I first entered Rikers Island in 1991 as a journalist to interview a prisoner. Although Rikers Island lies just six miles from midtown Manhattan, it took me one subway ride, two buses, clearance through numerous metal detectors, and two pat frisks before I arrived in the visiting room of the world’s largest penal colony—nearly two hours later. I swore I would never return.
But return I did, hundreds of times over the following years to teach a writing class to inmates and later to run a prisoner reentry program. Today, my work as a mitigation specialist on capital cases means I don’t get out to Rikers much—New York abolished the death penalty in 2001. But there are things from my first trip to Rikers I’ll never forget.
I remember the refashioned mailbox where visitors were encouraged to deposit contraband (drugs and weapons) before entering without fear of reprisal, and the fact that none of my colleagues, native New Yorkers all, knew how to get to Rikers, despite its housing more inmates than eight state prison systems combined.
But the most striking thing I noticed while waiting for my subject in the visiting room was that I was the only white person. This was astounding to me back then, when I believed that justice was color-blind.
Like most things New York, Rikers Island is big and expensive. There are 10 separate jails capable of housing up to 16,000 inmates.1 There’s a jail for women, which contains a nursery, and a jail for boys 16 to 18 years old. Over 42,000 meals are prepared daily. Approximately 85,000 inmates are admitted and released annually. With a huge power plant, three high schools, a firehouse, a hospital, a courthouse, a tailor shop, and a bakery, Rikers Island could be its own city.2
A mile-long bridge separates the land of the free from the land of the jailed. The inmates say it takes five minutes to cross over but an eternity to cross back. Literally and figuratively, the bridge is a dividing line between the Big Apple’s have’s and have-not’s. About two-thirds of Rikers inmates are pretrial detainees who have been charged but not yet convicted of a crime. They are detained because they cannot afford bail, which averages about $500.
Fewer than a quarter have been charged with a violent crime; most are there for drug or public order offenses.3 Most come from and return to the same five neighborhoods—known by criminologists as prison feeder communities—where poverty and crime have been stubbornly high for decades. Other demographics speak volumes about this exiled population:
- 90 percent are black or Hispanic, groups that comprise 49 percent of the city’s population.
- 90 percent lack a high school diploma or GED.
- 30 percent are homeless.
- 5 percent are HIV positive.
- 37 percent have a mental health diagnosis.
- 80 percent have a history of substance abuse.
- About 75 percent return to Rikers within a year.4
Probably the most extraordinary figure is how much New Yorkers spend to lock up this marginalized population: $85,000 per inmate per year—about three times the national average to house a prisoner and eight times what the city spends to educate a child in public school.
Broadly defined, Rikers Island is an extremely large, expensive correctional facility housing a disproportionate number of uneducated black and brown men with drug and mental health problems for nonviolent offenses, the majority of whom will return. In this sense it resembles the rest of America’s correctional landscape.
But it wasn’t always this way, not on Rikers or in the rest of the country. In fact, in 1973, the National Advisory Commission on Criminal Justice Standards and Goals—appointed by the president—recommended that “no new institutions for adults should be built and existing institutions for juveniles should be closed” because “the prison, the reformatory and the jail have achieved only a shocking level of failure.”5
Since then, the number of prisoners in the United States has skyrocketed from about 230,000 to 2.3 million, a 1,000 percent increase.6 Today, 1 out of every 104 adults is behind bars.7 The United States has the highest rate of incarceration and the highest number of prisoners in the world. We imprison more people than China, which has four times our population. Compared to most European countries, our rate of incarceration is about eight times higher.
Prison isn’t the only the part of the correctional system that has mushroomed. We’ve been expanding our jail, probation, and parole populations for the past three decades as well. Today, fully 1 in 33 adults—about 7.3 million people—is under some form of correctional supervision. In 1980, it was 1 in 90.8
To truly appreciate the impact of mass incarceration, consider this finding from a 2011 study by the National Employment Law Project: One in four adults, 65 million people, has a criminal record.9 Due to either an arrest or conviction, one in four adults in the land of the free carries the label of criminal.
The Self-Perpetuating Nature of Mass Incarceration
An alarming aspect of mass incarceration was discovered by sentencing and corrections expert James Austin in 2010.10 Analyzing reams of criminal justice data from the 1980s onward, he asked why the prison system was still growing even though crime rates had been dropping for more than a decade. He concluded that the prison system continues to expand despite dropping crime levels because the system has begun to feed on itself.
