Captive Lives

By Ellen Spears

Vol. 22, No. 3 p. 3

“For Americans who still believe in racial equality and social justice,” says writer Manning Marable, “we cannot stand silent while millions of our fellow citizens are being destroyed all around us.” This special issue of Southern Changes brings together advocates, scholars, and photographers hard at work to reverse the policies that make the U.S. a world leader in incarcerating and executing its citizens, especially its citizens of color. Thanks to the contributing writers and to guest editor Constance Curry, author and human rights leader, or bringing these perspectives to the pages of Southern Changes at this critical moment.

As rates of incarceration rise in the U.S. faster and higher than any other Western industrialized nation, the South stands in the lead. Louisiana and Texas are out in front, imprisoning more than one in 131 of their residents. “Texas Tough,” an August 29 report from the justice Policy Institute, points out that Texas leads the nation in incarceration growth, adding that, during the U.S. prison boom of the 1990s, Texas prisons accounted for nearly one-fifth: of the prison population growth. Of all the fifty states, Alabama and Florida deprive more prisoners of the right to vote, with nearly one-third of adult black males disfranchised. Texas and Virginia have executed more people than any other state. And, Southern-based corporations are driving the move to privatize, with nearly 70 percent of the inmates detained in private prisons held in the South.

As the U.S. crosses the two million mark in numbers imprisoned, race remains the defining factor in nearly every measure. “[A]lthough 13 percent of drug users in the U.S. are black, blacks account for 74 percent of all those sentenced to prison for drug offenses,” reported Scientific American last year. According to Justice Department figures released in mid-September, nearly three-fourths of the 183 defendants recommended by U.S. attorneys for a death sentence were members of minority groups.

The electoral implications of the wholesale imprisonment of black men in the U.S. are becoming increasingly apparent, with one in seven adult black males having lost voting rights due to a felony conviction. Even inmates without felony convictions have great difficulty getting registered and find it hard to vote. Attempts by the NAACP to register jail inmates in Terrell County, Georgia, for the November 2000 elections have been barred by the county board of elections.

British criminologists Leslie Wilkins and Ken Pease (cited in the Scientific American report) show that high incarceration rates are linked to income inequality and argue that “high U.S. incarceration rates are unlikely to decline until there is greater equality of income.” Certainly, the economic roots of the dramatic increase in the number of women in prison is evident, with 37 percent of women in state prisons reporting an income of less than $600 in the month prior to their arrest.

Although property-based and most violent crime rates have been dropping (rape is the notable exception). politicians’ exploitation of crime as a thinly veiled proxy for race remains a long-standing election tradition. The nationalization of racially coded elections reached new heights in the Nixon era and again under Reagan and Bush, with “law and order” campaigns and the racially targeted “war on drugs.” Building on the re-instatement of the death penalty in 1976, the rhetoric of the “war on drugs,” and the construction of private prisons that began in the mid-1980s, the 1990s were a decade filled with “tough on crime” political themes. The tough talk was used to motivate voters through fear and nurture a “lock ’em up and throw away the key” mentality in contrast to implementing more effective rehabilitative programs and strategies.

While political courage to buck the tide of repressive action on crime and punishment remains in short supply, the past year has given a few encouraging signs. The American Bar Association’s call for a moratorium on the death penalty adds a strong voice to the growing numbers of Americans seeking abolition. Republican Gov. George Ryan of Illinois declared a moratorium in his state and called for others to follow his lead, reflecting the growing public recognition that too many wrongly convicted people are in prison and on death row. Ohio Representative Ted Strickland’s Public Safety Act, (HR 979) a proposal to prohibit placement of federal prisoners in private for-profit correctional facilities, has 143 co-sponsors in Congress.

The Southern Regional Council hopes this special issue of Southern Changes will provide support to prisoners and their advocates working to abolish the death penalty, to eliminate racial disparities in arrests and sentencing, to stop prison privatization, and to provide for alternative restitution. We offer this collection to be used by advocates who are, in Manning Marable’s words, “facing the demon head on.”

Ellen Spears is associate director of the Southern Regional Council. You may contact her by email at. espears@southerncouncil.org

Facing the Demon Head On: Institutional Racism and the Prison Industrial Complex

By Manning Marable

Vol. 22, No. 3, 2000 pp. 4-7

As long as black people have lived in America, they have experienced some version of institutional or structural racism. During slavery, African Americans were defined as private property or chattel, purchased and sold on auction blocks. In the period following Reconstruction until the early 1960s, African Americans, especially in the South, lived under the oppressive restrictions of Jim Crow segregation. In the northern states, blacks were generally permitted to vote and had access to most public accommodations, but were forced by racial covenants and restrictive laws to live in ghettoes.

