The Problem of Mass Incarceration

Content Background

The purpose of this unit is to have students learn about and form an opinion on an aspect of mass incarceration and then eventually work toward an action plan to address it.  This extremely broad topic needs to be focused and narrowed so that students aren’t overwhelmed.  A useful tool to complete this edit is Frost, Clear, and Monteiro’s “Six (Not-So) Radical Policies for Rapid Decarceration” found in the book Decarcerating America.  These policies include: “Don’t Send People to Prison for Drug Crimes,” “Eliminate Mandatory Sentences,” Bring Down the Length of All Sentences,” Reduce or Eliminate Recidivism Enhancements,” “Age Should Matter and All Criminal Records Should Expire,” and “Stop Returning People to Prison for Technical Violations.”¹  Of their six proposed policies, this unit will focus on the first three: alternatives to prison for drug crimes, eliminating mandatory minimum sentences, and reducing sentence length to promote reentering society. 

The selection of these particular three proposals is based on local observations.  The Vera Center on Sentencing and Corrections was commissioned by Tulsa County to evaluate the reasons behind the inmate population growth and overcrowding at the Tulsa County jail and they arrived at six similar recommendations.  Their list includes reducing admissions and lengths of stay for lower-level charges, reducing unnecessary pretrial incarceration, creating an individualized pretrial release process that is not based on one’s ability to pay bail, reducing lengths of stay by expediting simpler cases and identifying and reducing unnecessary case processing delays, ensuring that incarceration alternatives and diversion programs are accessible, reducing admissions for failures to pay and applications to accelerate and revoke, and expanding oversight and accountability.²

All these aspects of mass incarceration can be traced to a specific time in U.S. history.  In 1964, Barry Goldwater’s speech accepting his RNC nomination for presidential candidate explicitly focused on crime and disorder, and this speech is commonly credited with triggering the “war on crime” and the subsequent events that led to our current epidemic of mass incarceration.  While Goldwater ultimately lost to Lyndon B. Johnson, Goldwater’s message to focus on criminal justice reform resonated across a nation that felt plagued by crime.  President Johnson’s takeaway from Sen. Goldwater’s nomination acceptance speech was that America wanted a tougher stance on crime, so after his election he appointed a blue-ribbon commission in 1965 to understand the causes of crime and how the nation should best respond to it. ³

Part of the commission’s charge was to complete a core study on crime, which was divided into seven sections: “preventing crime, attempting to rehabilitate offenders, eliminating unfairness in the justice system, training police and other personnel better, expanding research on crime, spending more money on the justice apparatus, and [citizens] getting more [involved in producing change].”⁴  The results of this 1967 core study on crime had many positive implications that we take for granted today, including the creation of a national 911 call system and a juvenile court that is separate from the adult court system, but it also heralded the beginning of the uptick in mass incarceration.  It is logical, then, that this unit would draw from the study’s findings to attempt to end mass incarceration.  Students will use contemporary crime statistics and research to generate new ideas to help rehabilitate offenders and eliminate unfairness in the justice system, which honors the core study’s original underlying philosophy that responsibility for change belongs to us all.  First, though, students need to understand why these entities all want to focus on prison alternatives for drug crimes, eliminating mandatory minimum sentences, and reducing overall sentence length to promote a smoother transition back into society.

Prison Alternative for Drug Crimes

The first of these three proposed policies is to provide options other than prison for those accused and/or convicted of drug crimes. There is no personal or societal benefit to putting a person in prison for drug issues; in fact, there are really only negative outcomes.  The person is not put in a position to get clean and free of their problematic substance, and the person must endure incarceration and its negative after-effects once they are released.  Susan Burton, now founder and executive director of A New Way of Life in Los Angeles, turned to drugs for comfort after the sudden and tragic death of her young son.  She cycled in and out of prison six times for the better part of two decades for possession.  As she notes in her memoir, “You’d think someone in the system might have gotten the bright idea that I needed drug treatment, that I needed therapy.  But I was never offered help, and I didn’t know how to ask for it because I didn’t know what to ask for.”⁵  It would be difficult to argue the position that prison didn’t hurt Ms. Burton, and nearly impossible to argue that it helped her. 

Ms. Burton’s story isn’t unique, and in fact, hers is one example of the larger issue of a distinct gender disparity in drug convictions.  While women are less likely to have a charge involving violence than men are, women are 10% more likely to have a charge involving drugs.⁶  In his book Locking Up Our Own, James Forman, describing his time as a public defender in Washington, D.C., describes the situation of Tasha Willis, a client who sold a small amount of heroin to an undercover officer to support her habit.  Her story of addiction mimics those of so many in the U.S.: she suffered an on-the-job back injury that led to a dependence on opioids that evolved into a heroin addiction.  The prosecutor in her case felt that despite the research on the variety and refinements of treatment types usually required before a person is “clean” and ready to fully enter society,⁷ Ms. Willis’s one unsuccessful attempt meant that she needed prison instead of a second chance to get sober.⁸  Certainly a more human-centered approach is called for, in order to best help Ms. Burton, Ms. Willis, and countless others in similar situations.

