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Incarceration Generation, JPI, 2013

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Table of Contents
Foreword........................................................................................................................................................ 02
Introduction................................................................................................................................................ 03

People in the Justice System
Racial & Ethnic Groups
Racism Institutionalized: A Look at the Criminal Justice System.................................................................................. 08
Criminal Justice Reform for Immigration Reform.......................................................................................................... 12
Children & Teens
Youth in the Adult Criminal Justice System.................................................................................................................. 16
Rights of Youth in the Justice System: Recent Developments....................................................................................... 22
Gangs and Youth Violence........................................................................................................................................ 26
Girls & Women
Everything has Changed for the Worse, but We’re Still Fighting: 30 Years of Resistance Inside Women’s Prisons.............. 30
Women and the Prison Industrial Complex................................................................................................................. 38
People with Mental Illness
Incarceration and Serious Mental Illness................................................................................................................... 44
Victims Need Just Justice........................................................................................................................................ 48

The Criminal Justice System
Drug Policies
More than Numbers: How the War on Drugs Fuels Mass Incarceration......................................................................... 60
Policing and Ineffective Practice in the Midst of the Drug War..................................................................................... 64
Pretrial Justice........................................................................................................................................................ 68
Problem Solving Specialty Courts
Specialty Courts and the Special Problems They Pose..................................................................................................72
Winning the Sentencing Reform Game........................................................................................................................76
From the Playground to Prison: Understanding and Curing America’s Addiction to Over-Incarceration............................. 80
Private Prisons
The Evolution of Prison Privatization in the United States............................................................................................ 84
Release on Parole.................................................................................................................................................... 88
Life After Incarceration: Re-entry Services and Policies.............................................................................................. 92
Economics of Incarceration
Mass Incarceration and Economic Inequality............................................................................................................. 96



Several months ago, I spoke to several
hundred high school students in Richmond,
Virginia. The audience was primarily black
youth from urban schools. The man who
introduced me began his remarks by asking
a simple question: “How many of you have
ever spent time in jail?” A stunning number
of black boys rose to their feet. Murmurs
could be heard throughout the auditorium
as everyone turned to look around them at
the young men standing. Another question
followed: “How many of you have had a family
member who has spent time in prison or jail?”
Roughly two-thirds or perhaps three-quarters
of the young people were now standing.
The murmurs in the audience turned to
rumblings, and they started stamping their feet,
expressing their pain and anger. Some were
shouting out names: “My father, Reginald
Johnson.” “My brother, Michael Adams.”
“My mother, Charmaine, just got out.” And
then the final question: “How many of you
know someone, a friend or relative, who has
done time?” By now, all the students were
standing, stamping their feet and calling out
names. The walls shook and then stopped.
A silence followed.

In that silence and in those cries lies a truth that we, as a nation, have
been unwilling to face.
Millions of Americans have been locked in cages and then, upon release,
stripped of basic civil and human rights. Young people living in segregated,
ghettoized communities are shuttled from decrepit, underfunded schools
to brand new, high tech prisons. Upon release, they’re stripped of the
basic civil and human rights supposedly won in the Civil Rights
Movement, including the right to vote and to serve on juries, as well as
the right to be free from legal discrimination in employment, housing,
access to education and public benefits. Millions find themselves trapped
in a permanent second-class status—a closed circuit of perpetual
marginality—as they cycle from impoverished, jobless ghettos to prison
and then back again. People of all races and classes have been impacted
by the race to incarcerate. But some communities have been literally
decimated—communities defined largely by race and class.
If there is reason to hope that light flickers at the end of this dark tunnel,
it is because of the scores of individuals, advocates, grassroots groups,
churches, foundations, and organizations—like the Justice Policy
Institute—that refuse to give up. For 15 years, JPI has challenged
overincarceration and our failed juvenile justice system. They have
researched and offered promising alternatives to prison and jail. At the
end of the tunnel, they see a system that could actually work. They see
a system that actually cares and rehabilitates. They see a system that
provides resources that can help communities heal and recover from
the brutal system of mass incarceration.
Incarceration Generation is a trip down that tunnel, showing the who,
what, why and how of this nation’s 30-year prison boom. The book is an
anthology of essays written by experts, advocates, and practitioners in
the field of social justice. It reflects an attempt to understand and explain
how adults, children, and families have been affected by our nation’s
zeal for punishment. It describes the good work that is underway to
dismantle the system of mass incarceration efforts to build new, more
compassionate alternatives to cages for human beings. In short, this
book is like a flashlight, helping to lead us through and out of the dark
tunnel of unrelenting punitiveness to a brighter future for us all.

MichELLE Alexander
Legal Scholar and Author of The New Jim Crow:
Mass Incarceration in the Age of Colorblindness

Over the past forty years, the criminal justice
confinement complex in the United States has
morphed into the largest confinement complex
in the world. The U.S. confines its citizens at
a much higher rate than any other country with
questionable and often devastating outcomes.
Despite evidence of its negative impacts,
incarceration became and persists as the primary
means of “crime control” for four decades
and counting. As a result, generations of families
have been affected. The lives touched and ruined
by the criminal justice system are now stories
of disrupted families, under and unemployment,
single- and unparented families, locked-down
schools and defeatist attitudes. Yet, criminal
justice conversations generally do not consider
the collateral consequences of mass
incarceration policies.

Many Americans
have a cursory
of the criminal
justice system.

The essays in this collection highlight how the persistence of bad policies,
ineffective practices and misinformation has played a role in the rise of
mass incarceration. In every segment of the criminal justice system from
arrest to post-release, the system exacerbates problems it was designed to
address. And, among our most vulnerable populations, the punitive nature
of criminal justice practices obscures the rights and needs of incarcerated
individuals and fails to consider alternatives to incarceration.
Many Americans have a cursory understanding of the criminal justice
system that is shaped by prime time television. But the reality described
by our essayists and others who have personally experienced the system
is vastly different. Many people behind bars today who have not been
convicted of their charges languish in jails and detention centers that
cost taxpayers billions of dollars annually. The public generally doesn’t
understand that some prisons regularly release women at midnight to
unsafe conditions on the street; these women have to protect themselves
from harm until they can find shelter or until daylight. Many people
behind bars plead guilty to an offense they did not commit; taking a lighter
punishment that comes with a plea bargain is preferable to a wrongful
conviction at trial and a harsher sentence. Jail and prison environments
often foster and encourage violence and a warped, unhealthy sense of
survival that is not conducive to effectively rejoining society after release.
The criminal justice system is rife with such injustices and leaves, in its
wake, disrupted people, families, and communities at the fringes of society.
For many individuals, being a convicted felon makes it extremely difficult
to find a job and affordable housing. The conditions and consequences of
our incarceration system often propel those on parole back to prison.
The rise in mass incarceration over the past forty years has had negative
effects on younger generations and their families, schools, and
neighborhoods. We dedicate this book to children and young adults. We
hope this book brings to light evidence that our reliance on mass
incarceration is unacceptable and counterproductive. Together we must
work toward ending the misunderstandings and prejudices inherent in
the operations of our criminal justice system. May our efforts help reverse
the injustices of our criminal justice system and promote public safety and
healthy communities for all.


Racial & Ethnic Groups
The issue of racial disparities in the criminal justice system has gained
increased attention since the publication of The New Jim Crow by
Michelle Alexander. Her thesis that “mass incarceration in the United
States had, in fact, emerged as a stunningly comprehensive and welldisguised system of radicalized social control that functions in a manner
strikingly similar to Jim Crow,” has brought new partners to the table
and reenergized many who have been working for years to reverse the
trend of steadily increasing imprisonment that has disproportionately
impacted African Americans. In 2012, black/African American people
made up 13 percent of the U.S. population and 38 percent of the jail
population. Black/African American people were detained in jail prior
to conviction at a rate five times higher than whites and three times
higher than Latinos.1 However, Latino involvement in the criminal justice
system is evolving into a serious human rights concern due to
immigration policy and controversy. The number of Latino people
sentenced to prison increased by 129,000 people between 2000 and
2010—an influx of nearly 13,000 people each year (while the number
of whites and blacks remained constant or declined). 2 Furthermore,
spending on immigration enforcement has reached new thresholds
with $18 billion spent in fiscal year 2012. 3
However, to talk about a “system” of criminal justice is to simplify the
complex interplay of various local, state and national actors—from the
cop on the beat, to the prison guard, to the state legislator determining
what rights a formerly incarcerated person should have. At each of these
points, public servants must consider equality in order to reduce disparities
in arrests, detention prior to conviction, incarceration and integration
back into society. A better understanding of how incarceration affects
generations to come is also important to reduce harm done and ensure
people and communities of color are able to thrive and prosper. 


we need national support
and standards for preventing youth
from ever interfacing with the
criminal justice system.

The United States has yet to implement a national strategy for crime
prevention among its children and youth. Although these issues are best
managed on the local level, we need national support and standards for
preventing youth from ever interfacing with the criminal justice system. 4
Arrests of juveniles for violent and property offenses decreased by 48
percent and 46 percent, respectively, from 1994 to 2003. 5 However, a
“tough on crime” mindset toward youth persists while we shortchange
funding for preventive and support services. In 2012, the U.S. Supreme
Court ruled in Miller v. Alabama that courts could not sentence juveniles
to life in prison without the possibility of parole for homicide convictions.
That ruling built on the 2010 Graham v. Florida case where the Supreme
Court ruled against juvenile life without parole sentences for non-homicide
convictions. However, too many youth (estimates have ranged up to
250,000 per year6 ) stand trial as adults despite questions regarding their
competence to manage their case in adult court.7 In 2010, 2,300 youth
under age 18 were held in adult correctional facilities, to the peril of their
health and future. 8 Additionally, far too many youth detention facilities
are run like adult facilities with high levels of violence and abuse, without
sufficient medical treatment and education, stifling the youth’s ability to
grow and change while in detention. As rates for offenses committed by
youth continue to decline, it is important to celebrate the efforts being
made to support youth while continuing to press for improvements in the
education, employment and health of all youth. 

There are approximately 113,000 women behind bars in the United
States, but only 32,100 were convicted of a violent offense. 9 Most of
the other 72 percent were convicted of a drug or property offense;
however, mass incarceration has resulted in even more women being
channeled into a cycle of justice system involvement. The way that
women in the criminal justice system are treated is counter to anything
one might consider basic human rights. Victims of sex trafficking are
arrested for prostitution rather than provided victim services. In many
jurisdictions, pregnant mothers are shackled, sometimes even during
labor. And the high incidence of mental health problems (including
PTSD and addiction disorders) among women who come in contact
with the justice system points to the futility of using incarceration to
address the serious issues they face. Putting women behind bars
creates unique challenges as women are more often caretakers of
children than men. These children may be sent to foster care or bounce
from relative to relative, missing school and themselves becoming
traumatized by the experience of their mothers’ incarceration.
Although still the smallest segment, girls comprise the fastest growing
population of the justice system. Detention and commitment of girls to
correctional facilities went up 98 percent and 88 percent, respectively,
from 1991 to 2003 (for boys during this time, the increase was 29 and 23
percent, respectively).10 Girls are primarily arrested for status offenses,
such as running away or underage alcohol use, and technical violations
of their probation conditions. They also overwhelmingly have histories
of abuse, trauma, mental health problems or other health conditions
predating their involvement with the justice system.11 Many girls’ actions
may be a response to the abusive conditions and situations they grow
up in,12 rather than an anti-social desire to behave badly. However, their
treatment by the justice system largely remains insensitive to that fact,
and many programs are not structured to effectively handle or treat the
outcomes of girls’ victimization.13

People with Mental Illness
The latest Bureau of Justice Statistics report on mental health, from
2006, showed that over half of people in jail and prison reported a
mental health problem. The nation’s jails and prisons contain three
times more people with serious mental illness than hospitals.14 Jails
and prisons are now called the largest “mental health providers,”15
with the Los Angeles County Jail labeled the single largest mental
health provider in the U.S. for its nearly 15,000 people behind bars.16

Historically, people with mental health problems were treated, and
often institutionalized, in mental hospitals. With the deinstitutionalization of the mental health system, the intended safety net of community
based mental health centers did not materialize due to lack of political
support and funds. Those with mental illness have the choice to refuse
admission to a mental health facility,17 but they often become targets
of policing, especially for “quality of life” offenses related to homelessness or other factors related to their mental health problems. Now, the
criminal justice system, rather than the public health system, manages
mental health issues.
Addressing the behavior of people with mental health problems through
incarceration often harms them due to the conditions of the jails and
prisons, including “overcrowding, violence, lack of privacy, lack of
meaningful activities, isolation from family and friends, and inadequate
health services.”18 Additionally, the lack of trauma-sensitive services
and practices can exacerbate the mental health problems of many men
and women in jail or prison. Some jurisdictions have correctional staff
who use force on people with mental illness in jails and prisons more
often than on the general prison population.19 

Twenty-five years ago, research concluded that “the manner in which
the criminal justice personnel approach and treat crime victims within
the system can aid in recovery or can add to the trauma of victims.”20
A number of recommendations have been made, but the reality is that
the criminal justice system still has a long way to go in meaningfully
including victims in the criminal justice process. Even routine processes
such as setting bail can have tremendous implications for the safety
or wellbeing of victims; however, judicial officers continue to make
bail decisions without victims’ input. This is just one example of how
the justice system could better consider victims and their role when
making decisions about the case.
The National Crime Victimization Survey, through interviews with
victims, estimated that about 5.8 million violent and 17.1 million property
victimizations occurred in 2011. 21 And, in spite of greater police presence
in minority communities, African Americans and Latinos are more likely
to be victims of violent crime than whites. 22 Focusing on reducing the
number of people harmed and creating a system that provides justice
and safety to all peoples regardless of race, ethnicity, age, sexual
orientation or gender, must be a part of reform efforts. 


R aci a l & E thnic Groups


A Look at the
Criminal Justice

Despite attempts at reforms
during the past two decades,
institutional racism still
plagues the U.S. criminal
justice system. From profiling
to sentencing, the unequal
treatment of people of color
is well-documented. In every
step within the criminal justice
system, from stops and arrests
based on racially biased
profiles, to police misconduct
and the abuse of prosecutorial
discretion, to mandatory
sentencing and death
penalty disparities, there is
discrimination that is often not
intentional or conscious, but
rather institutional in nature.

Race often determines the administration of the criminal justice system
in this country; however, implementing the Convention on the Elimination
of Racial Discrimination can fix many shortcomings. This international
convention addresses both direct and indirect racism by prohibiting laws
and practices that have a racially discriminatory impact.
Institutional racism occurs when unwarranted disparate treatment is
codified within the structural fabric of social institutions and manifests
without the need for a specific person to perpetuate a discriminatory
act. The American Bar Association recognized this phenomenon in 1994
in its Summit on Racial and Ethnic Bias in the Justice System as “statutes,
rules, policies, procedures, practices, events, conduct and other factors,
operating alone or together, that have a disproportionate impact upon
one or more persons/people of color.” The Summit concluded that “bias
in any of the components of the system reaches into and actually or
perceptually, contaminates the system as a whole.” The Summit’s
definition was not limited to intentional instances of active bias but
extended to passive bias as well, which “has a systemic effect” on the
integrity of the administration of justice as a whole.
The unprecedented explosion of incarceration rates in this country
underscores the impact of institutional racism. In the U.S., more than
two million men and women sit in prison and jail. More than half of this
population is black even though African Americans make up only 13
percent of the total U.S. population. Making matters worse, people of
color make up 75 percent of all persons incarcerated on drug charges.
According to the Department of Justice, 1 in 3 black boys born today will
spend time in prison. This astronomical incarceration rate reflects the
unconscious institutional and structural policies and practices that
characterize the indirect nature of 21st century racism.
Policies and practices as well as legal doctrine reflect this subtle and
insidious racism. In 1987, the former Philadelphia District Attorney,
Jack McMahon, developed a training video on how to select a jury. In
the tape McMahon, who was an assistant DA at the time, directed his
rookie prosecutors to circumvent the law by denying certain citizens
the chance to serve on a jury while favoring others.

The unprecedented
explosion of
rates in this
the impact of
“[T]he only way to do your best is to get jurors that are as unfair and more
likely to convict than anybody else in that room.” McMahon taught that
jurors who were especially “bad” included young black women and lowincome blacks. Prosecutors had to kick them off of juries without the
appearance of violating the law. Appearances mattered because in 1986,
in an attempt to introduce more fairness to the criminal justice system,
the U.S. Supreme Court had ruled that lawyers could no longer strike
potential jurors because of their race. Although McMahon was only one
prosecutor in one city, his jury selection training methods were
institutionalized throughout his office and, according to him, were “accepted
principles” representative of practices of “the wisdom of the ages.”
Regardless of whether they disagreed with McMahon’s approach, new
prosecutors could be out of a job if they failed to follow the cultural norms.
McMahon’s tactics were not isolated to the Philadelphia district attorney’s
office. Racism was structurally embedded in prosecutors’ offices throughout
the country, possibly impacting the outcome of countless cases.


R aci a l & E thnic Groups

Other causes of institutional racism can be found in laws that look fair,
but actually have a discriminatory impact. The most flagrant example
is the long-time disparity in cocaine sentencing. For nearly a quarter of
a century, people convicted of crack cocaine offenses were treated more
severely than powder cocaine offenders. In what became known as the
100-to-1 quantity ratio, it took 100 times more powder cocaine than
crack cocaine to trigger harsh five and ten year mandatory minimum
sentences. Although the greatest numbers of documented crack users
were white, national drug enforcement and prosecutorial practices
resulted in the “war on drugs” being fought almost exclusively in inner
city African American communities. In 2007, 82.7 percent of those
sentenced federally for crack cocaine offenses were black. Although a
2010 law reduced the 100-to-1 to 18-to-1, the disparity still exists even
though there is no medical or scientific evidence that a distinction exists
between the two forms of the same drug. What’s clear is that Congress
did not intend to discriminate on the basis of race when it differentiated
between crack and powder cocaine in 1986 and 1988. But that does not
negate or lessen the irrefutable discriminatory impact of the law.
“Three strikes” laws also create institutional racism because blacks are
more likely to be profiled, stopped, arrested, prosecuted and convicted
than whites who engage in similar criminal activity. Making matters
worse, blacks have been subjected to automatic life imprisonment under
three strikes laws at disproportionate rates.

The U.S. Supreme Court has compounded the problems resulting from
institutional racism because it has been unwilling to tackle the issue.
When attorneys in the 1987 case of McClesky v. Kemp conclusively
demonstrated the double standard of justice in death penalty cases, the
Court ruled that Warren McClesky was not entitled to relief even though
it did not dispute evidence that race influenced capital sentencing cases
in Georgia. Ostensibly, the High Court realized if it sought to remedy
racism in the application of the death penalty, it might be constrained
to likewise remedy racism at other key stages of the criminal justice
process as well. Warren McClesky was executed.
Seven years later, the Supreme Court had the opportunity to consider
the key stage of prosecutorial discretion in U.S. v. Armstrong. In Los
Angeles County, both blacks and whites were arrested on crack cocaine
charges. Blacks who were arrested were prosecuted in federal court
where they were subject to lengthy mandatory minimum sentences. The
whites were prosecuted in state court which had no mandatory sentences.
The impact of prosecutorial decisions on sentencing was stark—a
maximum of five years if prosecuted in California state court, compared
to life without possibility of parole in federal court. Despite the impact
of this prosecutorial decision-making, the Supreme Court ruled that
defendants could not receive discovery to determine the prosecutor’s
motive as to choice of venue, making it impossible to prove racially
discriminatory intent.

In 2007, 82.7 percent of those sentenced federally for crack
cocaine offenses were black.


About the Author

The Court could have rectified disparate treatment in both the Armstrong
and McClesky cases by applying the internationally recognized impact
standard, as opposed to limiting itself to proof of discriminatory intent.
That standard, codified in the Convention on the Elimination of Racial
Discrimination, allows laws and practices that have an invidious
discriminatory impact to be actionable, regardless of proof of specific
intent, reaching both conscious and unconscious forms of racism. Although
the United States ratified this international convention in 1994, it does
not create rights directly enforceable in U.S. courts absent implementation
of specific legislation.
The long-range implications of what is increasingly becoming the “criminalization of a race” are shuddering. Massive incarceration with lengthy
sentences invariably results in the disruption and disintegration of families,
destabilization of communities, and diminished life prospects—measures
which combine to incarcerate generations, resulting in incalculable damages.
Any consideration of the impact of mass incarceration that fails to take into
account the role of institutional racism is an insufficient analysis, and any
remedy that does not acknowledge the understanding that racism manifests
in various forms is deficient.
The Race Convention embodies the world community’s expression that
racial and ethnic bias can only be eliminated if we embrace a universal,
international standard against discrimination. Guidance from
international norms, specifically provisions of the Race Convention
affirming the significance of discriminatory impact, could eliminate
barriers presented by current domestic law and practice with respect
to remedying racism in the criminal justice system. We must challenge
our executive, legislative and judicial branches of government to take
appropriate measures to ensure that U.S. laws, policies and practices
are in conformity with the dictates of this Convention. 

Nkechi Taifa is a senior policy analyst at the Open
Society Foundations and Open Society Policy Center,
working to influence federal public policy in support
of comprehensive justice reform. Nkechi focuses on
issues involving sentencing reform, law enforcement
accountability, re-entry of previously incarcerated
persons, prison reform, and racial justice. She has
played a major role in raising visibility
Nkechi Taifa, Esq.
of issues involving unequal justice.
Senior Policy Analyst
Nkechi also convenes the Justice
Open Society Foundations
Roundtable, a Washington-based
advocacy network advancing federal
criminal justice policy reforms. Prior to joining the
Open Society, Nkechi was the founding director of
Howard University School of Law’s award-winning
Equal Justice Program, and taught the popular seminar,
“Racial Disparities in the Criminal Justice System.”
She has also been an adjunct professor at American
University Washington College of Law. Nkechi has
served as legislative counsel for the American Civil
Liberties Union, public policy counsel for the Women’s
Legal Defense Fund, and as a staff attorney for the
National Prison Project. She has also been in private
practice, specializing in the representation of indigent
adults and juveniles, as well as employment
discrimination law. Nkechi has testified before the U.S.
Congress, the United States Sentencing Commission,
the Council of the District of Columbia and the American
Bar Association Justice Kennedy Commission. She has
been published on a variety of issues involving criminal
justice and civil and human rights, and has been a
consultant to various organizations and projects.
Nkechi has has served on many different public
interest boards, and currently serves as an appointed
commissioner on the District of Columbia Commission
on Human Rights. Nkechi received her J.D. from George
Washington University Law School, and is admitted
to practice before the U.S. Supreme Court, U.S. Court
of Appeals for the D.C. Circuit, and the D.C. Court
of Appeals.


R aci a l & E thnic Groups


Justice Reform
for Immigration

Since the late 1990s,
deportation and detention
of immigrants has been
skyrocketing, thanks in large
part to anti-immigrant
legislation enacted by Congress
in response to the upswing
in migration from Mexico
after the North American Free
Trade Agreement. Immigrant
communities have organized
to fight back as life in the
United States for them
increasingly resembles life
in a police state. Racism and
xenophobia dominate the public
and political discourse about
migration, and have given rise
to a new range of oppressive
laws, policies and practices—
from the militarization of
the border and workplace
raids, to the exploding
network of immigrant
prisons across the country.

This punitive approach to immigration has not only wrought physical
violence and material suffering in immigrant communities; it also carries
a social message of shame and alienation. If you are an immigrant you
are dangerous, you are “illegal,” and you do not have the same rights as
your neighbors. Of course, the natural response from those who have
been brave enough to challenge this idea has been “We are human, we
do not deserve this treatment, we have done nothing wrong,” and finally
“We are not criminals.”
The problem with “we are not criminals,” however, is that as the criminal
justice system expands to bring more and more people of color under its
control, and the label “criminal” attaches to a wider and wider range of
conduct, immigrants are coming into contact with the criminal justice
system. States like Arizona are passing laws that criminalize the mere
act of being present without documentation. To make matters worse, the
federal government—hoping to placate the growing Latino electorate—
increasingly justifies the detention and deportation of immigrants on
the basis of their contact with the criminal justice system. The Obama
administration, in effect taking immigrants rights advocates up on their
“we’re not criminals” message, has promised to focus its energies on
detaining and deporting “criminal aliens”—a term that conjures images
of the bogeyman; but in reality, when U.S. Immigration and Customs
Enforcement (ICE) does deport on the basis of a criminal conviction, it
is usually for an offense related to substance abuse or mental illness, or
a nonviolent property offense.
The larger problem with this focus on so-called “criminal aliens” is the
reliance on the criminal justice system, which is itself so fraught with
unfairness, abuse and discrimination, to make and enforce decisions about
immigration cases. All recent rhetoric about shifting priorities aside, this
is not a new problem. Long before the Obama Administration adopted
“criminals” as an explicit target for deportation, the immigration system
was making the criminal justice system part of its infrastructure. Today,
the two systems are intertwined at every level, and at every level the harms
perpetrated against poor communities and communities of color by the
criminal justice system bleed over into the immigration system.

For decades prior to the “War on Immigrants,” the “War on Drugs” was
already decimating communities of color, sending kids to prison for years
of their lives and draining public money that could have been better spent
on helping youth achieve positive life outcomes. Now, new communities
of color—immigrant communities—find themselves targets of those same
drug laws, doing time in those same prisons. The difference is that when
an immigrant youth finishes his sentence for drug possession, instead
of going back home to his family, ICE can pick him up and detain him in
immigration prison while they make the case for his deportation, and
eventually (after months locked up without the right to a lawyer) send
him to a country where he may know no one and may not even speak the
language. Laws passed in 1996 provide that conviction of any one of a
huge range of offenses subjects any non-citizen to mandatory deportation
and (for as long as it takes the government to carry out that deportation)
mandatory detention. This means that in many cases, judges do not have
any power to look at a person’s individual circumstances to decide whether
detention and deportation are fair or necessary.

We are human,
we do not deserve
this treatment.
we have done
nothing wrong.
We are not


R aci a l & E thnic Groups


Maybe one day we
will live in a world
where the criminal
justice system
actually creates
accountability for
social harm, allows
for restorative
justice and exists
as one small part
of a larger system
that supports
true social justice.
Immigrants trying to defend against criminal charges that may subject
them to deportation face all the same problems as do citizens entangled
in the justice system: abysmal indigent defense (many defense attorneys
remain oblivious about deportation as a potential consequence of a criminal
conviction), pressure to take plea bargains and race-based disparities in
sentencing, to name a few. In addition to relying on the substantive criminal
law to justify detaining and deporting people, ICE also relies on the actual
machinery of law enforcement in the criminal justice system to physically
find and pull people into the immigration system. ICE has a whole range
of programs like “Secure Communities,” “287(g),” and the “Criminal Alien
Program” which put local law enforcement personnel and resources to
work finding immigrants to deport.

Finally, ICE relies on the actual physical infrastructure of criminal
incarceration—the prisons and jails themselves—to lock up immigrants
in its custody. Although immigration detention is technically “civil”
detention, ICE contracts with county jails all around the country to
house immigrants in the same facilities with those in the custody of
the criminal justice system. The horrifying conditions in U.S. prisons
and jails are well-documented and the subject of much domestic
and international advocacy; by incorporating them into its removal
operations, ICE not only causes incredible suffering to the immigrants
locked up there but also legitimizes the cruelty and inhumanity of the
prison industrial complex.

