The Problem of Mass Incarceration

War on Drugs

Further intensifying the increase in incarceration and tough-on-crime practices of the Nixon era, President Reagan championed the war on drugs, with the government “taking the lead in what had been the job of local law enforcement.”¹⁸ To address increasing urban adult crime that accompanied the heroine and crack cocaine epidemics in the 1980s and 1990s, police forces and courts dealt with urban crime with harsher policing practices and prison sentences. Drug offences increased, but the increase in prosecutions for drug crimes was far greater.¹⁹ The greatest tragedy of this campaign, however, is the racial disparity with which this war was waged. While those in white neighborhoods were doing the same drugs at the same rate, they were less likely to be arrested or serve time. People in black neighborhoods were more likely to be arrested; racial profiling created a population of people with criminal records.  They were more likely to be arrested and searched.  Because of existing records, they received longer sentences. Racial bias existed in the courtroom just as it did in law enforcement. Pretrial negotiations were more likely to benefit whites, and white people with more money were more likely to be able to seek rehabilitation.²⁰  

Juvenile crime increased during this time, as well; nationally, juvenile arrests for violent crime rose rapidly, from 300/100,000 to 500/100,000 between 1985 and the peak in 1995. The public saw the increase in juvenile crime and perceived that the system was too easy on them. Many states passed more punitive laws, implemented mandatory sentences, and allowed automatic transfers to adult courts for certain crimes.²¹ At the same time, with parallel increases in juvenile crime, corrections sought to make the processes “faster, cheaper, and easier to understand,” and the juvenile court system in America expanded. These new systems were ripe with abuse and inequities, so that the “child receives the worst of both worlds: that he gets neither the protections accorded to adults or the solicitous care and regenerative treatment postulated for children.”²² In an era of due process requirements for juveniles, nationwide the juvenile courts were becoming more like their adult counterparts. In 1985 President Reagan’s administrator of the OJJDP said that juvenile offenders are “criminals who happen to be young, not children who happen to commit crimes.” His statement reflected the fact that we were seeing young offenders in a different light.²³ Detention was more frequently became the default.

Also during Reagan’s administration though, the Supreme Court was starting to heed neuroscience between the adult and growing adolescent brain. Consequently, the courts eliminated the juvenile death penalty and life without possibility of parole for non-homicide and homicide offenses. There were positive federal changes in 1988: the legislature mandated that the Office of Juvenile Justice and Delinquency Prevention (OJJDP), an office of the Justice Department, track and reduce the racial disparities in youth incarceration by use of grants and training for local law enforcement agencies.

Oklahoma’s juvenile facilities had become the subject of national publicity for its uncovered abuse and neglect of children under DHS custody. In response, statutes were created to monitor allegations of abuse or mistreatment by youth in custody as well as to create diverse placement alternatives so that youth may be placed in the least restrictive place according to the treatment needs of the youth.  Oklahoma’s juvenile justice moved under the direction of the Department of Human Services. New state supreme court guidelines and new laws prohibited jailing of “deprived and in need of supervision children,” and programs for mental health intake and in-patient services were provided by new state-run institutions for what appears to be the first time. Jails and other adult lock-up facilities were prohibited as sites for detaining youth.  These and several other positive reforms came under the new creation of the Oklahoma Council on Juvenile Justice in responses to the negative publicity. At the same time, with a change in legislative focus, the state also moved to better address more violent and aggressive offenders, prevent delinquency, and protect the public, in addition to providing rehabilitation. Subtly, though, purpose and language indicate a shift in how we treated delinquent youth, who came to be seen as a group to protect citizens from. This followed national trends as other states found that tough-on-crime measures were a hit with the public. In Oklahoma juvenile arrests for violent crimes during that same period went up from 624 in 1985 to 1,510 in 1995, significantly greater than the national increase.²⁴