Under each successive racial formation, African Americans and their white allies formed political and social pro test movements, which ultimately transformed the nature of their society. In the antebellum South, there were uprisings and day-to-day resistance by enslaved African Americans, and in the northern states an abolitionist movement developed that contributed to the establishment of the Republican Party. Under Jim Crow, leaders such as Dr. Marlin Luther King, Jr., Fannie Lou Hamer, James Farmer, Ella Baker, and a broad coalition of civil rights organizations mounted a series of nonviolent, direct action campaigns that directly led to the desegregation of the South. In the northern states, African Americans employed a variety of strategies, from the labor union organizing of A. Philip Randolph and Bayard Rustin, to the mass political mobilization efforts that elected thousands of public officials, to achieve greater black representation at all levels of society. Progress was frequently slow, but the black freedom movement was generally successful in identifying the specific institutional barriers to American-American equality, and then ultimately finding the appropriate tactics to challenge then.

In the past three decades, the structure and character of American institutional racism has changed dramatically. We can measure the advances of African Americans in many ways. The number of black elected officials, barely 100 in 1964, has climbed above 10,000; the black consumer market has grown from $70 billion in 1980 to over $350 billion today. There is an affluent and substantial black middle class, and the economic expansion of the l99Os greatly improved the quality of life even for millions of working-class and low-income households. The unemployment rate of African Americans has now fallen to about 7 percent which, according to sociologist William Julius Wilson, is “the lowest since the Bureau of Labor Statistics began compiling comparable data by race in 1972.”

However, this new prosperity for the black middle class obscures a very real crisis for millions of other African Americans. The unprecedented expansion of what a number of scholars increasingly describe as a “prison industrial complex” has created an oppressively new context for the articulation of racial politics. According to an August 2000 Justice Department report, the total population of the nation’s jails and prisons exceeded two million at the end of 1999. The dynamic and seemingly unchecked growth of the U.S. prison population has many profound consequences-politically, economically and socially-for all people of color.

Beginning in the 1960s and 1970s, for a variety of reasons, rates of violent crime, including murder, rape and robbery, increased dramatically, especially in urban areas. By the late 1970s, nearly one half of all Americans were afraid to walk within a mile of their homes at night, and 90 percent responded in surveys that the U.S. criminal justice system was not dealing harshly enough with criminals. Politicians like Richard Nixon, George Wallace, and Ronald Reagan began to campaign successfully on the theme of “Law and Order.” The death penalty, which was briefly outlawed by the Supreme Court, was reinstated. Local, state, and federal expenditures for law enforcement rose sharply. Behind much of the anti-crime rhetoric was a not- too-subtle racial dimension, the projection of crude stereo types about the link between criminality and black people. Rarely did these politicians observe that minority and poor people, not the white middle class, were statistically much more likely to experience violent crimes of all kinds. The argument was made that law enforcement officers should be given much greater latitude in suppressing crime, that sentences should be lengthened and made mandatory, and that prisons should be designed not for the purpose of rehabilitation, but punishment.

As a result there was a rapid expansion in the personnel of the criminal justice system, as well as the construction of new prisons. What occurred in New York State, for example, was typical of what happened nationally. From 1817 to 1981, New York had opened thirty-three state prisons. From 1982 to 1999, another thirty-eight state prisons were constructed. The state’s prison population at the time of the Attica prison revolt in September1971 was about 12,500. By 1999, there were over 71,000 prisoners

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in New York State correctional facilities.

In 1974, the number of Americans incarcerated in all state prisons stood at 187,500. By 1991, the number had reached 711,700. Nearly two-thirds of all state prisoners in 1991 had less than a high school education. One third of all prisoners were unemployed at the time of their nests. Incarceration rates by the end of the 1980s had soared to unprecedented rates, especially for black Americans. As of December 1989 the total U.S. prison population, including federal institutions, exceeded one million for the first time in history, an incarceration rate of the general population of one out of every 250 citizens. For African Americans, the rate was over 700 per 100,000, or about seven times more than for whites. About one half of all prisoners were black. Twenty-three percent of all black males in their twenties were either in jail or prison, on parole, probation, or awaiting trial. The rate of incarceration of black Americans in 1989 had even surpassed that experienced by blacks who still lived under the apartheid regime of South Africa.

By the early 1990s, rates for all types of violent crime began to plummet. But the laws, which sent offenders to prison, were made even more severe. Children were increasingly viewed as adults in courts, and subjected to harsher penalties. Laws like California’s “three strikes and you’re out” eliminated the possibility of parole for repeat offenders. The vast majority of these new prisoners were nonviolent offenders, and many were convicted of drug offenses that carried long prison terms. Nationwide, African Americans and Latinos comprised 24.3 percent of the population in 1999, but represented 63.6 percent of state and federal prisoners and 78.8 percent of state prisoners convicted of drug offenses. The pattern of racial bias in these statistics is confirmed by the research of the U.S. Commission on Civil Rights, which found that while African Americans today constitute only 14 percent of all drug users nationally, they are 35 percent of all drug nests, 55 percent of all drug convictions, and 75 percent of all prison admissions for drug offenses. Currently, the racial proportions of those under some type of correctional supervision, including parole and probation, are one-in-fifteen for young white males, one-in-ten for young Latino males, and one-in- three for young African-American males. Statistically to day, more than eight out of every ten African-American males will be arrested at some point in their lifetime.

