The Covenant with Black America

Since before this country’s inception, Black people have struggled against deeply ingrained race-based expressions of power, privilege, and exclusion. After post–Civil War Reconstruction was defeated in 1877 and the era of Jim Crow was ushered in during the mid-20th century, America’s elite universities and well-respected “scientists” advanced claims of biological evidence connecting Black physical features to inferior intelligence and predisposition to criminal behavior. This “evidence” further fueled the national hysteria about a growing Black population and offered justification for criminalizing Black men.

Today, there is a more nuanced but equally damaging perception of poor Black people that has resulted in a cradle-to-prison superhighway (CPS). The CPS is a network of legislation, policy, practice, and structural racism that has fostered Blacks being incarcerated at unconscionable levels at increasingly younger ages for increasingly minor acts. It is no wonder then that many Blacks believe the term “racial justice” is an oxymoron.

After decades of prison construction and record incarceration rates, proponents of punishment continue to argue that serving time is an effective tool to combat crime. The incarceration epidemic has been buttressed by misinformation and exaggeration from high-profile politicians, psychologists, and criminologists. It has been reinforced by sensational news accounts that daily parade Black men—young and not-so-young—in handcuffs and orange prison uniforms in front of the public. Conservative writer John Dilulio, a former Bush aide who worked in the White House for the first 180 days, greatly contributed to the incarceration frenzy by introducing the pejorative political catchphrase “super-predator” to describe these Black males.¹ To incite fear, those who advocate for harsher penalties for law violators have used the term relentlessly, which in turn provides public support for a flawed justice system.

An examination of the data from the federal justice system reveals that warehousing these Blacks is extremely expensive, is nonrehabilitative, and lacks evidence that it reduces crime. Notwithstanding this abysmal track record, incarceration continues to be a growth industry. Given the current system’s unfair, disproportionate, and negative impact on the Black community, Blacks should be leading the effort to demand that resources be diverted from prisons to the interventions and treatments highlighted in this chapter that can make a real difference in the lives of our people.

The implications of the CPS for our children, families, and communities are far reaching and deserving of attention. For example, while the majority of Blacks incarcerated are men, Black women have also felt the brunt of these practices. Black women are eight times more likely to be incarcerated for similar offenses than are their white counterparts.² Indeed, women are the fastest-growing population in the penal system. Their primary offenses: a preponderance of drug and property crimes, along with other nonviolent and economically motivated crimes.³

The compelling stories of Dorothy Gaines, a nurse technician and mother of three, and Kemba Smith, a sheltered, only child of professional parents, illustrate how poor choices in mates and associates can come crashing down on contributing members of their communities. A few years after entering into a relationship with a relapsed crack addict, Gaines’s home was raided. The state police found nothing at all there, yet she and her boyfriend were arrested on drug conspiracy charges. Gaines was wrongly accused, indicted, and sentenced to 19 years in a federal correctional facility. In the second instance, while attending Hampton University, Smith became involved with a charming young man whom she eventually realized was deeply involved in a drug ring. Over the course of their often abusive relationship, Smith never actually handled or sold drugs; yet she was convicted of drug conspiracy charges and sentenced to 24 years in federal prison. Both women regained their freedom after six years, with President Clinton’s order of clemency in December 2000.

Since women are usually the primary caretakers, incarceration has a particularly devastating effect on their children, extended family, and spouses. These women fall further behind in developing the skills and abilities necessary to compete in society.

Regrettably, the juvenile justice system—which has grown exponentially in size and complexity—is no better. At the beginning of the 20th century, the founders of the juvenile court had great aspirations for the treatment of children and their families; more than a century later, their aspirations have regrettably not been realized. What began as a movement designed to correct errant youth through care and concern has lost sight of its original purpose, evolving into a system that now harms the very children it claims to protect. In 1967, in In re Gault, the U.S. Supreme Court first acknowledged that despite the rehabilitative rhetoric of the juvenile court, it “actually subjected offenders to more severe punishment while depriving them of the minimum legal protections given adult offenders.”⁴

As a result of the coexistence of national antidrug efforts and “zero tolerance” campaigns—which reach into the schools and begin criminalizing Black children at a young age, more youth of color are being introduced to the juvenile justice system than ever before.⁵ The striking racial disparities within the juvenile justice system corrode the notion of justice, particularly for youth who experience injustice firsthand. Furthermore, the racial disparity is discriminatory in its effect and impact. To reestablish integrity and fairness in the juvenile court system requires an emphasis on reducing racial disparities.

This Covenant with Black America represents a realization that there is a multiheaded, multitentacled monster out there devouring Blacks who live in certain neighborhoods. Incarceration is just one aspect of this menace, but it is an overwhelmingly damaging aspect. 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.

This chapter provides a comprehensive game plan for community members, elected officials, and other stakeholders. Together we must challenge individuals, communities, cities, counties, regions, states, and the nation to be accountable for the outcomes of the justice systems at every level of government.