The driving force behind this phenomenon is the growing number of people on probation and parole. Between 1980 and 2010, probation and parole populations increased by roughly 75 percent. Probationer and parolee populations are considered “prison feeder pools” because many of these individuals return to incarceration for violating a condition of their supervision. In some states, up to half of new prison admissions are probation and parole violators, many of whom did not commit a new crime but simply violated a technical condition of supervision. Additionally, a larger proportion of paroles and probations are violated today than in the past as caseloads have become unmanageable and the function of probation and parole has become more law enforcement– than social work–oriented. Thus, despite decreased crime rates, the increase in probation and parole populations drives up the prison population because we’ve expanded a primary pathway to prison.
Another reason the system grows despite dropping crime rates is because people are spending more time in prison. Prisoners released in 2009 served an average of nine more months in custody than offenders released in 1990, 36 percent longer.11 The number of people serving a life sentence increased by 313 percent between 1984 and 2008, from 34,000 to 140,610.
Mass incarceration has forced corrections departments across the country to build geriatric prisons to house the growing number of elderly and ailing inmates who pose little threat to public safety. A January 2012 Human Rights Watch report found that the number of sentenced state and federal prisoners aged 65 or older grew at 94 times the rate of the overall prison population between 2007 and 2010.12 The medical costs of elderly prisoners are three to nine times higher than for younger prisoners.
Supporters of the get-tough movement justify the fiscal and social costs of mass incarceration by crediting it for the sharp drop in violent crime. But the 2009 index crime rate of 3,667 per 100,000 (index crimes are murder, rape, robbery, burglary, aggravated assault, larceny, and arson) is only 13 per 100,000, lower than it was in 1969.13 What is overlooked, moreover, is that violent crime rates have fluctuated over the years in little relationship to incarceration rates. Indeed, the national crime rate has gone up and down over the past 30 years while the incarceration rate has only gone up. On a state level, the incarceration and crime rates have gone up simultaneously in some states, down simultaneously in others, and up and down independently in still other states.14 The point is mass incarceration in the twenty-first century is not a function of crime or even a response to crime. It stems largely from decisions by elected officials to widen the net of criminal behavior and to punish criminal behavior more severely.
A new book by civil rights attorney Harvey Silverglate, Three Felonies a Day, argues that U.S. criminal law has become so bloated and vague that Americans violate it every day, unknowingly, while federal prosecutors capitalize on our ignorance.15 Former ABA president Michael Greco’s endorsement of the book is worth repeating:
In Three Felonies a Day, Harvey A. Silverglate zeroes in on governmental misconduct—the brazen abuse by certain federal prosecutors of immense government power for purposes other than justice. The book is a clarion call—to prosecutors, reminding them what their true role is in a democracy—and to the public, reminding everyone of our collective responsibility firmly to oppose, discipline and prohibit such unacceptable abuses in order to protect the Constitution and the rights it guarantees. . . .16
Little Bang for the Buck
The United States now spends $215 billion a year to operate its criminal justice system. Of the three major criminal justice functions—police, courts, and corrections—corrections budgets have risen the highest, experiencing a 660 percent increase in direct expenditures in just 25 years. Nationwide, spending on corrections has risen six times faster than spending on higher education. Nonviolent offenders (drug, property, and public order offenders) constitute about 60 percent of the incarcerated population.
Recidivism rates have remained high and largely unchanged for decades. The largest national recidivism studies conducted since the 1980s show that about half of all released prisoners will be back behind bars on a new felony conviction within three years.
An Intergenerational Effect
In his 2011 book A Plague of Prisons: The Epidemiology of Mass Incarceration in America, Ernest Drucker, who spent 20 years studying and treating drug addiction in the South Bronx, equates our current, unprecedented level of imprisonment with an epidemic striking a community—“a plague upon our body politic.”17 Using public health concepts such as prevalence and incidence, outbreaks, contagion, transmission, and potential years of life lost, he shows how mass incarceration destabilizes entire communities and reproduces itself much like an epidemic.
The self-perpetuating nature of mass incarceration becomes clear in light of the following social demographics of prisoners:
93 percent are male.