The latest innovation in American corrections system is “special housing units” (SHU), but which prisoners also generally refer to as “The Box.” SHUs are uniquely designed solitary confinement cells, in which prisoners are locked down for twenty-three hours a day for months or even years at a time. SHU cellblocks are electronically

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monitored, prefabricated structures of concrete and steel, about fourteen feet long and eight feet wide, amounting to 120 square feet of space. The two inmates who are confined in each cell, however, actually have only about sixty square feet of usable space, or thirty square feet per person. All meals are served to prisoners through a thin slot cut into the steel door. The toilet unit, sink, and shower are all located in the cell. Prisoners are permitted one hour “exercise time” each day in a small concrete balcony, stir-rounded by heavy security wire, directly connected with their SHU cells. Educational and rehabilitation programs for SHU prisoners are prohibited. Although Amnesty International and human rights groups condemned SHUs, claiming that such forms of imprisonment constitute the definition of torture under international law, many states are increasing the number of SHU facilities in their state prisons. As of 1998, California had constructed 2,942 SHU beds, followed by Mississippi (1,756), Arizona (1,728), Virginia (1,267), Texas (1,229), Louisiana (1,048) and Florida (1,000). Solitary confinement which historically had been defined even by corrections officials as an extreme disciplinary measure, is becoming increasingly the norm.

The introduction of SHUs reflects a general mood in the country that the growing penal population is essentially beyond redemption. If convicted felons cease to be viewed as human beings, why should they be treated with any humanity? This punitive spirit was behind the Republican- controlled Congress and President Clinton’s decision in 1995 to eliminate inmate eligibility for federal Pell Grant awards for higher education. As of 1994, 23,000 prisoners throughout the U.S., had received Pell Grants, averaging about $1,500 per award. The total amount of educational support granted prisoners, $35 million, represented only 0.6 percent of all Fell Grant funding nationally. Many studies have found that prisoners who participate in higher education programs and especially those who complete college degrees have significantly lower rates of recidivism. For all prison inmates, for example, recidivism aver ages between 50 to 70 percent Federal parolees have a recidivism rate of 40 percent Prisoners with a college education have recidivism rates of only 5 to 10 percent. Given the high success ratio of prisoners who complete advanced degree work and the relatively low cost of public investment, such educational programs should make sense. But following the federal governments lead, many states have also ended their tuition benefits programs for state prisoners.

What are the economic costs for American society of the vast expansion of our prison-industrial complex? According to criminal justice researcher David Barlow at the University of Wisconsin at Milwaukee, between 1980 and 2000, the combined expenditures of federal, state, and local governments on police have increased about 400 percent. Corrections expenditures for building new prisons, upgrading existing facilities, hiring more guards, and related costs, increased approximately 1000 percent. Although it currently costs about $70,000 to construct a typical prison cell, and about $25,000 annually, to supervise and maintain each prisoner, the U.S. is currently building 1,725 new prison beds per week.

The driving ideological and cultural forces that rationalize and justify mass incarceration are the white American public’s stereotypical perception about race and crime. As Andrew Hacker noted in 1995, “Quite clearly,’black crime’ does not make people think about tax evasion or embezzling from brokerage firms. Rather, the offenses generally associated with blacks are those . . involving violence.” A number of researchers have found that racial stereotypes of African Americans – as “violent,” “aggressive,” ‘hostile,” and “short-tempered” – greatly influence whites’ judgments about crime. Generally, most whites are inclined to give black and Latino defendants more severe judgments of guilt and lengthier prison sentences than whites who commit identical crimes. Racial bias has been well established especially in capital cases, where killers of white victims are much more likely to receive the death penalty than those who murder African Americans.

The greatest victims of these racialized processes of unequal justice, of course, are African-American and Latino young people. In April 2000, utilizing national and state data compiled by the FBI, the justice Department and six leading foundations issued a comprehensive study that documented vast racial disparities at every level of the juvenile justice process. African Americans under age eighteen comprise 15 percent of their national age group, yet they currently represent 26 percent of all those who are arrested. After entering the criminal justice system, white and black juveniles with the same records are treated in radically different ways. According to the Justice Department’s study, among white youth offenders, 66 percent are referred to juvenile courts, while only 31 per cent of the African-American youth are taken there. Blacks comprise 44 percent of those detained in juvenile jails, 46 percent of all those tried in adult criminal courts, as well as 58 percent of all juveniles who are warehoused in adult prison. In practical terms, this means that young African Americans who are arrested and charged with a crime, are more than six times more likely to be assigned to prison than white youth offenders.

For those young people who have never been to prison before, African Americans are nine times more likely than whites to be sentenced to juvenile prisons. For youths charged with drug offenses, blacks are forty-eight times

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more likely than whites to be sentenced to juvenile prison. White youths charged with violent offenses are incarcerated on average for 193 days after trial; by contrast, A American youths are held 254 days, and Latino youths are incarcerated 305 days.

The August 2000 report of the US Justice Department finds that 9.4 percent of black men ages twenty-five to twenty were in state and federal prisons in 1999, almost ten times the rate for white men in their late twenties. Among Hispanic males hi this same age group, over 3 percent were incarcerated.