As we dedicate ourselves to this Covenant, we should be guided by the convictions of former First Lady Eleanor Roosevelt, who posited that universal rights of all humans begin “in small places, close to home.”⁶ Such are the places where men, women, and children seek equal justice, equal opportunity, and equal dignity.

To correct the system of unequal justice, we must challenge every decision-maker to be responsible for fairness and dignity toward others with measurable actions. In turn, we must use our collective voices to give voice to the voiceless. We must embrace the credo that every life counts, that every person—irrespective of station—deserves due process in a criminal justice system that is just, fair, and equitable.

As James Baldwin reminds, “If you can’t be touched, you can’t be changed. And if you can’t be changed, you can’t be alive.”⁷

JAMES BELL is Executive Director of the W. Haywood Burns Institute in San Francisco, California. Named for W. Haywood Burns—one of the founders of the National Conference of Black Lawyers, who cut his legal teeth as the first law clerk for the late District Court Judge Constance Baker Motley—the institute works intensively with local jurisdictions to reduce the overrepresentation of youth of color in their juvenile justice systems. For more information: http://www.burnsinstitute.org.

THE FACTS ON THE JUSTICE SYSTEM

Of the 2.1 million inmates today, 910,000 are African American. Blacks make up 43.9 percent of the state and federal prison populations but only 12.3 percent of the U.S. population. Latinos constitute 12.6 percent of the country’s population, and yet they are 18.3 percent of the prison population. Whites account for 69 percent of the U.S. population and 34.7 percent of those incarcerated.⁸
One of every three Black males born today can expect to go to prison in his lifetime.⁹
1.4 million African American men, or 13 percent, have currently or permanently lost their right to vote as a result of a felony conviction—seven times the national average.¹⁰
In five states that deny the vote to ex-offenders—Alabama, Florida, Iowa, Kentucky, and Virginia—one in four Black men is permanently disenfranchised.¹¹
In at least 15 states, Black men were sent to prison on drug charges at rates ranging from 20 to 57 times those of white men.¹²
African Americans constitute 13 percent of all monthly drug users, but they represent 35 percent of arrests for drug possession, 55 percent of convictions, and 74 percent of prison sentences.¹³
There were 98,000 African Americans incarcerated in 1954, and 288,800 in 1984, as compared to the 910,000 in prison or jail today. The Black prison population grew by 300 percent from 1954 to 1984; from 1954 to today, it has increased by a staggering 900 percent.¹⁴
Black women born today are five times more likely to go to prison in their lifetimes than Black women born in 1974. ¹⁵
One in every 18 Black women born today can expect to go to jail in her lifetime; this is six times the rate for white women.¹⁶
On any given day, 1 of every 14 Black children has a parent in prison.¹⁷
Youth of all races sell and use drugs at similar rates, but African American youth represent 60–75 percent of drug arrests today.¹⁸
Nationwide, young Black offenders are more than twice as likely to be transferred to adult court as their white counterparts.¹⁹
While African Americans represent 15 percent of those below the age of 18, they are 26 percent of all the youths arrested, 46 percent of those detained in juvenile jails, and 58 percent of all juveniles sent to adult prison.²⁰

Reducing the high rates of incarceration is complex and must begin early. It is well established that getting a healthy start in life, identifying and treating problems with vision and hearing early, and doing well in school are all essential for keeping children out of trouble later in life. Making sure that children receive quality early education helps keep them engaged and successful throughout their school careers. Children who are frequently suspended or expelled from school, rather than provided with support, become vulnerable to ending up in serious trouble. These are often the children who grow up and become part of the incarcerated population that is the focus of this chapter.

Every child needs to be connected to a caring adult who can provide guidance, support, and connection to opportunities and pathways to a secure productive future. Parents, relatives, and adult caregivers have a tremendously important role to play in making sure that all precautions are taken to stop the high rates of Black incarceration.

The Black community can also help to ensure children’s safety and development, create awareness of the harsh realities of the criminal justice system, and reinforce citizens’ rights. Churches, teachers, artists, and other advocates have come together to form a number of innovative programs that are making a difference, as illustrated in the following examples.

Charmaney Bayton lives in a one-bedroom apartment in the heart of South Central Los Angeles—an area that, with over 600 homicides last year, has been deemed one of the “Murder Capitals of the World.”²¹ She offers safe haven to 60 children who are running from gangs, dodging bullets, or seeking refuge from drug-addicted parents.

Bayton offers classes on ethics, preparing for college, and finding one’s potential. She takes hurting children into her home, drives them to church, and nurtures them as they struggle with terror just around the corner. Some days she will encounter another needy family, and by the end of the week, she will have arranged for new shoes, school supplies, and a solid sampling of her home-cooked meals.