67 percent had an annual income of less than half the poverty line.
60 percent were raised in single-parent homes.
14 percent were raised in foster homes or orphanages.
50 percent have or had a family member behind bars.
45 percent were living with children at the time of their arrest.
A series of research studies on the precursors to violence sponsored by the U.S. Department of Justice (DOJ) found that one of the strongest risk factors for criminal behavior is being raised without a father. The likelihood that a young male will engage in criminal activity doubles if he is raised without a father and triples if he lives in a neighborhood with a high concentration of single-parent families.18 In a study of adolescent murderers, researchers found that 72 percent grew up without a father.19
With each father “disappeared” by the prison system, children pay the price. Fatherless children have a dramatically greater risk of drug and alcohol abuse, mental illness, suicide, poor educational performance, and teenage pregnancy.20 One study found that 23 percent of children with an incarcerated father had been expelled or suspended from school, compared to just 4 percent of children whose fathers have not been incarcerated. Considering that the number of minor children with an incarcerated parent rose 82 percent between 1991 and 2007,21 it is clear how mass incarceration recreates the very conditions that foster criminality in the first place.
The racial disparities in the criminal justice system are undeniable and striking. Nationally, African Americans comprise 13 percent of the population but 28 percent of those arrested and 40 percent of those incarcerated. “More African American adults are under correction control today—in prison or jail, on probation or parole—than were enslaved in 1850, a decade before the Civil War began,” writes Michelle Alexander, author of The New Jim Crow—Mass Incarceration in the Age of Colorblindness.22 For white males, the incarceration rate is 456 per 100,000 citizens. For black males, it’s 3,059.
The impact of such striking racial disparities in incarceration now plays out across generations and is crippling the black community in ways even slavery didn’t do. On any given day, 1 in 28 children has a parent behind bars. For African-American children, it’s 1 in 9. “The mass incarceration of people of color is a big part of the reason that a black child born today is less likely to be raised by both parents than a black child born during slavery,” observes Alexander.
Given the high rates of black incarceration, one might conclude (or hope) that African-American communities have benefitted from the get-tough policies of the past 30 years and the lower crime rate that the rest of the country enjoys. Homicide victimization data suggest otherwise. In 2009, blacks represented 13 percent of the nation’s population yet accounted for 47 percent of all homicide victims, according to the Federal Bureau of Investigation. The proportion of black homicide offenders was similarly high, about seven times that of whites.
African Americans’ disproportionate share of homicide victims and offenders cannot explain their disproportionate incarceration rate. Homicide offenders accounted for just 0.4 percent of the past decade’s growth in the federal prison system (drug offenders accounted for over 60 percent of the expansion). Among state prison populations, homicide offenders typically involve just 3 percent of new commitments.23
War on Drugs
A driving force behind the racial disparity in incarceration is the war on drugs. Although the majority of drug users and dealers nationwide are white, and studies have consistently shown that whites and blacks use drugs at the same rate, African Americans make up over half of those in prison for drug offenses.24 Human Rights Watch found that in seven states, African Americans constitute 80 to 90 percent of all drug offenders sent to prison.
To understand how the war on drugs fuels mass incarceration, consider this: the number of people behind bars today for drug offenses (roughly 500,000 individuals) is the same as the total number of people behind bars in 1980.
And it’s not the drug kingpins who comprise the majority of drug arrests; it’s the users, people with an addiction, a problem that a growing number of countries treat medically, not criminally. The United States has spent $1 trillion on the drug war, yet the retail price of a gram of cocaine is 74 percent cheaper today than it was 30 years ago.25 An estimated 60,000 people have been killed in Mexico in recent years over the drug trade. Leaders of Latin American countries, fed up with America’s failed drug war, are moving in the direction of legalization and decriminalization, steps that 25 other Western democracies such as Germany, Australia, Spain, and Portugal have taken.26 In many of these countries, possession of a small amount of drugs for personal use (even hard drugs such as methamphetamine and heroin) is not a criminal offense. People found with drugs report to a committee of social workers and addiction specialists, discuss their use in a nonconfrontational, nonshaming setting, and are given a referral to treatment. They are not penalized if they do not attend—a sound approach given that motivation to quit is a precursor to success.