Michelle Alexander, in her book The New Jim Crow, offers a useful suggestion: “Referring a defendant to treatment, rather than sending him or her to prison, may well be the most prudent choice--saving government resources and potentially saving the defendant from a lifetime of addiction.”⁹  In Tulsa, one such an alternative opened in May 2018.  In the Sobering Center, a modern, humanized version of old-time “drunk tanks,” a person who is detained by a police officer for public intoxication (and no other crimes) can choose to go to the Sobering Center for a minimum of 10 hours to be held in a safe, clean place while they recover.  While there, counseling is available, and information about rehabilitation services with 12 & 12 can begin immediately if the person so chooses.  Either way, the person is released at the end of the holding time without having any criminal charges filed, or a record of arrest; furthermore, the person can also choose confidentiality while there.  They are then either picked up, released with a cab token, or are released to a homeless shelter if needed.  The Sobering Center aims to reduce the jail burden and police time and expenses previously associated with arresting these people.¹⁰  In its first year of operation, the Sobering Center housed 767 people, only 47 of whom visited twice.  Seventy-three people chose to attend detox treatment after their stay, and 32 of those completed treatment.  Both Tulsa’s mayor and deputy police chief have expressed their encouragement at finding an alternative to sending these people to prison.¹¹

The homeless population is particularly vulnerable to drug abuse, which is why it is in the Sobering Center’s release plan and partly why Tulsa’s mayor G.T. Bynum made reducing Tulsa’s homeless population a priority when he took office in 2016.  The National Coalition for the Homeless notes that “substance abuse is much more common among homeless people than in the general population,” and that it is “both a cause and a result of homelessness.”¹²  To help solve this problem, A Way Home for Tulsa (AWH4T) opened in January 2015 with a mission to prevent and end homelessness in Tulsa.  As of July 2019, they have housed 1,185 different individuals including 333 chronically homeless and 863 veterans.  AWH4T has also surveyed many homeless and housing insecure individuals and found a circular relationship between this group and those who are incarcerated.¹³  By assisting the homeless population and reducing it, the incarcerated rate in the Tulsa area due to intoxication and drug charges should follow suit.  It is heartening that Tulsa is beginning to look at different ways of countering drug use and its context, rather than automatically sending people to prison.

Eliminating Mandatory Minimums

The second of the three proposed policies this unit will focus on is eliminating mandatory minimum sentences. The dilemma faced by Tasha Willis was made possible by harsh sentencing laws that had been enacted in Washington, D.C. in 1982.  Initiative 9 was a mandatory sentencing proposal that focused specifically on firearms and drugs, and it paved the way for “tough on crime” mandatory minimum sentencing laws across the nation.^{14, 15}  History has shown that mandatory minimums did not alleviate crime at all.  Frost, Clear, and Monteiro note that they don’t deter crime either. In fact, “swift and certain sanctions rather than severe ones” are much more effective than waiting until the sentencing phase of the justice system.¹⁶  Instead of mandatory minimum sentences, there needs to be a focus on shorter sentences and reentering society.  The public agrees with this sentiment as well.  A recent PEW poll revealed that citizens now believe that we not only have too many people in prison, we spend too much money incarcerating them.  Further, respondents said they wanted to divert people to programs rather than prison, and wanted to reduce prison time.¹⁷

Judges support the elimination of mandatory minimum sentences, as well.  Alexander (2012) recounts the opinions of several judges, even those who self-identify as handing down harsh sentences, who believe that mandatory sentencing laws are tantamount to cruel and unusual punishment.  She even identifies several judges who refused to continue to hear drug cases, and a few who went as far as to quit the bench in protest of enforcing what they believed were unjust laws.¹⁸

The state of Oklahoma is in the midst of taking a bold step towards eliminating mandatory minimum sentences and reducing sentence length.  State Question 780 circulated via petition in 2016 and was passed by voters with its sister bill SQ 781 in early 2017.  SQ 780 raised the threshold of cost of certain property offenses to qualify as felonies and converted several simple drug possession charges from felonies to misdemeanors, eliminating several mandatory minimum sentence requirements that had been enacted in the wake of Washington D.C.’s Initiative 9 in 1982.  Its companion bill SQ 781 took the savings created by SQ 780 and split the money to counties (according to population) with the money to be used for counseling programs, etc.¹⁹  In a rather surprising move in a state that relishes its “tough on crime” stance, in 2018 House Bill 1269 was proposed, which made SQ 780 retroactive through record expungement.²⁰  Gov. Stitt signed this bill into law in May 2019 and will become effective November 1, 2019. There has of course been some push-back regarding requiring relatively expensive expungement, and the process is much slower than it could and should be, but this bill has had a positive reception all across the state and is perceived to be a step in the right direction of eliminating mandatory minimums.²¹

