Mandatory Minimum Sentencing and Black Males
Annotated Bibliography Edward BlakemoreThe University of Dayton School of LawSpring 1998 Introduction
|This directed reading topic has aided me extensively in bettering my knowledge about the American criminal justice system. I initially believed blacks and whites committed roughly the same amount of overall crime. I also felt that crime rates were decreasing and that the media was the reason Americans are so fearful of crime despite its continued downward trend. In addition, I initially believed drug crimes were being enforced in minority communities more aggressively than in white areas. But I did believe that blacks and other minorities were committing more drug crimes than whites because of the need to obtain money for survival whereas that same poverty issue is not a large problem for whites. I felt that black male incarceration was increasing at an alarming rate and thus having extreme deleterious effects upon the black community. Needless to say, many of my views were supported by my extensive research but others were altered once some light was shown on the available facts.
My research did reflect that crime rates are down for all communities and for almost all the offenses. The only criminal offenses which have increased over the past 3 years are drug possession and larceny-theft. Every other crime, including violent offenses, have decreased continuously during the past few years. I began to wonder why if the crime rate was decreasing, the general public continued to act as though crime was running rampant through our streets. I put the blame on the media and the public for this misinterpretation. The media is probably the most at fault because they continue to deluge us with more news reports that document only the most egregious examples of crime without ever indicating that the acts they talk about happen quite infrequently. The media knows that the American public are mostly sheep which will react predictably to certain types of stories. They realize that the most sensational they can make a story, the more people will buy or watch their product.
The American public is also at fault, however. People are less willing than ever to read stories carefully realizing that many media outlets have their own hidden agendas and thus evaluating such reports with those downsides in mind. The public must expect more of the press than just stories which appeal to our salacious appetites. We deserve and should expect nothing less than reporting which is representative of this society as a whole. We should be enraged when the only stories which concern drugs routinely involve minorities despite a larger participation in that subculture by whites. Americans must help to balance the perspective of reporters by ensuring that different perspectives are heard.
The history of the police and minorities has not been a rosy one within this country. Whether it be the Rodney King incident, the MOVE bombing, or Geronimo Pratt's unjust incarceration, the police have continually treated minorities, especially black citizens, with disdain, disrespect, and hatred. I have always been troubled by the immense amount of discretion which is placed in the hands of people who have been well-known to treat minorities unfairly. Without the intervention of a police officer, no one ever is arrested. Accordingly, those officers should be people of honor, without a penchant for abusing black people. As history has demonstrated, these officers are far from being community pillars.
Police officers have always abused their discretion within this country. My research seemed to re-establish that point. In case after case, police have abused their authority. In Kolender and other cases, they used vagrancy statutes to unjustly arrest black people who looked suspicious largely because they made the mistake of walking in a white neighborhood while black. The plaintiff in Kolender was detained 15 times by police for taking night walks in an expensive white neighborhood. I would not be so upset about this abuse of discretion if it was applied uniformly regardless of race. Unfortunately, police bring their biases with them when they patrol communities. In none of the vagrancy cases, where the Court later found the statute impermissibly vague, was a white person charged with violating the ordinance.
Their abuse of discretion creates issues for minorities as more of the black male labor force ends up imprisoned, to some degree, because of the negative biases of police officers. Another example my research uncovered was the use, by police, of drug profiles. These profiles never explicitly stated that blacks should be arrested and whites should not be detained for drug crimes. Even our judicial system would not have stood by if such openly racist actions were taken against minorities. The police realized that and, as a result, applied the standard disproportionately against minorities so no one could argue they were acting wrongly. These profiles gave police virtual carte blanche in their authority to stop a motorist because he fit the description of a "typical" drug dealer. These practices resulted in numerous black people being stopped and harassed while whites doing the same acts were never even questioned.
These actions help to facilitate the feeling within the black community that they are second-class citizens. These actions also tend to create an antagonistic attitude between many minorities and the police force. This attitude works to the disadvantage of many minorities because those individuals who have a better repore with police tend to have better outcomes with their behavior. Blacks are at a disadvantage because their experiences with police have been largely negative. They are not comfortable trusting police officials. Because of a lack of trust between these two entities, neither can help the other survive and exist more effectively. Police need citizen participation to apprehend most felons. Blacks need competent law enforcement to uphold the law within their communities. Neither of those interests can be well-served when the two principal parties are at odds with each other.