Seventeen-year-old Lamar was confronted by gangsters in front of his home and told to never return or he would be killed. Lamar has not slept in his own bed since then. Bayton let him stay in her home (his mother was deceased, and his 24-year-old sister was raising him and his brother). Within months, Lamar picked up his grade point average; excelling as a senior, he was next accepted at El Camino College as a stellar track and field sprinter.

Bayton’s story illustrates just how powerful and possible change is on a family level. Her admirable work proves that children who have lost their parents to the criminal justice system or are at risk of entering into it themselves can be saved with a lot of love and dedication.

The Prison & Jail Project of Americus and the Freedom Council of Blakely—citizens’ rights advocacy organizations—were particularly concerned with and motivated by what they observed in the rural Southwest Georgia court system: Attorneys were almost never provided for persons charged with misdemeanor and low-level felonies. Unfair courtroom practices were evident everywhere. In 2002, they collaborated with The Sentencing Project to produce a manual that would help people understand how a court is supposed to operate and, particularly, the responsibilities of counsel during the sentencing phase.²²

Released on the courthouse steps on Aug. 18, 2004, Rule of Law: Citizens’ Rights in a Georgia Court of Law is an educational tool for defendants, families, and community members. Advocates in Southwest Georgia are using this booklet at training workshops for people who have to go to court or who are acting as volunteer “court watchers.” The court watch aspect of the program trains volunteers to observe illegal behavior in court, including defendants’ being invited into a judge’s chambers to discuss their options—a situation in which they are often coerced into not going to trial and pleading guilty. Court watchers witness wrongdoings, and when the respective offending judges and other officials agree to listen, the court watchers report their findings; their actions have led to some judges changing the way they conduct business in their courtrooms.

The success of the document has been remarkable: results range from citizen awareness to the dismissal of unjust judges. The county in Georgia that is home to the central courthouse has a population of 12,000; 5,000 copies of Rule of Law were printed, meaning almost 50 percent of the residents have this bill of rights in their possession. Upon the document’s release, representatives from the Rule of Law team made a presentation to the Nashville, Georgia, city council. After taking part in the discussion on citizens’ rights in a court of law, the city council fired a judge whose practices were clearly unfair (the council is responsible for what goes on in the criminal justice system).

When designing the document, Pastor Cynthia Edwards of The Freedom Council insisted the cover be International Orange because she wanted to make sure that when judges look out into their courtrooms and see hundreds of citizens holding the small orange book, they can be sure that all defendants and their support networks know their rights. There is great power in Rule of Law: Citizens’ Rights in a Georgia Court of Law.

The Reentry National Media Outreach Campaign is designed to support the work of community and faith-based organizations through offering media resources that will facilitate community discussion and decision-making about solution-based reentry programs.²³ Based on the belief that diverse media play an essential role in motivating and mobilizing community action, the campaign expands public awareness and partners with local organizations and initiatives to foster public safety and to support healthy communities.

A long-term initiative, the Reentry National Media Outreach Campaign is unique in that it incorporates several public television documentaries that span at least two years. The documentaries support a comprehensive campaign that should effectively reach multiple audiences. All productions incorporate the theme of reentry into family and community by individuals who were formerly incarcerated, which provides the title “Reentry” for this enhanced umbrella initiative.

Children Left Behind features interviews with adults who recall their experiences as the children of incarcerated parents. They discuss the trauma of their parents’ arrests, their feelings of abandonment, and the sometimes humiliating treatment they experienced when visiting their parents in prison. The documentary next profiles community activities for children whose parents are incarcerated, featuring the views of experts and practitioners. Another documentary, Girl Trouble, follows the compelling personal stories of three teenagers entangled in San Francisco’s juvenile justice system. The girls struggle with pregnancy, drug-selling and addiction, and homelessness as they actively strive to better their lives by working part time at the innovative Center for Young Women’s Development. This is an organization run by young women who have faced similar challenges. Through these poignant stories, the filmmakers aspire to expose a system that fails to meet the needs of girls in trouble.

The series began broadcasting in June 2003 and is scheduled to end in the fall of 2006. The extended timeline allows for maximum exposure, awareness, and impact.

For the past 90 years, the federal government has pursued numerous policies attempting to prohibit and punish the use, possession, and/or sale of illegal substances with harsh laws, policies, and practices. These efforts have cost billions and billions of dollars but have not led to any significant decline in illegal drug use or availability since their inception in 1914.²⁴ The federal government spent $12 billion in 2004 alone, continuing its long string of failures to curb the flow of these drugs.²⁵ African Americans are so vigorously and disproportionately arrested, convicted, and sentenced for drug-related offenses that this effort is primarily responsible for the disproportionate incarceration of Blacks. The reform of drug policy, therefore, must be at the top of the priority list to reduce disproportionate incarceration of Black men, women, and children.

