Excerpted From: Olinda Moyd, The Slow Drip of Decarceration: Reversing the Flood of Mass Incarceration and its Racist Impact, University of Maryland Law Journal of Race, Religion, Gender and Class 211 (Fall, 2023) (546 Footnotes) (Full Document)

OlindaMoydRacism has permeated every facet of American life, but it is most remarkable when studying the number of African American men and women herded down the path to incarceration in our country. While African Americans only make up a small fraction of the general U.S. population, we consistently comprise a much higher percentage of persons caged in our jails and prisons. According to the Pew Research Center, “In 2021, there were an estimated 47.2 million people who self-identified as [African American], making up 14.2 percent of the country's population.” The Bureau of Justice Statistics reported in 2021 that the rate of incarceration for African American adults was 1,850 per 100,000, while it was 410 per 100,000 for white adults. “[African Americans] are incarcerated in state prisons at nearly five times the rate of white Americans.” In some states, the contrast between the numbers of African Americans in the general population, as compared to those who are in prison, is even more astonishing. For instance, in Wisconsin, which “leads the nation in [African American] imprisonment[,] one of every [thirty-six African American] Wisconsinites is in prison.” In 2020, African American individuals made up forty-two percent of the total prison population in Wisconsin. In the same year in the same state, African American people made up only 6.4 percent of the total population. “In [twelve] states, more than half the prison population is [African American] ....” In most states, prisoners come from racially segregated and disadvantaged communities.

Incarceration rates in the United States are unprecedented. In 2021, the custody counts of adults in state and federal prisons and local jails was estimated to be 1,767,200 with 171,600 in federal prisons, 959,300 in state prisons, and 636,300 in local jails. It is important to note that it is not just state and federal prisons and jails where people are incarcerated; people are often kept in hidden places like private prisons (contracted to house state and federal prisoners), juvenile correctional facilities, immigration detention centers, and Indian country jails. Beginning in the early 1970's until recent years, the United States' prison population grew by an average of 5.8 percent each year. At the close of the Twentieth Century, U.S. prison populations ballooned to 1,933,503 in 2000, nearly six times the incarcerated population two decades prior. This exponential “prison boom,” a product of the “law and order” and “super predator” political rhetoric which expanded through the 1990s, has resulted in the incarceration of thousands of people of color from poor communities who were sentenced to serve decades in prison. This rhetoric was initiated with Barry Goldwater in 1964, and gained traction through the Nixon, Reagan, and Clinton administrations. Even former Texas Governor, Ann Richards, who was a liberal democrat, bragged during her reelection against George W. Bush in 1994 about having added 75,000 prison beds. People of color, particularly African American men, are disproportionately represented in our incarceration rates. Hence, mass incarceration has been titled “the New Jim Crow,” reminiscent of a time when laws were put in place to enforce racial segregation and oppress formerly enslaved people. America has spent over a trillion dollars waging its war on drugs since President Richard Nixon initially launched this campaign over fifty years ago. This policy, which has continued through today, has not made a significant dent in America's drug problem. But such policies only serve to contribute to the erosion of protection for individual liberties that has resulted from “tough on crime” reforms, including giving law enforcement authority to impose no-knock warrants and odor searches, and requiring that judges adhere to strict mandatory minimum sentencing instructions. The overreliance on incarceration in order to achieve or maintain public safety has been a mere ruse.

Despite the valiant efforts of zealous legal practitioners, jail-house lawyers, and people filing pro se, only a small fraction of men and women have actually been released from the clutches of mass incarceration and gained their freedom, slowly dripping out of the tightly turned faucet. Decreasing the number of people in our prisons is a racial justice issue and every piece of artillery must be utilized to right the wrongs and reverse the decades of harm inflicted by mass incarceration. “[B]etween 1972 and 2009, the prison population grew an average of 5.8% annually.” Comparatively, the pace of decarceration has been less than half the rate of growth - averaging only 2.3 percent each year. We are getting people out of prison at an appallingly slower pace than we incarcerated them. Whether by fighting for freedom at administrative hearings before paroling authorities, before the courts through the filing of clemency and juvenile lifer petitions, or by seeking clemency from our elected officials (governors and the president), our criminal legal system must reverse course to decrease mass incarceration in order to achieve racial justice and heal communities. Many decision-makers often perceive people of color as more threatening and dangerous than white people and these decision-makers are often convinced that young African American men are chronic offenders, do not respond to treatment, and are more likely to recidivate. These implicit biases seep into the decision-making process when determining who is granted a second chance at release and allowed to return home versus who is left to linger behind prison walls. The impact of excessive incarceration on African American families is particularly severe. It is estimated that approximately sixty-three percent of African American adults “have had an immediate family member incarcerated and nearly one-third (31%) have had an immediate family member incarcerated for more than one year.”

People who are fighting for liberation through the avenues discussed here - compassionate release, grants of clemency, juvenile lifer sentence reductions, or parole releases - wrestle with the reality that these forms of relief are often illusive and unobtainable. This article examines these realities.

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After the civil war, the color of prisons in America has changed from white to Black. African Americans continue to be disproportionately overrepresented in our criminal legal system and the speed with which individuals are released is deliberate and measured. The ripple effects of this nation's pseudo wars and initiatives, including the 1968 Omnibus Crime Control and Safe Streets Act, the war on drugs, the 1994 Crime Bill and mandatory sentencing schemes have served only to flood our prisons with people of color. Righting these wrongs through the mechanisms currently available are mere drops in the bottomless bucket, but impactful, nonetheless.

Our criminal legal system must make meaningful all avenues of relief to every deserving individual and correct centuries of race-based disproportionate harm. Compassionate release must be afforded to elderly and dying incarcerated individuals and not thwarted by confusing and convoluted statutes that make them ineffective. Politics must not be allowed to sidetrack opportunities for meaningful clemency releases based on notoriety or celebrity status. Not only must we abandon the tradition of sentencing children to die in prison, but we must also allow every person sentenced as a child to get back in court to demonstrate maturity, transformation, and rehabilitation. Parole considerations must incorporate greater due process and less bias in decision-making. Practices must change and all newly enacted criminal justice policies must be accompanied by a racial impact analysis. These are critical steps to redirect the tide of mass incarceration and speed up the painfully slow drip of decarceration. The speed with which we liberate eligible people from prison cells must be greater than, or at least equivalent to, the flood that sent them there in the first place.

Distinguished Practitioner in Residence and Director of the Decarceration and Re-Entry Clinic, American University Washington College of Law (AUWCL); and a social justice champion who has dedicated my career to disrupting the machinery of mass incarceration and freeing people from the carceral state.