Reform of Policy on Race and Criminal Justice

"Zero tolerance" policing has been popular in the media. But there is little evidence that it has been responsible for much of the recent and welcome decline in crime. At the same time, zero tolerance has outraged much of the minority community.1

The shortcomings of "zero tolerance" illustrate deeper, more systematic problems. In particular, a major new study funded by the U.S. Department of Justice and six major foundations has documented racial bias across the juvenile justice system. Riots in Cincinnati have been the most recent reminder of African-American perceptions that police racially profile minority youth. Beyond racial profiling, the most basic problem in the criminal justice system is the racial bias in the mandatory minimum sentencing of persons involved with drugs. For example, sentences for crack cocaine, used disproportionately by minorities, are much harsher than sentences for powder cocaine, used disproportionately by whites. As one consequence, African Americans constitute fourteen percent of drug users nationally but represent thirty-five percent of drug arrests, fifty-five percent of drug convictions and seventy-five percent of prison admissions.2

Especially as a result of the mandatory minimum sentencing policy for drugs, we have more than quadrupled the number of prison cells in America since the 1980s. America now leads the world, with over two million incarcerated. The U.S. now has twenty five percent of the world's prisoners but only five percent of the world's population. Over the time that we quadrupled the number of prison cells, populated largely by the poor, we reduced by over eighty percent appropriations for housing the poor. Today the states collectively spend more on prison building than on higher education -- whereas twenty years ago the opposite was true. Prison building has become one of our leading housing and education policies for the poor.3

The racially biased justice system has filled the new cells disproportionately with minorities. For example, in the early 1990s, one out of every four young African-American men in America was in prison, on probation or on parole at any one time, according to the Sentencing Project in Washington, DC. That is a stunning statistic. Yet today and after a Presidential Commission on Race in the 1990s that did little in terms of practical policy impact, one out of every three young African-American men is in prison, on probation or on parole, at any one time in America. In big cities, the number is one out of every two. Similarly, we know from Professor Milton Friedman, the conservative economist, that the rate of incarceration of African-American men in America today is four times greater than the rate of incarceration of black men in pre-Mandela, apartheid South Africa. Nonetheless, the fastest growing group of male prison inmates consists of Latinos.4

At the same time, prison building has become a job generating, economic development policy for rural white Americans -- who send lobbyists with six figure incomes to Washington to fight for still more prisons, as part of the prison-industrial complex.5

Nonetheless, we know, based on some of the most prestigious American studies of prison building to date (for example, by a panel of the National Academy of Science), that the criminal justice response to crime is, at most, running in place. To illustrate, in spite of recent declines, rates of violent crime and fear were roughly the same in 1999 as in 1969, when the bipartisan National Commission on the Causes and Prevention of Violence released its final report.6

But what about those recent declines in crime? Haven't they occurred as prison building has surged? Since about 1993, F.B.I.-reported violent crime has gone down in many if not most big cities. What are the reasons, based on the best studies and evaluations available? Two leading (and interrelated) reasons have been the booming economy and the waning of the crack epidemic. Community-based nonprofit organizations appear to have been successful in some places, like Boston. The Brady Bill, which controlled access to handguns by ex-offenders, appeared to have a national impact. So did community-based, problem-oriented policing. Some of the decline in violent crime can in fact be explained by increased imprisonization (estimates are in the range of about five percent to about thirty percent). But the impact of prison building has been overstated by politicians and the media. And prison building is highly cost-ineffective, compared to other options. It costs more to go to jail than to Yale.7

Nor has the recent fad of boot camps been successful. Its failure has been documented well in studies by the University of Maryland that have been published by the United States Department of Justice, National Institute of Justice.8

Public opinion is not necessarily in sync with the harsh sentencing and prison building policies that have been enacted in the last fifteen years. A recent review of public opinion by the Sentencing Project concludes, "The public is largely supportive of alternative sentencing, particularly for nonviolent criminals, and...has a strong commitment to treatment and rehabilitation. Studies show that people appreciate the advantages of offering alternative sentencing options, and that they believe it creates a fair, more just system, one which allows judges to evaluate each offender individually." A 1995 study carried out by the National Opinion Survey on Crime and Justice showed fifty-four percent of the public favors spending on social and economic solutions to lower crime, compared to thirty-one percent endorsing more funding to the criminal justice system; the rest favoring more spending on both.9