Vital to drug policy reform is eliminating federal sentencing disparities for powder cocaine and crack cocaine. Crack cocaine is derived from powder: It is made by cooking powder cocaine with baking soda and water until it forms a hard rocky substance.²⁶ Even though powder cocaine is a purer drug and a conviction for the sale of 500 grams of it carries a five-year mandatory sentence, selling only 5 grams of crack cocaine garners the very same five-year sentence. The punishment for the two substances has a 100:1 ratio.²⁷

In the mid-1980s, crack cocaine exploded on the streets; because of its cheap price, it was widely available for the first time. The media’s association of inner cities and uncontrollable violence by crack addicts caused Congress to quickly pass shockingly unfair sentencing laws.²⁸ Crack is often sold in small quantities on the street in low-income neighborhoods, while powder cocaine is generally sold in larger quantities in higher-income, suburban locations.²⁹ Since inner-city neighborhoods—home to large numbers of low-income people of color—are more heavily policed, those who live there are more susceptible to arrest.

To level the playing field for all cocaine-related crimes, the ratio of drug weight to sentence must be the same for both powder and crack cocaine. In addition, legislators must repeal the law that makes crack the only drug that carries a mandatory prison sentence on an individual’s first offense. The Crack-Cocaine Equitable Sentencing Act of 2005 is currently up for review; we need to urge our elected leaders to support this bill.

Policy-makers must also increase and encourage the use of substance abuse treatment rather than incarceration. If the government invested public dollars in drug rehabilitation, not only would incarceration rates decrease but ex-offenders would also become productive members of our families and our communities.

Some states have begun to use drug courts in which addicted offenders are allowed to complete court-supervised substance abuse treatment instead of being sentenced to prison. Successful completion of the treatment program may result in dismissal of the charges, reduced sentences, lesser penalties, or a combination of these. Most importantly, recovering addicts work on gaining the tools they need to return to and successfully function in society.

Mandatory minimum sentencing laws force the filling of prisons with individuals who have been convicted of minor offenses. Because of extreme poverty and desperate living conditions in inner cities as well as racial profiling, African Americans are arrested at exorbitant, disproportionate rates, thus forcing thousands of them into jails and prisons. Laws such as “Three Strikes” lead to an individual’s serving a life sentence if convicted of theft for stealing something as insignificant as a slice of pizza. Such precariousness not only wastes taxpayers’ dollars and crowds prisons; it psychologically damages those who are locked up and destroys Black families and communities in the process.

In those states choosing to amend their Three Strikes laws rather than doing away with them altogether, the decision has been made that all three felonies must be violent crimes or sexual offenses. California, the only state in which any felony offense can prompt a Three Strikes’ sentence, reports 65 percent of those sentenced under the law are imprisoned for nonviolent offenses.³⁰ The original intent was to ensure that violent criminals be punished harshly and kept behind bars.

Lawmakers must also restore judges’ freedom to sentence defendants based on the situation at hand. Judges are now prevented from considering other relevant factors such as a defendant’s role in the offense, the likelihood of committing a future offense, or an individual’s history. If criminal law is to be effective, the punishment should fit the crime.

Massive incarceration in the United States has created a challenge: the reintegration of numerous ex-offenders back into society upon release from prison. In the midst of intense debate over sentencing and punishment policies in the United States, the issue of reentry has been largely ignored. Unfortunately this oversight has dire consequences because the one rule of incarceration is that aside from those who die in custody, “they all come back.”³¹

Congress recently introduced legislation to address the need for active reentry policies. The Second Chance Act of 2005 calls for federal funding for programs and activities relating to the reentry of offenders into communities.³² Services would include (1) providing structured post-release and transitional housing, (2) employment training and facilitated collaboration between the government and specific companies to promote the employment of people released from prison and jail, and (3) the implementation of programs that support children of incarcerated parents.

Although difficult, it is essential to focus on preserving families despite incarceration.³³ In addition to the fathers missing from so many African American households, mothers are also being incarcerated at much higher rates than ever before. Policy-makers should strive to tailor child welfare practices to ensure that women in prison have a fair chance to demonstrate their ability to parent their children upon release. This includes allowing incarcerated mothers to visit with their children in an appropriate setting and providing parenting training/family counseling in correctional facilities as well as upon release.³⁴

To ensure the existence and success of future generations, we must place special emphasis on juvenile offenders. Since the rate of African American youth incarceration is growing as rapidly as that of adult offenders, it is crucial that policy-makers establish grants to states for improved workplace and community transition training for incarcerated youth. These juveniles need skills that give them the tools to survive in and contribute to society. Education, vocational training, emotional counseling, and drug treatment are among the services our states must provide. All young people deserve to live a quality adult life, including those who have been incarcerated and those who have never been caught up in the juvenile justice system. It is equally important for the government to fund projects that reach out to youth before they are incarcerated, including after-school programs, organized mentoring opportunities, and initiatives that provide juveniles in inner cities with esteem-building skills and alternatives to criminal activity.

