With Liberty and Justice for Some (27 page)

Hall’s case is not the only appalling story to come out recently from Virginia. In 2007, Elisa Kelly and her then-husband, George Robinson, threw a birthday party at their southern Virginia home for Kelly’s sixteen-year-old son and his friends of the same age. The couple provided beer and wine for the party, and Kelly collected keys from all guests when they arrived to ensure that they could not drive until the next morning. None of the teens left the party and nobody was injured, but a neighbor called the police and reported underage drinking.

Kelly and Robinson were convicted of nine misdemeanor counts of contributing to the delinquency of a minor (one count for each minor who drank at the party) and were each sentenced to eight years in prison. On appeal, the sentences were reduced to twenty-seven months, but no further. The Virginia Supreme Court refused to hear the case, and the couple began serving their prison terms that June.

Moving a little farther south, we find the case of Roy Brown, a fifty-four-year-old African American homeless man who lived on the street in Shreveport, Louisiana. In December 2007, Brown walked into a Capital One bank branch, put his finger inside his jacket, pointed it at a teller, and told her that this was a robbery. She handed him three stacks of bills, but he took only a single one-hundred-dollar bill and gave the rest back to her.

The next day, feeling remorseful, Brown turned himself in to the local police. According to a local Shreveport newspaper, he “told the police he needed the money to stay at the detox center and had no other place to stay and was hungry.” He pled guilty in a Caddo County district court to a single count of first-degree robbery and was sentenced to fifteen years in prison—fifteen years, for the unarmed theft of a single one-hundred-dollar bill.

Some episodes make it particularly clear that such lack of mercy has little to do with notions of deterrence or justice but is simply driven by a desire to punish. In 2005, Genarlow Wilson, a seventeen-year-old African American boy in Atlanta—an honor student and homecoming king—was arrested for having engaged in consensual oral sex (but not intercourse) with a girl two years younger than he. Under Georgia law, a fifteen-year-old is underage, and neither her consent nor the minimal age difference between the perpetrator and victim could be taken into account. Wilson repeatedly refused to plead guilty and accept a five-year prison term. When the case went to trial, he was convicted of aggravated child molestation—“aggravated” because oral sex was involved, not because of any coercion—and sentenced to ten years in prison. As a convicted sex offender, he was ineligible for parole. Moreover, the sex offender status carried with it lifelong penalties, including registry requirements and a ban on contact with his younger sister.

Wilson insisted that he had done nothing wrong and vowed to appeal his conviction and sentence. Twice, the Georgia Supreme Court refused to hear his appeal, leaving him in prison. In 2007, after Wilson’s sentencing, the Georgia state legislature changed the state’s molestation law so that any minor convicted of molestation would be guilty only of a misdemeanor and subject to just a one-year sentence. But with Wilson in mind, the legislature explicitly included a provision stating that the change would not be retroactive.

Despite that provision, the new law did prompt a state court judge to grant Wilson’s habeas corpus petition. By a 4–3 vote, the Georgia Supreme Court held that in light of the revised law Wilson’s sentence constituted “cruel and unusual punishment,” and ordered him released. Only a single vote of the court spared Wilson from another eight years in prison.

The Second Tier

So why do Americans tolerate such a draconian legal system, one which imprisons exceptionally large numbers of people for no good reason? The answer is clear: because most people believe—correctly—that they themselves are unlikely to be sucked into its vortex. They are right to believe this because the two-tiered justice system that separates elites from ordinary Americans intensifies as one moves down the rungs of power and privilege. The rich and powerful are able to commit crimes with impunity far more easily than middle-class Americans; but similarly, middle-class criminals are far more likely to escape unpunished than the poorest among us. This is how the JFA Institute report put it.

By imposing the brunt of criminal punishment on the most powerless and marginalized groups, the legal system ensures that people who suffer the most from its injustices are the ones least able to subvert it. Many Americans acquiesce to the prison state because neither they nor their families nor their friends are at risk. That’s what allows the population to largely tolerate and even cheer for a system that imposes extreme punishments for the pettiest offenses. Only a person with little power, money, or status is likely to feel the full brunt of America’s harshest laws. Indeed, given the severity of its provisions, the contemporary American criminal justice system would be unsustainable if it were applied with equity across the population.