About the Author
Emily Tucker is the Director of Policy and Advocacy
at Detention Watch Network, where she works
collaboratively with organizations and individuals
across the country to fight the incarceration of
immigrants and the criminalization of communities
of color. Emily earned her J.D. from Boston University
School of Law, and her master’s in theological studies
from Harvard University. At Harvard,
she was a research associate at the
Emily Tucker
Center for Middle Eastern Studies
Policy and Advocacy
Director, Detention
where her work focused on the impact
Watch Network
of post 9/11 policies on Muslim
Immigrant communities in the United
States. She was a contributing author and editor for
the Encyclopedia of Islam in the United States
(Greenwood Press, 2007). During law school, Emily
represented detained immigrants and refugees as a
student attorney in the Asylum and Human Rights
Clinic. She also worked or interned at the Southern
Poverty Law Center, the New England Innocence
Project, Penal Reform International in London, and
the Lowenstein Human Rights Project’s 9/11 Clinic
at Yale Law School. She is also a former ballet dancer
and spent several years teaching in public schools
in New York City.

Maybe one day we will live in a world where the criminal justice system
actually creates accountability for social harm, allows for restorative
justice and exists as one small part of a larger system that supports true
social justice. That day is not today. Right now, what we have is a criminal
justice system that, like the immigration system, exists to enable the
control and oppression of people of color. As long as that remains the
case, there is no fighting for immigration reform without fighting for
criminal justice reform. 


C hil d r e n & T e e n s


in the Adult
Criminal Justice

Sometimes all it takes is one
case to change the course
of public opinion and national
policy. The “Central Park
Jogger” case did just that. On
April 19, 1989, a 29-year-old
investment banker was raped
and left unconscious, and the
ensuing “Central Park Jogger”
case changed the course of
public opinion and national
policy. Five teenagers—who
later became known as the
“Central Park Five”—confessed
to police, were convicted in
the rape, and served sentences
ranging from seven to 11 years.
The press inflamed public fears,
coining new phrases such as
the activity “wilding” where
“packs of bloodthirsty teens
from the tenements, bursting
with boredom and rage, roam
the streets getting kicks from
an evening of ultra-violence.” 

As a result of the Central Park Jogger case, prominent and influential
individuals, such as political scientist and eventual George W. Bush
Administration appointee, John DiIulio, made doom and gloom predictions
about the emergence of a “generational wolfpack” of “fatherless, Godless
and jobless” youth. According to these observers, this situation was not
confined to New York City but was indicative of a national wave of
The superpredator phrase stuck and almost every state passed new laws
to make it easier to try and sentence youth in the adult criminal justice
system during the subsequent decade. Punitive policies also were
introduced on a national level, when former U.S. Representative Bill
McCollum (R-FL), then chair of the Crime Subcommittee in the House
Judiciary Committee, first introduced the “Violent Youth Predator Act
of 1996,” and then reintroduced it as the “Violent Juvenile and Repeat
Offender Act of 1997.” At a committee oversight hearing on the legislation
he said, “Brace yourself for the coming generation of superpredators.”
The roving waves of super-violent youth never materialized. In fact, the
juvenile crime rate proceeded to fall for a dozen years to a 30-year low. And
the youth in the Central Park Jogger have since been found innocent. This
stunning reversal did not garner the same coverage that the original case
did, and the myth of exaggerated youth violence still holds.
National and state research and the experience of young people, their
parents, and their families give us a concrete picture of how the laws
governing the trying, sentencing, and incarceration of youth do not
promote public safety.


 The overwhelming majority of youth
who enter the adult court are not
there for serious, violent crimes.

“I never saw any superpredators in my court. What I saw
were 14- and 15-year-olds, scared to death.”
Judge David A. Young, Circuit Court for Baltimore City

Estimates range on the number of youth prosecuted in adult court
nationally. Some researchers believe that as many as 250,000 youth are
prosecuted every year. 25 Despite the fact that many of the state laws
were intended to prosecute the most serious offenders, most youth who
are tried in adult courts are there no matter how minor their offense. 26
Two states allow prosecutors to charge any 16 year old as an adult for
any offense, and eleven automatically prosecute 17 year olds as adults.


 outh who are charged as adults can
be held pre-trial in adult jails where they
are at risk of assault, abuse, and death.

DC Superior Court Judge Wendell Gardner in reference
to placing a girl in isolation in the DC jail 27

Federal protections approved by Congress in 1974 and 1980 to protect
youth from the dangers of adult jails and lockups do not apply to youth
who are prosecuted as adults. The vast majority of states have statutes
that require or allow youth prosecuted as adults to be placed in adult
jails without federal protections. Currently, most states permit or require
youth charged as adults go to an adult jail. 28 On any given day, nearly
7,500 young people are in adult jails. 29 “State laws that allow for youth
under age 18 to be confined in the adult criminal justice system seem to
contradict the intent of the federal Juvenile Justice and Delinquency
Prevention Act, which, for more than 30 years, has required sight and
sound separation when youth are housed in adult lock-ups, as well as
speedy removal of youth whenever they are placed in adult jails.”30
This policy places thousands of young people at risk as it is extremely
difficult to keep youth safe in adult jails. Jail officials are in a “catch-22”
when it comes to young people in their custody. On the one hand, regular
contact with adults can result in serious physical and emotional harm
to youth. On the other hand, separating youth from adults generally
places them in isolation for long periods of time. This equates to solitary
confinement and can lead to depression, exacerbate already existing
mental health issues, and put youth at risk of suicide. Essentially, this
is a no-win situation for jail officials. In fact, the American Jail
Association opposes “housing juveniles in any jail unless that facility is
specially designed for juvenile detention and staffed with specially
trained personnel.”31
Recent national research also shows that youth may await trial in adult
jails before being sent back to juvenile court by adult court judges for
prosecution. In some cases, these youth are not even convicted.32 Instead
of adult jail, states and counties could place youth, if they pose a risk to
public safety, into juvenile detention facilities where they are more likely
to receive developmentally appropriate services, educational programming,
and support by trained staff.


C hil d r e n & T e e n s


 outh sentenced as adults
can be placed in adult prisons.

“Youths should not be placed in prison with adults where
rape and drugs are the norm.”
Dwayne Betts, Presidential Appointee on the Federal Coordinating
Council on Juvenile Justice about his experience in adult prison

On any given day, approximately 2,700 young people are locked up in adult
prisons.33 Youth in adult prisons are at risk of abuse, sexual assault, suicide
and death. Only 1 percent of jail inmates are juveniles, but according to
research by the Bureau of Justice Statistics, youth under the age of 18
represented 21 percent of all substantiated victims of inmate-on-inmate
sexual violence in jails in 2005, and 13 percent in 2006.34 The National
Prison Rape Elimination Commission found that youth incarcerated
with adults are probably at the highest risk for sexual abuse of any group
of incarcerated persons. 35
The National Institute of Corrections, the leading professional association
in the field of corrections, has encouraged legislators, executives and their
members to review policies and statutes so that young offenders can
receive the critical service and supervision they need in an appropriate
correctional setting.”36


 he decision to send youth to adult
court is most often not made by the
one person best considered to analyze
the merits of the youth’s case—the
juvenile court judge.

“I know if James would have went before the judge, the judge
could have looked at him individually and he would have been able
to assess the risk factors of my brother. There is no doubt in my
mind that the judge would have kept him at the juvenile facility...”
Nicole Miera, on her brother’s death in jail in Colorado37

Since the founding of the first juvenile court in Chicago in 1899, youth
generally entered the adult court because a juvenile court judged the
young person unfit for rehabilitation. Judicial transfer was used in
limited circumstances and after a careful deliberation process that
included a hearing.


Since the 1990s, juvenile court judges rarely make the decision about
whether a youth should be prosecuted in adult court. 38 Despite the fact
that a juvenile court judge is in the best position to investigate the facts
and make an informed decision, state laws have removed authority and
discretion from these judges and, instead, require placement of youth
in adult court, on the motion of a prosecutor, or through automatic
transfer or statutory exclusion provisions. 39 These inflexible statutes
are based on age and/or category of offense and therefore neither allow
for judicial review nor provide discretion for juvenile court judges to
keep youth in juvenile court.


 hese policies disproportionately
affect youth of color.

“Our job, in working to achieve fairness and equity, is to
sound the alarm about the unjust criminal justice system
and demand that our leaders and those in power act now
to halt this destructive, unfair treatment of our brothers
and sisters, especially of our children.”
James Bell, Executive Director of the Haywood Burns Institute

African-American youth overwhelmingly receive harsher treatment
than white youth in the juvenile justice system at most stages of case
processing. African-American youth make up 30 percent of those arrested
while they only represent 17 percent of the overall youth population. At
the other extreme end of the system, African-American youth are 62
percent of the youth prosecuted in the adult criminal system and are
nine times more likely than white youth to receive an adult prison
Compared to white youth, Latino youth are 4 percent more likely to be
petitioned, 16 percent more likely to be adjudicated delinquent, 28
percent more likely to be detained, and 41 percent more likely to receive
an out-of-home placement. The most severe disparities occur for Latino
youth tried in the adult system. Latino children are 43 percent more
likely than white youth to be waived to the adult system and 40 percent
more likely to be admitted to adult prison.41
Native American youth are more likely to receive the two most severe
punishments in juvenile justice systems: out-of-home placement (i.e.,
incarceration in a state correctional facility) and waiver to the adult
system. Compared to white youth, Native American youth are 1.5 times
more likely to receive out-of-home placement and are 1.5 times more
likely to be waived to the adult criminal system. Nationwide, the average
rate of new commitments to adult state prison for Native American
youth is 1.84 times that of white youth.42


 irls are affected too, but little
is known about them.

“We’re not talking about axe murderers. These are mostly
runaways, shoplifters and truants. They needed our help,
but didn’t get it. Most of them don’t belong in prison.”
Mickey Kramer, child advocate on girls
in Connecticut’s prison system

Very limited data are available on girls in the adult criminal justice system.
No recent, comprehensive national research studies have been undertaken
that document the impact of the placement of girls in the adult criminal
justice system. We cannot adequately address the unique and special
needs of girls in the justice system without extensive research, but we
can recognize that the adult system puts girls, like boys, at serious risk.


The consequences for prosecuting
youth in adult court aren’t minor.

“While incarcerated, you have nothing but time to sit back
and reflect… It cost me family members, relationships and time
that I could’ve been using to do something productive… I leave
everyone with the challenge of exposing younger generations
to a better way of living, with opportunities and dreams, rather
than exposing children to prison.”
Michael Kemp on his experience in the justice system
in The Washington Post on March 9, 2012

Youth tried as adults face the same punishments as adults. They can be
placed in adult jails pre- and post-trial, sentenced to serve time in adult
prisons, or be placed on adult probation with few to no rehabilitative
services. Youth also are subject to the same sentencing guidelines as
adults except as related to the death penalty and life without parole and
may receive mandatory minimum sentences or life without parole.
Approximately 80 percent of youth convicted as adults will be released
from prison before their 21st birthday, and 95 percent will be released
before their 25th birthday.43 These young people carry the stigma of an
adult criminal conviction. They may have difficulty finding a job or
getting a college degree to help them turn their lives around. Access to
a driver’s license may be severely restricted, and in some states, youth
may never be able to vote or hold public office. The consequences of an
adult conviction aren’t minor; they are serious, long-term, and


 ransferring youth to the adult
criminal justice system does
not promote public safety.

“[Y]oung offenders are significantly unlike adults in ways
that matter a great deal for effective treatment, appropriate
punishment, and delinquency prevention. Society needs
a system that understands kids’ capacities and limits, and
that punishes them in developmentally appropriate ways.”
r. Lawrence Steinberg, Director of the MacArthur
Foundation Research Network

Every study conducted on this issue shows that sending youth to the
adult criminal justice system increases the likelihood that they will
reoffend. A 2008 Federal Centers for Disease Control and Prevention
(CDC) Task Force report found that transferring youth to the adult
criminal system increases violence, causes harm to juveniles and
threatens public safety.45
The CDC task force recommended “against laws or policies facilitating
the transfer of juveniles from the juvenile to the adult judicial system.”
They stated that “to the extent that transfer policies are implemented
to reduce violent or other criminal behavior, available evidence indicates
that they do more harm than good,” and “the use of transfer laws and
strengthened transfer policies is counterproductive to reducing juvenile
violence and enhancing public safety.”
A U.S. Department of Justice Office of Juvenile Justice and Delinquency
Prevention report mirrored these findings, concluding, “To best achieve
reductions in recidivism, the overall number of juvenile offenders
transferred to the criminal justice system should be minimized. Moreover,
those who are transferred should be chronic repeat offenders—rather
than first-time offenders…”


C hil d r e n & T e e n s


 ssessing the scope of the issue
is difficult because of a lack
of available data.

“If the goal is to decrease crime, we’re not doing a very good job.”
Representative Michael Lawlor (D-East Haven), Co-chair of the

 he public should invest its dollars
in programs that work.

“Does society want to nourish our youth with continued criminal
education or do we want to deter our youth with an opportunity
to recover from their mistake?”

Connecticut state Judiciary Committee on Connecticut’s law

Vicky Gunderson, parent of a child

before reforms

who committed suicide in adult jail 47

There is no one single, credible, national data source that tracks all the
youth prosecuted in adult courts. In a 2011 report, the U.S. Department
of Justice’s Office of Juvenile Justice & Delinquency Prevention (OJJDP)
noted that only 13 states collect any data on youth prosecuted in adult
courts. The remainder of states provides no data on the number of
transfers/waivers to adult court made by prosecutors, the availability
or use of objective criteria for prosecutorial decision-making, or analysis
on the exercise of discretion not to send a youth to adult court.46

The long-term benefits to society nationwide of returning youth to the
jurisdiction of the juvenile court far outweigh any short-term costs
because of the reduced youth crime rates and therefore reduced recidivism
rates. According to the Urban Institute’s senior researcher and economist
John Roman, “less crime will mean fewer victims, fewer missed days of
work, lower medical bills and maybe most important, less fear and less
suffering.” Overall, he estimates that returning 16- and 17-year-olds to
juvenile court jurisdiction will result in approximately a $3 savings benefit
for the correctional and judicial systems for every $1 spent.48 New research
shows that programs, including ones that treat serious, chronic and
violent offenders in the juvenile justice system, reduce juvenile crime,
and that the public should invest in these instead of the current system.

If researchers are not able to really know the magnitude of the impact
of these state laws on youth, policymakers lack the information to make
informed decisions. There is a need to collect more data so that we can
understand just how many youth are affected.



Finally, the cost of keeping the system as is affects society in ways that
cannot be calculated in dollars and cents. No study could calculate the
astronomical price tag on the lost opportunities for that young person
or to society. What we do have is the testimony of individuals who were
given a second chance in the juvenile justice system, rather than
prosecution in adult court, and who have achieved success in our society.
These include Olympic Gold Medalist Bob Beamon, former U.S. Senator
Alan Simpson, D.C. Superior Court Judge Reggie Walton, singer Ella
Fitzgerald, and author Claude Brown. 49 The list could go on, but it will
stop if we retain the harsh laws that were passed in the wake of the
“superpredator” myth.

In a 2011 report, the OJJDP noted that only 13 states
collect data on youth prosecuted in adult courts.

About the Author
The Opportunity for Change
At the age of 16, I was charged as an adult in the adult criminal
justice system. To get to school we had to walk through a tunnel
that went through the adult men’s prison. One day the facility
went on lock down. We were told to turn our backs and close
our eyes. But, in jail you learn to never turn your back or close
your eyes. That day, we saw a man get stabbed to death.
Jabriera Handy 50

For today’s policymakers, there is a new direction that will increase
public safety and nurture the successful transition of our youth into
adulthood. And, all the new research supports a change in policy direction.
State and local policymakers did not have the benefit of this new
compelling research on recidivism, competency, adolescent brain
development, and effective juvenile justice programs when they were
considering changes to their state’s laws on trying youth as adults. But
research now provides a strong basis for re-examination of and
substantial changes to state statutes and policies.
The nation recognizes the need for change, and some states are implementing reforms. Scores of prominent national, state and local organizations are calling for major changes in national and state policy. Youth,
their parents, and their families, who have been most affected by these
policies, are speaking out, organizing and educating national and state
policymakers. A report by the National Conference of State Legislatures,
Juvenile Justice Trends in State Legislation, 2001-2011, shows trends
in juvenile justice state legislation over the past decade reducing the
prosecution of youth in adult criminal court. 51
The public strongly supports reform. A national survey released in October
of 2011 revealed that Americans reject placement of youth in adult jails
and prisons (69 percent) and favor involving youth’s families in treatment
(86 percent), keeping youth close to home (77 percent), ensuring youth
maintain connection with their families (86 percent), individualized
determinations by juvenile court judges over automatic prosecution in
adult criminal court (76 percent) and requiring the juvenile justice system
to reduce racial and ethnic disparities (66 percent).52
On the 100th anniversary of the juvenile court, more than 100 prominent
national organizations gathered to recommit to the basic principles of
the juvenile court such as:53

Youth have different needs from those of adults
and need adult protection and guidance;


Youth have constitutional and human rights
and need adult involvement to ensure those rights;


Young people are everyone’s responsibility.

Liz brings more than two decades of experience to
the Campaign for Youth Justice (CFYJ), an organization
she founded that is dedicated to ending the practice
of trying, sentencing and incarcerating children
in the adult criminal justice system. In
Liz Ryan
her capacity at CFYJ, Liz is responsible
Executive Director
for overall strategy, management and
Campaign for
fundraising. Liz currently serves on
Youth Justice
the steering committee of the National
Juvenile Justice & Delinquency
Prevention Coalition. Prior to starting The Campaign
for Youth Justice, Liz served for five years as the
Advocacy Director for the Youth Law Center’s Building
Blocks for Youth Initiative, a project to reduce the
over-incarceration and disparate treatment of children
of color in the juvenile justice system. Liz previously
served as Deputy Chief of Staff and Legislative Director
to U.S. Senator Thomas R. Carper during his terms as
Delaware’s Governor and member of the U.S. House
of Representatives. She also served as a lobbyist for
the Children’s Defense Fund. Liz is a former VISTA
volunteer. She holds a B.A. from Dickinson College
(Carlisle, P.A.) and an M.A. from the George Washington
University (Washington, D.C.).

State statutes that make it easier to try youth as adults have eroded these
founding principles and threaten to dismantle the juvenile court’s major
goal to rehabilitate youth. As a society, are we only going to commit to
providing our youth with a jail cell or a prison bed? Or will we commit
to reinvesting in our nation’s youth through policies, programs, and laws
that nurture a successful transition into adulthood and the realization
of their full potential? The choice is ours. 


C hil d r e n & T e e n s


of Youth
in the Justice

In recent decades, two major
themes have animated the
protection of rights of youth
in the justice system. The
first was the introduction
of fairness into juvenile court
proceedings. The second was
the blossoming of research
on adolescent development,
which derailed the trend
of treating youth like adults,
and recast rights in a
developmental framework.

Until 1967, when the United States Supreme Court decided In re Gault,
few people thought of justice for youth in terms of “rights.” Gault built
upon a 1966 case, Kent v. United States, which required states to be fair
when they transferred juveniles to adult criminal court for trial and
sentencing. The court in Kent noted that the juvenile court’s paternalism
“was not an invitation to procedural arbitrariness.”
Gault, then, turned a secretive juvenile justice system—that too often
punished youth by purporting to help them—into one that had to pay
attention to fairness. The Supreme Court said that children were persons
under the Constitution’s Fourteenth Amendment. As persons, they could
not be deprived of liberty without due process of law. The Court gave
juveniles the rights to counsel at trial, to have notice of the charges
against them, to confront witnesses and to avoid self-incrimination.
Gault established a set of Constitutional rights. Since then, other youth
rights have emerged from state and federal court decisions and from
laws that established statutory rights. Constitutional and statutory
rights have, in turn, taken on new dimensions in light of recent research.
The MacArthur Foundation Research Network on Adolescent
Development and Juvenile Justice did seminal work from 1996–2006.
The Network’s research demonstrated that adolescence is a period of
rapid change characterized by peer influence, lack of future orientation
and inattention to risk during a time when teens’ characteristics are not
fully formed. In addition, emerging research in neuroscience reinforced
the findings of developmental psychology: those parts of the brain that
control behavior continue to evolve through adolescence.
The research has provided incontrovertible support for the view that
led to the creation of a juvenile court more than a century ago: adolescents
are not the same as adults. Legislators and judges—those who define and
interpret rights today— have paid close attention to the latest findings,
which lawyers for youth have vigorously advanced.
Lawyers for youth fall into two categories: a) those who represent children
each day in delinquency courts, as envisioned by Gault; and b) public
interest lawyers who are legatees of the civil rights movements of the
1960s. The former argue for application of developmentally appropriate
rights in juvenile court proceedings. The latter litigate and bring appeals
aimed at redefining youth rights.

Lawyers have promoted protection of youth in the justice system since
In re Gault through three categories of rights: procedural rights to fairness,
substantive rights to services and rights to be free from harm. Those
three categories apply to four areas:

1.	 Police interaction with youth;
2.	 Juvenile court processing;
3.	 Juvenile court dispositions (sentencing)
and juvenile corrections; and

4.	 Adult court processing and sentencing.

Police Interaction with Youth

Courts have generally treated youth in the same way that they have
treated adults when it comes to the way police interact with them. For
example, police need the same kind of “probable cause” to initiate search
and seizures on the street.
In 2011, however, the Supreme Court declared that teens are different
when it comes to confessions and the need to give Miranda warnings.
Miranda requires that warnings be given when a suspect is in custody.
This is because custody is inherently coercive, and can lead to involuntary
and false confessions.
In J.D.B. v. North Carolina (2011), the Supreme Court held that the age
of the child is relevant to Miranda’s analysis of “custody.” J.D.B. was a
13-year-old who was questioned in a closed room by two police officers
and two school administrators. While an adult would have realized that
he could leave and decline to answer questions, “a reasonable child
subjected to police questioning will sometimes feel pressured to submit
when a reasonable adult would feel free to go.” Although the Supreme
Court sent the case back to North Carolina for a determination of whether
J.D.B. was in custody, that determination will be based on a new rule of
the “reasonable adolescent.” The Supreme Court thus reframed youths’
constitutional rights in light of adolescent development research, brain
science and common sense.


C hil d r e n & T e e n s

Youth also have
rights to be treated
fairly, regardless
of their race and
Youth also have rights to be treated fairly, regardless of their race and
ethnicity. In 1992, Congress amended the Juvenile Justice and
Delinquency Prevention Act (JJDPA) of 1974, requiring states that receive
JJDPA funding to reduce “disproportionate minority confinement.” The
Act was later amended to require states to address “disproportionate
minority contact,” which includes decisions by police and others whose
decisions disproportionately affect racial and ethnic majorities. The W.
Haywood Burns Institute and the Center for Children’s Law and Policy
are relatively new organizations that have been working to promote the
right to equal protection by working to reduce disproportionate minority
contact across the country.

Juvenile Court Processing

Children’s lawyers have paid attention in recent decades to ensuring
that juvenile courts treat youth fairly. Advocates have also sought to
implement the Gault-given right to counsel, to ensure that youth have
lawyers who can advance other rights.

In 1995, the American Bar Association Juvenile Justice Center, Youth
Law Center and Juvenile Law Center published A Call for Justice: An
Assessment of Access to Counsel and Quality of Representation in
Delinquency Proceedings. This report showed the important role of lawyers
in protecting the rights of youth at every stage of juvenile court process,
from the time of arrest through disposition (sentencing). A Call for Justice
led, in 1999, to the creation of the National Juvenile Defender Center.


The rights sought by lawyers for youth accused of crime continue to
evolve. In general, youth have the same rights at trial as adults, except
that they lack a federal constitutional right to bail or to jury trial. Some
states have given youth a right to a jury trial in serious cases, and in 2008

the Kansas Supreme Court held that juveniles have a right to a jury trial
under the state constitution.
In order to consult with and guide their lawyers, youth must be competent
to stand trial. This became even more important in the mid-1990s, as
younger and younger teens were tried as adults. The MacArthur
Foundation Research Network found that large percentages of younger
adolescents, because of developmental immaturity, lacked the capacities
to be competent defendants. This is a due process right: it is not fair to
try defendants who are unable to appreciate what is happening at trial.
In recent years, several states have included “developmental immaturity”
in statutes that govern competency to stand trial.

Juvenile Court Dispositions and Juvenile

In the 1970s, federal courts began to recognize a “right to treatment”
for youth who were in juvenile correctional facilities. This right has
changed over time, as states from the late 1980s to early 1990s made
their juvenile codes less rehabilitative and more about punishment.
Even so, organizations like National Center for Youth Law and Juvenile
Law Center have relied on the right to treatment to improve conditions
of confinement in juvenile detention centers and juvenile correctional
facilities. These cases, as well as state laws and regulations, have limited
states’ abilities to put youth in isolation or use restraints; have ensured
that youth have access to education, in particular special education;
have required states to address youth mental health needs; and have
given youth the right to be free from harm when they are in state care.

Congress focused on this last right in 2003, when it passed the Prison
Rape Elimination Act. The Act seeks to reduce sexual abuse of inmates,

About the Author

and applies to all public and private institutions that house adult or
juvenile offenders and to community-based correctional agencies.

Adult Processing and Sentencing

Since states adopted “get tough” legislation in the late ‘80s and early ‘90s,
more attention has been paid to transfer of youth to adult criminal court
and to juveniles sentenced as adults. No court has yet held that juveniles
have a right not to be tried as adults, although there is some view that
juveniles will have more of a right to be tried in juvenile court as a result
of the expansive language about adolescence in the Supreme Court’s
J.D.B. opinion.
The Supreme Court has, however, recently addressed two types of adult
sentences of youth: the death penalty and life without parole in non-homicide
cases. The Court held both types of sentences unconstitutional.
In 2005, the Court invalidated the death penalty for youth who were
under 18 at the time of their crimes. Roper v. Simmons declared that
research on adolescent development demonstrates that differences
between juveniles under 18 and adults are sufficiently clear that juvenile
offenders “cannot with reliability be classified among the worst offenders.”
Juveniles have a right not to be executed.
Five years later, in Graham v. Florida, the Court invalidated a Florida
statute that allowed for youth to be sentenced to life without parole in
cases in which youth did not kill or intend to kill. The Court again drew
on the science of adolescent development and the adolescent brain. As
in Roper, the Court held that juveniles have a right under the Eighth
Amendment’s ban on “cruel and unusual punishment” to be free from
sentences of life without parole in non-homicide cases. 

Robert Schwartz co-founded Juvenile Law Center in
1975 and has been its executive director since 1982.
In his career at Juvenile Law Center, Robert has
represented dependent and delinquent children in
Pennsylvania juvenile and appellate
Robert Schwartz
courts; brought class-action litigation
Executive Director
over institutional conditions and
Juvenile Law Center
probation functions; testified in
Congress before House and Senate
committees; and spoken in over 30 states on matters
related to children and the law. From 1996-2006,
Robert was a member of the MacArthur Foundation
Research Network on Adolescent Development and
Juvenile Justice. As part of the Network, he co-edited
Youth on Trial: A Developmental Perspective on
Juvenile Justice (University of Chicago Press: 2000).
From 1996-99 he was a gubernatorial appointee to
the Pennsylvania Commission on Crime and
Delinquency. From 1991 to 2012, he was a gubernatorial appointee to the Commission’s Juvenile Justice
and Delinquency Prevention Committee, which is
the State Advisory Group that distributes federal
funds in Pennsylvania and advises the governor
regarding juvenile justice policy. Robert, in 2005,
became chair of the Advisory Committee to the
Children’s Rights Division of Human Rights Watch.
From 2003-2012, Robert chaired the Board of the
Philadelphia Youth Network. Robert is the recipient
of numerous awards, including the Andrew Hamilton
Award, presented by the Philadelphia Bar Association
“for exemplary service in the public interest,” the
Reginald Heber Smith Award, presented by the
National Legal Aid and Defender Association, the
Livingston Hall Award, presented by the American
Bar Association, and the Stephen M. Cahn Award,
presented by the National Association of Counsel
for Children for career achievement. Robert is a
graduate of Temple University School of Law and of
Haverford College, which in 2011 also awarded him
an honorary degree.