New Commissions Are Needed

Two new commissions are needed -- one publicly funded, one privately supported -- to create a more constructive discourse on sentencing and prison policy. The commissions should propose how to eliminate the racial biases in our juvenile and criminal justice systems, especially when it comes to "zero tolerance" policing, racial profiling by police and mandatory minimum sentences for drug involvement. The commissions also need to rethink the "war on drugs." The much publicized D.A.R.E. program, based on the notion of "just say no," has failed.10 America spends thirty percent of its anti-drug resources on treatment and prevention and seventy percent on law enforcement. In many European countries, the percentages are just the opposite -- seventy percent on prevention and treatment and thirty percent on law enforcement. We need a better balance. The Administration has signaled interest in increasing prevention.11

We Should Replicate Success Now

But we can't wait for new commissions. We must begin action now. There are evaluated models of successful criminal justice reform that we should begin to replicate to scale. For law enforcement, opposite to and more successful than "zero tolerance" policing has been the more sensitive, community-based, problem-oriented policing in places like Boston; Columbia, SC; Dover, NH; and San Diego. In some of these places, after school youth safe havens run by nonprofit youth development organizations share the same space in public housing and schools with police ministations run by specially trained officers. For prison, one good model is the conservative state of Arizona. Arizona held a referendum on the high cost of prison building. Voters decided to begin to divert nonviolent offenders from the prison system into community treatment alternatives. An evaluation commissioned by the Supreme Court of the State of Arizona found recidivism rates for people so diverted to be lower than for persons not in the initiative. The evaluation concluded that a considerable amount of money had been saved for the taxpayers of Arizona. If Arizona can begin to move in this direction, then less conservative states, like California, can do the same. A referendum victory in 2000 directed California to do just that. Crucially, we must also remember that 400,000 to 500,000 persons are coming out of prison each year between 2001 and 2005. Studies have shown that the hurdles they face against getting jobs are staggering. We presently have few plans for educational and job preparation. That is why we need to replicate on a much broader scale models like the Delancey Street enterprise, begun in San Francisco over thirty years ago and replicated in Los Angeles, New Mexico, North Carolina and New York. Delancey Street is perhaps the premier American initiative for successfully reintegrating ex-offenders, engaging them in self-sustaining businesses that they run, and dramatically reducing their recidivism.12

Neither a majority in Congress nor the Administration have not come forth with a serious plan to eliminate mandatory sentences and reverse the explosion in prison building. There is some support within the Administration to actually accelerate prison building. However, the Administration has expressed some interest in eliminating the disparities between powder and crack cocaine. The Administration also is considering ways to rehabilitate prisoners -- and, we hope, replicate models like Delancey Street to a scale equal to the dimensions of the problem. A number of other criminal justice models, like youth safe havens combined with police ministations, have considerable bipartisan support in Congress, and so can be used as components in an Administration criminal justice reform package.13

The Administration has not yet supported major new handgun control initiatives, in spite of the evidence of success of the Brady Bill. In its thirty year update of the 1969 bipartisan National Commission on the Causes and Prevention of Violence, created by President Johnson and continued by President Nixon, the Foundation recommended more state-based and local-based initiatives against firearms; local alliances between city residents and more conservative "soccer mom" suburbanites in the wake of the killings of youth in our schools; litigation against firearms manufacturers; a national handgun licensing system; a federal ban on Saturday night specials; and federal regulation of firearms as consumer products.14



