The Crime in Criminal Justice

Lawyering for Social Change

100 Year Rule

What was legal but unjust 100 years ago?

Women won right to vote in 1920

Child labor was outlawed in 1938 with Fair Labor Standards Act

1935 Right of Workers to Organize Protected by Wagner Act

1948 Universal Declaration of Human Rights

Segregation legal in US until 1960s

Voting Rights Act 1965

1965 Medicare and Medicaid

1970 Clean Air Act

1990 Americans with Disabilities Act

Analyze Criminal Justice System

Key Question:
Are these facts mistakes of an otherwise good system or Is the system working exactly as intended?

Last Several Decades Explosion in Criminal Justice System

One in every 31 adults (more than 7 million people) were behind bars on probation or on parole. Pew Center on States

In Pennsylvania 1 in 28 adults is under correctional control. PA ranks 13th in adults in probation and parole – 258,000 PA ranks 31st in adults in prison and jails – 87,000


U.S. Criminal Justice in International Context

What is going on?

Violent crime going up?

Gun crimes from 1973-2006

USDOJ key facts

Is this race neutral crime?

Process for Putting People into Criminal Justice System

Review the system:
Use of Drugs Police Stops Arrest Bail Bond Representation Trial Sentencing Prison Parole Freedom

Drug Use

“blacks and whites engage in drug offensespossession and salesat roughly comparable rates”
May 2008 Targetting Blacks: Drug Law Enforcement and Race in the US - HRW

Police Stops

Driving while black? California ACLU found blacks three times more likely to be stopped than whites.
Ian ayres, aclu s cal LA stops july 2003-june 2004

DOJ reports similar percentages stopped. But percentage of drivers stopped whose vehicles were searched: Hispanic 10%; Black 7%; White 1%
2005 April US DOJ Bureau of Justice statistics report

From 2005 to 2008, 80% of NYPD Stop and Frisk actions were of Blacks and Latinos (who make up 53% of population). Once stopped 85% of Blacks and Latinos were frisked compared to 8% of whites.

Results of Stop & Frisk?


“State-by-state data from 2006 show that blacks were arrested for drug offenses at rates in individual states that were 2 to 11.3 times greater than the rate for whites”
March 2, 2009 Decades of Disparity HRW

African Americans comprise 13% of population and 14% of monthly drug users but 37% of persons arrested for drug offenses.
May 21 2009 testimony before Congress of Marc Mauer The Sentencing Project

So blacks, who use drugs at same rate as whites, are arrested 200% to 1110% more.


Bail Bond

Blacks are 33% more likely to be detained awaiting felony trials than whites facing felony trials in some parts of NY state.
NYState division of criminal justice services, 1995 study in disparities in processing felony arrests.


Once arrested, 80% get

“All too often, defendants plead guilty, even if they are innocent, without really understanding their legal rights or what is occurring… The fundamental right to a lawyer that America assumes applies to everyone accused of criminal conduct effectively does not exist in practice for countless people across the United States.”

American Bar Association 2004 Gideon’s Broken Promise


Only 3-5% of criminal cases go to trial – rest are plea bargained.

“Who wouldn’t rather do three years for a crime they didn’t do than risk 25 years for a crime they didn’t do?”

Sentencing? Since 2005 (US v Booker) Black and Latino men receive federal sentences 10-23% longer than whites.
Report - March 2010

African Americans are: 21% more likely to receive mandatory minimum than white defendants; and 20% more likely to be sentenced to prison than white drug defendants.
congress of Marc Maurer on unfairness of federal cocaine senetencing.

May 21, 2009 testimony to

Two-thirds of crack cocaine users are white or Latino. But 80% of the people sentenced for crack cocaine in US federal system are African American.
of Mar Maurer to Congress on unfairness of federal cocaine sentencing. Sentencing project.

may 21, 2009 testimony

? 100-1 Disparity between sentencing for crack cocaine and powder cocaine reduced to 18-1 ratio. March 2010. ?

Two-thirds of people in US with life sentences are non-white. In NY, it is 83%.
sentencing project – july 2009 – no exit



African Americans comprise 13% of population and 14% of monthly drug users but 37% of persons arrested for drug offenses, and 56% of people in state prisons for drug offenses.
May 21 2009 testimony before Congress of Marc Mauer The Sentencing Project

Two-thirds of people in state prisons for drug offenses are African American or Latino.
Project – changing racial dynamics of the war on drugs

2009 April Sentencing

Mental illness is 200% to 600% higher among prisoners than outside.
National reentry resource center facts

Chance of Black male born in 2001 of going to prison – 32%; Hispanic male has a 17%; white male has 6% chance.
Bureua of Justice Statistics, Prevalence of Imprisonment in US population 1974-2001.

bonczar, T.P. (2003)

Impact of Mass Incarceration

Exempted from the prohibition on slavery, prisoners are on way to being non-human objects

Rights of Prisoners?

