In the System
[Sorry, the video for this story has expired, but you can still read the transcript below. ]
RAY SUAREZ: According to the Department of Justice, the nation’s combined federal, state and local adult correctional population stood at almost 6.5 million people at the end of 2000. This number includes incarcerated inmates, as well as probationers and parolees. There were over 3.8 million men and women on probation, over 725,000 on parole, over 1.3 million in prison and some 620,000 in local jails. The incarcerated population under state and federal jurisdiction includes: Over 1.2 million men and over 83,000 women. Male prisoners are 35 percent white, 46 percent black, 16 percent Hispanic. Nearly 10 percent of black males, aged 25 to 29, were in prison in 2000.
For more on this we turn to David Cole, professor at Georgetown University Law School, and author of No Equal Justice: Race and Class in the American Criminal Justice System; Richard Willard, former assistant attorney general in the civil division during the Reagan administration; and Loretta Lynch, formerly the U.S. Attorney for the eastern district of New York. She is the chair of New York City’s bar association’s criminal law committee. Well, panelists, it’s an all- time high but the rate of increase has started to slow down — a tremendous number of statistics. What should we make of them all? David Cole?
DAVID COLE: The great philosopher of the enlightenment, Montiesque, said that as freedom advances the severity of the penal law decreases; and yet what we have seen in the last 25 years in the United States is an unprecedented massive increase in incarceration so that last year we surpassed Russia. We now lead the world in incarceration rates. Our incarceration rate is five times higher than that of the next highest western country. And we don’t have victimization rates that are any higher than western European nations, yet we lock up people at a rate five times higher. I think that raises serious questions about the meaning of freedom in a country that declares itself the leader of the free world and yet is at the same time the leader of the incarcerated world.
RAY SUAREZ: Mr. Willard, what do you see when you look at those numbers?
RICHARD WILLARD: Well, most of the people who are in prison today are either repeat offenders or violent offenders or both. So I don’t think that we’re treating criminals too harshly in this country. The number of people in prison simply reflects the number of people convicted of crimes and the kind of sentences they’re given.
RAY SUAREZ: And Loretta Lynch, when you look at the numbers as a former prosecutor, what do you see?
LORETTA LYNCH: Well, I think the numbers actually reflect the success of law enforcement in the past decade in dealing with the crime increase that was going on in this country. I think, however, the next challenge of law enforcement is how do we handle the large numbers of individuals who will be coming out of our correctional facilities and off parole and coming back into our communities? Given another number that was mentioned in the report, the high recidivism rate, that is to say, the high number of people who are released from prison and yet find themselves reoffending and going back in — what we want to do is maintain the lower crime rate and maintain the safety that we’ve gained from this lower crime rate over the years in a way that protects everyone.
RAY SUAREZ: I’m glad you mentioned that lower crime rate because at first blush it’s kind of hard to understand why there have been these tremendous peaks in the population at a time when many categories of crime have been plummeting across the decade.
LORETTA LYNCH: Well, one of the things I think you have to look at is where law enforcement has been targeting. And certainly while the overall crime rate may be going down, there are certain areas of crime that law enforcement has been targeting fairly strenuously. Violent crime is one particularly in urban areas. Gun trafficking and gun crime is another, as well as narcotics trafficking. So while you may see overall declining rates in crime, you can still see these spikes in prison population and inmate population because of the focus of law enforcement. What that often reflects are, for example, particularly in urban areas a focus by the federal government upon areas that traditionally were underserved by law enforcement.
RAY SUAREZ: Richard Willard, let’s talk a little bit about some of the other push factors. Is the fact that many states have taken away good time, have changed their parole and probation policies and that sentences have been made longer– is this pushing the population up at a time when the crime rate itself has quelled?
RICHARD WILLARD: Well, it certainly is pushing up the prison population. But one of the effects of that is to prevent more crimes from being committed because when people are locked up in prison, they’re not out in the community committing more crimes, as Ms. Lynch pointed out. The recidivism rate is extremely high for people after they’re released from prison. And so this increase has, in my view, contributed to the lowering of crime rates.
RAY SUAREZ: David Cole.
DAVID COLE: I think one of the reasons the recidivism rate is so high that we’ve given up on rehabilitation as a response to crime. We have increasingly in the last 25 years responded to social problems by criminalizing them and by locking people up for longer and longer periods of time and providing absolutely no rehabilitation or reintegration. And so if you take somebody who is a young man, you lock him up for a minor drug offense for five years and he comes out with a felony conviction and he’s unable to get a job and we’ve done nothing to try to reintegrate him into society, what do you expect but more crime? I think it’s — part of the problem here is that we’ve given up on the notion of rehabilitation.
RAY SUAREZ: Loretta Lynch, is there a big difference between someone hitting the bricks after doing some time today as opposed to somebody doing a similar amount of time ten or twenty years ago, the way they would have been handled in prison?
LORETTA LYNCH: Well, I think we do have to be very honest and focus on the fact that prisons are not preparing people for reentry into society. That’s actually a very good point that Professor Cole made. You do have people who are incarcerated for longer periods of time. One issue that all of law enforcement has to face that the large numbers of nonviolent first-time offenders who are in prison, many of whom who have received fairly lengthy sentences have been placed in an environment where their level of violence may raise also, so what you may have are people coming out who have been exposed to a great deal of violence and are going to bring that back into the community. You also have people who frankly are going to have a very difficult time finding jobs, finding housing.