What seems clear is that a new leviathan of racial inequality has been constructed across our country. It lacks the brutal simplicity of the old Jim Crow system, with its omnipresent “white” and “colored” signs. Yet it is in many respects potentially far more devastating, because it presents itself to the world as a system that is truly color blind. The black freedom struggle of the 1960s was successful largely because it convinced a majority of white middle class Americans that the Jim Crow system was economically inefficient, and that politically it could not be sustained or justified. The movement utilized the power of creative disruption, making it impossible for the old system of white prejudice and power to function in the same old ways it had for decades. For Americans who still believe in racial equality and social justice, we cannot stand silent while millions of our fellow citizens are being destroyed all around us. The racialized prison industrial complex is the great moral and political challenge of our time.

For several years, I have lectured in New York’s famous Sing Sing prison, as part of a master’s degree program sponsored by the New York Theological Seminary. During my last visit several months ago, I noticed that correctional officials had erected a large yellow sign over the door at the public entrance to the prison. The sign reads: “walking through these doors pass some of the finest corrections professionals in the world.” I asked Reverend Bill Webber, the director of the prisons educational program, and several prisoners what they thought about the sign. Bill answered bluntly, “demonic.” One of the Master’s students, a thirty-five-year-old Latino named Tony, agreed with Bill’s assessment, but added, “let us face the demon head on.” There are now over two million Americans who are incarcerated. It is time to face the demon head on.

Manning Marable is professor of History and Political Science, and the Founding Director of the Institute for Research in African-American Studies at Columbia University. He is also editor of Souls: A Critical Journal of Black Politics, Culture, and Society.

The Death Penalty: Sober Second Thoughts about the Ultimate Weapon in the War on Crime

By Stephen B. Bright

Vol. 22, No. 3, 2000 pp. 8-10, 20

The United States is one of the few industrialized nations in the world that retains the death penalty. Today, four nations–China, Iran, the Congo, and the United States–account for 80 percent of the executions that occur in the world each year. Thirty-eight countries have abandoned the death penalty since 1985. Only four countries that did not have the death penalty in 1985 have adopted it since then and one of those, Nepal, has since abolished it.

Only one other NATO country, Turkey, has the death penalty. It has not carried out an execution since 1984 and is expected to soon abandon capital punishment in order to join the Council of Europe, which does not allow its members to have capital punishment.

The United States is one of a very few countries that executes people who were children-under age eighteen-at the time of commission of their crimes. The United States and Somalia are the only countries that have not ratified the United Nations Convention of the Rights of the Child, which prohibits the execution of children.

Thirty years ago it appeared that the United States would, like much of the rest of the world, also abandon capital punishment. The death penalty was seldom used in the 1960s, and the United States Supreme Court declared it unconstitutional in 1972 because it was arbitrarily imposed. However, after the Supreme Court’s decision, a number of states passed new capital punishment statutes that were upheld by the Court in 1976.

Today, 38 states, the federal government, and the military have laws authorizing the death penalty. More than 3,600 men, women, and children are waiting to be injected, electrocuted, gassed, shot, or hung. The number of executions carried out has steadily increased during the 1990s. Hundreds of people have been killed by the states since the Supreme Court’s decision in 1976 allowing the resumption of capital punishment. More than 90 percent of those executions have taken place in the nation’s “death belt,” the states of the old Confederacy.

Capital punishment is one of the tragic legacies of the slavery, racial oppression, and racial violence in American history. It has also been the ultimate weapon in the “war on crime,” a war the United States has been fighting against its own citizens for more than thirty years. The proponents of this war have assured us that we are demonstrating our moral outrage, that we are showing that we are tough on crime, and that those we are killing are from another species; they are animals, predators–some children are even described as “superpredators.” As in a war against another nation, the proponents describe the enemy as a faceless group so evil and so lacking in humanity, feelings, and worth that their elimination is justified.

But, as in all wars, the casualties of the war on crime are human. As in all wars, there are innocent victims. Eighty-seven people condemned to die have been released in the last twenty years after their innocence was clearly established. Others have had their death sentences commuted to life imprisonment without the possibility of parole because of doubts about their guilt, and some have been executed despite questions of innocence. U.S. Representative Bill McCollum of Florida has stated that the risk of executing the innocent must be accepted if we are to have capital punishment. Those responsible for America’s system of justice have gone from the concept that it is better that the guilty go free than that an innocent person be convicted, to the notion that innocent people who may be executed are acceptable casualties in the war on crime.

The American Bar Association called for a moratorium on the death penalty in 1997 because of the poor quality of legal representation provided to the poor, racial discrimination in the infliction of the death penalty, and its imposition upon the mentally ill, the mentally retarded and against those who were children at the time of their crimes.

George Ryan, the Republican governor of Illinois, declared a moratorium on executions in his state after the

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exoneration of thirteen people who had been condemned to die, one more then the twelve who have been put to death since the death penalty was reinstated there in 1977. Three were freed by efforts of journalism classes at Northwestern University.

Legislation has been introduced in both the U.S. House and Senate providing for a moratorium on executions. A bipartisan group of Senators and Representatives have introduced the Innocent Protection Act in Congress to ensure DNA testing for the wrongfully convicted and better counsel for those facing death.