C hil d r e n & T e e n s


The rate of juvenile arrests for
violent crime has fallen sharply
since the mid-1990s. Yet
public concern about youth
crime and street gangs, stirred
by sensational media accounts
of gang activity, remains high.
Simon Hallsworth and David
Brotherton describe much
youth violence as a sort of
“slow riot” by young people
whose lives are filled with
stress, anxiety and insecurity.
Such violence is sparked by
anger and resentment among
young men who kill each other,
often for senseless reasons.
Too often this violence is
mislabeled as “gang wars.” 



Gangs, gang members, and gang activity

The latest FBI National Gang Threat Assessment claims that gang
problems are growing, with gang membership increasing by 40 percent
in the last two years. 56 But the National Youth Gang Survey reports that
the size and reach of gangs have declined over the past decade. 57
Experts say that gang members commit crimes at higher rates than
non-gang youths, and that quitting a gang results in a sharp reduction
in crime—with youths’ overall delinquency falling by half after they
left the gang. 58 But it would be wrong to say that gang members commit
most crime in the United States. Gang members have a higher rate of
delinquency, but most delinquency is committed by youths who are not
gang members.
One estimate of gang crime based on law enforcement surveys says it
amounts to less than five percent of all crime in the United States. 59
Research in three gang-problem cities found that gangs were responsible
for less than 10 percent of violent crime.60

Most gang members join when they are young
and quickly outgrow their gang involvement.

During the next year, many thousands of boys and girls will join gangs
or form new ones. That’s the bad news. The good news: nearly all will
outgrow their gang fascination, and most will do so in a year or two.
Researchers say that gang members join during early adolescence, and
the popularity of gang membership begins to fall after age 14 or 15.61
It is true that street gangs breed crime and violence. But while some
gang members—lacking job opportunities—get involved in illegal drug
markets, street gangs do not control these markets. And while street
gangs typically are involved in violence, the problem of youth violence
involves many more young people who are not gang-related. When
violence and drug trafficking are blamed on gangs above and beyond
the level of gang activities, “silver bullet” gang suppression tactics will
not solve these problems. 62

Gang enforcement

Historian Mike Davis has described a massive police gang “sweep” in
Los Angeles during the late 1980s: A thousand Los Angeles Police
Department patrolmen, backed up by elite tactical squads and a special
anti-gang taskforce, fanned out over ten square miles of South Central,
arresting 1,453 black youths. Police saturated the streets, rounding up
local teenagers at random. Arrestees were forced to “kiss the sidewalk,”
or to spread-eagle against police cruisers while officers checked their
names against computerized files of gang members. Most youths were
charged with trivial offenses—unpaid parking tickets or curfew violations.
Hundreds more, uncharged, had their names entered into the electronic
gang roster for future surveillance.63

While street gangs
typically are
involved in violence,
the problem of
youth violence
involves many
more young people
who are not
Police rarely base their responses to an emerging gang problem on a solid
understanding of gang issues or a realistic goal. The thrust of most gang
enforcement may be ineffectual, if not counterproductive. Police target
gang “leaders” while ignoring the risk that their removal will increase
violence by destabilizing the gang. Suppression tactics intended to make
youths “think twice” about gang involvement may instead boost the
gang’s image and toughen an “us versus them” mindset. Officials may
consider incarceration of gang members a measure of success, but prison
tends to solidify gang involvement.
Many police departments have formed special “gang units” as a response
to an emerging gang threat. But once gang units launch, experts say they
often become isolated from the rest of the department, making them
ineffective or even leading to corruption.64


C hil d r e n & T e e n s

In 1988, California legislators enacted the Street Terrorism Enforcement
and Prevention (STEP) Act, creating sentencing enhancements that
apply to “any felony or misdemeanor committed for the benefit of a
criminal street gang.” STEP provides that a person will receive a sentence
enhancement on top of a normal prison sentence: for low-level felonies,
an extra two-to-four years; for more serious felonies, five years; for violent
felonies, 10 years.65
Civil gang injunctions are legal tools that treat gangs as organizations
whose members can be punished for otherwise lawful behaviors. Typically,
individuals named in an injunction are prohibited from standing, sitting,
walking, driving, gathering or appearing anywhere in public with a
suspected gang member.66 In 2011, the LAPD was enforcing injunctions
against 55 Los Angeles gangs.67
Such gang suppression efforts can backfire, undermining deterrence
messages by elevating gang status and deepening anger and resentment,
leading to increased gang activity.68

Comparing public safety strategies

Los Angeles’ decades-long “war on gangs” has cost billions of dollars,
yet there are now six times as many gangs and at least double the number
of gang members in the Los Angeles region.69 And the rate of gang crime
in Los Angeles is almost 25 times the rate in New York City. In 2010, the
LAPD reported 5,465 gang-related crimes.70 That same year, the NYPD
reported just 228.71


Is New York City in denial about the nature and size of its street gang
problem? Or is the city still benefiting from policies set 50 years ago that
approached the problem of street gangs in ways that avoided the excesses
of police suppression in Los Angeles?
During the late 1950s, a serious problem of street gang violence erupted
in New York. A pair of Columbia University professors argued that the
city should tackle the problem with a range of community empowerment
projects to change the “opportunity structures” for disadvantaged youths.72
New York established Mobilization for Youth (MFY) to improve access to
education, expand youth employment opportunities, organize neighborhood
associations and provide services for those involved in gangs and their
families. Five settlement houses coordinated efforts by street workers
assigned to more than a dozen neighborhood street gangs. By the late 1960s,
the problem had greatly diminished.
Other cities like Chicago and Los Angeles did not adopt the MFY model.
Instead, these cities imposed police gang units, civil gang injunctions
and tough sentencing enhancements. The problems that plague poor
families and give rise to youth violence and street gangs were not
addressed, while the “war on gangs” swept millions of young people into
the criminal justice system.73

Research in three gang-problem cities found that gangs were
responsible for less than 10 percent of violent crime.

About the Author

Evidenced-based practices to reduce youth
gangs and crime

Gang involvement disrupts the lives of youth at an age when they should
be receiving an education, learning life skills and taking on adult responsibilities. There is no clear solution for preventing youth from joining
gangs and participating in gang-sanctioned violence, but evidence-based
practices that work with at-risk and delinquent youth—the same youth
who often join gangs—do exist.74 These evidence-based practices have
been tested by careful research and proven to reduce violence and serious
crime, with lasting effects over time.

Multisystemic Therapy (MST) provides intensive services,
counseling and training to young people, their families and
the larger network of people engaged in young people’s lives
through schools and the community.


Functional Family Therapy (FFT) counsels youths and
their families over a three to four month period, with specific
attention paid to both improving family interaction and
addressing the underlying causes of delinquency.


Multidimensional Treatment Foster Care (MTFC) places
delinquent youth with specially trained foster families
for six to nine months, while their parents receive intensive
counseling and parent training.

Judith Greene is one of the nation’s leading criminal
justice policy experts whose essays and articles on
criminal sentencing issues, police practices, and
correctional policy have been published in numerous
books, as well as national and internaJudith Greene
tional journals. Her work has been cited
in countless media stories and investiJustice Strategies
gative reports in outlets including the
Wall Street Journal, the New York Times,
and National Public Radio. Judith has over thirty years’
experience researching, writing and orchestrating
criminal justice reform. She has received a Soros
Senior Justice Fellowship from the Open Society
Institute, served as a research associate for the RAND
Corporation, as a senior research fellow at the
University of Minnesota Law School, and as director
of the State-Centered Program for the Edna McConnell
Clark Foundation. From 1985 to 1993, she was Director
of Court Programs at the Vera Institute of Justice.

Helping former gang members reintegrate back
into society

These programs target at-risk and seriously delinquent youth, including
gang members. They increase public safety while saving money. 75
Evidence that punitive responses to youth crime do not effectively
increase public safety is mounting. Lawmakers and law enforcement
should support implementation of evidence-based practices to treat
young people who are in conflict with the law.

Young people caught in the cycle of street gang crime need positive youth
development services—counseling, education, job training and jobs. One
example is Homeboy Industries, founded by Father Greg Boyle. Homeboy
provides employment opportunities to youths who want to leave gang
life.77 A charter high school, a tattoo removal program, poetry classes
and solar panel installation training provide gateway services and four
Homeboy businesses serve as job-training sites.

Peter Greenwood, a nationally recognized expert in the fields of juvenile
justice and delinquency prevention, notes that health and human services
agencies are best suited to assessing individual risks and needs, and
ensuring that treatment plans are carried out. Funding for such programs
should be routed through the health and human services system, where
they have proved more effective than in the criminal justice system.76

Gang suppression tactics—civil injunctions, harsh police tactics and long
prison terms—have not worked. We should invest our tax dollars in
prevention and intervention programs that have proven effective. Our
goal should be to help all youths at risk of joining street gangs by providing
them and their families with the services and opportunities they need
to build a brighter, more productive future. 


G ir l s & w o m e n


has Changed
for the Worse,
but We’re
Still Fighting:
30 Years
of Resistance
Women’s Prisons

The future is not a place
we are going to, it is
something we are creating.
We have a responsibility
to create a better world,
to leave a more hopeful
legacy for future
Jane Dorotik, Imprisoned in California since 2001

The experiences and political strategy of people in women’s prisons
provides a window into the ways that oppressed communities in our
society—communities of color and the hungry, homeless, disabled,
impoverished and unemployed of all races—are increasingly vulnerable
to imprisonment and premature death in modern society, as well as into
means of resistance.
In 1980, there were 12,300 people imprisoned in United States’ state
and federal women’s prisons. That was before the “War on Drugs” became
big business and private corporations were allowed a historic toehold
into imprisonment through private prison construction and management,
increased use of prisoners as a private forced free labor supply, and
monopolies on basic goods and services sold to people in prison and their
families.79 That was before the peak of the war on poverty and the general
dismantling of the United States social welfare state, alongside the
criminalization of many of the most vulnerable in society through
heightened criminalization of conduct related to homelessness and
crimes of survival. 80
According to the Department of Justice’s Bureau of Justice Statistics,
since 1980 the women’s prison population has increased virtually ten-fold,
at a rate of increase much greater than among men. Over 113,000 people
are now caged in women’s prisons throughout the United States. California,
with the world’s largest women’s prisons system alone, imprisons
approximately 12,000 people.
Female bodied people are the fastest growing population in prison. Yet
because their numbers are lower than those of people in men’s prisons,
and because of the added element of sex-based discrimination, people
in women’s prisons are rendered even more invisible. Who is locked up
in women’s prisons, and how did they come to be caught in the web of
the prison industrial complex?
The connection between powerlessness and imprisonment is clear
amongst people in women’s prisons. Poverty, racism, classism and sexism
intersect to make female bodied people of color particularly vulnerable
to imprisonment, premature death and fragmentation of their families.
According to the Department of Justice, Bureau of Justice Statistics,
the majority of people in women’s prisons are people of color from socioeconomically depressed urban centers. People in women’s prisons are
on average at the peak of their lives—the vast majority is aged 20-45—yet
are rendered surplus workers in our modern service-based, high-tech
economy. The majority was unemployed at arrest and has less than a
high school education. Reflecting social and political vulnerabilities
faced by people in women’s prisons, the Department of Justice reports
that over 80 percent are the survivors of child abuse, sexual violence
and/or intimate partner abuse, most often gone unrecognized or
acknowledged by dominant society.

since 1980
the women’s prison
population has
virtually ten-fold,
at a rate of
increase much
greater than
among men.

G ir l s & w o m e n

In contrast, studies indicate that women of color are “over-arrested,
over-indicted, under-defended, and over-sentenced” as compared to
white women or men for “crimes” of survival:81 The Department of Justice
reports that roughly 80 percent of people in women’s prisons are serving
prison time for nonviolent property, public-order or drug-related offenses.
Reflecting the political devaluation of healthcare access for impoverished
female-bodied people of color, the women’s prison population is more
likely than the general population, or even the men’s prison population,
to be HIV positive or infected with Hepatitis C, or to have either symptoms
or a diagnosis of mental illness. 82 Thus impoverished female-bodied
people of color are at risk of both imprisonment and premature death
through preventable disease. And the Department of Justice Statistics
reports that 7 out of 10 people in women’s prisons were primary caregivers
for minor children prior to their imprisonment; thus their imprisonment
has a devastating impact on their families and communities. It is important
to note that not all people in women’s prisons identify as “women” or
female. While there is no official count of how many transgender or gender
non-conforming people are imprisoned, it is understood that gender
non-conforming people face societal discrimination and heightened
criminalization, and there are male-identified and/or gender nonconforming, female-bodied people imprisoned in women’s prisons. Society
regularly ignores this population and subjects it to significant abuse and
gender discrimination while free and imprisoned.83 Imprisonment isolates
people in women’s prisons and disenfranchises them from the democratic
process. Policies that restrict visitation of people in prison by family and
media are regularly unsuccessfully challenged. Rural locations isolate
prisons great distances from the urban communities of origin of
imprisoned people. In the ultimate act of disenfranchisement, in many
states, people in prison permanently lose the right to vote—leaving entire
communities of color and impoverished communities of all races unable
to access democracy. People in women’s prisons urgently need a public
voice within our democracy.
To better explain trends in modern imprisonment, I asked a team of
activists inside women’s prisons who have been imprisoned for most or
all of the last 30 years to comment on the changes in prison conditions,
perceptions of imprisoned people and strategies they have taken to better
their lives over this time. 84 Direct quotations appear below.


7 out of 10
people in
women’s prisons
were primary
caregivers for
minor children
prior to their
What has changed in prison and policing over
the last 30 years?

Prison policy has changed from “rehabilitation” to “warehousing” of
“criminals.” A grave inconsistency exists within the system… It all looks
good on paper, yet look at “who” is presenting all of this to the “courts.”
Have they asked one person that has actually been behind a prison fence
for 35 years—three and a half decades—that has lived all the actual
changes? Have seen them happen with one’s own eyes, and have felt them
with one’s own gut—all of the negativity—from the age of 25 to the age of
60? From respect and caring, to disrespect and non-caring; single cell
living to an 8-woman cell; proper medical care/medications to maybe a
medical appointment if forceful enough…personal care items limited
(toilet paper, tampons, sanitary napkins, cleaning supplies—all limited);
culinary area now disgusting (food inadequate for consumption, service
rudeness, no adult portions); school programs/work programs nonexistent
for inmates. There is no incentive as opposed to in the ‘70s, ‘80s, ‘90s.
Josephine Moore, imprisoned since 1977.
Inhumane warehousing—it went from housing two women in a cell to
eight in that same cell, and your security level status doesn’t seem to
matter. They put you wherever they think you can fit and they can get
away with—which fits the criteria of warehousing. Shawn, imprisoned
since 1979.

There have been many changes on many levels over different decades:
increased population density, more hostile police attitudes, less education,
poor supply distribution, poor food and less court access.… Reduced
education/vocation opportunities; increased rewards for engaging in
criminal behavior; increased punishments for not engaging in criminal
behavior or for engaging in pro-social behavior. Cindy Oakley, imprisoned
since 1991.
Nothing has improved. It’s only getting worse and worse. The lack of
upkeep of the buildings/property. The quality of food. The kind of people.
Women from 18 to 25 are a big population here now. Valerie, imprisoned
Everything has changed for the worse. Physical and verbal abuse from
the staff on the people inside. Guards have become more aggressive and
not respecting your rights (mail is thrown away, not giving toilet paper,
room search threats, taking property). Liz, imprisoned since 1995.
There are more staff, more rules, less privileges. We can’t get boxes from
family and are now shopping from vendors. Quality of food is down and
reduced quantity. What is the worst change? Poor medical care, medical
neglect which leads to more medical problems and death. Has anything
improved? They have a computer system, but they’re not using it well.
Hakim, imprisoned since 1996.
Just prior to my arrest, all kinds of new tough on crime laws were passed.
It seemed like a landslide—from being able to add on years for
enhancements, to the three strikes law. And even under our current state
prison overcrowding and debt crisis, more laws are being created…. There
was a lot of promise for change with California implementing “gender
responsive” programs. It is a joke. The assumption underlying the program
is that women commit crimes for different reasons than men, and therefore
need to be treated differently. They are victims of abuse and need
rehabilitation. That they [officials] care is bullshit. Look, the state has
been looking for a way to move women to make more room for male
prisoners. They come up with this whole victim issue so the public doesn’t
freak out if women are transferred to smaller, community-based prisons
or put on ankle monitors. Every staff member is mandated to take the
gender responsive program training. Yet they use the same abusive tactics
to keep their female population in line. The correctional officers verbally
and emotionally abuse, bully and threaten the women into compliance.
Women do not pursue grievances or become involved in activism because

they are afraid of retaliation. The lack of female activism is proof of that.
The women do not stand together. We do not even have enough kotex/
tampons and toilet paper, but they just accept it. They feel helpless to do
anything about it. They are too worried about a room search, or a
disciplinary charge as retaliation. It is not uncommon to be called “bitch”
or “ho,” or to be told to “shut the fuck up,” by these gender-responsivetrained correctional officers. The prison I am in may end up the only
female facility that houses higher security people. It currently operates
at approximately 200 percent of design capacity. If the State has its way
and converts one of the women’s prisons into a men’s prison, we will
operate at over 200 percent. And there will be no way to separate enemies,
or protect people from staff who have harmed them. I have tried to speak
to my peers. I’ve asked them to have family members call prison officials
and state representatives. Most aren’t doing anything. They are lying on
their backs, spreading their legs and their mouths at the same time. But
I realize it isn’t their fault. They are afraid and stuck in the same cycle of
abuse they experienced at home. Except instead of being their family
member or significant other beating and raping, it’s the California
Department of Corrections and Rehabilitation. One positive change is
the release of some women lifers. The past governors would regularly
overturn the parole suitability decisions for lifers. A lot of the women
who have gotten release dates recently were just as suitable for parole
under the other governors. I believe part of the reason it’s now ok for them
to get release dates is because of the overcrowding and economic crisis.
These women were kept behind bars because the State had the means to
keep them, not because they were a threat. That’s disgusting. Cookie,
imprisoned since 1996.
It has gradually gotten worse: medical is an atrocity; too many mental
health patients are in prison; conditions are the worst— the Plata v.
Brown lawsuit 85 has been ignored. Funk, imprisoned since 1998.


G ir l s & w o m e n

How have perceptions of people in prison
changed over the last 30 years?

The “Powers that Be” are more belittling toward us regardless of our
upgrade in education, self-help, etc. I believe it’s either black or white;
there’s no gray area whatsoever. Meaning they don’t like me simply
because I’m incarcerated, and a prisoner—point blank.… So it’s like no
matter how productive you become they still perceive you as defiant.
Shawn, imprisoned since 1979.

It’s a revolving door. I have seen this happen. I do not know what is
happening in society—I haven’t been out in decades—yet I do see what
women look like when they come through these gates nowadays. A 25 year
old woman looks 50 years old and will gladly take this prison abuse because
a parole officer is just as bad as a corrections officer and there are no
programs in the free world. Josephine Moore, imprisoned since 1977.

Society in general perceives the incarcerated as “less-than,” someone
who should forever be banned from society—who would endanger “them”
if we should be released. Cindy Oakley, imprisoned since 1991.

It’s a cruel, inhumane, slave trade, money making, industry! Shawn,
imprisoned since 1979.

The perception has changed of how much time people should get for
certain crimes. Women are still given way more time for the same crimes
when compared to their male counterparts. Addicts are still being treated
as criminals, instead of a person with a sickness. Valerie, imprisoned
To the general public, I am a gang member who deserves to die in here.
Never mind that I would have done about three years total for my crime
were it not for mandatory enhancements; instead I am doing life. Kids
today, young adults do not get second chances. They are sentenced to
these long terms without hope… Why did the CDC even bother to put that
“R” [for “rehabilitation”] for CDCR on their uniform?86 Obviously me and
all the youth and young adults sentenced like me are beyond rehabilitation.
All the three-strikes law87 does is double punish. We wouldn’t even punish
our children twice for the same incident. So how is it morally applied?
And what of the unjustness of the petty theft with a prior three-strikes,
or drug possession three-strikes. It is sideways—throwing away a whole
segment of society, mostly minority. And where do the children go? Foster
care. It is a guarantee: the next generation cycles through the electric
fences, iron doors and brick walls of our prison system. In contrast,
organizations working with us in here fighting the prison system—Justice
Now primarily—learn about me as a person. That changes perceptions.
Cookie, imprisoned since 1996.
I feel the prejudice of being a “felon.” Funk, imprisoned since 1998.


What is one thing people outside should know
about prisons today?

1) “Inmates” are trained by the departments’ personnel to stay in prison,
and to return to prison. 2) We have lost our constitution; it is an empty
shell today. Cindy Oakley, imprisoned since 1991.
That the penal system wastes a lot of taxpayer monies. Valerie, imprisoned
The system is depressing and breaks you down. Liz, imprisoned since 1995.
There is no justice in the system. Hakim, imprisoned since 1996.
It is abusive, dehumanizing, and hopeless. It is able to get away with
everything. The only time media is allowed in is to make them look
good—photo ops. Prisons need to be transparent, so that the realities
can be brought to light. If prisons are so professional and concerned
with women, why can’t inmates give interviews? Prison officials are
afraid that the truth will come out. I was told by a staff member that I
should not be allowed to contact the media. She was referring to an
article where I was quoted after I wrote a reporter in response to an
article he previously published. She felt inmates should not be able to
speak on incarceration conditions. That is a common belief among
staff. I told her that sounded like concentration camp stuff. Cookie,
imprisoned since 1996.
[The prison system] is a scary and corrupt, very powerful force. Funk,
imprisoned since 1998.

The “Powers that Be” are more
belittling toward us regardless
of our upgrade in education,
self-help, etc.

We have the solutions. We know what to do. We need to start by deciding
we want to get this work of decarceration done. Where there is a will,
then, there is a way. Right now there is no real concern for women. It is
a play. If there is commitment to releasing “non-violent female offenders”
then release them. If the state wants family reunifications, then these
“safe” women would not still be behind these walls, their children would
not be in foster care or on the verge of adoption. It is easy to imagine
what to do to meet people’s needs and to enable people to thrive, if one
really wants to do it. Cookie, imprisoned since 1996
More treatment for substance and alcohol abuse. More community
services for domestic violence. Better education system. Funk, imprisoned
since 1998.

How would you reduce the prison population in
the short term?

Personally, I’d like to see more education and training in communities.
Instead of building prisons, the focus should be placed on things like
places where people can go once released, where they can have a new
start in life. I’m not talking about your average programs. I’m speaking
on step-by-step help hands-on training. I believe it would help others to
focus on what’s right and become more responsible individuals/parents.
Shawn, imprisoned since 1979.
Open reentry programs combining housing, education and employment.
Bring labor-intensive jobs that have gone overseas back here for parolees.
Allow in-house treatment for as long as anyone one needs. Eliminate the
profit from those who currently take their livelihood from those who are
incarcerated. Cindy Oakley, imprisoned since 1991.

Do prisons create safety?

I feel prison teaches one how to survive while having it hard. It also
hardens a person’s heart to some degree due to the treatment you receive.
No, I don’t feel prisons create safety for others. I believe it creates safety
for the prisoner because they’re well kept away from society’s dangers.
Shawn, imprisoned since 1979.
Prisons do not create safety. They promote violence, domination, selfabsorption, gratification of immediate needs only—no concept of
ownership, pride, community…. They do more harm than good. Cindy
Oakley, imprisoned since 1991.
No, not at all, they make people worse off, teaching worse things. Liz,
imprisoned since 1995.
Hell no, they’re against it. Hakim, imprisoned since 1996.

First, I’d release all of the non-violent three-strikers. With the stipulation
that they get therapy, go to programs and do community service for a
fixed amount of time, say three years. And behind them, I’d make sure
that anyone else who comes to court with a drug charge gets the same
sentence. Nearly all the female three-strikers were addicts. Valerie,
imprisoned 1991–2011.

No! They create an image of safety—a place to “banish the bad guys.”
Prisons indoctrinate first time offenders and perpetuate abuse cycles.
They do not rehabilitate. People parole with no skills and no work, with
the added stigma of being a convict that alone pushes them back into
crime. Cookie, imprisoned since 1996.

Some kind of half-way home with funding for education and basic
necessities. Liz, imprisoned since 1995.

NO! How can anyone think prisons create safety? Funk, imprisoned
since 1998.

Start with the lifers and use the money saved to open up rehab centers,
like half-way houses, and jobs to build communities. Hakim, imprisoned
since 1996.


G ir l s & w o m e n

Treat each other with self respect; no segregation,
no hatred, no racism, no greed.

How can we build a safe, compassionate world
without prisons?

How can it be fixed? Will it be fixed? I’m an elderly woman still fighting
for freedom with a term of life without real possibility of parole.… Can
there be change? Yes, if the right people are heard! And come forth! And
are not ignored! Josephine Moore, imprisoned since 1977.

Be kind to mankind; treat each other with self respect; no segregation,
no hatred, no racism, no greed. An endless amount of things need to
happen, but first we must all surrender to a higher power… I believe that
if everyone did unto others as they want done to themselves, it would
play a part in a great start. We need more unity while supporting one
another. Shawn, imprisoned since 1979.
For society to recognize that we are human beings and that at any moment
one of them could be us. Find out the root causes of why a person committed a crime and heal that. That’s the whole of it. Valerie, imprisoned
More outside services in order to help—services to help people in need—more
people to care. Liz, imprisoned since 1995.
Proper, therapeutic rehabilitation. Hakim, imprisoned since 1996.


We need transformative justice. We need opportunities to heal from being
harmed. We need opportunities for reparation—both so that people who
are harmed can heal and so people who have harmed others can grow. We
need opportunities where people who have done harms can be supported
in changing their behavior and growing [in] understanding, not destroyed
or tossed away. And we need to look seriously and critically at what systemic
forces are in our communities, politic, economy, and institutions that
promote, instigate, perpetuate and cover-up violence and other grave harms.
If we could do all this, then we would have a radically different system of
justice that would help us be proactive while also addressing harms
reactively with opportunity for individual and societal transformation.
That would create safety. Cookie, imprisoned since 1996.
Better investment in our children—they are our future—education! Funk,
imprisoned since 1998.

About the Author
Are there organizing opportunities to make
change across prison walls?

This isn’t as strong as it once was—women have no say so in prison no
more, and sure, one can speak, yet are you heard? No! I do know people
are trying to help and faith keeps me going along with those real allies
fighting for change with us from outside. Josephine Moore, imprisoned
since 1977.

People in prison find ways to help ourselves. We are not powerless.
I became a member, and an executive body chairperson, of the Women’s
Advisory Council. We fought for better sanitary supplies, quarterly
packages, mail and visiting rights, yard access, canteen access. I’m also
the co-founder of the organization called U-Turn. We started back in
1993 to deter young juveniles from the life of crime that could lead to
jail, institutions, or death. This organization still exists. Also the Long
Termers Organization, helping those with life or long terms with
paperwork and what you can do to better yourself in these conditions.
I’m also a prison hospice volunteer person: we work with Justice Now
on compassionate releases—trying to get people dying in prison out so
they can die with their families, and I also sit with them till the last
moment. Shawn, imprisoned since 1979.