Reducing Prison Sentence Length

The third of the proposed policies aims to reduce overall prison sentence length, with a focus instead on strategies to reduce recidivism via interventions and transition programs.  Alexander (2012) notes that “a lengthy prison term may increase the odds that reentry will extremely difficult, leading to relapse, and re-imprisonment.”²²  In any discussion about the impacts of sentence length, however, there is an ever-present gender element, due to women’s disproportionate role in taking care of others and their unique physical and medical needs. 

Since there are fewer incarcerated women than incarcerated men, there are fewer facilities to house them.  This makes sense--you wouldn’t want to have more facilities for women than men if there are fewer of them.  An unfortunate consequence is that many women have to serve their sentences far from home, and they will have difficulty maintaining contact with their families as a result.²³  More than half of incarcerated women were living with their minor children when they were arrested, and many of them were single mothers.^{24, 25}  The imposed physical distance between the incarcerated mother and her child(ren) poses a significant effect on the children who are left behind that can be very traumatic for both them and their incarcerated mother.²⁶

The Human Rights Watch issued a report in 1991 outlining their recommendations to ensure that prisoners are treated humanely and that they do not leave prison more dangerous than when they entered.  Among these recommendations are calls to make sure that prisoners maintain bonds with family while they are incarcerated; they suggest doing this by ensuring access to phones, visitors, furloughs (when possible), and confinement as close to home as possible.  These recommendations also help reduce the chances that those who leave prison are not reincarcerated.²⁷

Minor children aren’t the only ones impacted when women are incarcerated.  Women are also more likely to be caregivers for older family members as well, and incarceration risks disrupting their care.  Tasha Willis, the woman who sold heroin to an undercover officer, was willing to plead guilty but was adamant that she couldn’t accept the prosecution’s proposed plea deal of five years in prison, saying she couldn’t leave her mom for that long.²⁸  This concern brings the forefront the questions of who is truly being punished when we incarcerate someone, and exactly what justice is being served?

While Tulsa Public Schools does not keep data on how many students have or had a parent who is incarcerated, nationwide data shows us that in 2008--years before Oklahoma worked its way into the record books--2.7 million students had at least one parent who was incarcerated.  This translated to one in every 28 children, or 3.8%.  The numbers are more devastating for Black children.  The same study showed that one in 9 children had an incarcerated parent, a number that had more than quadrupled over the previous 25 years.²⁹  Several students have privately disclosed that they have a parent who is incarcerated, and most of the time it is their mother, and it is usually for drug-related issues.  I hope that when seeing the statistics for women who are incarcerated, students feel comfortable personalizing the numbers and are interested in learning more about an issue that impacts them so intimately.

Women also have unique issues and needs, including pregnancy and menopause, and have more likely to have experienced abuse, trauma, substance abuse disorders, as well as mental health problems.  Our penal system was not built to accommodate these needs.³⁰ 

Oklahoma Governor Kevin Stitt took office in January 2019, and there was optimism for stemming mass incarceration, particularly pertaining to women, built into his inauguration speech.  In it, he shared the personal struggles and triumphs of Rhonda Bear, founder and program director for Women in Transition in Claremore, Oklahoma.  She runs a halfway house program that offers women employment in She Brews, a local coffeehouse created to assist women in transitioning back to society after being incarcerated or recovering from drug addiction.³¹  Since her release from prison, Ms. Bear has been a vocal advocate for reducing the length of prison sentences for women convicted of non-violent crimes so that they can reintegrate into society more effectively.³²  The story of Susan Burton’s incarceration and founding of A New Way of Life in Los Angeles is very similar to Ms. Bear’s.  What started as a safe home for women in South Los Angeles after their release has grown and expanded into the Sisterhood Alliance for Freedom and Equality (SAFE) Housing Network, which has homes in New York and at Cal State-Fullerton, as well as free legal clinics, policy and rights advocacy, as well as leadership training and grassroots organizing.³³  Both Ms. Bear and Ms. Burton are working to reduce recidivism by empowering women to make positive changes in their lives. 