One of the ugliest and most toxic aspects of the multitiered approach to justice is that those who suffer the most from it are, in extreme disproportion, racial minorities. In 1997, the government’s Bureau of Justice Statistics found that “about 9% of the black population in the U.S. was under some form of correctional supervision compared to 2% of the white population and over 1% of other races.” This represented a 42 percent increase for whites and 57 percent for blacks since 1986. Tracking the period beginning with the middle of the Reagan presidency and ending in the middle of Clinton’s, the accompanying chart from the Bureau of Justice Statistics starkly highlights the disparate growth in the correctional population.

And that trend has continued through the recent years. The JFA Institute’s 2007 report details that incarceration rates for blacks and Latinos are now more than six times higher than for whites; as a result, 60 percent of America’s prison population is either African American or Latino. One out of every twelve working-age African American males languishes in prison; 21 percent of those between twenty-five and forty-four years old have been imprisoned at some point. At current rates, one in seventeen white males, one in six Latino males, and one-third of all black males will go to prison during their lifetimes.

Putting someone in prison for a prolonged period, even when justified, devastates not only that person’s life but also the lives of their families, especially their children. Growing up with a parent in prison is itself a predictor of later criminality. In other words, the very policies America has been implementing in the name of fighting crime—ever-longer and more unyielding prison sentences—play a leading role in perpetuating the cycle of crime. And here, too, the burden falls particularly severely on communities of color. As Radley Balko noted in
Reason
magazine, in 1985 “one in every 125 American children had a parent behind bars. Today [in 2008] it’s one in 28. For black children, it’s one in nine, a fourfold increase during the last 25 years.”

Multiple, complex factors contribute to this racial disparity, but it is clear that America’s harsh laws and the unequal enforcement of them play a large role. And at the heart of the racial inequality lies America’s failed “war on drugs.”

Overall, the growth in drug-related incarcerations has been astronomical. In 1980, 19,000 people were under the jurisdiction of state correctional authorities for drug offenses; by 2006, the number was 265,800—a fourteenfold increase in just twenty-six years. By contrast, for the same period, the number of violent offenders increased only threefold. American jails and prisons are bulging in large part because of the vast number of people incarcerated for nonviolent drug offenses. Beckett and Sasson summarize the grim reality as follows:

The government’s own chart (below) highlights the steep and continuous climb in drug-related arrests.

But it is the racial aspect of the drug war—the undeniable fact that minorities are arrested, prosecuted, and imprisoned at far greater rates than white offenders—that ought to be the greatest source of national shame. America’s drug policy is one of the most profound betrayals of the founding principle of equality before the law. Government statistics compiled by the law professor Ilya Somin show that, as of 2008, “over 62% of incarcerated nonviolent drug offenders are black (most of them poor black males).” And there’s no question that this disparity is the result of drug laws and enforcement that are implicitly—and sometimes overtly—race-based.

Different sentences for possession of identical amounts of cocaine—dictated by whether the drug is in the form of crack or powder cocaine—have been among the most significant contributors to the racially imbalanced incarceration rate. In the 1980s, crack was a drug used disproportionately by racial minorities and the very poor, for the simple reason that it was cheap. Cocaine in powder form, far more expensive, was the choice of America’s middle-class, young white suburbanites and budding Wall Street tycoons. Even though both substances are forms of the same drug, both the 1986 and 1988 versions of the Anti-Drug Abuse Act imposed drastically higher punishments for dealing and possession of crack than of powder cocaine—an unequal penalty scheme which provoked little objection from those with a public platform.

According to the Sentencing Project, the mandatory penalties for possession of crack cocaine were “the harshest ever adopted for low level drug offenses.” The trigger point for severe sentences for powder cocaine possession, by contrast, was a hundred times higher.

Predictably, the vastly harsher sentencing rules for crack resulted in vastly higher rates of incarceration for minority drug users and dealers than for their white counterparts. In 2010, Congress finally reduced the crack/powder cocaine sentencing disparity, changing the 100:1 ratio to 18:1. Even the new sentencing rules are a far cry from eliminating the difference entirely, however. What’s more, the new statute prohibits retroactive application, which means that all accused crack offenders whose cases were pending when the law was enacted will still be subject to the 100:1 disparity and oppressive, mandatory prison terms.

The racially discriminatory impact of America’s drug war is also due to variations in the way that drug laws are enforced. Government data demonstrate that overall drug usage rates are similar among all racial and ethnic groups. Even with the relative popularity of crack among blacks, two-thirds of crack cocaine users in the United States are white or Hispanic. Yet according to the U.S. Sentencing Commission, over 80 percent of defendants accused of crack-related crimes—possession or dealing—in 2006 were African American. The Sentencing Project describes the effect that this has on prison populations.