Cynthia Chandler is a human rights attorney, prison
industrial complex abolitionist, and the co-founder
of Justice Now, a human rights organization that
partners with women in prison and local communities
in building a safe, compassionate
Cynthia Chandler
world without prisons. In the developin partnership with
ment and writing of this 30-year
imprisoned activists
overview of women’s imprisonment in
Justice Now
the United States, Cynthia collaborated with a team of eight imprisoned
activists who regularly organize with Justice Now.
Some of the team chose to be acknowledged with
shortened names or pseudonyms to prevent retaliation for their participation in this project. Some chose
to use their full names. Listed in order of numbers of
years served in prison, they are: Josephine Moore,
Shawn, Cindy Oakley, Valerie, Liz, Hakim, Cookie,
and Funk.

I’ve worked with Justice Now, documenting human rights violations in
prisons. Also Just Detention International regarding sex abuse within
the prison. Also, written my own efforts to stop/ban smoking within the
prison, and to require the use of headphones for radios and TVs indoors.
Cindy Oakley, imprisoned since 1991.
I am an activist for juveniles serving life without the possibility of parole
and women’s rights. I created a prisoner organization for people sentenced
to long sentences as juveniles. I also have worked with Justice Now,
Human Rights Watch and California Coalition for Women Prisoners.
Liz, imprisoned since 1995.
I have been part of activist efforts challenging prison conditions and
imprisonment with California Coalition for Women Prisoners, Justice
Now, Legal Services for Prisoners with Children and Brown Boi Project.
Hakim, imprisoned since 1996.
I am a board member of Justice Now. They/we don’t give up. We make
coalitions with other organizations across prison walls. We push policy
agendas. We never compromise our mission—challenging imprisonment.
Custody hates when free Justice Now members come to the prison for
visits. Cookie, imprisoned since 1996.
I write legal/civil action lawsuits around medical neglect. I organize
with the California Coalition for Women Prisoners. Funk, imprisoned
since 1998.


Reflecting the disenfranchised, devalued status of people in women’s
prisons—rarely are people in women’s prisons asked to serve as experts
on imprisonment or their own experience. This team’s collective testimony raises common themes of urgent relevance to actors wishing to
build a more just society. Moreover, their resiliency, hope and activism
in the face of adversity challenge those of us who are free to join them
in reshaping the political direction of the United States. 


G ir l s & w o m e n


In The


G ir l s & w o m e n


G ir l s & w o m e n

About the Author
Rachel Marie-Crane Williams, is  an artist and teacher
currently employed as an associate professor at the
University of Iowa. She has a joint appointment
between the School of Art and Art History (Intermedia)
and Gender Women’s and Sexuality
Rachel Marie-Crane Studies. She is originally from North
Carolina (the Eastern Coastal Plain),
Associate Professor,
but she has lived in Iowa since 1998,
University of Iowa
and taught at The University of Iowa
since 1999. Her work as a researcher
and creative scholar has always been focused on
women’s issues, community, art, and people who are
incarcerated. She earned a B.F.A. in Painting and
Drawing from East Carolina University and an M.F.A.
(Studio Art) and a Ph.D. (Art Education) from Florida
State University. 

How do women
end up in the
criminal Justice
system? Their
Journey often
begins in Girlhood.
Perhaps they
are born poor,
or Black, maybe
Latino or maybe
they are born to
a teen mother.

American alternative/single creator comics and
graphic novels have been at the heart of her creative
scholarship for the past few years. Her graphic
scholarship has been published by the Jane Addams
Hull House Museum, the Journal of Cultural Research
in Art Education, and the International Journal of Comic
Art. Her current projects include a graphic novel about
the Detroit Race Riots of 1943, a mini comic about
police brutality, and The Prison Chronicles, a series
of stories about working in women’s prisons. 
While Rachel is an artist she is also an academic scholar. Her traditional
scholarship has been focused on women in prison. She has worked with
incarcerated women since 1994. The prisons where she has conducted
research include the Monroe County Jail in Key West, Florida, Jefferson
Correctional Institution in Florida, Taycheedah Correctional Institution in
Wisconsin, Deerlodge Correctional Institution in Montana, the State
Training School in Eldora, Iowa, the Iowa Juvenile Home in Toledo, Iowa,
the Iowa Correctional Institution for Women in Mitchellville, Iowa and
HMP Holloway in London, England. She has visited and toured numerous
other correctional institutions in the U.S. In 2010, she enrolled in the
Inside-Out Prison Education Program through Temple University (www. Her scholarship has been published by the Journal
of Correctional Education, The Journal of Arts Management, Law, and
Society, the Journal of Art Education, and Visual Arts Research. She is
also the Co-Editor of the Marilyn Zurmuehlen Working Papers. Rachel
teaches courses about comics and sequential art, women’s studies,
intermedia, feminist research methods, and civic engagement. Her work
can be explored at


P e o p l e w i t h M e n ta l Il l n e s s


Mental Illness

Today, a frequently expressed
concern is that jails and
prisons have become the
nation’s largest mental
institutions. But how this
shameful outcome came to
be and what general lessons
we can draw about our soaring
incarceration rates are less
commonly discussed. As with
other populations vulnerable to
criminal confinement, people
who have serious mental
illness have been stereotyped
as dangerous, morally weak,
and limited in their capacity
(or their right) to participate
in the social mainstream.

And although their essential issue is a disability—such as schizophrenia
or bipolar disorder—and not criminal conduct, for decades the routine
practice was to incarcerate people with serious mental illness in state
psychiatric hospitals. Similar to the recent boom in constructing jails
and prisons, during the late 1800s and into the mid twentieth century,
states across the country built huge, fortress-like mental asylums. These
were generally located far from population centers and designed as isolated,
self-contained communities. Depending upon one’s perspective, they
either offered people with serious mental illness a safe haven from the
stresses of society, or they offered society protection from the purported
dangers of mental illness.
By the 1950s, well over half a million Americans with mental illness were
segregated within these state institutions, the largest of which (Pilgrim
State Hospital outside of New York City) housed almost 14,000 patients
and was listed in the Guinness Book of World Records as the world’s biggest
hospital. Most people who were admitted to state hospitals in this era
were ultimately consigned to “back-wards,” custodial settings for those
who were classified as unresponsive to treatment. On these wards, they
had little hope beyond a lifetime of institutional confinement.
Over the decades, the individuals warehoused in state hospitals were
subjected to indiscriminate seclusion and physical restraint and harmful
treatments, including lobotomies (brain surgery), electric shock therapy,
and medications with horrible side effects. For the “crime” of having a
disability, these individuals also suffered the devastating effects of loss
of freedom and other basic rights. Their social identities became little
more than case numbers in massive public systems. And when they died,
thousands of these individuals were buried in unmarked graves on the
grounds of the hospital.

services would
cost less than
and institutional

To fully appreciate the parallels between people with serious mental
illness and other groups now vulnerable to incarceration in criminal
justice settings, it is important to understand the common denominator:
all are degraded populations without a significant political voice, and who
are seen as risks to society and burdens on the public coffer. The desire to
segregate people regarded as “hopelessly insane” while spending as little
as possible was among the primary reasons for creative psychiatric
backwards. In the 1950s, when the nation’s state hospital population was
at its peak, the average expenditure per patient day of care was $2.70.
Nevertheless, because of the sheer size of these institutions, states spent
lots of money in the aggregate on maintaining their psychiatric hospitals.
Across the nation, state hospitals were often the largest employers in town
(Pilgrim State Hospital, for instance, at one time employed over 4,000
staff members), and although the people they served may have lacked
political power, the political importance of the institution itself could be
very strong. In a real sense, state hospitals achieved the status of important
industries whose impact was felt on local economies and in state politics.
This industry was constructed around the premise that state custody of
large numbers of people with serious mental illness was necessary.
Beginning in the 1960s, a number of factors converged to bring changes
to this institutional culture. The expense to states of supporting their
massive institutions became prohibitive (in New York as elsewhere, mental
health had become the largest state agency, accounting for about one-third
of the entire state budget). New federal programs—Medicaid and Medicare—
offered states the opportunity to shift significant costs borne by their
mental health systems if people were transferred to nursing homes and
similar settings. New antipsychotic drugs that held the promise of dramatic
improvements in clinical symptoms came on the market. And an outgrowth
of the mounting civil rights movement began to critically examine the
legal basis for trampling the liberties of people with mental disabilities.
Capping this picture, in the Community Mental Health Services Act of
1963, Congress laid out a vision of an ambitious new approach to mental
healthcare, whereby clinics and services located in the community would
offer a whole array of innovative services that would allow people with
serious mental illness to live successfully outside of state hospitals.
Deinstitutionalization and services in least restrictive settings became
the hallmarks of public mental health across the nation. The promise
was that state funds that had been invested in institutional warehousing
would follow people into the community to support these goals and that
state psychiatric hospitals would serve a transitional role as new models
were implemented.


P e o p l e w i t h M e n ta l Il l n e s s

From a strictly numerical perspective, deinstitutionalization was a huge
success. By 2002, the number of the nation’s state hospital beds had fallen
to 10 percent of the 560,000 beds in 1955, and this figure continues to
drop. States now spend more on community services than on psychiatric
hospital care. And many individuals with serious mental illness now live
successfully, integrated within their communities.
Much has changed, except for one very key factor: notwithstanding
the ambitions of deinstitutionalization, people with serious mental
illnesses remain stigmatized socially and politically. The promise to
fulfill the aspirations of the community mental health movement
quickly faded. Despite some pockets of success, too few innovative
services and supports to promote community living ever materialized.
Instead, assembly-line discharges to private for-profit institutions,
other marginal living arrangements or sometimes even to the streets
allowed hospitals to rapidly downsize. States diverted funds intended
for community mental health to initiatives (such as road building) that
had far more political importance. And reminiscent of the political
power once associated with state hospitals, the nursing home industry
and other congregate-care businesses have emerged as players with
state and federal legislators.
Lacking access to essential services and basic supports, people with
serious mental illness became vulnerable to arrest, often for minor
infractions associated with unemployment, homelessness or their
untreated disabilities. For a variety of reasons (notably that state
hospitals often discharged people to living arrangements located where


crime and drug use were rampant), substance abuse problems became
commonplace, adding yet another risk factor for arrest. Once in custody,
people with serious mental illness often have a very hard time complying
with institutional rules, resulting in longer periods of incarceration
than their criminal charges would normally incur. All told, these factors
have culminated in today’s shamefully high representation of people
with serious mental illness in the nation’s jails and prisons, estimated
at between 200,000 to 300,000.
A simplistic view of this scenario is that people with serious mental
illness who are now incarcerated or at risk of incarceration need once
again to be confined in hospitals or other institutions. Some people
question the deinstitutionalization movement and the capacity of people
with serious mental illness to live in the community. The scientific
evidence is quite different. As recent reports by the U.S. Surgeon General,
a presidential commission on mental health and other sources document,
a broad selection of evidence-based services and supports could fulfill
the vision of successful community living for most people with serious
mental illness, but the political will to make these services available
continues to be lacking. In short, the widespread incarceration of people
with serious mental illness is a symptom of neglect, not of the actual
capacities of the individual or of our knowledge of the tools this population
needs to be successful. Appropriate community services would cost less
than incarceration and institutional confinement. To make such a
rational investment, though, would require going up against the
industries—governmental and private—and the political interests that
benefit from the status quo.

Estimated number of people with serious mental illness
in the nation’s jails.

About the Author
Robert Bernstein, Ph.D., is a psychologist with a
strong interest in ensuring meaningful community
participation and promoting the consumer voice
within mental health systems, particularly for
individuals who are marginalized or
neglected by public systems.
Robert Bernstein
President & Executive

For 19 years prior to his appointment
to this post, Bob was the architect and
director of one of the nation’s oldest
and largest mental health and aging programs. NSOOlder Adult Services in Detroit, Michigan, featured
an innovative system that blended in-home services
and advocacy to support older adults with persistent
mental illnesses in integrated community settings. In
addition to his work with that trail-blazing program,
he also ran a private practice where he specialized
in treating children and adolescents.

Director, Ba zelon Center
for Mental Health Law

The Americans with Disabilities Act (ADA) offers an enormously
important tool in challenging this reality. Enacted by Congress in 1990,
the ADA is a civil rights law designed to promote the integration of people
with disabilities—including serious mental illnesses—within the
community mainstream. In its landmark Olmstead decision of 1999, the
U.S. Supreme Court held that the unwarranted institutional confinement
of people with serious mental illnesses is a form of discrimination under
the ADA. These legal tools are now being used to challenge the various
factors that put people with serious mental illness needlessly at risk of
incarceration and that prolong their confinement in jails, prisons and
other segregating institutions.
While the full impact of the ADA is still unfolding, the story behind the
shameful incarceration rates of people with serious mental illness holds
critical lessons for many disenfranchised populations that are vulnerable
to incarceration. Essential is an understanding of what happens to
devalued, socially powerless groups and how politics and financial
interests can trump good public policies, the rational use of government
funds and the basic rights of fellow citizens. 

Bob is a leader in the field of mental health policy and
advocacy. He has published several important papers
and served as an expert in litigation concerning such
areas as conditions in psychiatric institutions, the use
of seclusion and restraint, community mental health,
older adult needs, and fair housing. He also contributed
to the preparation of the 1999 Surgeon General’s Report
on Mental Health and the President’s New Freedom
Commission on Mental Health.


V ic tims


Need Just

At the core of crime victimization
are two common results:
loss and trauma. Loss, by its
very nature, is a reflection of
something taken that cannot
be restored. Losses from crime,
of course, can be quite profound.
Human perpetrators may cause
the loss of life, of physical
control (i.e., injury), of emotional
control (e.g., post traumatic
stress disorder), financial
control and even the loss of
innocence. Even the most basic
property crimes, where the loss
of property is covered by
insurance, can result in the loss
of trust in people or a community.

Trauma is a reaction to loss. Our bodies and minds respond to something
unexpected and out of our control that challenges our resilience. While
crime statistically is happening every second of every day, for the person
experiencing victimization, the harm might be quite unique and new.
Those who advocate for victims know better than to try to define for the
individuals the impact of the loss in their lives. They are allowed to do
that for themselves. That is, until the justice system gets involved.
When victims enter the criminal justice process formally, which typically
starts by a crime being reported to police by them or someone else, cultural
values, centuries of legal tradition and human dynamics combine to start
to define for victims the impact of their loss and the associated trauma.
Added to that, the system is called the Justice System and victims naturally
believe that the pursuit of justice is at the heart of criminal justice. But
the system emphasizes legal processes protecting the accused over
victims’ needs.
So those who are harmed by others find themselves propelled into a
complex procedural system where the definition of justice seems more
about adherence to rules (i.e., due process) than righting a wrong or
holding someone accountable. The system and society will place a price
or cost on a crime, even while survivors have deep-seated beliefs that
their loved one or personal injury is priceless and irreplaceable.
Yet the justice system, whether criminal or civil, works to put a tangible
price on everything. That can start pretrial criminally where in many areas,
unless there is a valid threat assessment prospect, an arbitrary bail amount
is intended to reflect the “price” of the crime of which someone is accused.
In the process of legal proceedings, there will be plea negotiations—most
cases are settled this way—and if those aren’t agreed, there will be a
trial. If conviction results, once again, there will be a ‘price’ placed on
the conviction.
Most often in the course of criminal justice, the deepest cost to the convict
is loss of personal liberty through incarceration. On the rarest of occasions,
it is the price of convict’s own life. In any case, the main tool of the criminal
justice system is incarceration where sentences seem to victims and
survivors almost as arbitrary as bail amounts.
A variety of factors like how the crime was committed, whether there
was premeditation and whether the perpetrator has a record, set the
price. Those factors and others don’t speak to the worth of the actual
loss, as in the precious life that was taken through murder. Only recently
have survivors been able to discuss the loss from the crime through a
victim impact statement. If a statement is made, it is brief, at the very
end of trial proceedings near sentencing and after a conviction.

Incarceration has become the primary default penalty in the U.S. justice
process. Extended detainment can benefit victims, survivors and society
by removing dangerous perpetrators from the community. If fear and
prevention of further harm is in view, custody of a perpetrator has
tangible value to citizens and the community.


V ic tims

centuries of
legal tradition
and human
combine to
start to define
for victims the
impact of their
loss and the
Yet the expense of housing prisoners is becoming more scrutinized in
today’s economic milieu. And the financial, emotional and social impact
that one individual can create from one horrific act can expand well
beyond the standard costs of incarceration.
This example might seem extreme, but the events of September 11, 2011,
show that nineteen individuals can wreak such havoc resulting in nearly
3,000 deaths, tens of thousands of injures, billions of dollars in damage
and untold numbers emotionally devastated. While the impact of that one
event was uniquely profound, the same results appear to scale as roughly
every thirty-two minutes someone is murdered in the United States.


Beyond the profound losses created, just speaking plainly, isolating
dangerous people from society has real fiscal benefit in protecting
communities from more harm.

Yet, in dealing with victims on a regular basis, I find that most say they
would welcome reforms in the justice process. Sometimes it is framed
in “our system is broken,” while other times it is just a conclusion that
even getting an investigation, prosecution and conviction doesn’t provide
any meaningful sense of justice.
Using the hammer of incarceration to beat down so many law violation
nails can do two things that don’t serve victims in the slightest. One way
victims suffer from over-incarceration is that it can diminish the meaningfulness of a consequence for serious harm. Survivors find themselves
confused by prison sentences that are mere ranges for literally hundreds
of different types of losses from crime.

About the Author
A second outcome of burgeoning prison populations resulting from the
incarceration default is its effective distraction from other useful forms
of remediation and restitution that might better serve those enduring
the harm. If society believes the only serious response to a criminal
conviction is prison, then the only serious response felt by everyone in
the system is serious prison time.
When lawmakers, prosecutors and the community believe incarceration
offers the only answer, they fail to consider other, and possibly better,
options. Criminals create loss and to the extent that such a loss can be
restored or even an attempt at restitution, those creating the harm
should be held responsible to acknowledge the harm they’ve created by
appropriate recompense.
Many in the system and many yet to experience it recognize the need
for reforms. But a story might make it more tangible to those who want
to see reforms defined and implemented. One woman I assisted had two
wandering drug addicts break into her home while she was away, steal
valuables and then commit arson to cover up their crime. She arrived
home to discover her house was a total loss and her stolen valuables were
fenced to fund a drug habit. Not being of great means, the homeowner
had let her insurance lapse because of economic realities and now was
left homeless. The male and female couple were eventually arrested,
convicted and sentenced to prison.
The woman lamented to me that her perpetrators now had free housing,
food and medical care provided to them while she was left with nothing.
She didn’t qualify for crime victim compensation as she was not physically
harmed. She had only lost property. She acknowledged that most people
in the justice process were quite sympathetic to her plight and equally
paralyzed to do anything beyond getting the most prison time possible
for the criminals. Her question was, rightly but simply, “Is this just?”

Will Marling is an Ohio native who earned his
undergraduate degree in 1986. He went on to complete graduate and post-graduate degrees, 1989 and
1997 respectively, with spiritual, anthropological and
cultural frameworks. His formal
Will Marling
introduction into the world of victim
Executive Director
assistance and crisis intervention
National Organization
began in 1990 when he started working
for Victim Assistance
with local law enforcement in
Columbus, Ohio, serving officers and
the community. In 2000, he was trained by the National
Organization for Victim Assistance© (NOVA) and
brought that added dimension of development to his
skill set and experience base in responding to people
in crisis. Beyond deploying to local incidents, his
praxis has been informed as a responder to a variety
of national and international events that included
violent crimes, human error and natural disasters.
Will was appointed as executive director for NOVA,
Alexandria, V.A., in July 2007. Since that time, he has
been contributing leadership to the organization
while also promoting the concept of victim relations
nationally. In the field of victim assistance, Will
has a focus as a Certified Identity Theft Risk
Management Specialist™.

I asked her, “What would you like to see happen?”
“I would like for those two to get jobs and pay me back for my house and
my personal property. They get four years in prison for this, will be out,
and I STILL won’t have a house.”
Adding up all the parts provides a sense of only a tangible sum of this one
crime. A key asset, a house, is destroyed. Two convicts have to be housed
and fed for four years. The victim will now struggle for survival, probably
to end up supported in some way with taxpayer-funded social services.
Reforms in the criminal justice system are sorely needed. Current economic
pressures drive many proposals for change. No doubt these can’t be ignored.
Prisons are expensive and the negative impact from unnecessary
incarceration can’t be underestimated both financially and socially.

At the same time, this nation needs leadership that recognizes that the
costs for failing to bring reform go well beyond reducing inappropriate
incarceration rates. The Preamble to the United States Constitution
articulates, “We the People of the United States, in Order to form a more
perfect Union, establish Justice…”.
Just Justice is as the core of this Union. Reforms in our justice system
must focus on justice for all, including the victims. 


Drug Policies
In July 2000, while still a project of the Center on Juvenile and Criminal
Justice, the Justice Policy Institute issued its first report on drug policy
and incarceration: Poor Prescription: The Costs of Imprisoning Drug
Offenders in the United States. With graphs and charts showing the
explosion in drug arrests and incarceration and the disproportionate
impact on African Americans and Latinos, the report starkly laid out
the terrible price that the “War on Drugs” was exacting within the
nation’s communities. Over a decade later, propelled by the work of
the Drug Policy Alliance and many others, the country appears to be
approaching a tipping point. The 2012 elections revealed a public shift
in opinion toward decriminalizing marijuana, with Colorado and
Washington State voters supporting legislation to handle marijuana
through regulation and taxes, instead of the criminal justice system.
Massachusetts voters also voted in support of the use of medical
marijuana in their state. 88

Sources: John P. Caulkins and Sarah Chandler, Long-Run Trends in Incarceration
of Drug Offenders in the US (Pittsburgh: Carnegie Mellon University, 2005),
Table 2: Estimated Number of Incarcerated Drug-Related Offenders 1972-2002
Bureau of Justice Statistics, Prisoners Series, 1994-2010.


Meanwhile, arrests for marijuana possession accounted for 43 percent
of all arrest for drug charges in 2011. 89 Data from the U.S. Bureau of
Justice Statistics shows that while arrests in the United States for
most offenses have been steadily declining over the past 20 years,
between 1980 and 2009 the arrest rate for drug possession or use
more than doubled in the United States. 90 There were 80 percent more
arrests for drug possession or use in 2010 than in 1990. Lest anyone
think officers were primarily focused on reducing the number of drug
dealers, state and local law enforcement made four times as many
arrests for drug possession or use in 2010 as they did for drug sale or
manufacture. 91 While the public and policymakers begin to realize the
societal and fiscal implications of failed drug policy, the end of the
“War on Drugs” could signal the end of mass incarceration. 

Since 1992, the number of sworn law enforcement officers has
increased over 25 percent in the United States, to more than 765,000
officers. Police protection spending per capita has increased 78 percent
from 1982 to 2007 after adjusting for inflation.92 While there are many
reasons for the increased number of police, expanded federal funding
for law enforcement, particularly in the 1990s, has been a significant
driver. This federal funding has been popular for financing drug task
forces in many jurisdictions. With federal agencies measuring success
in their programs by the number of arrests, rather than increased public
safety, it’s not surprising that drug-related arrests have skyrocketed.
While police do provide an invaluable component of public safety,
cities and counties must take caution in the policing practices they
adopt. Some practices, such as New York City’s infamous “stop and
frisk,” contribute to racial discrimination. According to the New York
Civil Liberties Union, “black and Latino residents made up close to 90
percent of people stopped” from 2002 through 2011. “Stop and frisk”
practices cause blacks and Latinos to be disproportionately stopped
not only in their own neighborhoods but in predominantly white
neighborhoods as well. 93 With economic conditions squeezing state
and local budgets, it’s time for policymakers to take a hard look at how
we police and what laws our police officers must enforce. 

The pretrial process, from arrest to resolution of a charge, is a complex,
bifurcated process that often separates those who have financial
resources from those who have not. Although a few jurisdictions, such
as the District of Columbia, have generally eliminated the use of money
from their pretrial process, most states and jurisdictions have a system
where people accused of an offense and arrested must put up a sum
of money in order to be released from jail while awaiting trial. While
those of upper middle class and higher may not be detrimentally impacted
by this practice if they can afford to post their bond, research reveals
that many people remain behind bars while awaiting trial simply because
they cannot afford to post the bond amount. Tax-payers foot the bill for
these jails stays. The amount of these bonds places a large burden on
those with fewer means, even if they can hire a for-profit commercial
bail bondsman to post a promissory note on their behalf.
For-profit bail bondsmen cause people who are arrested (not convicted
at this point) to give up money in order to obtain their freedom from
jail while awaiting trial. Fees paid to for-profit bail bondsmen are
nonrefundable, even if the charges are dropped or the client is found
not guilty. For-profit bail bondsmen also play a huge role in the criminal
justice system due to their legal ability to put their clients back into
jail at any point and for any reason during the pretrial process, even if
the client has fairly paid his fees to the bondsman. Additionally, the
for-profit bail bonding industry has proven to be a formidable power
in pushing pro-arrest and pro-incarceration policies through affiliations
with legislative councils and lobbying of political figures. 


Problem Solving
Specialty Courts
A number of diversion courts have sprung up across the judicial
landscape over the past decades as jurisdictions have sought another
way to address cases with a clear public health or social welfare issue
attached. These courts include mental health courts, prostitution
courts, drug courts and family courts, among others. While efforts to
reduce the criminal records of people who successfully complete
diversion court programs are notable, it is also important to remember
that specialty courts are not the solution to ending mass incarceration.
Diversion courts sometimes serve as a first step to addressing the
needs of people already involved in the criminal justice system; however,
these programs should not excuse a continued reliance on the criminal
justice system to resolve these public health problems. Rather,
we should channel resources into resolving the social and/or public
health problems prior to the criminal justice system ever getting
involved to eliminate the number of people impacted by arrest and
conviction histories, along with the long lasting impact of criminal
justice involvement. 



Sentencing is the determination of how long and onerous a convicted
offender’s punishment will be. As shifts in philosophies towards crime
reduction occurred in the 1970s and 1980s, the nature of sentencing
changed and contributed to the increase in incarceration and prison
populations. 94 The length of sentences grew longer, and between 1990
and 2006, sentence lengths increase by 36 percent. 95 Mandatory
minimums gained popularity as the solution to the “War on Drugs,”
without evidence of their effectiveness. Now, years of research show
that mandatory minimums are not effective and cost more than alternatives to incarceration, such as substance abuse treatment for those
convicted of drug crimes. 96 Voters are demonstrating a desire to shift
from these policies, as seen in California during the November 2012
vote on Proposition 36. Over two-thirds of voters agreed to change
California’s “three-strikes” law so that courts cannot apply a “25-tolife” sentence if the third offense is a misdemeanor. 97 Reform in sentencing practices could free up dollars for more effective rehabilitation
and lessen the adverse impacts of incarceration on families and
communities in the United States. 