The Improved Workplace and Community Transition Training for Incarcerated Youth Offenders Act of 2005 will provide grants to states for improved workplace and community transition training for incarcerated youth offenders.³⁵ It will amend the Higher Education Act, which delays or denies federal financial aid to anyone convicted of a state or federal drug offense. Because minority youth represent up to 75 percent of drug arrests today, thousands are ineligible for financial aid to pursue a secondary education even after they have completed their sentences.³⁶ This policy reform is key for African American youth at risk to progress and become productive.

While both violent and nonviolent youth crime rates have continually decreased since 1994 to their lowest level in 20 years, the decrease in rates has done little to roll back the legislative and prosecutorial measures that significantly increase punitive criminal justice sanctions for youth. More provisions and stricter legislation under the guise of “the best interest of the child” have expanded the definition of juvenile delinquency. This wide net is unjustifiably priming more children for a life of crime rather than weeding out a select few and serving as an effective intervention; it disproportionately impacts youth of color and ultimately weakens the juvenile justice system.

The juvenile justice system can and must be held accountable by requiring it to gather data, track recidivism, and monitor racial disparities. Additionally, we must demand that local justice systems partner with proven community alternatives to detention and corrections facilities.

The “Zero Tolerance” disciplinary policy was initiated in U.S. public schools in the late 1980s.³⁷ At its inception it required suspension or expulsion for a specified list of severe offenses, but it is now open to school officials’ interpretation; punishment is left to their discretion. Students who commit nonviolent acts—tardiness, throwing spitballs, and engaging in verbal arguments—are subject to citations or arrests. Perceived violent offenses such as possession of imaginary or potential weapons and food fights are treated the same as criminal transgressions.³⁸ In addition, many students report visible reminders that schools are becoming more like prisons every day: drug sweeps, metal detectors, canine units, and police presence all serve to create a prison-like atmosphere.³⁹ Schools have gone too far and are using law-enforcement strategies that are needlessly steering students into the juvenile justice system.

Between the students who are simply exposed at a young age to the criminal justice system and those who are actually suspended, expelled, and/or locked up for school-related offenses, thousands of young people are being funneled from schools into correctional facilities.

To reverse this process and educate rather than incarcerate youth, policy-makers and school officials must limit suspensions, expulsions, and arrests to offenses that truly pose a serious threat to safety. School districts should also devise clear and concise disciplinary guidelines and review them with all parents and students throughout the year.⁴⁰ State governments must be responsible for funding school violence prevention and intervention programs and for hiring additional guidance counselors and social workers on school staffs to support students with behavioral and academic problems.

It is fundamentally unfair to prosecute children as adults because little allowance is made for the limited experience and understanding of an immature mind. Because the adult criminal court process is much more rigid and antagonistic, housing youthful offenders with adults compounds an already difficult situation.⁴¹ Studies show that not only are many children in adult court unable to understand their legal rights and at a disadvantage that children in juvenile court do not experience, but also that they are actually disadvantaged in comparison to adults in the same courts.⁴² While some public defenders’ offices have adopted policies in which juvenile defendants must be tried in juvenile courts and served by multidisciplinary teams that have been trained to deal with children, this must become standard practice in all courtrooms across the nation.

Once a child has been tried in an adult court, he or she is often sentenced to serve time in an adult correctional facility. The Sentencing Project reports that “although youths transferred to the adult criminal justice system are more likely to be convicted and incarcerated, they are more likely to reoffend, [to] reoffend earlier, and to commit more serious subsequent offenses than those who remain in the juvenile system.”⁴³ This is largely the result of the lack of rehabilitative programs adapted to children’s specific needs in adult correctional systems and the high rates of abuse that occur while locked up.

Policy-makers must end the practice of placing juvenile and adult offenders in the same facilities in order to save the lives of and guarantee productive futures for African American at-risk youth.

If we encourage and help children in our families and neighborhoods to do well in school, participate in safe, engaging after-school activities, and if we hold our elected officials responsible for the rehabilitation and successful reentry of all ex-felons back into our communities, then we can start to correct the system of unequal justice.

In 2006 The Covenant described Black America as facing a “cradle-to-prison superhighway” comprising “a network of legislation, policy, practice, and structural racism that has fostered Black citizens being incarcerated at unconscionable rates.”¹ The main on-ramp to that superhighway for the past 30-plus years has been America’s “War on Drugs.” More recently, lawmakers at the state and federal level, conceding the immense human and financial costs of America’s mass incarceration effort, have begun to build some off-ramps. Republicans and Democrats are working to reform drug laws and a criminal justice system that have been particularly devastating to communities of color.