Notes and Sources

  1. Milton S. Eisenhower Foundation, To Establish Justice, To Insure Domestic Tranquility: A Thirty Year Update of the National Commission on the Causes and Prevention of Violence (Washington, DC: Milton S. Eisenhower Foundation, 1999). This publication is posted in its entirety under Publications. Also see Richard Moran, "New York Story: More Luck Than Policing," New York Times, February 9, 1997, p. C3.
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  2. Elliott Currie, Crime and Punishment in America (New York: Metropolitan Books, 1998); Washington Post, "Crack Sentences Revisited," Washington Post, May 5, 1997; Fox Butterfield, "Racial Disparities Seen As Pervasive in Juvenile Justice," New York Times, April 26, 2000, p. A1; Milton Freidman, "There's No Justice in the War on Drugs," New York Times, January 11, 1998; Norman Solomon, "Missing From The News: Dog Bites Man," TomPaine.commonsense; and Kevin Sack, "Despite Report After Report Unrest Endures in Cincinnati,"New York Times, April 16, 2001, p. A1.
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  3. Robert Suro, "More Is Spent on New Prisons Than Colleges," Washington Post, February 24, 1997; Beatrix Hamburg, "President's Report," Annual Report, 1996 (New York: William T. Grant Foundation, 1997); John Atlas and Peter Drier, A National Housing Agenda for the 1990s, (Washington, DC: National Housing Institute, 1992); Sentencing Project, Crime Rates and Incarceration: Are We Any Safer? (Washington, DC: Sentencing Project, l992); and Associated Press, "Record Number Held in Prison; State Rise Slows," New York Times, March 26, 2001, p. A12. .
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  4. Mark Mauer, Young Black Men and the Criminal Justice System (Washington, DC: Sentencing Project, 1990); Mark Mauer, Intended and Unintended Consequences: State Racial Disparities in Imprisonment (Washington, DC: Sentencing Project, 1997); Vivien Stern, The Future of A Sin (Boston; Northeastern University Press, 1998); and Milton Freidman, "There's No Justice in the War on Drugs," New York Times, January 11, 1998.
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  5. James Brooke, "Prisons: Growth Industry for Some," New York Times, November 2, 1997; Steven R. Donziger, The Real War on Crime: Report of the National Criminal Justice Commission (New York: Harper Collins, 1996).
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  6. Jeffrey A. Roth, "Understanding and Preventing Violence," in Research in Brief (Washington, DC: National Institute of Justice, 1994); Richard A. Mendel, Prevention or Pork? A Hard Look at Youth-Oriented Anti-Crime Programs (Washington, DC: American Youth Policy Forum, 1995); Milton S. Eisenhower Foundation, To Establish Justice, To Insure Domestic Tranquility: A Thirty Year Update of the National Commission on the Causes and Prevention of Violence (Washington, DC: Milton S. Eisenhower Foundation, 1999). The last publication is posted in its entirety under Publications.
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  7. Timothy Egan, "Less Crime, More Criminals," New York Times, March 7, 1999, p.1; Milton S. Eisenhower Foundation, To Establish Justice, To Insure Domestic Tranquility: A Thirty Year Update of the National Commission on the Causes and Prevention of Violence (Washington, DC: Milton S. Eisenhower Foundation, 1999); Alfred Blumstein and Joel Wallman, editors, The Crime Drop in America (Cambridge: Cambridge University Press, 2000); Jared Bernstein and Ellen Houston, Crime and Work: What Can We Learn From the Low Wage Labor Market (Washington, DC: Economic Policy Institute, 2000). The Eisenhower Foundation report is published in its entirety under Publications.
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  8. Doris L. MacKenzie and Clair Souryal, Multiple Evaluation of Shock Incarceration (Washington, DC: National Institute of Justice, 1994).
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  9. The Sentencing Project, "Crime, Punishment and Public Opinion," Washington, DC: February, 2001.
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  10. Kendra Wright, "D.A.R.E. To Rethink Drug Prevention," TomPaine.commonsense; Kate Zernike, "Anti Drug Program Says It Will Adopt a New Strategy," New York Times, February 15, 2001, p. A1.
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  11. Joseph A. Califano, Jr., "Crime and Punishments - And Treatment, Too," Washington Post, February 8, 1998; Joseph A. Califano, Jr., "A Turning Point on Drugs," Washington Post, March 13, 2001.
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  12. Milton S. Eisenhower Foundation: Youth Investment and Police Mentoring (Washington, DC: Milton S. Eisenhower Foundation, 2001). This publication is posted in its entirety under Publications. Also see Christopher Wren, "Arizona Finds Cost Savings In Treating Drug Offenders," New York Times, April 21, 1999, p. A16; Vince Stehle, "Vistas of Endless Possibility: Delancey Street Foundation Helps Felons and Addicts Rehabilitate Themselves into Responsible Citizens," Chronicle of Philanthropy, November 2, 1995, p. 59; Washington Post, "The Campaign's Missing Issues," Washington Post, October 10, 2000; and Peter D. Kilborn, "Flood of Ex-Convicts Finds Job Market Tight" New York Times, March 15, 2001, p. A16.
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  13. Dana Milbank: "Bush Courts Voters Who Rejected Him," Washington Post, January 26, 2001, p. A1; Eric Pianin and Glenn Kessler, "Bush Is Aiming To Cut Spending," Washington Post, January 10, 2001, p. A1; and William Raspberry, "Bush: The Real Deal on Sentencing Reform?" Washington Post, February 19, 2000, p. A33.
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  14. See Milton S. Eisenhower Foundation, To Establish Justice, To Insure Domestic Tranquility: A Thirty Year Update of the National Commission on the Causes and Prevention of Violence (Washington, DC: Milton S. Eisenhower, 1999). This publication is posted in its entirety under Publications.
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