With the presumption that a “tough on crime” perspective would
reduce crime, officials across the United States put deterrence and
incapacitation theories to the test. They failed. The use of incarceration
as a crime-control practice has skyrocketed since 1970; and the rate
of incarceration per 100,000 people increased 700 percent from 1972
to 2011. 98 An average of 107 per 100,000 adults was incarcerated from
1930 through 1975, 99 but, by 2008, 754 per 100,000 adults were behind
bars.100 However, researchers have noted that “only 12 percent of the
increase in incarceration rates was the result of more offenses being
committed,” which likely resulted from better reporting of domestic
assaults. The remaining 88 percent of the increase in incarceration is
due to “imposing more sanctions, incarcerating more offenders, and
increasing time served.”101
Meanwhile, those people who are targeted for incarceration (through
surveillance and arrest practices) have suffered the lifelong impacts
of incarceration for years after completing their sentence and paying
restitution, through employment challenges, denied voting privileges,
reduced access to adequate housing and many other collateral impacts
resulting from the prison experience. When considering how to increase
public safety, it’s important to note that research shows that imprisonment does not decrease the chance someone will reoffend once
released and may actually increase a person’s inclination to engage
in a criminal offense.102 Researchers have estimated the tipping point
where incarceration is no longer effective in a state, and likely harmful,
to be at a rate of 325–492 per 100,000; in 2010,103 35 states had incarceration rates within or above this range.104 Meanwhile, research
shows that crime is not the only factor determining public safety:
employment, health, family stability and other factors are also integral
parts of a safe and productive society. 











































Sources: Bureau of Justice Statistics, Prisoners Series, 1994-2010; US Census Bureau, Statistical
Abstract of the United States, 1975, 1980; U.S. Census Bureau, Statistical Abstract of the United
States: 1976, pg. 171; U.S. Census Bureau, Statistical Abstract of the United States: 1980, pg.199.

Total number of persons under the jurisdiction of state or federal correctional authorities


Source: USDOJ, Bureau of Justice Statistics, “Prisoners in 2009,” Appendix Table 19: Number of state or federal prisoners
in private facilities, December 31, 2000-2009; USDOJ, Bureau of Justice Statistics, “Prisoners in 2010,” Appendix Table 20:
State and federal prisoners in private facilities, by jurisdiction, December 31, 2000, 2009, and 2010.













At a time when many policymakers should be looking
at criminal and juvenile justice reforms to safely shrink
the size of the U.S. prison population, private prison
companies have an incentive in preserving the current
approach to criminal justice and increasing the use
of incarceration. While private prison companies may
try to present themselves as simply meeting existing
“demand” for prison beds and responding to current
“market” trends, they, in fact, have worked hard over
the past 30 years to create markets for their product.
As revenues of private prison companies have grown,
the companies have had more resources to build
political power and promote policies that increase
their bottom line and in turn lead to higher rates of


Private Prisons

Release on parole allows an incarcerated person to return to his or
her community prior to sentence completion due to good behavior and
on the promise of complying with conditions for release. In 2010, 494,249
people left prison under conditional release. 105 However, success upon
release from prison depends on having support structures in place to
facilitate a smooth return to society. People released from prison onto
parole may not be able to access the assistance they need to get basic
provisions or may not be able to reasonably meet the conditions of their
parole. Consequently, a number of people are returning to prison due to
a parole violation. In 2010, 231,917 of the people sentenced and admitted
to state and federal prisons returned to prison due to a parole violation.106
In addition to building the supportive networks and services needed for
those released on parole, research on parole violations should also be a
priority so that meaningful changes can be made to reduce violations and
to handle violations through more effective practices. 

The rise of incarceration brings an increased number of formerly
incarcerated people re-entering their cities and communities. Prisons
release over 650,000 people—more than 10,000 people per week—each
year.107 After going through the criminal justice system and spending
weeks or years behind bars, these people face tremendous challenges
in establishing a life of normality, let alone productivity, once they
leave prison. They generally have been incarcerated in facilities
structured for their detainment and punishment, not their rehabilitation
or healing. It took 30 years after mass incarceration began to pass
legislation in 2008 to provide assistance to people re-entering society
after incarceration. Still, those re-entering society face immense
difficulty in obtaining employment, safe and stable housing, voting
rights and many other basic provisions. 

those re-entering society face immense
difficulty in obtaining employment, safe and
stable housing, voting rights and many other
basic provisions.

Incarceration and
Economic Inequality
The relationship between economic status and incarceration is complex:
poverty is connected with involvement in the criminal justice system
and mass incarceration is connected with a rise in U.S. poverty.
Estimates suggest that poverty would have decreased by over 20
percent from 1980 through 2004 had mass incarceration not occurred.108
Even when considering that the poverty level artificially declines due
to incarcerated people being excluded from the count, the economic
impact of mass incarceration on poverty rates still stands out. Studies
also show that mass incarceration has disproportionately impacted
those of lower education, social status and income. The negative
impacts of incarceration are not limited to the people coming out of
prison, in terms of employability, adequate access to housing
and more; their children are also more likely to grow up in poverty
and have fewer opportunities to attain economic well-being in
their lifetime.109 


D r u g P o l i c ie s


More than
How the War
on Drugs
Fuels Mass

We’ve all heard the statistics: the
United States has 5 percent of the
world’s population but 25 percent
of the world’s prisoners—one
in 100 Americans is behind bars.
For black men between the ages
of 20 and 34, the figure is one
in 9. America’s addiction to
incarceration has driven these
statistics, shining a spotlight on
the way in which we dehumanize
those who suffer from addiction
or lack of access to legitimate
economic opportunities.

I know this firsthand; I grew up visiting my own dad in prison. He
suffered from both conditions: the need to make money along with skill
at an entrepreneurial endeavor (despite violating America’s drug laws),
as well as, a 30-plus year heroin addiction that led to an HIV diagnosis
as it does for so many. My mom often recalls a judge who pondered
aloud whether my dad used drugs because he sold them, or vice versa.
While he was alive, and since his passing almost six years ago, we’ve
often wondered that ourselves.
My family isn’t alone in wondering which came first, the chicken or the
egg, or if any of it was worth it. My dad cost taxpayers like you and me
hundreds of thousands of dollars in incarceration and healthcare costs,
which could have been averted had he ever had access to comprehensive
drug treatment that met his needs and capability. Unfortunately, there
is a dearth of treatment opportunities outside the criminal justice
system; our system criminalizes people who struggle with drug misuse
or addiction instead. This approach leads individuals away from proven
treatment methods and into prisons, jails and drug courts. Meanwhile,
as many as 20 million Americans each year do not receive the substance
abuse treatment for alcohol and other drugs that they need,111 and more
than 26,000 people die annually from accidental drug overdose.112
In the more than 40 years that America has been fighting the failed war
on drugs, we’ve wasted more than a trillion dollars, with few signs that
these efforts have been successful. As cartels grow increasingly powerful
and lives are lost in tragic ways, even our long time drug war allies, like
Colombia and Mexico, have reassessed this effort and implored the
United States to reframe our approach.

How did we get to this point? On any given night, more than 500,000
Americans are behind bars for a drug law violation 113 —10 times the
number in 1980.114 In 2010, 18 percent of people in state prisons and more
than 50 percent of people in federal prison were serving a sentence for
a drug law violation.115 More than a quarter of women and 17.2 percent
of men in state prison are incarcerated for a drug law violation.116 In fact,
in the last three decades, the adult arrest rate for drug law violations
increased by 138 percent.117 And in 2011, there were more than 1.5 million
drug arrests in the United States—80 percent of which were for simple
possession alone. 118
A myriad of mechanisms have led us to this grave dishonor of leading the
world in incarceration. Misguided drug laws and draconian sentencing
requirements have produced profoundly unequal outcomes for
communities of color. Racially biased policing and the erosion of judicial
discretion through mandatory minimum sentencing have led to disparate
rates of incarceration and sentence lengths for people of color. And the
never-ending cycling in and out of prison can be attributed to the barriers
to successful re-entry, that have been cemented by unnecessarily harsh
laws targeting drug users and sellers .
Although rates of drug use and selling are comparable across racial lines,
African Americans and Latinos are far more likely to be stopped, searched,
arrested, prosecuted, convicted and incarcerated for drug law violations
than whites. Instances of racial profiling in traffic stops and the
disproportionate policing of urban communities have led to the arrest
and funneling of more people of color into the criminal justice system.
From 1980 to 2007, African Americans have been arrested for drug
violations nationwide at rates 2.8 to 5.5 times higher than white arrest
rates.119 African Americans comprise 13 percent of the U.S. population,120
and report using drugs at similar rates to people of other races,121 but
make up 31 percent of those arrested for drug law violations122 and more
than 50 percent of those incarcerated in state prison for drug law
violations.123 In fact, African Americans have a 20 percent greater chance
of being sentenced to prison than white drug defendants.124
Mandatory minimum sentencing laws for drug convictions only consider
the type of drug, weight of drug, and prior convictions of the individual
when determining prison terms. Initially enacted to limit disproportionate
racial sentencing in Southern courts, mandatory sentencing guidelines
force judges to assign unjust sentences to low-level first time drug offenders
that are disproportionate to their committed offenses. Sadly, individuals
can typically only secure sentence reductions by acting as an informant.


D r u g P o l i c ie s

The cruel and unusual severity of minimum drug sentencing requirements
raises questions surrounding their constitutionality and abuses of Eighth
Amendment rights. 125 Mandatory minimum sentencing—such as
sentences above 20 years doled out under the 100:1 crack cocaine federal
sentencing disparity, which led to African Americans accounting for 80
percent of federal cases despite only accounting for one-third of users—
have contributed significantly to prison overpopulation and the increasing
number of people of color behind bars. Before mandatory minimums, the
average federal drug sentence was 11 percent longer for blacks than for
whites. After mandatory minimums were instituted in 1986, federal drug
sentences were 49 percent higher for African Americans.126
Punishment for a drug law violation is not solely meted out by the
criminal justice system, though. Policies denying child custody, voting
rights, employment, business loans, trade licensing, student aid and
even public housing and other public assistance to people with criminal
convictions perpetuate the punishment. Many of these policies only
impact people who have been convicted of drug crimes—those convicted
of other types of offenses, even violent ones, are not subject to the same
types of collateral consequences. The lifelong penalties and exclusions
that follow a drug conviction have created a permanent second-class
status for millions of Americans.


Even if a person does not face jail or prison time, a drug conviction
record—particularly a felony record—can create a lifetime of barriers to
achieving success. And, as with drug law enforcement, these barriers
fall disproportionately on individuals and communities of color. It was
this early understanding that led drug policy experts to call the drug war
the “new Jim Crow”, inspiring Michelle Alexander’s eye-opening book
of the same name. The biases those with the criminal label encounter, as
Alexander explains, contribute to the perpetuation of criminality as a
means of survival due to lack of available opportunity. Lack of opportunity
coupled with the label of criminality for low level offenses creates little
room for positive lifestyle changes, which in turn solidify perceptions of
a racialized criminal minority in the public consciousness.
Mass incarceration has major implications for American democracy.
Nationally, an estimated 5.3 million Americans are denied the right to
vote because of laws that disenfranchise people with felony convictions.
The implications for the black community are even more shocking: one
out of every 13 black people of voting age in the U.S. cannot vote because
of felony disenfranchisement.127
Families like mine have been devastated by mass incarceration. More
than half of incarcerated people are parents of minor children, including

Estimated number of Americans that are denied the right
to vote because of laws that disenfranchise them with
felony convictions.

About the Author
Jasmine L. Tyler is the deputy director of national affairs
for the Drug Policy Alliance and is based in Washington,
D.C. She advocates for policies that reduce racial
disparities in the criminal justice system, increase
access to social and health services,
Jasmine L.Tyler
and treat people who use drugs with
Deputy Director of
dignity. Jasmine’s work has included
National Affairs
grassroots and grasstops organizing
across the political spectrum, public
speaking, and media appearances. She is one of the
leaders of the Crack the Disparity Coalition, which
works to equalize the penalties for crack and powder
cocaine. Her work led directly to federal crack cocaine
sentencing reform in 2010, including the first elimination
of a mandatory minimum penalty since the 1970s. Her
writing has appeared in the Los Angeles Times, the
Economist, Huffington Post and other national media
outlets. Prior to joining DPA, Jasmine worked as
research director for the Justice Policy Institute. She
has also worked as a sentencing advocate
collaborating with public defenders in Washington,
D.C. and Fairfax, V.A. She received a B.S. from James
Madison University and an M.A. from Brown University,
both in sociology.

more than 120,000 mothers and 1.1 million fathers. Two-thirds of these
parents are incarcerated for nonviolent offenses, most of which are drug
law violations.128 As many as 2.7 million children (one in every 28) are
growing up in U.S. households in which one or more parents are
incarcerated.129 The impact on children from communities of color is
much greater—3.8 percent of African American children had a parent
incarcerated for a drug law violation in 2008, compared to one percent
of Latino children and 0.3 percent of white children.130 Moreover, research
estimates that having an incarcerated parent makes a child six times
more likely than children whose parents are free to become criminally
involved or to be imprisoned at some time in their life.131
Paradoxically, a recent study based on a national survey of youth found
that black adolescents “were less likely than whites to have engaged in
drug use or drug selling, but were more likely to have been arrested.
Racial disparities in adolescent arrests appear to result from differential
treatment of minority youths and to have long-term negative effects on
the lives of affected African American youths.”132
Given my background, it is by the grace of God that my only arrest has
been for protesting our country’s unjust drug laws.

The United States has dug itself into a hole. In order to get out, we have to
seriously consider decriminalization of personal drug possession, which
would remove a major cause of arrest and incarceration of nonviolent
people, primarily people of color. We must also eliminate policies that
result in disproportionate incarceration rates by rolling back harsh
mandatory minimum sentences that unfairly affect people of color and
by repealing sentencing disparities. And finally, we have to make sure
that we prepare people to return to our communities and give them the
chance to engage positively with society by ending the use of policies that
exclude people with a record of arrest or conviction from key rights and
opportunities. It’s time to stop digging. 




Policing and
in the Midst
of the Drug War

In 1829, Sir Robert Peel,
known as the father of
policing, created the
Metropolitan Police of
England. According to Peel,
the real key for policing
was “the police are the
people and the people are
the police.” Peel believed
that prevention of crime
could be accomplished
without intruding into the
lives of citizens. When Peel
established the Metropolitan
Police, his most effective
public safety tool was foot
patrol, known then and now
as a “beat.”

James Q. Wilson and George Kelling’s article, “Broken Windows: The
Police and Neighborhood Safety” called for a “return to the nineteenthcentury style of policing in which police maintained a presence in the
community by walking beats, getting to know citizens, and establishing
the feeling of public safety and trust.” As many police agencies of
today attempt to return to these practices, getting officers out of the
impersonalized cars and on the “beat,” there exists one enormous
barrier known as the “drug war.”
What exactly did Baltimore police Major (Bunny) Colvin, in the HBO series
“The Wire” mean when he said, “the drug war ruined this job”? Anyone
adequately versed in sound policing principles, including Peel, will expound
upon the importance of public trust for success in public safety. What Major
Colvin meant is that the drug war is responsible for the erosion of the
public’s trust in policing. It has put the police against the very citizens they
have sworn to protect (an “us versus them” mentality and culture). In the
eyes of many police officers, the drug war has categorized a great number
of citizens as criminals. In the eyes of many citizens, mainly the poor of
urban America, the police have become an occupying force and foe.
In the 1970s at the beginning of what we refer to as the “War on Drugs,”
enforcing the nation’s drug laws was the primary responsibility of the
federal government since the passing of the 1914 Harrison Narcotics
Act. It was President Nixon who bribed local law enforcement with
federal funds, introducing them to “the all out offensive on drugs.” As it
is today, the primary enforcement of our “get tough” drug laws was
isolated to poor communities of color resulting in a significant rise in
drug related arrests. In four decades, our prison population has ballooned
from a half million to 2.3 million prisoners, primarily due to drug related
arrests. Blacks, 13.5 percent of the nation’s population, use and sell drugs
at virtually the same rate as whites; however, blacks are 37 percent of
those arrested for drug crimes.

Disparate enforcement isn’t the only reason for mistrust in policing.
Corruption, mistreatment, brutality and the trampling of constitutional
rights are a few others. As police feel the political and internal pressure
to over enforce our drug laws, they search people and their affects without
warrants and without lawful consent. In doing so, they disrespect, belittle
and sometimes physically abuse people. Property is seized with no
charges placed, in direct violation of the Fifth Amendment (the right to
due process). Many have complained that all the police care about in
their communities is drug enforcement and that they respond slowly to
and make light of crimes of violence, such as domestic violence. Because
of this level of mistrust and loss of respect, many crimes of violence
(rapes, robberies, assaults, etc.) go unreported.
According to Peel, when individuals have mistrust and little or no respect
towards the police, they will ignore the requests or demands of officers.
This can lead to an officer having to use force in order to gain control of
a situation, which can also lead to arrests, serious injuries, and even death.
I suggest a not-so-new strategy, one that my grandparents quickly adopted
in 1933 when the United States ended alcohol prohibition in order to
reduce corruption, violent crime and cost. I believe that if we end today’s
drug prohibition, our neighborhoods would be considerably safer and
police could truly become one with the community. Relationships and
trust would take hold and true public safety would blossom.



I believe that
if we end today’s
drug prohibition,
our neighborhoods
would be considerably
safer and police
could truly become
one with the
In 1936, twenty-two years after passage of the Harrison Narcotics Act,
an outstanding police authority had reached the same conclusion as I
have. August Vollmer, former chief of police in Berkeley, California,
former professor of police administration at the Universities of Chicago
and California, author of a leading textbook on police science, and past
president of the International Association of Chiefs of Police wrote:


Stringent laws, vigorous prosecution, and imprisonment of addicts
and peddlers have proved not only useless and enormously expensive
as means of correcting this evil, but they are also unjustifiably and
unbelievably cruel in their application to the unfortunate drug
victims. Repression has driven this vice underground and produced
the narcotic smugglers and supply agents, who have grown wealthy
out of this evil practice and who, by devious methods, have stimulated
traffic in drugs. Finally, and not the least of the evils associated with
repression, the helpless addict has been forced to resort to crime in
order to get money for the drug which is absolutely indispensable
for his comfortable existence....

Drug addiction, like prostitution and like liquor, is not a police problem;
it never has been and never can be solved by policemen. It is first and
last a medical problem, and if there is a solution it will be discovered not
by policemen, but by scientific and competently trained medical experts
whose sole objective will be the reduction and possible eradication of
this devastating appetite. There should be intelligent treatment of the
incurables in outpatient clinics, hospitalization of those not too far gone.
Over time, before I ever heard of Sir Robert Peel and Chief August Vollmer,
these became my views. Maybe if we taught this type of policing history
within the walls of our many police academies, we could end the most
destructive public policy in this country since slavery. 

About the Author
Over his 33-year career, Neill Franklin watched
hardworking and dedicated fellow cops die in the
line of fire enforcing policies that don’t do any good.
After 23 years with the Maryland State Police, including as an undercover narc and as the
Neill Franklin
head trainer for drug enforcement,
Executive Director
Neill was recruited by the Baltimore
Law Enforcement Against
Police Department to reorganize its
education and training division. He
now leads LEAP as the organization’s
executive director.

Drug addiction,
like prostitution
and like liquor,
is not a police
problem; it
never has been
and never can
be solved by




The present (bail) system
neither guarantees security
to society nor safeguards to
the rights of the accused.
It is lax with those with whom
it should be stringent and
stringent with those with
whom it could safely be
less severe.
Arthur Beeley (1925)


Most people believe our jails are full of criminals who are being punished
for their crimes, but the facts show us a surprisingly different picture.
As you read this, two out of every three prisoners in America’s jails
haven’t been convicted of a crime but are in jail simply because they
cannot afford to pay their bail as set by the court. Ironically, many of
them won’t be sentenced to jail or prison when their case concludes, yet
U.S. taxpayers pay an estimated $9 billion dollars every year to keep
them in jail while they are “presumed innocent.” To make matters even
worse, studies have repeatedly shown that if someone is in jail when
their case is settled, they are several times more likely to receive a jail
or prison sentence than they would if they were free at the time of their
trial. Those jailed before their trial cannot help their lawyers with their
defense, keep their jobs or care for their families, thus incurring
significant additional costs to our communities. We have a nation of
jails and prisons full of people who, from the very start of their case, are
disadvantaged and treated differently, not because they are dangerous
or even deserve strict punishment for their misdeeds but rather because
of their inability to raise cash. Tragically, Arthur Beeley’s assessment
of pretrial justice in the U.S, written 85 years ago, still rings true today.


Let’s look at the purpose of bail. Legally, bail is intended to make sure
someone who is arrested shows up for court when he/she is supposed to.
In the past thirty years or so, the law has been changed in most states
to include protection of the community from further crime as an
additional purpose of bail. Bail is not supposed to be a punishment; it is
actually a protection against being punished before trial which we have
enjoyed in this country since the passage of the Bill of Rights. Culturally
however, bail is often seen as “the price of crime.” The media and popular
sentiment seem to support the notion that even the accusation of crime
comes with a price—a “debt to society,” if you will. The money paid by
those who can afford it, however, does not go to victims of crime, pay for
court costs or fines, or in any way benefit the community. These dollars
go into the pockets of commercial bail bondsmen in most cases. Bail
bondsmen keep the money they’re paid regardless of whether the person
arrested shows up in court or even if they commit new crimes. This
puzzling system of commercial bail bonding started in San Francisco
at the turn of the past century by the notorious McDonough brothers,
felons who started collecting non-refundable fees in exchange for the
release of their cronies and other wealthy clients. History suggests they
accomplished this through the widespread use of bribes to the police,
courts and other public officials. Their enterprise was so profitable that
it soon spread across the nation. It remains today, mired in corruption
and scandal, as the predominant form of pretrial release used in the U.S.

But as if this wasn’t enough, it is not only the use of money to determine
pretrial release but how we arrive upon the amount of money we charge
for freedom that fills our jails with people who have not been convicted.
Most courts set bail according to the charge via a “bail schedule,” i.e.,
everyone accused of a particular crime is charged the same amount of
bail. This is done regardless of the risk—or lack of risk—posed by those
arrested. So, in essence, a professional thief, who has cash in his pocket,
quickly purchases his release only to return to the streets without
monitoring or accountable supervision, while the first-time defendant,
who has no cash, remains in jail at taxpayer expense. The use of these
“bail schedules” persists, despite Supreme Court decisions and state laws
requiring that bail must be set based upon the individual characteristics
of each defendant. The use of fixed bail amounts as prescribed in these
bail schedules contributes, more than any other factor, to the crowding
of our nation’s jails without regard for the safety of our communities or
for equal justice.

Why hasn’t someone tried to reform pretrial

In the early 1960s, a philanthropist in New York City, Albert Schweitzer,
commissioned a study of the jails in the city. He was shocked to learn that
MOST of the prisoners there were being held simply because they couldn’t
pay their bail bond, usually of a $100 or less. This discovery led to a social
experiment known as the Manhattan Bail Project. Pretrial justice
reformers believed that most of those who were arrested and had ties to
the community would show up for court—regardless of whether they paid
for their freedom to a private bail bondsman. The project proved to be an
enormous success and soon came to the attention of then-Attorney
General Robert F. Kennedy. At the historic National Conference on Bail
and Criminal Justice that Kennedy convened in 1964, he described our
national bail practices as “not only cruel, but completely illogical”.
Kennedy went on to say that “One factor determines whether a defendant
stays in jail before he comes to trial. That factor is not guilt or innocence.
It is not the nature of the crime. It is not the character of the defendant.
That factor is, simply, money.”



One factor determines whether
a defendant stays in jail before
he comes to trial. That factor is
not guilt or innocence. It is not the
nature of the crime. It is not the
character of the defendant. That
factor is, simply, money.
As a result of the Attorney General’s call for reform, Congress passed the
Bail Reform Act of 1966 which called for the pretrial release of defendants
on the “least restrictive conditions” needed to assure appearance in court.
State legislatures soon followed suit and pretrial services programs soon
sprang up across the country. Our federal court system implemented
pretrial services programs as well, establishing a model for states to
follow. These programs screen defendants to identify their strengths and
risks and recommend the “least restrictive” conditions of release without
regard to the financial standing of the defendant. Unlike the use of money
bonds, these conditions hold the defendant accountable so as to minimize
failure to appear in court as well as criminal behaviors while on release.
Other western nations carefully watched what was happening with
pretrial justice reform in the U.S. and bail-bonding for profit was soon
abolished in countries across the globe—with the sole exceptions of the
Philippines and the U.S.


If we “reformed” pretrial justice in the 1960s,
why are things still such a mess?

The answer is most likely rooted in our belief that our current system
of relying upon money to determine who is released and who is held,
somehow works. As noted previously, a quick look at who is in jail, and
why, soon dispels any notion that our cash-based system is safe, fair
or effective. Another answer is the indisputable fact that the tiny, but
influential bail bond for-profit industry wants to protect its livelihood.
To a large extent, they have succeeded. The bail bonding for-profit
industry has repeatedly attacked reform efforts such as pretrial
services programs, while pandering to the public’s fear of crime. The
industry aggressively supports the election of officials who support
their profit-taking, while they lobby legislatures to restrict judicial
discretion in making bail decisions. Despite concrete evidence to the
contrary, they portray the for-profit bail system as in the public’s best
interests while they characterize reform as “welfare for criminals.”
Ironically, only bondsmen fare well in a system that discriminates
against the poor regardless of risk, while favoring “successful”
criminals who have the cash needed for their unfettered release.

About the Author
Timothy J. Murray is the Executive Director of PJI. He
has worked as a criminal justice practitioner at the
local, state and federal levels for 40 years. His extensive
pretrial justice experience includes management and
executive positions with the pretrial
Tim Murray
services systems in Washington, D.C.,
Executive Director
and Miami-Dade County, Florida. While
Pretrial Justice
in Miami, he was the principal architect
and administrator of the nation’s first
drug court. He went on to serve with
the U.S. Department of Justice as first director of the
Drug Court Program Office.

What can be done?

The advent of “evidence based practices” has brought with it new tools
to help judges make safe and fair pretrial release decisions. Validated
pretrial risk schemes, similar to the tools insurance companies use to
measure risk, are now available to measure the likelihood of each
defendant’s appearance in court as well as their likelihood of re-offending—
regardless of their socio-economic status. Coupled with the accountable
and transparent supervision of those released, these tools can help ensure
community safety while dramatically reducing needless pretrial AND
post-conviction incarceration. Just as importantly, these tools can help
build justice systems in which decisions are based upon risk rather than
cash. The results of such systems include enormous jail cost-savings
while putting an end to the practice of “guilty until proven rich” for the
majority of those arrested in this country. As we learned with the stalled
pretrial reforms of the 1960s, best practices, data or even the law will not
change the administration of pretrial justice. The public must demand
the use of “evidence based” principles to guide criminal justice policies—an
idea that has recently garnered bi-partisan support in the area of
sentencing. We must abolish bail schedules and replace them with
empirically-driven risk assessments for each defendant who comes before
the court. And finally, pretrial release decisions must be based upon the
principles of fairness, effectiveness and community safety without
concern for the dollars the accused can raise or for an industry that
depends upon crime for its very existence. 

Following that appointment, Tim held the positions of
Director of Policy and Planning and Director of Program
Development at the Bureau of Justice Assistance. He
completed his federal service as part of the start-up
team for the Transportation Security Administration, now
part of the U.S. Department of Homeland Security. He
was selected as PJI’s executive director in 2006. He has
provided technical assistance to hundreds of programs
and organizations, nationally and internationally. He is
a lifetime member of the National Association of Pretrial
Services Agencies and is the proud recipient of the
Association’s most prestigious honor, the Ennis J. Olgiati
Award. He also serves as the executive director for the
Institute for Justice Planning, a subsidiary of PJI
providing planning support to jurisdictions engaged in
criminal justice system reform.