Whether this will prove to be, in the words of Attorney General Loretta Lynch, a “bipartisan moment”² that brings sweeping and lasting change is far from certain. Some current proposals in Congress failed on earlier attempts, and election-year effects on the political will for change are unpredictable, especially given the recent spike in violent crime and steady drumbeat of news stories about heroin ravaging the nation. Reform in the federal prisons, which currently house only 13.5 percent of total prisoners in the U.S. and where over 50 percent are serving time for drug crimes (many of them low-level and nonviolent offenders), will necessarily have limited impact; in the vast state prison system, over 50 percent of state male prisoners are serving time for violent offenses, and only 15.1 percent for drug crimes.³

Yet combined moral and fiscal imperatives seem to be building momentum for a nationwide shift toward laws that are racially equitable, fundamentally fair, and use sensible risk assessments to replace incarceration as much as possible with community corrections and rehabilitative programs. Contributing to this momentum are the Black Lives Matter movement and intensified focus on race and policing, which have emerged in the past 14 months following a series of African American deaths related to police encounters or custody. Even before these events, nearly 70 percent of Black Americans reported in a Pew Research Center survey their perceptions that police and the courts treated Black citizens less fairly than whites.⁴

And indeed, significant racial disparities remain in the criminal justice system since the original publication of The Covenant. While imprisonment rates have been falling overall the past few years, as of 2014 Black male imprisonment rates still far outpaced Black males as a percentage of the U.S. population and outstripped rates for prisoners of other races or Hispanic origin within all age groups. Black males ages 18–19 were 10 times more likely to be imprisoned than were whites of that age, and Black males ages 30–39 were three to six times more likely to be imprisoned than their Hispanic and white counterparts.⁵ Black females were between 1.6 and 4.1 times more likely to be imprisoned than white females of any age group. In 2011–12, 84 percent of Black Americans convicted of a crime went to prison, as compared with 79 percent of white offenders.⁶ Though Black and white citizens reported using marijuana at similar rates in 2010, a Black individual was nearly four times as likely as a white individual to be arrested for marijuana possession.⁷ In 2009 African Americans served longer sentences for almost every type of offense.⁸

Yet change is underway, and reforms in drug law and policy top the list of positive steps taken toward achieving equal justice since The Covenant’s 2006 publication. By 2007, only 13 states had any disparity in crack and powder cocaine sentencing rules, and currently only three states—Missouri, Arizona, and New Hampshire—have ratios above 10:1.⁹ Between 2009 and 2013, 40 states reduced drug penalties in various ways and enhanced the use of drug courts and other alternatives to the standard criminal justice system.¹⁰ Four states and the District of Columbia have legalized marijuana for recreational use and 19 states for medical use, and 20 have decriminalized the possession of small amounts for personal use.¹¹ Though marijuana remains illegal under federal law, the Justice Department has allowed states to experiment, while reserving the right to crack down on distribution to minors, “drugged driving,” involvement of gangs or weapons, diversion to non-legalizing states, and other similar concerns.¹²

In 2010 Congress finally responded to long-standing calls from advocates and experts—including four separate reports by the U.S. Sentencing Commission—to fix the disparities in federal crack and powder cocaine sentencing. The Fair Sentencing Act (FSA), a bipartisan compromise, increased the quantities of crack that triggered 5- and 10-year mandatory minimum sentences, replacing the 100:1 powder-to-crack cocaine drug-weight ratio for calculating sentences with an 18:1 ratio. The FSA also repealed the mandatory minimum sentence for simple possession of crack cocaine—the first repeal of a mandatory minimum in 40 years.¹³

Congress did not make the ratio 1:1 as many social justice advocates had demanded, nor did Congress make these changes retroactive.¹⁴ This means that thousands of Black Americans are serving sentences they would not have received under the new law and that were imposed originally based on since-discredited theories about much greater harms associated with crack.¹⁵ Federal appeals courts have rejected claims that the FSA provides for—or that Constitutional rights demand—retroactivity.¹⁶ The Supreme Court has let those decisions lie, although in 2012 it provided partial relief by holding that judges must apply the FSA’s new rules to all sentences imposed after August 3, 2010 (the law’s effective date), even if the offense occurred earlier.¹⁷

The U.S. Sentencing Commission also provided partial relief, revising its guidelines to reduce drug sentences in 2007, 2010 (to reflect the FSA’s 18:1 ratio), and 2014, and making the revisions retroactive. These changes have allowed prisoners to seek reductions in their current sentences as long as they do not go below the pre-FSA mandatory minimums. In December 2014, the Commission reported that over 6,600 Black prisoners convicted on crack charges had received reduced sentences, with reductions (across all races and jurisdictions) averaging 20 percent of original sentence length.¹⁸ In late 2015 roughly 6,000 federal inmates will be released, 34 percent of whom are Black men primarily serving pre-FSA sentences for crack convictions. The Commission estimates that up to 40,000 more of the roughly 100,000 drug offenders in federal prison may qualify for sentence reduction and release.¹⁹