Judges on the state and federal level were long known for exercising discretion in their sentencing which tended to favor whites. As a result, civil rights activists and protesters continually argued that judicial discretion must be curbed since jurists had shown themselves unable to handle the responsibility of sentencing without incorporating their own biases. These complaints were some of the main reasons people began to believe that sentencing should be placed in the allegedly more able hands of a legislators. Unfortunately, those advocates never considered that legislators also had similar biases and would likely draft a laws which reflected their opinions about others.
Since some judges were making federal sentencing a farce, the debate seemed to focus on the practices of federal judges. The legislators took it upon themselves to try and eliminate race from sentencing by making it uniform according to the offense. They argued that no matter who committed the crime, they should all be punished exactly the same. They even limited the sentencing discussion to the offender's criminal history and the offense he was convicted of. For some reason, these lawmakers never considered that people of certain economic strata are convicted of different crimes because of their access to means to commit certain crimes. They seemed to take a blind attitude toward who would be disproportionately affected by their new laws. They felt that since crack was the new scourge of America, it should have a higher and more severe penalty than cocaine, despite the fact that both are the same drug. Accordingly, they increased the penalties associated with crack and watched as minority prisoners began to get arrested at three to five times their prior rate.
Undoubtedly, these legislators felt they had create a uniform standard for all crimes so race wouldn't be a factor judges could consider. Because of their inherent biases against minorities, most legislators never even considered that their laws would greatly effect black communities. These lawmakers may have just been guilty of benign neglect toward the types of offenses minorities are convicted of and genuinely thought they were making a law which would decrease the incarceration rates of minorities. I hope these lawmakers did not conspire to create laws which would increase minority incarceration while allowing white rates to remain stable or decrease.
However, an excellent argument could be made that the white power elite saw a great increase of unemployed white males and began to become concerned that these men might strike out against their more wealthy white counterparts. These powerful men knew some solution had to be devised so the power elite didn't need to feel the crunch of white poverty and rage. They knew many of the unemployed white males were castoffs from steel mills and other areas where unskilled labor was once appreciated. They had to devise some way for this unskilled labor to be enough of an asset for these men to find a job. Suddenly, prison construction began to increase but those in power knew prisons couldn't continue to grow without more people spending longer amounts of time incarcerated. So these people told the public they were going to change the laws so race could not be considered by a judge when sentencing. But they failed to tell people that they were going to write the laws so that crimes committed by whites would either not be encompassed under mandatory minimum sentencing or would have lesser penalties. That practice created a huge increase in the amount of minority individuals being sent to jail and because the penalties were harsher, these people would be forced to stay longer than their counterparts from previous years. This influx of prisoners meant that the white unskilled labor force now had a place to work so they wouldn't conflict with the white power elite.
My research surprisingly revealed that almost no criminal justice entities agree with the usage of mandatory minimum sentences. I expected judges and defense attorneys not to favor such measures because it lessened their power to effectively do their jobs. However, I was quite surprised to learn that most prosecutors are also not in favor of these measures. The only criminal justice component which favors these sentences are the legislators who created the law. I was also surprised to discover how differently judges and legislators view the law. Judges tend to view every defendant as though he is unique and deserves a sentence which most effectively corresponds with the objectives of the system, the victim, and the offender. Legislators, however, view the law as incapable of being altered for different circumstances. They want to treat certain criminal acts with more disdain than others. They do not see how two people who are caught with the same quantity of drugs may deserve different sentences because of their prior actions or criminal status. These two separate philosophies tend to cause friction between judges and legislators at the expense of defendants and society at large.
Lastly, district court judges who are brave enough to sentence under the minimums have been consistently overturned by appellate courts. I did not find one decision where the appellate court upheld a criminal sentence below the mandatory minimum. The system has allowed the discretionary process to shift completely into the hands of the police and prosecutors. If the prosecutor refuses to file a downward departure motion for the defendant due to his help as an informant or because he feels as though that individual deserves a break, the appellate court has illustrated it is not willing to affirm a sentence below the mandated sentence. While the few brave district court judges should be commended, there is no indication their efforts will accomplish anything but allowing that defendant a few extra months with his loved ones before the appellate court re-institutes his mandated sentence.