There are also more direct approaches that can be taken to reduce recidivism.  A Serious and Violent Offender Reentry Initiative (SVORI) Program was evaluated for effectiveness, and it was found that their “Reentry” participants were less likely to return for new convictions than those who did not participate in the program in conjunction with their release.  This SVORI Program began when the participant had a year to eighteen months left in their sentence with substance abuse counseling and workforce development programs.  Once the participant was released from prison, they had a team of community providers that helped them transition back into society and was complete with a kind of graduation ceremony for those who completed the year-long program.³⁴  These suggestions, along with Frost, Clear, and Monteiro’s Policy of not returning people to prison for technical violations would be a big step towards helping people smoothly reenter society less likely to be incarcerated again.³⁵ 

Prison Statistics vs. Population Statistics

The three policies listed above that are adopted from Decarcerating America--not sending people to prison for drug crimes, eliminating mandatory minimum sentences, and reducing the length of all sentences--are focused on changing what happens in the future.  In order to effectively enact any of these changes, though, a clear understanding is needed of problems and inequities endemic to our current criminal justice system.

According to the Prison Policy Initiative, for every 100,000 people in Oklahoma, 1,079 of them are currently incarcerated, which means there are 43,000 people currently in some level of jail or prison.  The Prison Policy Initiative notes that this rate far outpaces several notoriously authoritarian regimes, countries that have had serious internal armed conflicts, and countries with murder rates that more than double ours.^{36, 37}  Pettit and Western assert that the six-fold increase in the national penal population between 1972 and 2000 had the effect of making prison seem like “a normal part of the early adulthood”, and with such outrageous penal statistics, it can certainly feel that way in Oklahoma.³⁸

The increase in Tulsa County incarceration rates are similar to that found in Oklahoma as a whole.  The per capita jail incarceration rate of county residents aged 15 to 64 at David L. Moss Criminal Justice Center increased by nearly 200 percent from 1970 to 2016, and has grown 43 percent since 1999, when the current county jail opened. The Vera Center report attributed this growth to the expanded use of pretrial detention and to the practice of incarcerating people in jail while their case is proceeding in court, before any conviction or sentence, as being primarily responsible for this increase. They linked this to the fact that Tulsa’s pretrial jail incarceration rate increased 70 percent from 1999 to 2014, and has continued to increase even since then.³⁹

When discussing the how many and who are incarcerated, it is impossible to ignore the proverbial elephant in the room: there is a significant ethnic/racial disparity among those who are incarcerated.  Theoretically, the general population ethnic/racial breakdown of Oklahoma’s nearly four million residents should be similar to the breakdown of the incarcerated population, but that’s not the case.  As can be seen in the chart below, to mirror the state’s demographics, there should be significantly more White people incarcerated and fewer Hispanic people.  Most notably though, Black people are nearly three times more represented in the penal system than the state as a whole.  I hope that when my students see this data, they are curious about what they see.  I anticipate them asking why this racial disparity exists, as well as how long it’s existed and if these disparities exist in other places.

This table compares the racial/ethnic makeup of incarcerated people in Oklahoma to the racial/ethnic makeup of the overall population of Oklahoma.

Source: 2010 U.S. Census

Female Incarceration

Another question I anticipate students asking when they see the percentages above is whether the percentages reflect males, females, or both.  While the numbers are indeed for the whole population, unfortunately for Oklahoma, the state has been notorious for its proportion of female prisoners as well, and for a much longer period of time.  The population of female prisoners in Oklahoma rose more than 20% between 1995 and 2001 and has been the highest in the United States since then.⁴⁰  While it is difficult to obtain true data on women prisoners due to inconsistencies among various reporting agencies, it is estimated that there are approximately 281 women incarcerated for every 100,000 women in Oklahoma.  This is more than double the 133 average rate for the United States and is higher than every other country, including El Salvador, a country that still routinely imprisons women for having a miscarriage.^{41, 42}  Precise Tulsa County jail numbers are easier to find.  According to the Vera Center on Sentencing and Corrections, in 1970, there was an average of eight women in the [Tulsa County] jail on any given day; by 2016, that number had climbed to 280, an overall increase of 3,400 percent.”⁴³

Female imprisonment in the U.S. has been very high for over twenty years.  In 1980, there were roughly 12,000 women incarcerated, and by 1999 that number had ballooned seven-and-a-half times to over 90,000.  By 2003, the U.S. held up to ten times the number of women prisoners in all of Western Europe combined.⁴⁴  Similar to the men’s incarceration rate, there is a racial disparity in women’s incarceration.  There are nearly twice as many Hispanic women and nearly three times as many Black women incarcerated as White women.⁴⁵

No solution to the problem of mass incarceration can be proposed or enacted without considering how race/ethnicity and gender disparities will be affected.  Further, it needs to be acknowledged that these problems took a long time to reach their current proportions, and will therefore require considerable time and dedication to solve them.  Stephanie Horten, director of Tulsa County’s Criminal Justice Collaborative, said many of the reforms in the Vera report are “huge systemic changes” that will take some time.  “We all want a just and fair criminal system...and we want to avoid incarceration when it’s not a threat to public safety.  And we all agree on that. It’s just how we get there.”⁴⁶  Ideally my students will be able to provide plans to help.