There are a number of reentry programs in many of the urban areas. New York City has several. And what they have seen are that if you provide people with the basic services and in particular provide them with an opportunity to find some other means to make a living, the recidivism rate can go down. There are some studies that indicate that if you provide certain services while people are incarcerated, you can have a lower recidivism rate also. That’s something that I think law enforcement has got to look at very, very seriously because our responsibility really is to the community as a whole. Yes, we’ve removed violent people from society now. And people are safer because of that. But people will be coming back at some point in time. In order to maintain that safety, we’ve got to look at these issues.
RAY SUAREZ: Richard Willard, are we on the verge of some new demographic trends taking root that might give America’s penal systems a chance to take a breather, digest what they’ve done over the last ten years, reexamine what works and what doesn’t for them?
RICHARD WILLARD: Well, I think that the prison population is probably going to stabilize for a period of time, because what we’ve done is adjust over the last ten or twenty years to reforms in sentencing. That’s pretty well worked its way through. And so now unless we made a real effort to increase the level of sentences, then the prison population is probably not going to go up. I’d like to point out though that in response to Professor Cole, it’s really a myth to claim that first-time drug offenders are being sent off to prison for five years. The median sentence for drug trafficking in federal court is five years, in state court it’s about three years, and most of the people who get those sentences are repeat offenders. Very few first-time drug traffickers get sent to lengthy prison sentences.
DAVID COLE: I’m glad that Mr. Willard raised the drug war because I think that actually is much of what has driven this increase over the last 20 years. We now have 500,000 people in the nation’s prisons for drug offenses, for nonviolent drug offenses. And that’s disproportionately, vastly disproportionately black and Hispanic inmates even though all the data on possession that we have, on drug possession, drug use and even drug dealing indicates that illegal drugs are an equal opportunity offense, that Blacks, Hispanics, whites, all use and deal drugs in a rough proportion to their percentage in the representation in the population.
RAY SUAREZ: How do you explain the disproportionality in jail?
DAVID COLE: Look at African-Americans. They’re 13 percent of the general population; they’re 14 percent of illegal drug users. Yet if you look at drug possession, they’re 35 percent of those arrested for drug possession; they’re 55 percent of those convicted for drug possession; and they’re 74 percent of those sentenced to serve time for drug possession. So a crime that they commit at a rate that’s equal to their representation in the population, they’re serving sentences at a rate six times their representation in the population. And I think that the drug war is driven by a lot of political rhetoric, a lot of politicians and driven also by the fact that the costs are not borne by the white majority, the people who are voting in these longer and longer sentences or voting in three strikes and you’re out types of provisions.
The fact that the cost of these laws and the cost of this incarceration policy is borne disproportionately by blacks and Hispanics — has made it easier for the white majority to maintain it. And I think if you saw the kinds of rates among whites, incarceration rates among whites, that you see among blacks, the politics of crime would be very different and we wouldn’t be talking about building more prisons, we’d be talking about putting more resources into child care, into education, into job training, into things that will keep children and young people away from crime rather than waiting for the crime to happen, doing nothing to provide a kind of social network and then locking people up for five years.
RAY SUAREZ: Let me go to Loretta Lynch at this point because you were a prosecutor at one of the epicenters of the war on drugs in New York. How do you respond to Professor Cole’s points?
LORETTA LYNCH: Well, I think it’s an issue frankly that requires looking at on all sides, not just law enforcement but some of the issues that Professor Cole raised in terms of trying to prevent this type of crime, in terms of education and other opportunities. I do think that there were a lot of issues that went on with the war on drugs — its inception and the way it was carried out. I think one of the issues though that was a factor was the level of violence, particularly in urban areas that was accompanying drug trafficking particularly in crack-cocaine. Now, this has led to certainly a disparate way, and that’s one example crack cocaine is treated within the criminal system that has had a huge collateral consequence in the minority community.
Whether or not the initial way of dealing with that was appropriate was really an issue that was outside of law enforcement. One of the reasons was that there was a large amount of violence associated with that. As law enforcement began to look at communities and as I mentioned earlier try and deal with the victims of that kind of violence, many of whom were minority and many of whom had not had the kind of protection that law enforcement was affording, that was initially how things began.
I think we’re at a point now frankly where we have had these policies in effect for several years — not just the crack-cocaine policy but the sentencing policies, we have the opportunity to look at what are the effects of these long- term sentences upon narcotics offenders and all offenders. We can look at the effects of people when they come out of incarceration and back into the community. And I think law enforcement has always got to be able to examine itself and review these policies and see, are they really effective? If I have someone who has been incarcerated appropriately so, particularly if they’ve committed a violent offense, they need to be roved from the society that they have been victimizing but when they come back out and there’s nothing for them to do but repeat and reoffend again, and I reincarcerate them, I have to ask myself was I really successful the first time around?
RAY SUAREZ: Let me go back to Richard Willard for some brief, final comments.
RICHARD WILLARD: Well, I certainly agree that we should try to do more for rehabilitation. But I think it would be very misguided for us to decriminalize or de-emphasize enforcement of the drug laws because drug use itself is a major contributing factor to crime. I think it would be a very misguided policy if we were to abandon that enforcement effort. But I do agree with Ms. Lynch that we need to do more to try to make our rehabilitation programs more effective.
RAY SUAREZ: Guests, thank you all for joining us.