incarceration without compromising public safety. It’s wonderful to see this progress at the federal level where sentencing reform has been stalled for years.”
Amendment 814 of the sentencing guidelines also expands what is known as compassionate release, which allows a person to be released from incarceration early due to factors that were previously unknown at the time of sentencing. Compassionate release gained national attention during the start of the COVID-19 pandemic in 2020. People were released early if they had higher risk factors associated with contracting COVID-19, such as asthma. One report from the USSC found that in the second half of 2020, 1,805 people had a sentence reduction as a result of compassionate release. Amendment 814 expands the grounds to make people eligible for compassionate release, now adding additional medical circumstances that require long-term care or complications from the COVID-19 pandemic, as well as if a defendant needs to return home to care for an incapacitated child or parent. Finally, it adds a new category for victims of abuse who are found to have been sexually assaulted by staff of the Federal Bureau of Prisons. All these factors can be considered when determining if compassionate release is appropriate.
Have reform efforts proven successful?
FWD.us also published promising statistics, demonstrating that criminal justice reform measures work and are backed by the numbers. Specifically, since 2009, the organization reports that there are 24 percent fewer people in prison. Further, FWD.us claims that without the reforms that have been put into place over the past 15 years, there would be more than 40 million additional people currently in prison or jail across the US. Overall, they also report that crime has dropped across the country, with states like California and New York experiencing a decrease in their overall crime rates. Notably, FWD.us reports that advocacy efforts and criminal justice reforms have caused the imprisonment rate of Black people to drop by 44 percent over the last 15 years. Due to these efforts, FWD.us claims that now, Black men are more likely to graduate from college than go to prison during their lifetime. Previously, one in three Black men were likely to end up in prison, but the statistic has now changed to one in five Black men. Yet, FWD.us and similar advocacy groups are still fighting to lower that number and end mass incarceration with more criminal justice reforms in the country at both the federal and state levels.
Ultimately, advocates still believe there is a long path ahead to end mass incarceration in the US, but different policy changes and advocacy at both local and federal governments have contributed to a reduction in mass incarceration.
Marissa Zupancic is JURIST’s Washington, DC Correspondent, a JURIST Senior Editor, and a 3L at the University of Pittsburgh School of Law. She’s stationed in Washington during her Semester in DC.
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