?Private for profit prisons?

?Impact of increased costs for Incarceration?


5,095,200 people were on Probation or Parole in 2008. 38% African American 19% Hispanic 41% white.
Glaze and Bonczar – Probation and Parole in the US 2008, US DOJ, BJS, 12-09

Nearly one in three young black males is under correctional supervision.
2009 Criminal justice primer – Sentencing Project

YOUTH Black youth are 16% of population, 28% of juvenile arrests, 37% of youth in juv jail, and 58% of youth sent to adult prisons.
project, criminal justice primer 2009


The US Department of Justice reported that in 2008 7.3 million people were under “correctional supervision” jail or prison, parole or probation.

African Americans are nearly three times as likely to get their probation revoked as whites, especially for drug offenses.


Even after release, Prisoners never regain full human and civil rights

Ex-offender employment? Among applicants with criminal records, employers called back 17% of white applicants and 5% of black applicants.
Devah Pager Study 2002

Consequences for Drug Felons
• • • • • • • No public housing OK to discriminate against in private housing OK to yank right to vote OK to discriminate in employment No food stamp assistance No jury service Prohibitions on associating with others

?IMPACT ON DRUG USE? More than two decades of incarcerating drug offenders has apparently had little impact on the demand for illicit drugs. In surveys carried out during the years 1991-1993, an average of 5.8 percent of persons surveyed reported using an illicit drug during the previous month. In the same survey carried out in 2006, 8.3 percent of persons said they had used an illicit drug in the previous month.
HRW – Targetting Blacks 2008

What will people think 100 years from now about our criminal justice system?

Analysis of System

Key Question:
Are these facts mistakes of an otherwise good system or Is the system working exactly as intended?

1700s - Birth of Slavery 1863 - Death of Slavery 1877 - Birth of Jim Crow 1950s-60s - Death of Jim Crow
withdrawl of federal troops

1980s - Birth of Mass Incarceration

From 1981 to 1991 – War on Drugs FBI Antidrug $ increased from $38 m to $181 m DOD Antidrug $ increased from $33m to $1042m DEA anti-drug spending increased from $86m to $1026m
source: p 49 The New Jim Crow

Criminal Justice is:

Racialized System of Social Control

Stigma of criminality functions in much the same way as Jim Crow:
• Legal boundaries between them and us; • Social and economic boundaries between them and us; • Cannot vote; • Can legally discriminate in jobs and housing; • Warehouse a disposable population;

Poor whites and people of other ethnicity are also subjected to this system of social control because if they are out of line they are treated just like poor blacks – the worst possible treatment

Criminal Justice System is Integral Part of the Domestic War on Marginalized

Because of globalization there is an excess of people. Those people are not productive, not needed, not wanted, and are not human beings entitled to the same rights as us. Essentially, the must be controlled and dominated. They must be either intimidated into compliance with their inferior status or removed.

Criminal Justice System is Part of the White Supremacist Domestic War on Marginalized

Domestic War relies on Technology of Domination (Criminal Justice System) for Capture Immobilization Punishment Liquidation

Criminal Justice System is working just fine doing its part in the Domestic Racist State Violence or War at Home

Thus Abu Ghraib, Guantanamo, US jails & prisons are all the same – domestic & international versions of domination

So, what to do?

Adopt a 100 year perspective on law and justice

A radical approach to injustice means to go to the root of the problem not trimming the leaves not pruning the branches but ripping up by the roots the injustice.

First, open our hearts and liberate our minds

We are all entitled to be safe but is that what this criminal justice system is? Find and support alternatives.

“Nothing short of a major social movement can dismantle this new caste system.”

What about President Obama?

If the system is broken perhaps the administration can help fix small parts of it. But is there evidence that this administration intends to reverse the explosion of the criminal justice system?

Join the Movement

Restorative Justice

Study Prisons in Criminal Law?

Support Prisoner Organizing and Resistance

Resist in Place: Prosecutors, Defenders, Judges

If there is no struggle, there is no progress.

Seek Out Hope Joy Love

Wherever you find tragedy and injustice You will also find resistance and inspiration

Liberation is up to us.

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