“ P r o b l e m S o lv i n g ” S p e c i a lt y C o u r t s


and the
Special Problems
They Pose

America’s courts handle
civil and criminal cases.
Civil courts handle all kinds
of cases, except when the
state or federal government
prosecutes someone for
the alleged commission
of a crime. A criminal court
handles criminal prosecutions,
sometimes divided into
different level courts for
felonies and misdemeanors.
In criminal court, a person
faces criminal accusations
that can result in criminal
penalties and life-altering
sanctions, such as deportation,
revocation of professional and
trade licenses and the loss of
many other rights.

A case may end with a pretrial dismissal of charges and the accused is
released, or a guilty plea after which the accused is sentenced. Alternatively,
there may be a trial of the case before a judge or, in most serious cases, before
a jury. The court may find the accused not guilty or guilty, after which the
judge will impose a sentence that can include lengthy imprisonment.
During the course of the past two decades, “specialty courts” have risen
within criminal courts. But just what are specialty courts? How do they
differ from a typical criminal court? What opportunities do they offer
and what challenges do they present?
Typically, a specialty court is thought of as a therapeutic approach to
address the underlying problem that led to a person’s arrest. In the best
case, specialty courts offer the accused an opportunity to obtain treatment
as an alternative to prosecution. But that is not always the case. Thus, in
any discussion of specialty courts, it is critical to understand exactly the
purpose of the court. For example, some courts that are denoted as
“domestic violence courts” or “gun courts” are not really therapeutic courts
at all. In some jurisdictions, they are merely fast track traditional criminal
courts that simply lump all persons charged with the same kind of crime
together. They do not offer treatment, they do not offer diversion out of the
criminal justice system and they do not necessarily mitigate punishment
in any way. Still others, such as re-entry courts or veteran courts, attempt
to provide social services to certain population segments, such as
ex-offenders or military veterans.
If a court truly offers the accused an opportunity to obtain treatment in
lieu of punishment, then it may appropriately be called a “problem-solving
court.” This particular kind of specialty court can provide significant
benefits to an accused person who has an underlying problem, such as anger
management control, addiction or substance abuse issues or mental health
impairments. These courts initially developed as an innovative means of
treating underlying pathologies and offering individuals willing to address
those conditions an opportunity to avoid serious punishment, usually long
terms of imprisonment. But problem-solving courts do not all operate the
same way. Increasingly, there is concern that participation in these courts
may come at too high a cost to society and the individual; the value of a
particular problem-solving court depends on how it operates.

Among the first, and certainly the most predominant, of these problemsolving courts are drug courts. The first drug court was established in Dade
County, Fla., in 1989. Today , the United States has more than 2,500 drug
courts, and the numbers continue to rise. There are also more than 1,200
other problem-solving courts that are not drug courts. The original idea
behind these courts was to leverage the power of the court (that is, the
threat to impose punishment, usually imprisonment) to induce a person
to address the underlying problem that led to the criminal charge. The idea
was to get the person into a treatment program and for the court to closely
monitor progress and provide encouragement for compliance and sanctions
for non-compliance. Drug courts offered the hope of dealing with the
explosion of arrests and convictions that were the direct consequence of
the nation’s “War on Drugs” that began in the 1970s and has contributed
to mass incarceration in the United States. No country on earth imprisons
more of its people than the United States—some 2.3 million as of early 2011.
The United States also has the highest rate of incarceration in the world,
about one in 100 adults at any given time. And, by far, the most common
cause of imprisonment is violation of the nation’s drug laws.
In their pure form, drug courts provide a great opportunity for an accused
person to receive treatment and thereby avoid conviction and punishment.
This is possible when people can access treatment before they plead guilty
or give up other rights to contest the charge. Unfortunately, at least with
respect to drug courts, that is not often the case.


“ P r o b l e m S o lv i n g ” S p e c i a lt y C o u r t s

Most drug courts now condition treatment upon the entry of a guilty
plea and waiver of all rights to contest the legality of the police conduct
that led to the arrest. In these situations, even if individuals successfully
complete the treatment regimen and avoid imprisonment, they will still
be saddled with a criminal conviction. Worse, if they cannot successfully
complete treatment, which is not uncommon for people who suffer from
the disease of addiction, they may face penalties that are even severer
than if they simply plead guilty without treatment. And, of course, they
will have given up any opportunity to contest their guilt.

records are automatically disqualified from participating in a problemsolving court, the treatment option is denied to those who may derive
the most benefit and who face the harshest penalties. Sadly, because
poorer, minority-dominated communities have higher arrest and
conviction rates, automatic disqualifiers amplify racial disparity in the
nation’s criminal justice system. It does not make a lot of sense to invest
in treatment alternatives and then provide them only to those who are
most likely to succeed, and may well have addressed their underlying
problem without the court’s intervention.

There are other concerns as well. Sometimes an accused person must
decide whether to enter a problem-solving court immediately upon
first appearance in court. There may be inadequate time to consult
with an attorney, and certainly not enough time for the attorney to
fully investigate the case and provide the best advice. Even worse, in
some places the accused person must make a decision before the state
provides an attorney. This practice is inconsistent with fairness and
fundamental constitutional rights.

So, when one looks at the nation’s specialty courts, it is imperative to
ask some basic questions: Are they true problem-solving courts, or does
a given court just aggregate certain types of alleged offenders without
offering meaningful alternatives to criminal prosecution? Are the criteria
for admission transparent, reasonable and inclusive? Does participation
require that an accused person sacrifice basic rights as the price of
admission? If individuals try the treatment approach and fail, will they
suffer a harsher fate than if they did not try it in the first place?

In many situations, the criteria for admission are not transparent, or
they may be structured in a way that forecloses treatment for those with
the greatest need. For example, when individuals with prior criminal

Beyond these questions, especially when considering the nation’s massive
problem with substance abuse, it is vital to ask whether a criminal justice
approach is the best alternative. After nearly three decades of the “War

Rate of incarceration for adults in the United States
at any given time. The highest rate in the world.


About the Author
Norman L. Reimer is the executive director of the
National Association of Criminal Defense Lawyers
(NACDL). NACDL is the preeminent organization in the
United States advancing the mission of the nation’s
criminal defense bar to ensure justice
Norman Reimer
and due process for all and to advocate
Executive Director
for rational and humane criminal justice
National Association of
policies. As executive director, Norman
Criminal Defense Law yers
leads a professional staff based in
Washington, D.C., serving NACDL’s
approximately 10,000 direct members and 90 local, state
and international affiliate organizations with up to
40,000 members.

on Drugs,” and the resulting massive incarceration it has produced, the
use of controlled substances has not abated. A 2009 survey by the
Substance Abuse and Mental Health Services Administration revealed
that 21.8 million people reported using illicit drugs. Nearly 8 million said
they needed treatment. But with 1.6 million annual arrests for drug
offenses and just 55,000 people entering drug courts annually, the numbers
just do not add up.
There is no doubt that problem-solving specialty courts help many people.
They have saved lives. They have saved thousands of prison years. But
they are not solving the drug problem. They are too few and they are too
f lawed. While problem-solving courts may offer an effective and
compassionate means of aiding those with mental health afflictions and
other pathologies, they are not the answer to America’s substance abuse
problem. Drug offenders are our sons and daughters, our brothers and
sisters, our parents, our colleagues, and our neighbors. They are not
inherently criminal. A serious national conversation about addressing
drug use and addiction not as a criminal problem, but as a medical
problem, is long overdue. It is imperative that society ask the hard
question: Rather than spend billions on enforcement, prosecution,
incarceration, and even on drug courts, wouldn’t it be better to spend
that money on prevention and treatment? 

He earned both his undergraduate and juris doctor
degrees at New York University. Norman is a recipient of the prestigious Champion of Indigent Defense
Award, presented by the National Association of
Criminal Defense Lawyers in 2003 and the Gideon
Award presented by the New York State Association
of Criminal Defense Lawyers in 2002. In 2005, Norman
and the New York County Lawyers’ Association
were honored by the New York City Council for their
dedication to expanding access to justice to all
persons without regard to economic status. In 2007,
Norman received the Robert Louis Cohen Award for
Professional Excellence from the New York Criminal
Bar Association and the David S. Michaels Memorial
Award for Courageous Efforts in Promoting Integrity
in the Criminal Justice System from the New York
State Bar Association.




Winning the
Sentencing Reform

It all started because of
basketball. Len Bias was
supposed to be the next
Michael Jordan. He was a star
player for the University of
Maryland and the first-round
draft pick of the Boston Celtics.
His celebration of these
achievements led to his death
from an overdose of powder
cocaine on June 19, 1986.
No one could have predicted
that his death would inspire
Congress to create some of
the most unjust laws in the
United States, leading to
an unprecedented prison
boom in America.

How sentencing laws created our prison crisis

Bias’ death gave Congress the perfect opportunity to act on the plague
of cocaine and violence sweeping America’s urban areas. Drug kingpins
and major dealers had to be stopped and deterred from drug dealing with
long mandatory minimum sentences—required prison terms of 5, 10, 15,
20 years or even life, which judges could not decrease, no matter the
circumstances of the case or the uniqueness of the offender. Only months
before an election, it was a popular, “tough on crime” message. Within
weeks, Congress wrote and passed legislation for mandatory minimum
sentences for all the major drug crimes within the federal criminal
justice system, with little research or consultation with experts on drug
abuse or trafficking.
The type and amount of drugs the person possesses alone trigger
mandatory minimum drug sentences in the federal system. For example,
five grams of methamphetamine earns an offender a five-year sentence.
Factors such as his role, level of responsibility, financial gain from the
crime or reasons for committing it (e.g., drug addiction or financial
hardship) are irrelevant. Before mandatory minimums, a judge sentenced
each person individually and could consider all these facts. After
mandatory minimums, the minimum sentence depends only on the
charge—which prosecutors decide. Mandatory minimum sentences
effectively transfer sentencing power from judges to prosecutors. Today,
there are over 170 mandatory minimums in the federal code, mostly for
drug, gun, immigration, child pornography and sex offenses.
In the 1980s, Congress also authorized a set of binding U.S. sentencing
guidelines that defined sentence ranges for all federal criminal cases.
Judges were required to follow these rules and could not go above or
below the sentences they called for, except in rare circumstances.
Congress also abolished parole and required that all federal prisoners
serve at least 85 percent of their sentences.
Many states followed the federal government’s lead, creating mandatory
minimum sentences and sentencing guidelines for violations of their
own state laws, particularly for drug, gun, violent and sex crimes.

It will take players
on all sides of the
aisle working
together to win
the sentencing
reform game.
What happened next was not surprising: mandatory minimum prison
sentences and guideline systems meant more people were sent to prison,
many for longer than necessary, filling prisons and increasing costs. In
the 1980s, the federal prison population more than doubled, from 24,000
to 58,000. By 2012, it held almost 220,000 prisoners—37 percent more
than it was designed to hold. Half of them are drug offenders, and over
75,000 of them serve mandatory minimum sentences. The federal prison
budget ballooned from $540 million in 1980 to a projected $6.79 billion
in 2011. Prison growth in the states has been just as explosive. Some
states now spend more on prisons than they do on education and have
literally run out of room to house offenders. Nationwide, taxpayers pay
over $60 billion annually on prisons.
Despite the folly and unsustainability of this system, mandatory minimum sentencing laws persist, 25 years after Len Bias’ overdose took his
final breaths.

The best defense is a good offense

In 1991, I learned that my brother, a first-time, nonviolent offender
convicted of growing marijuana, would serve a mandatory minimum
sentence of five years in federal prison, a sentence the judge opposed. I
founded Families Against Mandatory Minimums (FAMM) and began
what has become a 21-year crusade to reform these unjust laws. As of
2012, FAMM’s successes have benefited over 175,000 people, but much
work remains to be done.



The safety valve

United States v. Booker

By the 1990s, many low-level, first-time, nonviolent offenders—particularly
those who were girlfriends or wives of drug dealers—were receiving harsh
mandatory minimum sentences. Before 1994, the only way out of a
mandatory minimum was to give “substantial assistance”—or “snitch”
on others—to the prosecutor. If the person was too small a player in the
offense to have valuable information to exchange for a shorter sentence,
he was simply out of luck.

In 2005, the U.S. Supreme Court issued a decision in United States v. Booker,
finding that the U.S. sentencing guidelines violated the Constitution. The
Court’s solution was to make the guidelines advisory instead of mandatory.
After Booker, judges still must consider the guidelines, but they can deviate
from the sentences they call for whenever it is necessary to reach a fair
punishment. Booker, in which FAMM participated, lets federal judges do
what they do best: tailor sentences to the unique crimes and individuals
standing before them. Unfortunately, it did not affect the mandatory
sentencing statute at all, only the sentencing guidelines. Prosecutors and
some members of Congress argue that the guidelines should be mandatory
once again. FAMM opposes this. Mandatory sentencing guidelines, just
like mandatory minimum sentences, deprive judges of the flexibility and
power they need to make punishments fit in each case.

In 1994, at FAMM’s urging, Congress created a new exception to mandatory
minimum drug sentences, the “safety valve.” This reform allows federal
drug offenders to be sentenced below the mandatory minimum sentence
if (1) the offense was nonviolent, (2) the person did not play a leadership
role in the offense, (3) the person did not possess or use a gun, (4) the person
has a very minor criminal history, and (5) the person gives the prosecution
any information they have pertaining to the crime. As of 2012, the safety
valve has benefited over 79,000 federal drug offenders.
While safety valves do not eliminate mandatory minimums, they can
carve out generous exceptions and narrow their coverage considerably.
FAMM continues to urge Congress and state legislatures to pass safety
valves for all crimes carrying mandatory minimum sentences.


were receiving

Crack cocaine reforms

Until 2010, federal law required much stiffer mandatory minimum
sentences for crack cocaine crimes than for powder cocaine offenses,
despite the fact that the two drugs are the same. Only five grams of crack
cocaine triggered a five-year mandatory minimum sentence; it took 500
grams of powder cocaine to garner the same term. More than 80 percent
of those convicted of federal crack offenses were African American;
those convicted for powder cocaine crimes tended to be white or Latino,
despite similar patterns of drug usage among all races. This racial
disparity, along with the unjustified difference between the drugs at
sentencing, led to a minor guideline reform in 2007. It lowered federal
crack sentences by an average of 15 months and was applied retroactively
to give even bigger sentence reductions to 16,500 crack offenders who
were already in prison.

About the Author
In 2010, under relentless pressure from FAMM and other groups, Congress
passed the Fair Sentencing Act, further narrowing the sentencing gap
between crack and powder cocaine. The new law also repealed the five-year
mandatory minimum sentence for simple possession of crack cocaine—the
first repeal of a federal mandatory minimum since 1970. Three thousand
federal offenders will benefit from the Fair Sentencing Act’s reforms each
year. Further reforms lowered crack sentencing guidelines and were applied
retroactively, making over 12,000 federal prisoners eligible for sentence
reductions averaging 36 months. The 2007 and 2010 crack sentencing
reforms could save taxpayers over two billion dollars.
State reforms

Across the country, states as varied as Michigan, New York, New Jersey,
Rhode Island, South Carolina, Massachusetts, Texas, and Minnesota
have slowly begun repealing or scaling back their own mandatory
minimum sentencing schemes. Reforms include creating safety valves,
repealing mandatory minimums for nonviolent crimes, increasing parole
eligibility and creating drug court programs as an alternative to prison
for offenders who need drug treatment. The 2008 recession produced
severe budget shortfalls and deficits for many states, forcing governors
and lawmakers to reassess whether mandatory minimum sentences are
a wise policy.

The best offense is a good defense

While progress has been made, total victory remains elusive. Many
lawmakers still believe it is good politics to be “tough on crime” rather
than using sentences that are fair, individualized and “smart on crime.”
High-profile crimes are a magnet for mandatory minimum sentences,
and today there are many of them: illegal immigration, identity theft,
child pornography possession, white collar offenses and sex offenses.
For FAMM, this means we continually work to oppose new mandatory
minimum sentences as well as repeal old ones.

Finding new teammates—and new hope

Bringing more advocates—particularly conservative ones—into the fight
is essential for reforming mandatory minimum laws. Mandatory minimum
reform is not a “liberal” or a “conservative” issue. It is an issue that affects
millions of American families and taxpayers. The last 30 years have proven
that mandatory minimums cost more—both in dollars and in human
lives—than they are worth. It will take players on all sides of the aisle
working together to win the sentencing reform game. 

Julie Stewart is the president and founder of FAMM
(Families Against Mandatory Minimums), a nonprofit,
nonpartisan organization fighting for fair and proportionate sentencing laws that allow judicial discretion
while maintaining public safety.

Julie Stewart

In 1990, Julie was working as public
affairs director at the Cato Institute
Mandatory Minimums
when she became aware of mandatory
sentencing laws. Her brother had been
arrested for growing marijuana in Washington State,
had pled guilty, and—though this was his first offense—
had been sentenced by a judge to five years in federal
prison without parole. The judge criticized the punishment as too harsh, but proceeded with the sentence
because the mandatory minimum law left him no choice.

Families Against

Julie is an effective and passionate advocate for FAMM
and sentencing reform. She has testified multiple times
before Congress and the U.S. Sentencing Commission
about mandatory sentences and prison overcrowding.
She has debated and discussed mandatory minimum
sentences on many national television networks,
including Fox News, ABC News, CBS News, CNN News,
NBC News, PBS News, MTV, and on numerous radio
and local television programs throughout the country.
In 2012, Julie appeared in The House I Live In, an awardwinning documentary film about the drug war.
Julie’s work to reform mandatory sentencing laws
has been honored with many awards including the
Thomas Szasz Award for Outstanding Contributions
to the Cause of Civil Liberties, the Champion of Justice
Award from the National Association of Criminal
Defense Lawyers, the Leadership for a Changing
World award from the Ford Foundation, and the Citizen
Activist Award from the Gleitsman Foundation.


I n c a r c e r at i o n


From the
to Prison:
Understanding and
Curing America’s
Addiction to

“Prisoners are persons whom
most of us would rather not
think about. Banished from
everyday sight, they exist in
a world that only dimly enters
our awareness. They are
members of a ‘total’ institution
that controls their daily
existence in a way that few
of us can imagine…It is thus
easy to think of prisoners as
members of a separate
netherworld driven by demands,
ordered by its own customs,
ruled by those whose claim to
power rests of ray necessity.
Nothing can change the fact,
however, that the society that
these prisoners inhabit is our
own. Prisons may exist on the
margins of society, but no act
of will can sever them from the
body politic.”

When prisoners emerge from the shadows to press a constitutional
claim, they invoke no alien set of principles drawn from a distant
culture. Rather, they speak the language of the charter upon which
all of us rely to hold official power accountable. They ask us to
acknowledge that power exercised in the shadows must be
restrained at least as diligently as power that acts in the sunlight.
O’lone v. Estate of Shabazz, dissenting opinion of the U.S. Supreme
Court Justice Brennan writing for himself and three other
justices. 133

It is well to recall these words of Justice Brennan at the current hour of
history, in which America leads the world in the placement of people within
prison, and the prison population in America has tripled since 1987. There
are presently over two million people in America’s prisons—representing
one out of every 100 citizens.134 How did the country which has touted
itself as the leader of the “free world” come to incarcerate so many of its
citizens? While the writer was asked to ponder and indicate events that
have taken place over the past 30 years that may help the younger
generations understand circumstances that have driven America’s
incarceration binge, it would be useful to go back a little more than 40
years ago to 1968 in order to paint a clear picture of why so many Americans,
and particularly minority American citizens, are confined within prisons—
both state and federal—throughout the United States today.
We should first consider four important events that took place within
1968 that have led to a greater governmental policy emphasis being placed
upon expanding the function of the police and prisons, rather than redress
and correction of violations of civil liberties and human rights more than
at any prior point in American history: 1) The assassination of Reverend
Dr. Martin Luther King, Jr. and the unprecedented rioting in over 100
American cities (mainly involving African American youth and the urban
poor) that transpired in the aftermath; 2) The decision of the U.S. Supreme
Court in the landmark case of Terry v. Ohio,135 which changed the legal
standard of “probable cause” (the legal basis for police interference with
the liberty of an American citizen from the formation of the nation until
1968), to a more permissive standard for police detention and questioning
of citizens called “reasonable suspicion;” 3) The assassination of former
U.S. Senator and Attorney General Robert Kennedy; and 4) The election
of President Richard Nixon on a platform demanding a governmental
policy return to “law and order.” These four events reflect a nation steeped

we must first
look to the
glaring and
sadly, increasing
racial disparity
of who is
arrested and
cast into prison
in America since
1968: AfricanAmerican youth.
deeply in turmoil and profoundly perplexed regarding its commitment,
enshrined within the Preamble to the U.S. Constitution, to move
confidently toward insuring “domestic tranquility” and forming “a more
perfect union.” By the end of 1968, there was very little national appetite,
much less national will, for a robust and transparent debate pertaining
to the causes and solution of the social strife then existent in America;
but yet there existed great national resolve to register a firm and swift
response to the symptoms of the problems illustrated in the display of
social unrest and “lawlessness”—themes Richard Nixon hammered at
in his campaign for President.


I n c a r c e r at i o n

Shortly after the 1968 Presidential election, President Nixon soon sent
a major legislative proposal to Congress that became enacted into law as
the “Organized Crime Control and Safe Street Act of 1968.” This new
catalog of federal law brought sweeping change and new tools to the
arsenal of law enforcement, such as provisions for “no-knock” police
entry into the homes of persons suspected of crime, pretrial detention
without the possibility of release on bail and domestic “wire-tapping”
the telephone conversations of Americans—a practice previously reserved
in the law exclusively for investigation of cases of espionage involving
foreigners. Though the last major overhaul of the Federal Criminal Code
prior to 1968 transpired about 20 years earlier in 1948, President Nixon
followed up on the still-wet ink of his 1968 “Safe Streets Act” with another
sweeping legislative proposal that Congress enacted into law in 1970 as
the “Comprehensive Crime Control and Drug Abuse Act.” The 1970 law
targeted the supposed massive drug abuse of heroin and cocaine in
America; however the legislative history contained in the U.S.
Congressional News and Administrative Reports under Public Law—
98–473 reflects dissent from enactment of the 1970 federal drug law from
four congressmen: Hon. Robert Kastenmeir, Hon. Robert Drinan, Hon.
John Conyers and Hon. Abner Mikva. These dissenting congressmen
objected that there was no evidence of any massive drug problem in
America concerning cocaine and heroin, versus evidence that American
college students on various campuses were using marijuana and LSD.
They said this new law was not only unwarranted but without factual
support for a heroin and cocaine epidemic in America at that time, and
urged that it would fill the nation’s prisons with “poachers and prostitutes”
rather than major drug “pushers and pimps.” After the enactment of both
these laws, federal money steadily flowed from 1968 to the present to

states for focusing efforts on controlling “street crime,” “drug offenders”
and “violent offenders.”136 Though many commentators describe the “War
on Drugs” as beginning in the 1980s, 137 America’s “Drug War” more
accurately began in 1968 and 1970 even though this “war” began before
the claimed epidemic and crisis that it purported to resolve.
Fast-forwarding into America of 2011, one might ask: what does the
“playground” have to do with “prison”? To answer this question, we must
first look to the glaring and sadly, increasing racial disparity of who is
arrested and cast into prison in America since 1968: African-American
youth! Though it is widely documented by credible researchers that
white and black Americans use drugs at equal rates, African American
drug users and offenders are incarcerated at 10 times the rate of white
drug users and offenders. Moreover, the Pew Charitable Trust reports
that as of 2008, one white man out of 106 of 18 years or older was incarcerated; in contrast, one black male out of 15 that was 18 years and older
was incarcerated.138 It is important to understand that the Civil Rights
movement of the 1960s had a different face of protest in the rural south,
in contrast with cities and “ghettoes” in the north. While Dr. Martin
Luther King Jr.’s movement in the deep south of America involved
children, youth and students, mostly African American,139 in the protest
against racial discrimination and legal segregation; northern cities saw
a more militant spirit of protest. The historic 1968 riots in 100 American
cities involving thousands of black youth had a huge impact. 140
Consequently, the “War on Drugs” and “War on Crime” have taken a very
heavy toll, in terms of incarceration, upon African-American males
more than any other segment in society. Law Professor Anthony C.
Thompson notes:

In 2008, one black male out of 15 that was
18 years and older was incarcerated.


About the Author
The writer is a founding member and director of the
Extra Legalese Group, Inc. (ELG)—the first “thinktank” incorporated in the state of Maryland by
incarcerated American citizens. ELG’s directors—all
incarcerated citizens at present with
Robert T.
upwards 175 years confinement
“Manchild” Morgan
experience are Ronald Ellis, Dwight
Extra Legalese Group
Davis-Bey, Vincent T. Greco, Larry
Bratt, Rashid Salih (aka Russell
Bacon) and Robert T. “Manchild” Morgan. ELG has
designed an anti-violence campaign entitled the
“Peace Initiative” that has garnered substantial support in the communities of Maryland and thoughout
the nation and seeks to convince gangs to become
assets to the community, rather than threats. For
further information regarding ELG, contact Frank M.
Dunbaugh, Esquire (410) 974-0555.

The last two decades of the twentieth century witnessed an
unprecedented increase in the number of people incarcerated in the
United States. By 2001, approximately two million men and women
resided in state and federal prisons and jails. Although other
communities of color suffered the effects of this increased
incarceration (as described later in this work), this dramatic rise
in incarceration had a particularly catastrophic impact on African
American communities. African Americans represent roughly 13
percent of the general U.S. population. But African American men
and women make up 46.3 percent of those imprisoned in state and
federal jurisdictions by 2000.
Young men and women of color were literally swept into the criminal
justice system at alarming rates, a development that often deprived
families and communities of the precise individuals who, under the
right circumstances, would have been more productive members of
the communities.141

How can public safety be served by reversing the over-use of
Progressive social change in America has always been the result of
strategic collaboration between concerned citizens of all colors, creeds
and walks of life. The problem of over-incarceration is not simply a “black”
or “minority” problem: it is an American problem and will require an
American solution. Efforts inside prison, particularly involving prisoner
“think-tanks” like the Extra Legalese Group, Inc.,142 prisoner religious
organizations of all denominations, and yes, even street organizations
that society denominates as “gangs,” coordinating with outside “thinktanks” and concerned citizens, will have to innovate programs and
pathways to demonstrate to the public that over incarceration undermines
rather than strengthens public safety. Money spent on confinement, as
the social researchers agree, needs to be devoted to addressing and solving
the social problems that lead to incarceration in the first place. This will
curtail the pipe-line from the playground to prison and insure that the
correctional institutions will prepare more prisoners for a brighter future
than the current criminal justice policy will allow. 


P r i vat e P r i s o n s


The Evolution
of Prison
in the
United States

The origins of the modern
private prison industry
can be traced to the brutal
exploitation of prisoners
during the convict lease
system of the late 1800s
and early 1900s. Under the
convict lease system, which
arose in the Southern states
during the Reconstruction era,
private companies leased
prisoners and used their labor
to generate profit. Leased
prisoners were held in
company-owned prison
work camps that had high
mortality rates due to forced
labor in logging, railroad
and mining operations.

The convict lease system was phased out by the 1920s, in part due
to public awareness of terrible abuses, including prisoner deaths, in
for-profit prison work camps. The practice of allowing private companies
to incarcerate people for the purpose of generating profit remained
dormant for over half a century.
Then, beginning in the 1970s after Nixon declared “war” on crime,
followed quickly by the “War on Drugs,” a series of progressively harsh
sentencing laws were enacted—including mandatory minimums for
drug-related offenses, truth-in-sentencing laws that require prisoners
to serve most of their prison terms and three-strikes laws. During the
same time period, parole was abolished in the federal prison system.
As a result, the U.S. prison population began to grow, leading to a
dramatic increase from 1980 (501,886 people in prison and jail) to the
mid-2000s (2.2 million people in prison and jail).
A similar parallel occurred in the 1990s with the detainee population
of the Immigration and Naturalization Service (now Immigration and
Customs Enforcement) as the number of immigrants in detention
increased following the enactment of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996.
Such tough-on-crime criminal justice and immigration policies, and
the resulting increase in prison, jail and immigrant detainee populations,
created a need for additional correctional bed space. Consequently, a
number of companies were formed to capitalize on incarcerating people
for profit, and the modern private prison industry was born.