But the condemnation of innocent people to death is only the most egregious and pounced example of failure of courts to deliver on the promises of fairness, equality and justice. The courts are the institutions least affected by the Civil Rights Movement. People of color have been largely excluded as judges, jurors, prosecutors, and lawyers. The decisions made in the courts reflect the racial biases of the dominant group at every step of the process from police stops to imposition of sentence.

Poor people accused of crimes often receive only perfunctory representation by court-appointed lawyers who are denied the resources required to conduct necessary investigations and present a defense. In Texas courts do not even require that defense counsels remain awake during trial. The lawyer representing George McFarland, who is now on death row, repeatedly fell asleep and snored during his trial in Houston.

Texas’ highest criminal court–made up of judges chosen in partisan elections, some of who ran on platforms supporting the death penalty–upheld the death sentences in Mr. McFarland’s trial and tow others in which defense attorneys fell asleep. One of those defendants, Carl Johnson, was executed in 1995.

Some have suggested that the release of innocent

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people proves that the system is working. But a court system which destroys innocent people by sending them to death row for years for crimes they did not commit is not working. A system whose most grievous mistakes are revealed not by prosecutors, police, judges, or lawyers, but by undergraduate journalism students is not working.

In truth, the criminal justice system is not working at any level. But death is unique in its enormity, severity, degradation, finality, and violence. Because death is different, a moratorium is required before more dispatched to execution chambers in assembly-line fashion in Texas and, increasingly, in other states as well.

The use of capital punishment speaks volumes about the kind of society we are and want to be. The Constitutional Court of South Africa found no place for capital punishment in the vision of a society which, in the words of one member of the Court, was moving from hate to “an appreciation of the need for understanding” and from vengeance to reconciliation. It is an example that the United States, with its long history of racial violence and oppression, may want to follow.

Stephen B. Bright is the director of the Southern Center for Human Rights in Atlanta and teaches courses on capital punishment at the law schools at Yale, Harvard, and Emory universities.

Sidebar: Harris County, Texas: Welcome to “The Silver Needle Society”

Texas leads the way among the states–to the executioner’s table. With 231 people executed since 1982-146 (63 percent) of those under the five years that Governor George W. Bush has been in office Texas far and away leads the way. The annual number of executions in Texas continues to increase with thirty-three people executed to date this year (as of September 30, 2000). Virginia ranks a distant second, having executed seventy-six people since the reinstatement of the death penalty in 1976.

With Governor George Bush’s presidential campaign well underway, Texas and its penchant for the death penalty have received much press. Little notice, however, has been given to the Texas county that has been so significant in helping Texas earn its dubious reputation.

Harris County, which includes Houston, has prosecuted 143 (31 percent) of the 460 inmates currently on death row. Dallas County comes in a distant second, having prosecuted forty-two (9.1 percent) of Texas’ death row inmates. During the twenty-one years of “leadership” by District Attorney John “Johnny” B. Holmes, Jr., Harris County has executed more people than any other state (sixty-three), excluding Texas and Virginia. In celebration of that “accomplishment,” Holmes hangs a sign in his office’s death penalty unit that reads, ‘The Silver Needle Society” and includes a list of all people killed by lethal injection by the county.

A close inspection of the death row inmates from Harris County reveals the racial and economic disparities in the county’s capital punishment system. In a county where African Americans make up 20 percent of the population, seventy-nine of the 146 (54 percent) death row inmates from Harris County are African American. An additional twenty-six inmates (17.8 percent) are Hispanic. More than one-half (seventy-four) did not complete high school or its equivalency. Only four of the 146 were employed in white collar jobs at the time of their arrest. Sixty of the 146 listed “laborer” as their occupation prior to arrest.

There is a small possibility for change in Harris County this fall; District Attorney Holmes will be retiring to be replaced by either Democrat Jim Dougherty or Republican Chuck Rosenthal. Both support the death penalty, but Dougherty, a Houston defense lawyer, supports changing state law to allow life without parole as an alternative and to prohibit the execution of the mentally ill or disabled. Rosenthal, a career prosecutor, is a staunch defender of the current system and has sent fourteen people to death row. Rice University political scientist and pollster Bob Stein, quoted in the Houston Chronicle, does not see the death penalty as being a significant factor in the race though. “This is a Republican county in a death penalty state,” he said.

Sidebar: The Death Penalty in Virginia

Virginia is second only to Texas in the number of persons executed since the reinstatement of the death penalty in 1976. In fact, Virginia’s execution rate, expressed as a proportion of the state’s population, exceeds that of Texas. Disturbed by those stark statistics, the American Civil liberties Union (ACLU) of Virginia conducted an indepth study of the circumstances of Virginia’s startling death penalty record. The study, entitled “Unequal, Unfair and Irreversible: The Death Penalty in Virginia,” and published in April 2000, examined four key aspects of the administration of capital punishment in Virginia–prosecutorial discretion in the charging of capital crimes, quality of legal representation for the accused at trial, appellate review of trials resulting in the death penalty, and race. A copy of the full report is available at www.members.aol/acluva/death.doc. Some of the startling facts they uncovered are listed below.