The Justice Department has also eased the burden of mandatory sentences; the DOJ announced in 2013 it will not seek mandatory minimum sentences for low-level nonviolent drug offenders without connections to gangs or cartels, and President Obama has in fact commuted the sentences of some offenders who were serving lengthy pre-FSA terms.²⁰ And Congress has reentered the arena; companion bills in the House and Senate were introduced in early October with strong bipartisan support and would, among other things, reduce several mandatory minimum sentences and make them and the FSA retroactive, provide broader “safety valves” that allow nonviolent drug offenders with minimal criminal history to avoid mandatory minimums, and replace life imprisonment under federal “three strikes” laws with a 25-year sentence that would apply retroactively.²¹

Critically, the Senate bill also supports risk-based assignment of inmates to educational, drug rehabilitation, job training, and other recidivism-reduction programs, and crediting their completion toward early release or transfer to home confinement or a halfway house.²² Data from the Sentencing Commission showing no higher recidivism rates among those serving shortened sentences²³ have not entirely eased concerns about early release efforts, and solid reentry programs are vital to making large-scale prisoner release work. The Bureau of Prisons can greatly influence how federal prisons approach such programs and all aspects of prison reform.²⁴

Successful reentry requires tackling the “collateral consequences” of felony convictions—the restrictions imposed by civil law as a result of a criminal conviction, including a conviction resulting (as most do) from a guilty plea. Since defendants often accept plea deals to avoid the severe risk posed by prosecutors’ current ability to seek lengthy mandatory minimum sentences,²⁵ it is particularly troubling to impose further “invisible punishments”²⁶ that can include disqualification from public jobs, business licenses, and education and housing benefits, as well as loss of voting rights and jury participation. While some restrictions reflect legitimate public-safety concerns (for instance, keeping guns from violent offenders), others unduly obstruct reentry into society, limit civic engagement—felony disenfranchisement laws ban 2.2 million Black citizens, or one in 13 Black adults nationally, from voting²⁷—increase the risk of recidivism, and trap many Black Americans in what Michelle Alexander called in The New Jim Crow: Mass Incarceration in the Age of Color Blindness “a racial caste system.”²⁸

In 2010, the U.S. Supreme Court raised awareness of collateral consequences when it held in Padilla v. Kentucky²⁹ that noncitizen residents have a Sixth Amendment right to be advised that pleading guilty to most drug offenses carries the risk of deportation. Padilla did not address what if any advice on other collateral consequences is constitutionally required, and all lower courts considering the issue have rejected such a requirement.³⁰ Because collateral consequences “mushroomed” over the past 20 years and are scattered among federal, state, local, and territorial codes, it has been hard for anyone—defendants, counsel, courts, lawmakers, and advocates—to know the true, lifelong impact of conviction.³¹ The chronic shortage of defense counsel for the poor³² exacerbates the problem, though the American Bar Association is helping to fix that issue. In 2012 the ABA launched a federally funded, publicly accessible, and user-friendly National Inventory of the Collateral Consequences of Conviction (NICCC),³³ which allows people to find and assess the restrictions imposed on ex-offenders at the federal, state, and territorial levels. This should enable better decisions about pleading and sentencing, and make it easier for lawmakers, advocates, and the public to pursue change in the underlying laws.

Some change has come already. Since The Covenant’s original publication, several states have eliminated lifetime voting bans and “waiting periods” after release from prison³⁴ and passed laws to modify felony bans on public benefits and ease other burdens of reentry, like waiving fees for replacement IDs and driver’s licenses.³⁵ Yet having a criminal record continues to shut many out of public and private jobs because employers (and insurers) fear that they will re-offend and generate liability.³⁶ Research shows that employment substantially decreases recidivism,³⁷ and the Equal Employment Opportunity Commission has suggested that indiscriminate rejection of job candidates based on prior convictions may itself expose employers to liability under Title VII.³⁸

Accordingly, momentum is building among states and localities to “ban the box”—to remove the criminal conviction history question on job applications and delay the background check inquiry until after a conditional hire offer so that employers fully consider an applicant’s qualifications instead of reflexively tossing the application based on the prior conviction. Since The Covenant’s original publication, 18 states and over 100 cities and counties have banned the box, and 7 states have banned it for private employers as well.³⁹ The National Employment Law Project (NELP) has developed and published a “Ban the Box Toolkit” that advocates can use to pursue “fair chance” hiring nationwide,⁴⁰ and in January 2015 NELP and others urged President Obama—whose My Brother’s Keeper initiative supports fair-chance hiring—to use executive action to apply these principles to federal hiring and contractors.⁴¹