Over the next two decades, a number of other companies entered the
corrections market to obtain a slice of the profitable private prison
industry pie, including U.S. Corrections Corporation, Esmore
Correctional Corp. (later renamed Correctional Services Corporation),
Cornell Companies, Civigenics, Community Education Centers (CEC),
Management and Training Corporation (MTC), LaSalle Corrections,
Emerald Companies and the Bobby Ross Group.
The private prison industry grew quickly, from 71,208 state and federal
prisoners held in privately-operated facilities in 1999 to a high of 129,482
in 2009—an 82 percent increase. This growth in the use of private
prisons coincided with the drastic increase in the nation’s prison and
jail populations due to the “War on Drugs,” tough-on-crime legislation
and more punitive immigration policies.
Yet the industry also contracted during the same period, with smaller
companies being acquired by larger firms and others going out of
business. CCA bought out U.S. Corrections, Concept, Inc., and
Corrections Partners, Inc., while the GEO Group acquired Abraxas,
Correctional Services Corporation and Cornell Companies, and CEC
acquired Civigenics. The consolidation of the private prison industry
resulted in reduced competition and moved the market towards a
monopoly model. The top four companies (CCA, GEO, MTC and CEC)
currently hold over 92 percent of the private prison market.

Corrections Corporation of America (CCA), the nation’s largest private
prison firm, was co-founded in Nashville, Tenn., in 1983 by Doctor Crants,
Tom Beasley (a former chairman of the Tennessee Republican Party)
and T. Don Hutto, a former Arkansas corrections commissioner. The
company had strong political connections, including with then-Tennessee
governor and current U.S. Senator Lamar Alexander.
CCA’s closest competitor, Wackenhut Corrections Corp. (now known as
the GEO Group), was established in Boca Raton, Florida, in 1984 as a
subsidiary of the Wackenhut Corporation, a security firm founded by
George Wackenhut, a former FBI agent. The company’s website describes
GEO’s CEO, George C. Zoley as “one of the pioneers in the private
corrections industry.” Both CCA and GEO Group are publicly traded on
the New York Stock Exchange.


P r i vat e P r i s o n s

The private
prison industry
relies on high
rates in order
to generate
Private prison companies claim they can achieve cost savings through
competition, greater efficiency and lower operating costs. However, most
credible studies have found that prison privatization results in few or
no cost savings when all relevant factors are considered. For example,
a 2001 report by the U.S. Department of Justice’s Bureau of Justice
Assistance concluded that “the cost benefits of [prison] privatization
have not materialized to the extent promised by the private sector.”
Rather, the success of private prison companies can be attributed to the
industry’s extensive use of lobbying, campaign donations and hiring
former public officials and policymakers—the latter referred to as the
“revolving door” between the public and private sectors—in order to
grease the private prison contracting process.
Private prison companies also have been accused of influencing criminal
justice policy by promoting harsher sentencing and immigration laws
that result in increased prison and immigrant detainee populations.
Both GEO Group and CCA have been members of the American
Legislative Exchange Council (ALEC), an organization that brings state
lawmakers and corporate officials together to draft model bills that are
then introduced in state legislatures.


CCA officials participated in ALEC’s Criminal Justice Task Force (later
its Public Safety and Elections Task Force) in the 1990s when ALEC
produced model sentencing bills such as truth-in-sentencing and threestrikes; further, CCA was reportedly involved when ALEC produced
model illegal immigration legislation that was introduced in a number
of states, including, notably, in Arizona as SB 1070. CCA and GEO Group
are no longer members of ALEC.
According to the most recent data from the U.S. Bureau of Justice
Statistics, 128,195 state and federal prisoners were housed in privatelyoperated facilities as of year-end 2010, or 8 percent of the total state and
federal prison population. This does not include juvenile offenders,
immigrant detainees or pretrial detainees held in private detention
facilities. System-wide prison privatization was proposed in Arizona
in 2009 but withdrawn the following year, while the state senate of
Florida narrowly rejected a legislative attempt to privatize 27 state
prisons in South Florida in 2012.
For 2011, CCA reported gross revenue of $1.7 billion with $162.5 million
in net income; the company operates 66 correctional facilities with
approximately 91,000 beds in 20 states, the District of Columbia and
Puerto Rico. TransCor, a CCA subsidiary, provides prisoner transportation
services nationwide.

About the Author
Alex Friedmann serves as associate editor of Prison
Legal News (, a monthly
publication that covers criminal justice-related
issues and a project of the Human Rights Defense
Center. He is also president of the
Private Corrections Institute (www.
Friedmann, a non-profit citizen
Prison Legal News
watchdog group that opposes the
privatization of correctional services.
A former prisoner, he served 10 years behind bars,
including six at a CCA-operated prison in Tennessee,
prior to his release in 1999.

GEO Group’s 2011 gross revenue was $1.6 billion with $78 million in net
income. GEO operates 65 correctional facilities in the U.S. with around
66,000 beds, and also manages prisons in the U.K., Australia and South
Africa. GEO Group acquired Cornell Companies in 2010 and BI, Inc.—one
of the nation’s largest providers of electronic monitoring for people under
correctional supervision—in 2011. The company also includes a prisoner
transport service, GEO Transport, and GEO Care, a subsidiary that
provides community corrections, re-entry, and medical and mental
health services, including psychiatric hospitals.
The private prison industry relies on high incarceration rates in order
to generate profit; thus, sentencing reform and other criminal justice
policies that reduce the level of mass incarceration in the United States
pose a threat to the industry’s business model and bottom line. As noted
in CCA’s 2010 annual report:
The demand for our facilities and services could be adversely affected
by the relaxation of enforcement efforts, leniency in conviction or
parole standards and sentencing practices or through the decriminalization of certain activities that are currently proscribed by
criminal laws. For instance, any changes with respect to drugs and
controlled substances or illegal immigration could affect the number
of persons arrested, convicted, and sentenced, thereby potentially
reducing demand for correctional facilities to house them.

Due to the economic downturn in the U.S. beginning in 2008, a number
of states began taking steps to reduce their prison populations and,
consequently, their spending on corrections. This has had a negative
impact on the private prison industry as states have closed prisons,
withdrawn prisoners from out-of-state privately-operated facilities and
otherwise cut corrections spending in an effort to reduce budget deficits.
Nationwide, the state prison population declined slightly in 2010 for the
first time in four decades.
Thus, private prison companies have increasingly turned to the federal
government, as the federal prison population continues to grow and
immigration detention remains highly profitable. Around 42 percent of
GEO Group’s 2011 revenue came from federal agencies, while that same
year CCA obtained 43 percent of its revenue from federal contracts. 


Pa role


Release on Parole

Across the nation, tens of
thousands of individuals are
released from our nations’
prisons and jails every year
to enter some form of post
incarceration supervision.
Parole is an integral piece of
the criminal justice system
(police, prosecution, probation,
prison and parole). Sometimes
confused with probation, which
allows an individual to remain
in the community instead of
being sentenced to jail or
prison, parole is that portion
of a sentence that is served
after having been released.

The actual release mechanism varies from state to state and individual
county jurisdictions. Some individuals are released through the
discretionary decisions of a parole board, while others get released at
pre-determined timeframes in accordance with their original sentence,
or at times set by law.
Regardless the method, these individuals get released from institutions
to serve the remainder of their sentences back in our communities. In
most cases, they return to the same communities from which they came,
back to the same neighborhoods and families.
The common denominator for the purpose of this essay is that all of these
individuals come out under the supervision of a governmental agency.
Whether they are called parole officers or parole agents, the parole
representatives are usually law enforcement officers charged with
maintaining public safety by enforcing conditions of parole. Some
conditions apply to everyone under parole supervision (such as, do not
possess a weapon and do not leave the state without permission); special
conditions apply to individual offenders as circumstances require (such
as attend mental health counseling or wear an electronic monitoring
device). All parolees receive a parole certificate, which is a contract
between themselves and the agencies granting and supervising their
parole. These certificates/contracts form the basis for monitoring the
behaviors of the parolees in the community and holding them accountable
for any failures.
In the past 25 years, with the rise in the prison populations due to
mandatory minimums, increases in legislatively defined crimes, and
longer terms of incarceration within the United States, the number of
parolees under supervision has exploded by over 250 percent from
277,438 in 1985 to 825,000 in 2010.
Parole agencies tried to respond to the increase in various ways, but with
their primary mission of ensuring public safety, many saw fit to hold
parolees strictly accountable for their behaviors and used the process
of parole revocation for what are known as technical parole violations,
to return parolees to prison in great numbers. In some states, the number
of returning parolees for these technical violations (not the commission
of new criminal offenses) amount to over 33 percent of all admissions
to their state prison systems.

Parole officers
have been described
as “social
workers with guns”
as parole is
responsible for
both ensuring
public safety
and providing
successful and
for all

Pa role

When parole operates effectively, it provides a balanced mix of obligations and opportunities for the parolee. Parole officers have been described
as “social workers with guns” as parole is responsible for both ensuring
public safety and providing successful and sustainable reintegration
for all offenders.
Parole agencies depend on the cooperation and partnership of the
communities they serve in the implementation of their mission. While
they must cooperate with all other law enforcement entities and
criminal justice system partners in their efforts to ensure public safety,
sustainable reintegration depends on community collaborations.
Effective communication within the communities most impacted by the
arrest, conviction and eventual return of offenders, is critical to the success
of each individual parolee and to the overall outcomes of the parole agency.
Parole agencies must develop and maintain partnerships with the faithbased community, charities, advocacy groups, local businesses and notfor-profit service providers. It is also important to have working knowledge
of, and relationships with, the local governmental agencies that provide
service and support to citizens of the state such as: Labor One-Stop Centers,
Health and Human Services, Welfare and Social Services, Federally
Qualified Health Centers, U.S. Veterans Administration and Social Security
Administration locations.


Once released from jail or prison and placed on parole, parolees lose
access to the life support services they received as inmates, and resume
the social contract of the duties and responsibilities of being a citizen
of their respective state. In some cases, the parolee was never fully
integrated into the social fabric of their community prior to their entry
into the criminal justice system, and they never fully understood they
were part of or responsible to a community. Parole acts as a natural
transition for the return to, and understanding of, the community. The
collective responsibility that we all share must be affirmed and steps
taken, even small ones, to allow for that reality to become known.
This transition, known as re-entry, or reintegration, is a process and
occurs over time. The actual event of being released is but the first
step. Care and preparation for each release must be taken. The actual
humanness of each offender must be recognized, with individual
factors pertaining to them alone being considered.
The return to the community is not just opening the door and letting the
parolee free. It should involve multiple decisions and reviews within the
mechanisms of the release process before that release event occurs.
Parolees must obtain approval of a viable residence, hopefully with
family support. Local police, prosecutors and victims must be notified
within detailed time frames. Agencies must review the specific risk
and needs assessments of each parolee and determine any individual

The number of parolees under supervision has exploded by
over 250 percent from 277,438 in 1985 to 825,000 in 2010.

About the Author
Lenny Ward currently serves as director of the Division
of Parole & Community Programs for the New Jersey
State Parole Board (NJSPB). He oversees almost 400
law enforcement officers and command staff within
the Division of Parole and manages over
$37 million dollars in contracted serLenny Ward
vices that provide direct support to more
Director of the Division
than 15,000 parolees under supervision
of parole and Community
in New Jersey. Lenny came into state
programs New Jersey
service in 1990 and has served in mulState Parole Board
tiple capacities within the Department
of Law & Public Safety, the Department
of Transportation and the Department of Corrections.
Lenny graduated from Jersey City State College in
1973, attended Brooklyn Law School, and received
a master’s degree in public administration from
Fairleigh Dickinson University in 1997.

(special) conditions of parole, with relevant referrals to services ready
for implementation. Basic forms of identification must be renewed,
and limitations imposed on each parolee as a result of their sentence
must be understood and explained. These limitations, collectively
known as collateral sanctions, vary within jurisdictions. They restrict
the ability of parolees in particular, and released offenders in general,
from certain benefits and privileges afforded citizens not convicted of
any criminal offense.

He is certified as an instructor by the New Jersey
Department of Law and Public Safety, Division of
Criminal Justice - Police Training Commission, is
certified by the U.S. Department of Justice in
Community Oriented Policing, and is an adjunct
professor at Fairleigh Dickinson University.

Those duties and responsibilities are not one sided, as the obligations
and opportunities mentioned above also fall upon each state. We have
a collective obligation to ensure that each parolee is treated with the
respect and compassion of every other citizen in the community and
provided the same opportunities allowed by law to succeed.
Parole has the unique ability to directly impact the lives of the parolee
and their families, as well as helping the neighborhoods and communities
in which they reside become safer.
For those of you reading this essay who are interested in a career in law
enforcement and truly want to make a difference in your community,
start thinking seriously about becoming a “social worker with a gun.” 


R e- E n t r y


Life After
and Policies

After serving nearly two
decades of my life
incarcerated in America’s
penal system, freedom was
finally a reality, or at least that
is what I thought. While
incarcerated, I was among the
elite company of men who
were thought to be leaders
behind the wall. Little did I
know, society as a whole
cared very little about people
like me. Society builds prisons
to put us away and keep us
locked up. It seemed like
society did not expect us to
ever return to our communities.
There were no programs or any
real assistance in place to
facilitate this type of transition.

I compared my experience to that of a returning solider. After having
spent many years on the front line of battle, the Army takes him from
the front line of the battlefield without any debriefing or re-socialization
and brings him back to his hometown and drops him off on a street corner
and expects him to function as a normal person. How realistic is that?
Not realistic at all. How could the soldier be expected to lead a normal
life? His only way of living for the past several years was by living in an
environment of killing to keep from being killed. Something similar
happened to me. I was incarcerated in 1975 and released in 1994. Because
of the nature of my crime (armed robbery), I was not eligible for work
release or any other type(s) of programs that would have prepared me
for release.
While in prison, I realized early that I could become a better person and I
set about the business of doing just that. Because of this realization, I made
sure that no matter what, life would become better for me and those people
that I would come in contact with. Education and real lifestyle changes
became the order of the day. I spent most of my time learning and assisting
young men coming in and out of the prisons throughout the country. (Even
though I was a state prisoner, I found myself traveling all across the country
from prison to prison.) Many of these young men recidivated many times
and some even returned with the big “L” (a life sentence).
Unbeknownst to me there were not any programs designed to assist men
coming back into the communities. Recidivism was the order of the day.
Once aware of the situation, I vowed that if I could ever make it to the
other side (out of prison), I would never return as a convicted person.
After being released from prison and having time to reflect on my journey,
it was clear that if not for my faith in the Creator, the desire not go back and
my support network, I would probably be another recidivism statistic. It
was true, there were no other resources set up to assist with my transition
back into the community. In fact, everything was designed for me to fail.
I realized that part of my contribution to the society to which I was
returning, would be to help shine a positive and productive light on the
issue of re-entry.
Currently, I work as a case manager/job developer with an organization
that provides job readiness training to men returning back to the

Often, when men show
up to our program,
they are truly tired
of their past lifestyle.
They welcome the
change and
opportunity to do
something different.
The re-entry process actually begins while an individual is still incarcerated. Once a person realizes that the lifestyle that they were leading was
not beneficial, they begin to make conscious and unconscious decisions
to change. Their entire belief system is challenged and proved to be
faulty because of their current situation and the many similar situations
from their past.
Often, when men show up to our program, they are truly tired of their
past lifestyle. They welcome the change and opportunity to do something
Thanks to President George W. Bush, the Second Chance Act was initiated in 2004. The Department of Labor awarded federal funding to the
Jericho Program in Baltimore, M.D., along with 29 other sites around
the country, to provide job readiness and employment opportunities for
formerly incarcerated men and women. Until the Second Chance Act
was passed, no real efforts were being put forward to assist this population of people on a national governmental level.


R e- E n t r y


Society builds prisons to put
us away and keep us locked up.
It seemed like society did
not expect us to ever return
to our communities.
There were no programs
or any real assistance
in place to facilitate
this type of transition.
In the beginning of 2005, I had the opportunity to become a part of the
Jericho staff as the mentoring coordinator, and later, trainer for the job
readiness component. The Jericho program grew rapidly in name
recognition and successful outcomes. In 2008, President Bush visited
the Jericho program. He wanted to get a first-hand impression about
how the program was working. I was appointed as the staff person who
would have the most interaction with the President. This was a very
exciting time and opportunity for Jericho, the staff and the men who
were participating in the job readiness training component. During the
visit, I had the opportunity to speak with the President about the Second
Chance Act. He shared the story about how this law came to be. He said,
while Governor of Texas, he was touring an area that had been struck
by a hurricane. At the time of this visit, a man walked up to him. Bush
thought that this man was going to give him a hard time about what he
was not doing as governor. Instead, the man offered him some advice.
The man used the analogy of a wall. He said that you can repair the
crack in the wall and it will eventually split again. You can repeatedly
repair it, but until you fix the foundation, the wall will continue to crack.
The way to address the problem of recidivism is to make funds available
to the local faith-based institutions. As individuals return to their
communities, they look for assistance. Faith-based institutions are a
natural and abundant foundation. The Second Chance Act was born.

The Second Chance Act had some shortcomings. It only catered to
nonviolent offenders who had been released as recently as six months
before or less. The funding did not provide services for individuals with
violent offenses or anyone who had been home longer than six months.
However, with the Second Chance Act and other federal funding, Jericho
was able to provide services to more than 1,000 men returning to the
community from incarceration. In addition to the federal funding, Jericho
was later awarded a grant through Open Society Institute. This funding
provided services for returning home men who resided in the city of
Baltimore Empowerment Zones, that had been home longer than six
months and who had violent charges. As a result, Jericho was able to
provide services to more than 150 individuals over a three-year period.
Because of these funding streams, Jericho was able to get involved in
advocacy work. This allowed us to continue to remove barriers and assist
the population of men (who might have been ignored), to restore dignity,
honor and a sense of pride.
This is just a small service being provided for an almost bigger than life
problem. There is much work left to be completed and this is just a glimpse
into the world of prison re-entry. Many of the men who are incarcerated
have realized that they can be a part of the solution and not a continuous
part of the problem.

About the Author
Greg Carpenter has resided in Baltimore for more than
16 years. He has been involved with re-entry work for
more than 30 years, 12 of those years were spent
working with men while he was incarcerated. He spent
approximately 20 years in prisons from
Maryland, California and Georgia prior
to being released in 1994. He currently
holds an Associate’s of Arts degree in
Formerly incarcerated
community advocate
general studies from Essex Community
College in Maryland and a Paralegal
Certification from Southern Career Institute in Maryland.
He was also certified as an Offender Workforce
Development Specialist (OWDS) Instructor in 2008. He
completed his bachelor’s degree in management science at Coppin State University in 2011.

Two of my dear friends have passed away since beginning on this journey.
Both of them were serving life sentences. One of them was released
through the court system after serving more than 27 years of his life in
prison. After his release, he went on to establish a viable program that
still exists to this day. His work continuously impacts the lives of our
youth in a positive way. My other friend was not so fortunate. He passed
away in prison after serving 35 years on a parole-eligible life sentence.
This individual was instrumental in raising the awareness of and bringing together victims/victim families and perpetrators face-to-face to
talk about the impact that the crime played in their lives and help bring
closure to an unpleasant chapter in their lives.

Greg has been employed with Jericho Re-Entry in
Baltimore for the past six years in many capacities.
Jericho, a program of the Episcopal Community
Services of Maryland, provides job readiness training
for men re-entering society after periods of incarceration. He is also co-founder of Re-Entry Consortium, a
non-profit that focuses on technical support for faithbased and community-based organizations. Greg served
on the Governor’s Re-Entry Task Force under Gov. Martin
O’Malley in 2012. He is an advocate for re-entry and
has testified in Annapolis on numerous occasions in
support of legislation that impacts the re-entry population including ban the box and voting rights.

It is imperative that we all make meaningful and significant contributions to our society. What will your contribution(s) be? 


E c o n o m i c s o f I n c a r c e r at i o n



Where there is poverty,
crime is not far behind. When
America’s poorest inner-city
neighborhoods lost factory
jobs and fell into disorder
through the 1960s and 1970s,
the murder rate doubled, and
politicians launched a war
on crime and then on drugs.
The following decades saw
millions of drug arrests and
tough new criminal penalties
that ultimately produced the
largest penal system in the
world. By 2009, America’s
prisons and jails locked up
around 2.3 million people,
around 750 per 100,000
of the U.S. population.

Crime and imprisonment are entangled in the fabric of American poverty.
The American penal system grew fastest among those whose economic
opportunities had declined the most. At the end of the 1990s, African
American men were nearly twice as likely to go to prison as to graduate
college with a four-year degree. Around 22 percent of those men would be
imprisoned at some point in their lives, while only 12 percent would finish
college. White men of the same age lived in a different world: 32 percent
would graduate with a college degree and 3 percent would go to prison.
Incarceration rates have grown highest among young African American
men with little schooling. If we consider black men under age forty with
only a high school education, one in five was in prison or jail by 2008. If
they had dropped out of school, there was a 60 percent chance they’d go
to prison at some time in their lives. In short, for black male high school
dropouts, serving prison time had become a normal part of life.
Sociologists called this pattern of imprisonment “mass incarceration,”
describing the penal confinement of entire social groups.
Though mass incarceration was concentrated among the poor, this is
only half the story. The modern penal system was erected on the rough
landscape of American social inequality, but it grew so large that it came
to deepen the ditch of disadvantage. By reducing economic opportunities
and destabilizing family life, the penal system came to add to the poverty
that helped create mass incarceration in the first place.
With little schooling, involvement in crime, and often little history of
regular employment, the incarcerated would have extremely poor
economic opportunities, even without prison time. Add to this a criminal
record, and formerly incarcerated men and women are doubly
Employers are reluctant to take on workers with criminal records, so
formerly incarcerated people are often out of work, or in very low wage
jobs. Perhaps the clearest evidence of the economic effects of a criminal
record comes from a number of field experiments, or “audit studies,” that
examine hiring by employers. A recent audit study sent out a number of
professional job applicants—called testers—to over 1,000 entry-level
positions throughout New York City. The testers were given false resumes
with equivalent schooling and work experience, wore similar clothing,
and were trained to respond similarly in job interviews. The only difference was that some were randomly instructed to indicate that they had
a criminal record on their job application. White testers who reported a
criminal record were only half as likely to receive call-backs or job offers
as testers not indicating a criminal history. For black testers, reporting
a criminal record reduced job offers and call-backs by two-thirds.

In addition to the stigma of a criminal record in the job market, people
with felony convictions often have less access to social programs that
can improve economic opportunities. Felony drug offenders are denied
housing, education and welfare benefits. Criminal stigma and exclusion
from social programs combine to make the formerly incarcerated
something less than full members of society. To be young, black, and
unschooled today is to risk a felony conviction, prison time and life of
second-class citizenship.
The effects of the penal system also ripple through family life. Former
prisoners with children are unlikely to get married. If they are married,
they face high risks of divorce or separation. The turbulent social and
economic prospects of men and women involved in the penal system
may also diminish the life chances of their children.
There are currently about 7 million children with a parent involved in the
criminal justice system—in prison or under community supervision. Just
as the risk of imprisonment is highest for African Americans and the poor,
racial and class inequalities mark children’s risk of having a parent in
prison. Recent research indicates that the fathers of about 25 percent of
African American children born in 1990 have spent time prison. If those
fathers had dropped out of high school, paternal incarceration rises to
over 50 percent. The racial disparity is striking. One in four black children
is at risk of experiencing the incarceration of a parent compared to one in
30 white children. The inequality produced by mass incarceration is thus
evident also among the children of the incarcerated.


E c o n o m i c s o f I n c a r c e r at i o n


A growing body of research shows the negative effects of parents’ incarceration on children. Young children with parents in prison have shown
more antisocial behavior and less school readiness than children whose
parents are not incarcerated. Even when compared to those whose
fathers are otherwise absent, five-year-old children (particularly boys)
with a father in prison exhibit more rule-breaking and aggression.
Research on older children suggests paternal imprisonment is associated
with dropping out of school, unemployment and delinquency. While
children with incarcerated parents may be individually disadvantaged,
the racial and economic disparities in incarceration also contribute to
racial and economic inequality in the prospects of children. In this way,
mass incarceration is implicated in the reproduction of inequality from
one generation to the next.
Although there is a lot of evidence for the negative effects of incarceration
on economic opportunities and family life, the penal system also contributes positively to public safety, at least in the short run. Locking up
dangerous criminals does reduce crime. And serious crime greatly burdens
poor communities. Whatever the long-run costs of incarceration for those
who go to prison, the penal system has also improved public safety.

However, research on incarceration’s social and economic effects suggests that prisons may not improve safety in poor communities by as
much as we think. Crime may be reduced a little in the short-run, but if
the system undermines economic opportunities and disrupts family life,
the causes of crime in low-income neighborhoods are exacerbated. Indeed,
because of the mounting social costs of incarceration, the benefits of
prison may have reached a vanishing point. In the decade since 2000,
crime rates have fallen only slightly despite a large increase in the prison
population. Sixty percent of state inmates are re-arrested within three
years of prison release. Recidivism rates were unmoved by a fourfold
increase in incarceration rates since the 1970s.
The collateral economic and social consequences of mass incarceration
suggest that public safety cannot come at the cost of fairness and diminished opportunity. Because desistance from crime is closely tied to
economic and family stability, public safety and the successful social
and economic reintegration of those committing crimes are mutually
reinforcing goals. Public safety, in this perspective, is built less on the
exclusionary force of punishment and more on the stability of jobs and
domestic life for communities in which both crime and incarceration
are concentrated. 

Black children is at risk of experiencing the incarceration
of a parent compared to one in 30 white children.

About the Authors
Bruce Western is Professor of Sociology and Director
of the Malcolm Wiener Center for Social Policy at
the Harvard Kennedy School of Government. Western
received his B.A. in government from the University
of Queensland, Australia, and his M.A.
Bruce Western
and Ph.D. in sociology from the
University of California, Los Angeles.
Before moving to Harvard, he taught
Catherine Sirois
Harvard University
at Princeton University from 1993 to
2007. Bruce was a Guggenheim Fellow
in 2005, and a Jean Monnet Fellow with the European
University Institute between 1995 and 1996, and is
an elected fellow of the American Academy of Arts
and Sciences. He received the James F. Short Jr.
Distinguished article award in 2006 for his article
“Black-White Wage Inequality, Employment Rates,
and Incarceration.” His book Punishment and
Inequality in America won the 2007 Albert J. Reiss
Award from the Crime Law and Deviance Section of
the American Sociological Association and the 2008
Michael J. Hindelang Award for the most outstanding
contribution to research on criminology from the
American Society of Criminology. He is currently
co-chair of a task force on the challenge of mass
incarceration for the American Academy of Arts and
Sciences and has served on the council of the
American Sociological Association.
Catherine Sirois is Project Coordinator of the Prison
Studies Project and a research assistant at Harvard
Kennedy School’s Malcolm Wiener Center for Social
Policy. She graduated from Harvard College in 2010
with a B.A. in Sociology.