• Ninety-seven percent of those sentenced to death in Virginia have been too poor to afford their own lawyers and have been represented by court-appointed lawyers.
• The Virginia State Supreme Court has reversed fewer death sentences than any other state supreme court in the country and has never granted an evidentiary hearing or appointed an expert or an investigator to adeath penalty case. Between 1973 and1995,Virginia’s supreme court found error in 8 percent of capital cases as compared to the national average of 40 percent. Texas reverses 28 percent of its cases.
• The U.S. Court of Appeals for the Fourth Circuit, which serves Virginia, grants new hearmgs to death row inmates in 9 percent of cases in its jurisdiction and only 4 percent of cases in Virginia. This compares to a nationwide average of 39 percent among federal appeals courts.
• Since 1978, Virginia has meted out 131 death sentences. Of those sentences, the Supreme Court has reversed exactly eleven, almost all on direct appeal.
• In 1998 and 1999, Virginia executed eight prisoners within five years of their sentencing dates. This is the time that is used primarily by higher courts to review death sentences for fairness. The nationaXaverage time between sentencing and execution in nine years.
• Eight of Virginia’s 134 jurisdictions have exacted the death penalty for more than 10 percent of total capital murders committed in that jurisdiction between 1978 and 1997. Three jurisdictions have exacted the death penalty for more than 30 percent of total capital murders committed in the jurisdiction. They are Prince William County (64 percent), the county that shut down its public schools for six years in the 1960s in order to avoid desegregation, Danville City (39 percent), the last capital of the Confederacy, and Bedford County (33 percent), in Southcentral Virginia.
• Black offenders who rape and murder white victims in Virginia are more than four times’ more likely to be sentenced to death than those who rape and murder black victims–70 percent compared to 15 percent.
• Trial lawyers who represented the men on Virginia’s death row are six times more likely to be the subject of bar disciplinary proceedings than are other lawyers. In one of every ten trials resulting in a death sentence, the defendant was represented by a lawyer who would later lose his/her license.
• Virginia has no mechanism through which the state’s courts can consider evidence of innocence that surfaces more than twenty-one days after a defendant’s final sentencing in Circuit Court. In recent years, condemned prisoners have gone to their deaths despite inconsistent DNA evidence, witness recantations, and evidence that the crime for which they were condemned was committed by another person entirely.
• The Virginia Supreme Court has never upheld an ineffective assistance claim–a claim that the defendant did not receive fair representation–in a death case. Only once has the Fourth Circuit Court upheld an ineffective assistance claim in a Virginia capital case.
• Because of the Doctrine of Procedural Default, any violation or error a defendant’s lawyer does not identify in the first step of the appeals process is barred from consideration by any court. This undermines the idea that post-conviction review ensures that death sentences are the result of fair trials of appropriate quality.
• According to the FBI’s Supplemetal Homicide Reports, between 1978 and 1997, 41 percent of victims of apparently capital crimes were black. Yet of the 131 crimes for which a death sentence was imposed during the same period, only 20 percent of the victims were black.

Juvenile Justice “Hurts”

By Rick McDevitt

Vol. 22, No. 3, 2000 pp. 11-12

Even though the rate of juvenile crime is down, there has been a lot of discussion about the need to expand the construction of juvenile prisons. Expansion is not the answer. In fact, the current system is not reforming children, it is actually hurting them.

Last year, in the Georgia Department of Juvenile Justice, there were 4,600 inmate-on-inmate beatings and almost six-hundred staff-on-inmate beatings. Less than 10 percent of all juvenile crime is violent, yet large numbers of nonviolent offenders are in cells with murderers and rapists.

According to Georgia crime statistics, white children are arrested twice as often as African Americans, yet more than 70 percent of kids in detention are black. Crimes committed by African-American youth are not more serious; in fact, 75 percent of the children in the Georgia juvenile justice system are there for nonviolent offenses, like shoplifting, truancy, and trespassing.

Meanwhile, the state is building more prisons to provide jobs for local residents, not rehabilitation for youth. Jailed youth are not being rehabilitated. They are being raped and abused; last year in Georgia, there were more than 175 reports of sexual assault in juvenile detention centers. They are attempting suicide; there were more than 180 reports of attempted suicide. They are suffering mentally. The Mental Health Association of Georgia reports that 55 percent of incarcerated children have clinical depression and 45 percent have been diagnosed as having attention deficit/hyperactivity disorder and Georgia’s youth prisons provide little or no clinical help. They are receiving inadequate education; of the thirty-two juvenile facilities in Georgia, only one has an accredited school. They are receiving little or no medical attention and insufficient rehabilitative services. And, with all this neglect, the Department of Juvenile justice reports that it costs $40,000 a year to lock up one child.

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In 1997, a U. S. Department of Justice investigation found that the state juvenile justice facilities were “grossly substandard,” “egregious,” and “unconstitutional.” According to the report, Georgia’s juvenile facilities lack enough space to separate younger, more vulnerable youths from older, potentially more predatory youth. In one incident reported in the investigation, a child held for violation of probation was housed with three youths accused of armed robbery and aggravated assault and was beaten and sexually assaulted without intervention from the staff.