In 2001, Portugal became the first European country to decriminalize the personal possession of drugs. Ten years later, Portugal’s prison population has remained flat and the country has not become the “tourist drug haven” that many feared it would. In fact, not only has drug use decreased in most age groups, but the number of drug-related deaths was cut in half and rates of HIV infection among users dropped significantly.27
Mass incarceration and the get-tough policies that fuel it have wreaked havoc on the lives of reentering prisoners and the communities to which they return. The problem is multidimensional. First, the burgeoning prison population has worsened conditions in prison, thereby reducing successful outcomes for inmates on the outside. Most prisons today are overcrowded, understaffed, and under-resourced. Programs, treatment, and even medical services are insufficient to meet the needs of the population. In California, before the U.S. Supreme Court ruling in 2011 to decrease the population by 37,000 inmates, one prisoner a week was dying due to inadequate medical care.
Second, the sheer number of people released from prison is destabilizing entire communities. The number of people released from prison annually has quadrupled over the past 20 years, reaching approximately 725,000 today. Ex-offenders typically come from and return to the hardest-hit communities, those with the highest levels of poverty, joblessness, and crime. In Brooklyn, for example, 19 percent of the borough’s neighborhoods are home to over 50 percent of its probationers and parolees.
What characteristics and behaviors do returning prisoners bring to their communities? Having worked with hundreds of released offenders, I can say with assurance that the vast majority are far less fit for society than when they went in. Some bear the emotional if not physical scars of being violently attacked in prison, sexually or otherwise (a May 2012 DOJ report found that 1 in 10 state prisoners are sexually victimized). All bear the stigma of a criminal record.
As stated, mass incarceration and the war on drugs have saddled an estimated 65 million American adults (1 in 4) with a criminal record. These 65 million Americans are handicapped not only by their criminal record but by an economic recession, an unemployment rate of 10 percent, and employers’ increasing use of criminal background checks. The National Law Employment Project aptly titled its study “65 Million Need Not Apply” because of the frequency of the warning to ex-offenders in help-wanted ads.
The loss of more than half a million manufacturing jobs since the early days of mass incarceration deprived low-skilled ex-offenders of a life-sustaining safeguard. Today, most jobs paying a livable wage require three things ex-offenders tend to lack: a college degree, computer skills, and “people skills.” Even for friendly degree-holding ex-offenders, however, most states bar them from occupations such as law, education, real estate, nursing, and medicine. Other states bar ex-prisoners from working in any position of handling money, including as a cashier in a supermarket or as a bank teller. Six states permanently bar ex-prisoners from holding any public employment.28
Federal and state laws passed in the 1990s ban people convicted of drug offenses from living in public housing, receiving food stamps, and applying for college tuition assistance. Though not all jurisdictions adopted the bans, the ones that did might as well have given out roundtrip tickets to prison. Furthermore, in the mean season of corrections, parolees face more and harsher parole requirements, including bans on alcohol consumption even for offenders without alcohol-related offenses, 9 p.m. curfews, and mandatory out-of-pocket payment for treatment programs in the community that in earlier years would have been offered in prison.
Finally, perhaps the most sinister aspect of mass incarceration in the “land of the free” is that nearly 6 million Americans will be barred from voting this November due to felony convictions. There are five times as many disenfranchised people today as there were in 1976, according to a new report from The Sentencing Project.29 African Americans, of course, are hit the hardest. One of every 13 African Americans of voting age is disenfranchised, four times the rate of whites. In three states—Florida, Kentucky, and Virginia—more than 20 percent of the African-American population cannot vote.
In recent years, there has been a growing consensus that we need to be smarter, not tougher, in fighting crime. Even former federal prosecutors are speaking out against mass incarceration. Testifying before the Senate Judiciary Committee on August 1, 2012, former U.S. Attorney General Brett Tolman stated, “The current one-size-fits-all approach and the warehousing of prisoners is proving to not only be dangerous to public safety but an unthoughtful misuse of precious taxpayer dollars.”30 Over the past dozen years, he added, “Congress and the Department of Justice have been so focused on prosecuting and punishing crime—emphasizing zero tolerance and tough federal sentences—that there has been an absolute failure to recognize that without an equal focus on recidivism reduction, the tough sentencing laws of the federal criminal justice system may well be the downfall of a once proud and effective agency.”31
I would add that we need to be more compassionate. Radically compassionate. We must get rid of mandatory minimums, return discretion to judges, decriminalize drug possession, put money into treatment and prevention programs instead of prisons, and take a cold, hard look at how our criminal justice policies are decimating the black community.