Education and retraining programs, critical to job success, are also getting renewed attention and support. The U.S. Department of Education announced in July 2015 the Second Chance Pell Pilot Program, which reinstates Pell Grant eligibility for those serving time and aims to “help these individuals successfully transition out of prison and back into the classroom or the workforce.”⁴² A 2014 study conducted by the nonprofit RAND Corporation’s Justice, Infrastructure, and Environment found that, for adults, on average “[f]or every dollar spent on correctional education, five dollars are saved on three-year re-incarceration costs.⁴³

For juveniles the evidence is less clear, but RAND identified two promising programs: “Read 180,” a blended reading curriculum that combines face-to-face instruction with computer-enhanced, self-paced instruction; and the Avon Park Youth Academy in Florida, which combines personalized academic instruction with intensive mentoring by the same parole officer while jail time is served and after release.⁴⁴ To support efforts like these, in 2014 Congress passed the Workforce Innovation and Opportunity Act and authorized grants to states of between $802 million and $964 million annually in 2015–2020 for investment in the out-of-school (including incarcerated) youth workforce.⁴⁵ This funding supersedes the earlier program mentioned in the original Covenant, which gave states between $17 million and $22.7 million annually for ten years to fund transition training programs for incarcerated youth and adults.⁴⁶

Helping youth offenders reenter school and the workforce is critical, but keeping youth out of the criminal justice system—particularly the adult system—to begin with is better. Some progress has been made on two of The Covenant’s recommendations—ending the “zero tolerance” disciplinary policies that help create a school-to-prison pipeline, and not prosecuting children as adults. While zero-tolerance policies remain prevalent in schools, and school shootings have made many in schools anxious and risk averse in dealing with potential dangers,⁴⁷ research has underscored how much suspension and expulsion continue to disproportionately affect Black children and how often they are used for minor, nonviolent infractions.⁴⁸ In 2014 the U.S. Department of Education and Justice Department responded by jointly releasing a “Supportive School Discipline Project” and corresponding toolkit aimed at keeping kids in school and in a safe and productive environment.⁴⁹ The toolkit offers tools, data, and resources regarding the impact of suspension and expulsion and emphasizes identifying at-risk students and matching tiered support and interventions to students’ individualized needs.⁵⁰

Several states and school districts are heeding the call for reform and trying new approaches like restorative justice, which use reflection and conversation to identify the root causes of misbehavior and reconcile those engaged in and harmed by it.⁵¹ In 2014, California passed the first statewide limit on expulsion for minor school disruption, such as talking back and violating dress codes, and eliminated suspension for K–3 children for such violations.⁵² In 2014, Chicago Public Schools, the nation’s third largest school district, replaced its zero-tolerance policy with a new discipline code and Suspension and Expulsion Reduction Plan aimed at preventing and de-escalating misconduct, building social and emotional skills, and addressing the root causes of behavioral problems. CPS trained thousands of staff, added positions to support school efforts to keep students in school and engaged, and scaled back mandatory police notification to only drug and firearm possession.⁵³ These efforts resulted in a 60 percent reduction in suspensions and 69 percent reduction in expulsions between fall 2014 and spring 2015.⁵⁴

For youth who do encounter the criminal justice system, some reforms have reduced the prospect of their being handled like adults. Through a trio of cases decided between 2005 and 2012, the Supreme Court declared that both the death penalty and mandatory life sentences without parole are unconstitutional for juvenile offenders.⁵⁵ Two state supreme courts have since made the elimination of mandatory life without parole retroactive.⁵⁶ In recent years almost half of the states have taken steps to keep more juveniles out of the adult system. For example, four states have raised the age at which juveniles enter the adult system,⁵⁷ and in 2012 Colorado amended its “direct file” law, which previously gave prosecutors unbridled discretion to file charges against certain 14–17-year-olds in adult court. The new law narrows the age and crime ranges for direct filing, allows the accused to request before a judge a “reverse transfer hearing” to go to juvenile court, and limits mandatory and adult sentencing.⁵⁸

Fifteen states still let prosecutors decide whether to try youth offenders as juveniles or adults, and many states still automatically transfer youth to adult court based on the category of crime charged or prior interaction with the adult system.⁵⁹ Given the evidence that community-based programs and individualized treatment are cheaper and more effective than imprisonment in transforming youth, state reform efforts should continue to emphasize judicial discretion and individualized assessment and provide the resources to support this.⁶⁰

Overall, while the picture is improving somewhat for Black Americans, much remains to be done to correct the system of unequal justice of which The Covenant spoke ten years ago, and—as noted elsewhere in this edition—to address the persistent racial disparities in policing and access to good housing, education, jobs, and health care, all of which greatly contribute to Black Americans disproportionately encountering the criminal justice system.

—Prepared by Beth Cate, J.D., Associate Professor, School of Public and Environmental Affairs, Indiana University; Andrea Need, J.D., Lecturer and Deputy Director, Master of Public Affairs Program, Indiana University, Bloomington, Indiana