As a result of low staffing levels, a male staff member was able to sexually assault a fourteen-year old female resident after persuading the only other staff member on the shift to take a nap.

Sooner or later, incarcerated juveniles return to their communities much worse for their experience. Almost nothing is spent on community-based alternatives, like drug addiction and prevention programs, intensive supervision, or restitution,the smart alternative to the current juvenile justice system programs which would get to children’s lives sooner, rather than later. We know that in the medical profession, prevention and early intervention are less expensive and more effective than catastrophic care. The same reasoning should be applied to juveniles who commit petty property crimes and other less serious offenses.

Resources must be provided for after-school programs, intensive supervision and mentoring, drug prevention and treatment, and mental health counseling for confused or troubled youth. And parents must be given the tools they need to regain control over their confused adolescents.

In June 2000, the Georgia Alliance for Children, backed by forty organizations kicked off a campaign to educate citizens on the atrocities that are occurring in the system. The grassroots movement is demanding that Governor Roy Barnes and the Georgia State Legislature redirect the fifty million dollars used to operate youth “dungeons” and invest it in community-based intervention, prevention and aftercare programs that help solve problems before they become serious. These blatant disparities and statistics should draw Georgia lawmakers to their feet, demanding action. The neglect of juvenile justice that has led to facilities operating at 150 to 300 percent over capacity must stop.

Rick McDevitt is president of the Georgia Alliance for Children. For more information, please call the Georgia Alliance for Children at 404-688-7327 or email at: alliance@bellsouth.net

Sidebar: “And Justice for Some” Report

“And Justice for Some,” a report commissioned by the Building Blocks for Youth initiative and released in April 2000, revealed that youth of color experience more severe treatment than their white peers at every stage of the juvenile justice process. Following is an except from the summary of the report.

This report shows that youth of color are overrepresented at each point in the system and that this disadvantage accumulates as they move through the system,” says Michael Jones, co-author of the report and Senior Researcher at NCCD. “Minority youth are much more likely to be referred to juvenile court, be detained, face trial as adults and go to jail than white youth who commit comparable crimes. This makes kids of color much more likely to spend their formative years behind bars.”

Among the other key findings of the report: In every offense category–person, property, drug, public order–a substantially greater percentage of African-American youth were detained than white youth. Minority youth are overrepresented in the detained populations in nearly all states. African-American youth are more likely to be formally charged in juvenile court than white youth, even when referred for the same offense. Minority youth were much more likely to be waived from juvenile court to adult criminal court than white youth, even when charged with the same offenses. This was true in every offense category. When white youth and minority youth were charged with the same offenses, African-American youth with no prior admissions were six times more likely to be incarcerated in public facilities than white youth with the same background. Latino youth were three times more likely than white youth to be incarcerated.

Nationally, custody rates were five times greater for African-American youth than for white youth. Custody rates for Latino and Native American youth were two times the custody rate of white youth. In 1997, 7,400 new admissions to adult prisons involved youth under the age of eighteen. Three out of four of these youth were minorities.

The Care and Feeding of the Prison Industrial System

By George Napper Jr.

Vol. 22, No. 3, 2000 pp. 13-15

The multi-billion dollar prison-building enterprise in the United States is growing largely at the expense of the African-American population. The individual and social damage of this system reaches far beyond the enormous numbers and high percentages of African-American men and women presently in prisons to include vast numbers of former prisoners and their families.

Perhaps more tragically, the damage of the prison-building frenzy affects tens of thousands of youngsters and their families who are caught up in the highly punitive, harsh, and disproportionately African-American juvenile justice system. Since the juvenile system has become a feeder for adult prisons, and so much a part of the ritual of growing up as an African American, we must give great attention to its many failures of practice.

Another of the more sinister aspects of the current criminal justice system is the growing negative impact it has on the African-American population’s political clout now and in the future. There are predictions that people of color may be in the majority of the U.S. population in the early years of the new millennium, and we must examine any phenomena that may mitigate against that eventual change, and its consequences. If there are increasing numbers of people of color who are disfranchised because of felony records, this will have very negative consequences for the concepts of democracy and political influences for African Americans, and other communities of color. Certainly, the ability of people of color to wield the political power necessary to bring change to the criminal justice system and to the fetid conditions triggering its operations will be greatly impaired.

I am not sure that there is a conscious effort by policy makers to create barriers to the population shift and its political implications, but barriers are in the making. There are growing numbers of activists and analysts who view the extraordinary expansion of the prison industrial complex as a conscious and deliberate method of providing cheap prison labor unencumbered by the issues of unionism, health benefits, and other rights. Images of a new form of slavery are often conjured up in this context.

Incarceration and African-American Families

The rate of imprisonment in the United States exceeds by far that of any industrial society. The prison industry is among the fastest growing in our country. Investment houses and large law firms watch the performance of their prison-building stock. The imprisonment enterprise has significant implications for both the present and future political influence of non-white communities, for their family structures, and for the concept of “justice.” If we continue to see high increases in the rate and numbers of African-American women being incarcerated, in addition to what is happening to African-American men, a crisis o family formation and support will be further exacerbated.