1  Estimates based on population statistics from Table 1 in Karen Humes, Nicholas Jones, and Roberto Ramirez,
“Overview of Race and Hispanic Origin: 2010,” 2010 Census Briefs, March 2011, and jail population statistics from
Table 6 in Todd Minton, “Jail Inmates at Midyear 2011—Statistical Tables,” (Washington, D.C.: Bureau of Justice
Statistics, 2012), 6. Estimates are lower than actual rates as they are based on total population statistics and not
limited to adult population statistics.
2  Paul Guerino, Paige Harrison and William Sabol, “Prisoners in 2010,” Bureau of Justice Statistics Bulletin
(Washington, D.C.: U.S. Department of Justice, 2011, revised 2012).

23  “Wolf Pack’s Prey,” The New York Post, April 22, 1989.
24  John DiIulio, How to Stop the Coming Crime Wave (New York: Manhattan Institute, 1996).
25  Kelly, “Justice Initiates New study of Juveniles Transferred to Adult Courts.”

3  Doris Meissner, et al., Immigration Enforcement in the United State: The Rise of a Formidable Machinery
(Washington, D.C.: Migration Policy Institute, 2013), 2.

26  Neelum Arya, State Trends: Legislative Victories from 2005 to 2010 Removing Youth from the Adult Criminal
Justice System (Washington, DC: Campaign for Youth Justice, 2011).

4  David Farrington and Brandon Welsh, Saving Children from a Life of Crime: Early Risk Factors and Effective
Interventions (New York: Oxford University Press, 2007), 5, 167.

27  Henri Cauvin, “Girl’s Jailing Likely Breaks Federal Law, Judge Says,” The Washington Post, September 14, 2006.

5  Howard Snyder, “Juvenile Arrests 2003,” Juvenile Justice Bulletin (Washington, D.C.: Office of Juvenile Justice
and Delinquency Prevention, 2005).

28  Patrick Griffin, Sean Addie, Benjamin Adams and Kathy Firestone, Trying Juveniles As Adults: An Analysis of
State Transfer Laws and Reporting (Washington, DC: Office of Juvenile Justice and Delinquency Prevention, U.S.
Department of Justice, 2011).

6  John Kelly, “Justice Initiates New Study of Juveniles Transferred to Adult Courts,” Youth Today, 2010, accessed
November 29, 2012,

29  Campaign for Youth Justice, Jailing Juveniles: The Dangers of Incarcerating Youth in Adult Jails in America
(Washington, DC: Author, 2007).

7  Macarthur Foundation Research Network on Adolescent Development & Juvenile Justice, “The MacArthur
Juvenile Adjudicative Competence Study: Summary,” MacArthur Juvenile Adjudicative Competence Study,
accessed at

30  Nancy Gannon Hornberger, Executive Director, Coalition for Juvenile Justice

8  Guerino, Harrison, and Sabol, “Prisoners in 2010”, 35.
9  Guerino, Harrison, and Sabol, “Prisoners in 2010.”
10  Liz Watson and Peter Edelman, “Improving the Juvenile Justice System for Girls: Lessons From the States,”
Marginalized Girls: Creating Pathways to Opportunity (Washington, D.C.: Georgetown Center on Poverty, Inequality
and Public Policy, 2012).
11  Margaret Zahn, et al., “Causes and Correlates of Girls’ Delinquency,” Girls Study Group: Understanding and
Responding to Girls’ Delinquency (Washington, D.C.: Office of Juvenile Justice and Delinquency Prevention, 2010).
12  Leslie Acoca, “Investing in Girls: A 21st Century Strategy,” Juvenile Justice 6 (1999):3-13.
13  Acoca, “Investing in Girls: A 21st Century Strategy.”
14  E. Fuller Torrey, et al., More Mentally Ill Persons Are in Jails and Prisons Than Hospitals: A Survey of the States,
2010, accessed November 1, 2012,
15  Jamie Fellner, “A Corrections Quandary: Mental Illness and Prison Rules,” Harvard Civil Rights—Civil Liberties
Law Review 41 (2006): 391-412.
16  James Austin, et. al., Evaluation of the Current and Future Los Angeles County Jail Population (Washington, DC:
The JFA Institute, 2012); Renee Montagne, “Inside the Nation’s Largest Mental Institution,” National Public Radio,
August 14, 2008, accessed November 1, 2012,
17  E. Fuller Torrey, Out of the Shadows: Confronting America’s Mental Illness Crisis, (New York:
John Wiley & Sons, 1997).
18  Fellner, “A Corrections Quandary.”
19  Jack Leonard and Robert Faturechi, “L.A. County Jailers More Likely to Use Force on Mentally Ill Inmates,” Los
Angeles Times, January 11, 2012, accessed November 1, 2012,


22  Michael Rand, “Criminal Victimization, 2008,” Bureau of Justice Statistics Bulletin (Washington, D.C.: U.S.
Department of Justice, 2009); Toya Like-Haislip and Karin Miofsky, ”Race, Ethnicity, Gender, and Violent
Victimization,” Race and Justice 1 (2011): 254-276.

31  American Jail Association policy statement, approved May 19, 1993.
32  Jolanta Juszkiewicz, Youth Crime/Adult Time: Is Justice Served? (Washington, DC: Building Blocks for Youth, 2000).
33  Heather C. West, Prison Inmates at Midyear 2009 (Washington, DC: U.S. Department of Justice, Bureau of
Justice Statistics, 2010).
34  Allen J. Beck, Paige M. Harrison, Devon B. Adams, Sexual Violence Reported by Correctional Authorities, 2006,
(Washington, DC: U.S. Department of Justice, Bureau of Justice Statistics, 2007); Allen J. Beck, Paige M. Harrison,
Devon B. Adams, Sexual Violence Reported by Correctional Authorities, 2005 (Washington, DC: U.S. Department of
Justice, Bureau of Justice Statistics, 2007).
35  National Prison Rape Elimination Commission, National Prison Rape Elimination Commission Report, 2009,
available at
36  National Institute of Corrections, You’re An Adult Now: Youth in Adult Criminal Justice Systems
(Washington, DC: Author, 2012).
37  Nicole Miera, Written testimony before the U.S. Senate Judiciary Committee, June 2012.
38 Griffin, et. al., Trying Juveniles As Adults.
39 Griffin, et. al., Trying Juveniles As Adults.
40  Neelum Arya, and Ian Augarten, Critical Condition: African-American Youth in the Justice System (Washington,
DC: Campaign for Youth Justice, 2008).
41  Neelum Arya, Francisco Villarruel, Cassandra Villanueva, and Ian Augarten, America’s Invisible Children: Latino
Youth and the Failure of Justice (Washington, DC: Campaign for Youth Justice, 2009).
42  Neelum Arya, and Addie C. Rolnick, A Tangled Web of Justice: American Indian and Alaska Native Youth in
Federal, State, and Tribal Justice Systems (Washington, DC: Campaign for Youth Justice, 2008).
43  Campaign for Youth Justice, Jailing Juveniles.
44  Legal Action Center, After Prison: Roadblocks to Reentry. A Report on State Legal Barriers Facing People with
Criminal Records (New York, NY: Author, 2004), 18.

20  Patricia Resick, “Psychological Effects of Victimization: Implications for the Criminal Justice System,” Crime &
Delinquency 33 (1987): 468-478.

45  Centers for Disease Control and Prevention, “Effects on Violence of Laws and Policies Facilitating the Transfer of
Youth from the Juvenile to the Adult Justice System: A Report on Recommendations of the Task Force on Community
Preventive Services,” MMWR 2007; 56 (No. RR-9), accessed at

21  Jennifer Truman and Michael Planty, “Criminal Victimization, 2011,” Bulletin (Washington, D.C.: U.S. Department
of Justice, Bureau of Justice Statistics, 2012), accessed at

46 Griffin, et. al., Trying Juveniles As Adults.
47  Vickey Gunderson, Written testimony before the U.S. Senate Judiciary Committee, June 2012.

48  John Roman, Assessing the Economic Consequences of Juvenile Versus Adult Justice, (
Washington, D.C.: The Urban Institute, 2005).

69  Advancement Project, Citywide Gang Activity Reduction Strategy: Phase III Report, 2007, accessed at www.

49  The Children’s Court Centennial Communications Project, Second Chances, 100 Years of the Children’s Court:
Giving Kids a Chance to Make a Better Choice (Washington, DC: Author, 1999), 142.

70  Los Angeles Police Department, Annual Report 2010, accessed at

50  Jabriera Handy, Testimony before the U.S. Attorney General’s Defending Childhood Task Force,
November 29, 2011.

71  Stephen Goldsmith and Elizabeth Weinstein, The Mayor’s Management Report Fiscal 2010, City of New York,
2010, accessed at

51  The National Conference of State Legislatures, Juvenile Justice Trends in State Legislation, 2001-2011
(Washington, D.C.: Author, 2012).

72  Richard Cloward and Lloyd Ohlin, Delinquency and Opportunity: A Theory of Delinquent Gangs (New York: The
Free Press, 1960).

52  GBA Strategies, Campaign for Youth Justice Youth Justice System Survey, 2011, accessed at: http://www.

73  Hallsworth and Brotherton, Urban Disorder and Gangs, 2011.

53  Conference Proceedings, “How Shall We Respond to the Dreams of Youth,” A National Juvenile Justice Summit,
Washington, D.C., June 7, 2000.
54  Charles Puzzanchera, Juvenile Arrests 2008 (Washington D.C.: Office of Juvenile Justice and Delinquency
Prevention, 2009), accessed at
55  Simon Hallsworth and David Brotherton, Urban Disorder and Gangs: A Critique and a Warning, Research paper
presented at the Runnymede Trust Seminar, London Metropolitan College, November 11, 2011, accessed at http://
56  National Gang Intelligence Center, National Gang Threat Assessment (Washington D.C.: Federal Bureau of
Investigation, 2011), accessed at
57  Arlen Egley, Jr. and James C. Howell, Highlights of the 1009 National Youth Gang Survey (Washington D.C.: Office
of Juvenile Justice and Delinquency Prevention, 2011), accessed at
58  Terrence Thornberry, David Huizinga and Rolf Loeber, “The Causes and Correlates Studies: Findings and Policy
Implications.” Juvenile Justice Journal 9 (2004).
59  David G. Curry, Richard A. Ball and Scott H. Decker, “Estimating the national scope of gang crime from law
enforcement data,” Gangs in America (2nd ed.), ed. C. Ronald Huff (Thousand Oaks, CA: Sage. 1996).
60  Terrance Miethe and Richard C. McCorkle, “Evaluating Nevada’s Antigang Legislation and Gang Prosecution
Units,” Responding to Gangs: Evaluation and Research, ed. Winifred L. Reed and Scott H. Decker (Washington, DC:
National Institute of Justice, 2002); Eric J. Fritsch, Tory J. Caeti and Robert W. Taylor, “Gang Suppression through
Saturation Patrol and Aggressive Curfew and Truancy Enforcement: A Quasi-Experimental Test of the Dallas
Anti-Gang Initiative,” Policing Gangs and Youth Violence, ed. Scott H. Decker (Belmont, CA: Wadsworth, 2003);
Douglas Kent, Stewart Donaldson, Phelan Wyrick, and Peggy Smith. “Evaluating Criminal Justice Programs
Designed to Reduce Crime by Targeting Repeat Gang Offenders,” Evaluation and Program Planning 23 (2000).
61  Malcolm W. Klein and Cheryl L. Maxon, Street Gang Patterns and Policies (New York:
Oxford University Press, 2006).
62  Hallsworth and Brotherton, Urban Disorder and Gangs.
63  Mike Davis, City of Quartz (new edition) (New York: Verso, 2006).

74  Phillip J. Cook and Jens Lugwig, “Controlling Crime: How To Do More With Less,” The Crime Report, 2011,
accessed at; Aaron M.
Sawyer and Charles M. Borduin, “Effects of Multisystemic Therapy through Midlife: A 21.9-Year Follow-Up to a
Randomized Clinical Trial with Serious and Violent Juvenile Offenders,” Journal of Consulting and Clinical
Psychology 79 (2011).
75  Richard A. Mendel, Less Hype, More Help: Reducing Juvenile Crime, What Works—And What Doesn’t
(Washington, D.C.: American Youth Policy Forum, 2000).
76  Peter Greenwood, Changing Lives: Delinquency Prevention as Crime-Control Policy (Chicago: University of
Chicago Press, 2006).
77  Homeboy Industries, “Frequently Asked Questions,” accessed at
78 See The We That Sets Us Free: Building A World Without Prisons, Track 3-How Can We Live In a World Without
Prisons? (Justice Now, 2008) (a CD combining music, spoken word and interviews with activists inside imagining
new ways of living, questioning what purpose prisons serve and proposing anti-racist alternatives to punishment
and confinement).
79 See, e.g. Ruth Wilson Gilmore, “Globalization and US Prison Growth: From Military Keynesianism to
Post-Keynesian Militarism,” Race & Class, 40 (1999): 171 (Relating the rise of modern mass imprisonment to the need
to create private economic investment opportunities while managing surplus industrial labor and agricultural land
supply in the new economy, and making use of surplus governmental workers and administrative capacity with the
shrinking welfare state).
80  See, e.g. Gilmore, “Globalization and US Prison Growth.”
81  See Nancy Kurshan, “Behind the Walls: The History and Current Reality of Women’s Imprisonment,” in Criminal
Injustice: Confronting the Prison Crisis, ed. Elihu Rosenblatt (Cambridge, MA: South End Press, 1996), 136, 152.
82  See Cynthia Chandler, “Death and Dying in America: The Prison Industrial Complex’s Impact on Women’s
Health,” Berkeley Women’s Law Journal 18 (2003): 40.
83  See Lori Girshick, “Out of Compliance: Masculine-Identified People in Women’s Prisons” Captive Genders: Trans
Embodiment and the Prison Industrial Complex, ed. Eric A. Stanley and Nat Smith (Oakland, CA: AK Press, 2011), 189.

67  Los Angeles City Attorney’s Office, “Gang Injunctions,” accessed at the L.A. City Attorney’s Office website at

84  This team of eight activists reflects the demographics of the women’s prisons population, but for the fact that a
disproportionate number were convicted of more serious felonies, resulting in their longer terms of imprisonment. Of
this team of eight activists, some are in prison for homicide; several were sentenced to life for minor felony
convictions under mandatory minimum sentencing laws; two were sentenced as children to life without the
possibility of parole, and are still young adults. Some team members have been in prison throughout adulthood.
Some have sought means of atonement. Some proclaim their innocence and wrongful conviction. Six identify as
people of color; two identify as white. All are labeled as women by the State, three identify as gender nonconforming, gender-queer, and/or male. All have already served 14-35 years in prison on their current commitment
offense; while some are in prison for the first time, some have also served prior prison terms, compounding their
total time served in prison.

68  Malcolm W. Klein, The American Street Gang: Its Nature, Prevalence and Control (New York: Oxford University
Press, 1995).

85  Plata v. Brown is a class action lawsuit challenging the constitutionality of the deficient level of physical
healthcare in all of California state prisons.

64  Charles M. Katz and Vincent J. Webb, Police Response to Gangs: A Multi-Site Study (Washington, D.C.: National
Institute of Justice, 2003), accessed at
65  Beth Bjerregaard, “Antigang Legislation and its Potential Impact: The Promises and the Pitfalls,” Criminal Justice
Policy Review 14 (2003).
66  Loren Siegel, “Gangs and the Law,” Gangs and Society: Alternative Perspectives, ed. Louis Kontos, David
Brotherton, and Luis Barrios (New York: Columbia University Press, 2003).


86  Referring to the change of name in 2005 of the California Department of Corrections to the California Department
of Corrections and Rehabilitation.
87  Referring to mandatory sentencing laws in California that up the base sentences for people convicted of two
prior serious and/or violent felonies, even if as a minor child. Until 2013 with the passage of California Proposition 36,
under this sentencing schema, a person convicted of a third felony, even if non-serious or non-violent, such as for
petty theft with a prior petty theft or drug possession conviction, faced a mandatory indeterminate life sentence.
88  Ethan Nadelmann, “Colorado and Washington State Make History, Become First U.S. States to Regulate, Tax and
Control Marijuana Like Alcohol,” Press Release (Washington, D.C.: Drug Policy Alliance, 2012).
89  Dan Rodricks, “Election Day message: The Nonsense of Marijuana Busts,” Baltimore Sun, November 10, 2012,
accessed December 3, 2012,
90  Howard N. Snyder, Arrest in the United States, 1980-2009 (Washington, D.C: U.S. Department of Justice, 2011).
91  Howard N. Snyder, Arrest in the United States, 1990-2010 (Washington, D.C: U.S. Department of Justice, 2012).
92  Tracey Kyckelhahn, Justice Expenditures and Employment, FY 1982-2007 (Washington, D.C.: U.S. Department of
Justice, 2011).

110  The Pew Center on the States, One in 100: Behind Bars in America 2008 (Washington, D.C.: The Pew Charitable
Trusts, 2008).
111  Substance Abuse and Mental Health Services Administration, Results from the 2011 National Survey on Drug
Use and Health: Summary of National Findings, NSDUH Series H-44, HHS Publication No. (SMA) 12-4713 (Rockville,
MD: Author, 2012).
112  U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for
Injury Prevention and Control, Web-based Injury Statistics Query and Reporting System (WISQARS), “20 Leading
Causes of Death, United States, 2006, All Races, Both Sexes.”
113  Guerino, Harrison, and Sabol, “Prisoners in 2010,” 1, 29, 30; The Sentencing Project, Trends in U.S. Corrections
(Washington, D.C.: Author, 2012), accessed at
114  Allen J. Beck and Darrell K. Gilliard, “Prisoners in 1994,” Bureau of Justice Statistics Bulletin (Washington, D.C.:
U.S. Department of Justice, 1995); Marc Mauer and Ryan S. King, A 25-Year Quagmire: The War on Drugs and Its
Impact on American Society (Washington, D.C.: The Sentencing Project, 2007), 10.

93  New York Civil Liberties Union, “Stop and Frisk Facts,” accessed December 4, 2012,

115  Guerino, Harrison, and Sabol, “Prisoners in 2010”, 1, 29, 30.

94  Adrienne Austin, Criminal Justice Trends: Key Legislative Changes in Sentencing Policy, 2001-2010 (New York:
Vera Institute of Justice, 2010); Doris Mackenzie, Sentencing and Corrections in the 21st Century: Setting the Stage
for the Future (College Park, MD: Evaluation Research Group, 2001), accessed November 1, 2012, https://www.ncjrs.

117 Snyder, Arrest in the United States, 1980-2009.

95  The Pew Center on the States, “Time Served: The High Cost, Low Return of Longer Prison Terms,” Public Safety
Performance Project (Washington, D.C.: The Pew Charitable Trusts, 2012).

119  Human Rights Watch, Decades of Disparity: Drug Arrests and Race in the United States (New York: Author, 2009).

96  Jonathan Caulkins, et al., “Mandatory Minimum Drug Sentences: Throwing Away the Key or the Taxpayers’
Money?” RAND Monograph Report, (Santa Monica, CA: RAND Corporation, 1997), accessed at
97  Chris Megerian, “Proposition 36 on Three Strikes Law Passes, AP Says,” Los Angeles Times, November 6, 2012,
accessed at

116  Guerino, Harrison, and Sabol, “Prisoners in 2010”, 29.

118  Criminal Justice Information Services, “Persons Arrested,” Uniform Crime Reports, Crime in the United States:
2011, Federal Bureau of Investigation, 2012, accessed at

120  U.S. Census Bureau, “The Black Population: 2010,” 2010 Census Briefs (Washington, D.C.: Author, 2011),
accessed at
121  Substance Abuse and Mental Health Services Administration, Results from the 2011 National Survey on Drug
Use and Health.
122  Criminal Justice Information Services, “Persons Arrested”; Snyder, Arrest in the United States, 1980-2009.

98  The Pew Center on the States, “Time Served”.

123  Guerino, Harrison, and Sabol, “Prisoners in 2010”.

99 Mackenzie, Sentencing and Corrections in the 21st Century.

124  Heather C. West and William J. Sabol, “Prisoners in 2009,” Bureau of Justice Statistics Bulletin (Washington,
D.C.: U.S. Department of Justice, 2010), Table 16c.

100  William J. Sabol, Heather C. West, and Matthew Cooper, “Prisoners in 2008,” Bureau of Justice Statistics
Bulletin, (Washington, D.C.: U.S. Department of Justice, 2009, revised 2010), accessed at
101 Mackenzie, Sentencing and Corrections in the 21st Century.
102  Francis Cullen, Cheryl Jonson, and Daniel Nagin, “Prisons Do Not Reduce Recidivism: The High Cost of Ignoring
Science,” The Prison Journal 91 (2011):48S.
103  Raymond V. Liedka, Anne Morrison Piehl, and Bert Useem, “The Crime-Control Effect of Incarceration: Does
Scale Matter?” Criminology and Public Policy 5 (2006): 245-276.
104  The Henry J. Kaiser Family Foundation, “Incarceration Rate (per 100,000 U.S. residents), 2010,” accessed
November 29, 2012,


109  Bruce Western and Becky Pettit, “Incarceration & Social Inequality,” Daedalus 139 (2010).

125  Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York, NY: The
New Press, 2009).
126  Barbara S. Meierhoefer, The General Effect of Mandatory Minimum Prison Terms: A Longitudinal Study of
Federal Sentences Imposed (Washington, D.C.: Federal Judicial Center, 1992), 20.
127  Christopher Uggen, Sarah Shannon, and Jeff Manza, State-Level Estimates of Felon Disenfranchisement in the
United States, 2010 (Washington, DC: Sentencing Project, 2012).
128  Bruce Western and Becky Pettit, Collateral Costs: Incarceration’s Effect on Economic Mobility (Washington,
D.C.: The Pew Charitable Trusts, 2010), 4.
129  Western and Pettit, Collateral Costs: Incarceration’s Effect on Economic Mobility, 4.

105  Guerino, Harrison and Sabol, “Prisoners in 2010”.

130  Western and Pettit, Collateral Costs: Incarceration’s Effect on Economic Mobility, 32-33.

106  Guerino, Harrison and Sabol, “Prisoners in 2010”.

131  Shay Bilchik, Cynthia Seymour, and Kristen Kreisher, “Parents in Prison,” Corrections Today 63 (December
2001): 108.

107  United States Department of Justice, “Prisoners and Prisoner Re-Entry,” accessed November 30, 2012, http://
108  Robert DeFina and Lance Hannon, “The Impact of Mass Incarceration on Poverty,”
Crime & Delinquency 91 (2011).

132  Meghana Kakade, et al., “Adolescent Substance Use and Other Illegal Behaviors and Racial Disparities in
Criminal Justice System Involvement: Findings from a US National Survey,” American Journal of Public Health, 102
(2012): e1–e4.

133  O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987).
134  The Pew Center on the States, One in 100, 5 (hereafter, “One in 100”); Michael Jacobson, Downsizing Prisons:
How to Reduce Crime and End Mass Incarceration (New York: NYU Press, 2005), 8: “The United States now locks up
a higher percentage of its population than any country in the world. The more than 2 million people who are
incarcerated today make up roughly eight times the number in 1975. Moreover, those in prison are disproportionately
African-American and Latino, and much of the increase in prison population over the last decade and a half has
been driven by those sentenced for nonviolent drug or property crimes.”
135  Terry v. Ohio, 392 U.S. 1 (1968). In protest of this change from the long-standing legal standard of “probable
cause” to “reasonable suspicion as a basis for stopping and questioning an American citizen, Mr. Justice Douglass
(the lone dissenting Justice in the TERRY case), in apparent reflection upon the recent backdrop of the massive
rioting throughout America in the aftermath of Dr. King’s assassination (Dr. King was assassinated April 4, 1968 and
TERRY was decided by the Supreme Court in June, 1968), offered these remarks, “The infringement on personal
liberty of any “seizure” of a person can only be “reasonable” under the Fourth Amendment if we require the police
to possess “probable cause” before they seize him…to give the police greater power than a magistrate is to take a
long step down the totalitarian path. Perhaps such a step is desirable to cope with modern forms of lawlessness.
But if it is taken, it should be the deliberate choice of the people through a constitutional amendment…There have
been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down
constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been
greater than today.
136  Christian Parenti, Lockdown America: Police and Prisons in the Age of Crisis (NY: Verso, 2000), 45-66 (Chapter
Three: A war for all seasons: The return of law and order”).
137 Parenti, Lockdown America; Joan Petersilia, When Prisoners Come Home: Parole and Prisoner Reentry (NY:
Oxford University Press, 2003); Jacobson, Downsizing Prisons.
138  Michelle Alexander, “Cruel and Unequal—How our penal system mass-produces second-class citizens,”
Sojourners, February 2011, accessed at; The Pew Center on the
States, One in 100, 6.
139  It must be noted that while there is abundant evidence that great numbers of white college students bravely
participated in “Freedom Rides” to desegregate public facilities in the south, there is scant evidence of white
children participating in marches organized by Civil Rights leaders in the south.
140  To gain an excellent understanding of the Civil Rights movement in America, this writer encourages youthful and
older readers alike to review the trilogy of books written by author Taylor Branch on the Civil Rights Movement: 1)
“Parting the Waters”, “Pillars of Fire”, and “On Canaan’s Edge.”
141  Anthony C. Thompson, Releasing Prisoners, Redeeming Communities, Reentry, Race, and Politics, (NY: New
York University Press, 2008), 9-10.
142  The writer is a founding member and Director of the Extra Legalese Group, Inc. (ELG)—the First “think-tank”
incorporated in the State of Maryland by incarcerated American citizens. ELG’s Directors—all incarcerated citizens
at present with upwards 175 years confinement experience, are: Ronald Ellis, Dwight Davis-Bey, Vincent T. Greco,
Larry Bratt, Rashid Salih (aka Russell Bacon) and Robert T. “Manchild” Morgan. ELG has designed an anti-violence
campaign entitled the “Peace Initiative” that has garnered substantial support in the communities of Maryland and
though out the Nation and seeks to convince gangs to become assets to the community, rather than threats. For
further information regarding ELG, contact Frank M. Dunbaugh, Esquire (410) 974-0555 or


The Justice Policy Institute (JPI) would like to thank all the contributors
whose insight and passion helped make this book a reality. Their words
provide fresh insights and compelling evidence for changes we must
make to our criminal justice system.
We realize that we could not make this project happen without our
supporters, friends, partners, and past and present JPI staff and
interns, including those who aided in concept, editing and support:
Tara Andrews

Jason Fenster

Jason Zeidenberg

Tracy Velázquez


Michelle Alexander

Amanda Petteruti

David Y. Lee

Melissa Neal, DrPH

None of JPI’s work would be possible without the ongoing support
from the MacArthur Foundation, Public Welfare Foundation, Open
Society Institute - Baltimore, and the Open Society Foundations.
We would finally like to send a message of motivation and healing to
the Incarceration Generation. Here’s to ending an era of the “in-justice”
system as we currently know it.

About the Justice Policy Institute
JPI has worked tirelessly to reform the criminal justice system as
a national 501(c)3 nonprofit in Washington, D.C. Our mission is to reduce
the use of incarceration and the justice system and promote policies
that improve the well-being of all people and communities. We envision
a society with safe, equitable and healthy communities, just and effective
solutions to social problems, and alternatives to incarceration that promote
positive life outcomes.

About Incarceration Generation
Published in the United States by the Justice Policy Institute, 2013.

ISBN 978-0-9892928-0-1

© Justice Policy Institute  |  Design: Fuszion  | Printing: Mosaic