THE PRISON INDUSTRIAL COMPLEX
One view of mine that definitely did not change after conducting this research was that America is building a prison industrial complex which is founded upon a seemingly unlimited supply of black and latino offenders who continually fall into the same criminal justice traps. Prisons are like capitalism in that there must be a continual supply of inmates just like there must be an underclass for each system to operate as planned. Legislators know that if more prisons are built in decaying communities they can serve as an economic boon to potentially help those cities regain their footing. They needed to ensure they had people who could fill these jails, prisons, etc. Mysteriously enough, minorities, especially black males, were chosen as the people who were going to disproportionately fill these jails. Because of the new "get tough on crime" and "two strikes" laws being enacted, minority males are going to prison at alarming rates compared to their white counterparts. The current estimates indicate that 50% of all black men will spend some time in a prison or juvenile detention center. Latinos are not far behind in their populations inside prison facilities.
One of the more disturbing trends is the increased rate at which black women are being sentenced to prison. No one seems to be troubled by the effect this trend will have on the future of black families. Many black women are getting sentenced to prison because of the more stringent drug laws not because they are using more illicit substances but due to their involvement with black men who are selling the contraband. Americans must ask themselves how many more prisons we can afford to build before enough is enough.
EFFECT OF MANDATORY MINIMUM SENTENCES ON THE BLACK COMMUNITY
Mandatory minimum sentences are having drastic effects upon the black community. The first and arguably most important effect is that it exacerbates the problem of single parent households within the black community. When these men are sentenced to prison, they, many times, leave behind a wife/girlfriend and/or children. If they have already have had children, that child must spend multiple years of his/her early life without a primary father figure. In addition, that male's absence is even more prominently felt when the woman has to handle all of the financial responsibilities on her own. This poses even more problems since women are underpaid relative to men in the workforce, child care costs must be considered, and many of these women do not have the necessary skills to obtain a job which would pay a living wage which could support her and the children. Black male incarceration has done much to ensure that black female-headed households are now synonymous with poverty.
Black male imprisonment also has much to do with rising black male unemployment rates. As these men re-enter the workforce they now likely have less skills than when the first entered prison. There are few, if any, programs which train these men to effectively re-enter society. As jobs continue to move out further and further into the suburbs, these males, who are disproportionately from the inner city, are left with few living wage employment options. I've always maintained recidivism rates are so high not because these men want to return to a life of crime but since few employment options are available, they tend to utilize their limited skills to get the money they need to survive. If more efforts do not make additional training available to these males which is realistically designed to help them obtain a living wage job, recidivism rates and black male unemployment will continue to increase.
Black male incarceration rates also have severely diluted the voting strength of black communities. As these men are released from prison not only are their already limited kills diminished but they also no longer have the right to vote in any elections. With over 1 million black males currently under the control of the criminal justice system, the applicable voting rolls of the black community are being decimated by this prison epidemic. Some might even argue that the plan of the power elite in constructing more prisons was to ensure blacks could not effectively participate in the political process. Unless we do more to arrest these increasing incarceration rates, black political power may be nothing more than a memory in the coming decades.
The final negative effect of increased black male incarceration is that being forced to spend time in prison has lost its negative stigma. One of the most beneficial reasons to impose incarceration as a punishment was to reinforce the idea that only wayward men have to go to prison before potentially turning their lives around. Unfortunately, being a former inmate now seems to be worn more like a badge of honor than a disgraceful occurrence. Black men are now proud to boast that they've been in prison and survived the experience. We cannot allow black children to grow up believing that prison is a rite of passage if we ever hope to arrest these ever-increasing incarceration rates.
The following articles are included in this bibliography:
|Bureau of Justice Statistics Bulletin
Federov v. U.S., 600 A. 2d 370 (1991).
Harmelin v. Michigan, 501 U.S. 957 (1991).
Kolender v. Lawson, 461 U.S. 352, (May 2, 1983).
Solem v. Helm, 463 U.S. 277 (1983).
U.S. v. Hawley, 984 F.2d 252, (8th Cir. 1993).
U.S. v. Kidder, 869 F.2d 1328, (9th Cir. 1989).
U.S. v. Sharp, 883 F. 2d 829, (9th Cir. 1989).