Over the next months and years, waves of veterans will return home. Many will suffer from trauma; many will be addicted to prescription medication. All will face a brutal job market. We have a chance to do it right with our veterans. Will we be able to see their humanity if they break the law, or will we continue to be blinded by the immediate gratification of incarceration at any cost?
1. New York City Dep’t of Correction, 2nd Quarter Fiscal Year 2012, October–December, NYC DOC at a Glance (2012), available at http://www.nyc.gov/html/doc/html/about/032812DOC_at_a_Glance_single_page.pdf.
4. Id. See also Jennifer Wynn, Inside Rikers: Stories from the World’s Largest Penal Colony 7 (2001).
5. Nat’l Advisory Comm’n on Criminal Justice Standards & Goals, Task Force Report on Corrections 358 (1973).
6. Sentencing Project, Trends in U.S. Corrections 1 (2012), available at http://sentencingproject.org/doc/publications/inc_Trends_in_Corrections_Fact_sheet.pdf.
7. The High Cost of Corrections in America: Infographic, PEW Ctr. on the States (2012), http://www.pewstates.org/research/data-visualizations/the-high-cost-of-corrections-in-america-infographic-85899397897.
9. Michelle N. Rodriguez & Maurice Emsellem, Nat’l Emp’t Law Project, 65 Million “Need Not Apply”: The Case for Reforming Criminal Background Checks for Employment 3 (Mar. 2011).
10. James Austin, Reducing America’s Correctional Populations: A Strategic Plan, 12 Just. Res. & Pol’y 9 (2010).
11. PEW Ctr. on the States, The High Cost, Low Return of Longer Prison Terms (2012).
12. Human Rights Watch, Old Behind Bars: The Aging Prison Population in the United States (2012).
13. See Austin, supra note 10, at 9.
14. Id. at 23.
15. Harvey Silverglate, Three Felonies a Day: How the Feds Target the Innocent (2009).
16. Id. at 6.
17. Ernest Drucker, A Plague of Prisons: The Epidemiology of Mass Incarceration in America (2011).
18. M. Ann Hill & June O’Neil, Underclass Behaviors in the United States: Measurement and Analysis of Determinants (1993).
19. Dewey G. Cornell, Elissa P. Benedek & David M. Benedek, Characteristics of Adolescents Charged with Homicide: Review of 72 Cases, 5 Behav. Sci. & L. 11 (1987).
20. Nat’l Ctr. for Health Statistics, U.S. Dep’t of Health & Human Servs., Survey of Child Health (1993).
21. Sentencing Project, Incarcerated Parents and Their Children: Trends 1991–2007, at 6 (Feb. 2009), available at http://www.sentencingproject.org/doc/publications/publications/inc_incarceratedparents.pdf.
22. Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010).
23. Id. at 101.
24. Id. at 98.
25. Eduardo Porter, Numbers Tell of Failure in Drug War, N.Y. Times, July 3, 2012.
26. Ari Rosmarin & Niamh Eastwood, A Quiet Revolution: Drug Decriminalisation Policies and Practices Across the Globe (2011), available at http://www.release.org.uk/downloads/publications/release-quiet-revolution-drug-decriminalisation-policies.pdf.
27. Maia Szalavitz, Drugs in Portugal: Did Decriminalization Work?, Time, Apr. 26, 2009.
28. Amy Solomon, In Search of a Job: Criminal Records as Barriers to Employment, NIJ J., no. 270, June 2012.
29. Sentencing Project, State-Level Estimates of Felon Disenfranchisements in the United States, 2010, at 1 (July 2012), available at http://sentencingproject.org/doc/publications/fd_State_Level_Estimates_of_Felon_Disen_2010.pdf.
30. Rising Prison Costs: Restricting Budgets and Crime Prevention Options: Testimony Before the S. Judiciary Comm. 1 (Aug. 1, 2012) (testimony of Brett Tolman, shareholder, Ray Quinney & Nebeker).
31. Id. at 3.