A great number of incarcerated women have youngsters who are under eighteen, many of them less than six years old. Often, grandparents and foster homes are taking care of these children and youth. Many of them will grow up with the stigma that comes from being children of imprisoned parents. The stigma and the attendant marginalization affects their lives. We can anticipate increasing numbers of these youngsters becoming involved in drugs or violent activities. This, in turn, gives a generational dimension to the problem and provides politicians with more leverage to push for the building of more prisons and to be tougher on criminals. . , and the beat goes on. Unfortunately, being tough has not meant being effective!

Given these circumstances, it is difficult to be optimistic about what will be happening fifteen or twenty years into the future of the African-American population that is most affected by criminal justice policy and practice. It is not a question of whether or not we have the

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resources to do what needs to be done. It is a matter of political will. As long as the crime problem is largely defined as a problem of controlling African Americans and others of color, as long as criminality and African Americans are viewed as synonymous terms, the harder it will be for American policy makers to make the paradigm shifts necessary to cease over-relying on the criminal justice system to control crime in America. We cannot arrest ourselves out of our predicament. We cannot build enough prisons to solve the problems of social injustice, poverty, and lack of opportunity that form the conditions for much of today’s criminality.

It is impossible to believe that our approach to the issues of incarceration and related concerns would not be different if the problem was white men, white women, and their youth suffering this outrageous fortune of disproportionately high incarceration rates.

The Dilemma of African-American Political Leadership

Thwarting the ability of the African-American “community” to mobilize its political energy to transform the criminal justice system is another factor that is also a product of the present arrangement the increasing social distance between groups within our population. There is already a reluctance on behalf of many African-American political leaders to be as outspoken as they need to be to effectively address the prison industrial complex and its implications.

Part of this reluctance can be explained by political leaders’ being advocates of those who are the most likely to be victimized, i.e., their African-American constituents. Certainly, if anyone has a right to be more harsh, more punitive, it would be the members of the community who constitute, disproportionately, the crime victims. The relative failure to take a more progressive posture regarding the perpetrators is, in part, a reflection of the belief that those violating the law deserve what they gel Indeed, many victim advocates argue that more police are needed to make more arrests and to process more people through the system… and the quicker, the better.

Also related to the disappointing behavior of political leadership is the fact that new prisons can be built in their electoral districts. This means business opportunities and jobs for constituents, family, and friends. Further, their numbers usually are not strong enough in the political chambers to push an agenda that is different from.that of the Party line. Finally, many believe that the current policies and practices are the correct ones.

The greater point to be made here is that it would be easier to move with a more progressive (read preventive, proactive, and compassionate instead of reactive and punitive) agenda if African-American leadership was more visible on this issue. Doing so would ameliorate internal com-

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munity problems that have a generational character. That is, it is important for the African-American youth to know that the political leadership in their community cares greatly about them. Too often, youth in the African-American community feel that they are alone in their efforts to find meaning in life and to achieve a state of worthiness.

In the larger political context, it is difficult to believe that other politicians are going to care more for African-American youth than does its own leadership. Consequently and unfortunately, a less progressive political leadership feels that it is doing the right thing (at least something it believes it can get away with doing) because the African-American leadership seems to be okay with their policies and practices.

The nuances and maneuverings that characterize the political arena often mean that one has to compromise on certain issues to achieve what is believed to be higher priorities. While it is clear that controlling crime is a major concern with all politicians, what is ultimately the best approach remains a difficult challenge among many African-American political leaders. It is a monumental task to reduce crime and to develop a criminal justice system that is fair, just, and effective. It cannot be done by the African-American leadership alone. Well meaning Americans of all persuasions are needed to challenge our government to embrace a more rational approach to these issues.

Where Do We Go from Here?

Without question, the criminal justice system of today is destructive to the health and unity of the African-American population. When people come out of prison, without access to jobs, often alienated from their families, hardened by their experiences inside, they come back to their communities and, too often, continue in the process of victimizing others in the African-American community. They come out worse than they went in: more hostile, more angry, older, and less prepared, less able, and, sometimes, less interested in reintegrating as law-abiding citizens.

I am not arguing that we can salvage every person who comes to the attention of the criminal justice system. Nor am I suggesting that there are individuals who should not be locked up. I know that there are… and for a long, long time. I ran the Atlanta Police Department for twelve years and I have seen more than enough pain and hardship experienced by victims and their families to last a lifetime. However, I contend that we have a reactive, ineffectual criminal justice system with incarceration rates that are bringing havoc and ruin to communities of color, in general, and African-American communities in particular. In some states more money is being spent to build prisons than is being spent to educate our youth. These are monies that can be part of a more proactive, preventive approach to crime instead of being spent to feed the prison industrial complex. Processing increasing numbers through the system and building more and more prisons is not the answer.

The public safety demands that violent criminals be locked up. I agree wholeheartedly! Yet, the prisons in this country are teeming with young African Americans who have committed nonviolent, drug-related crimes. Research demonstrates that these individuals can benefit from community-based and other intermediate programs and from greater resources for drug treatment counseling, and education without compromising the public safety. Indeed, there is reason to believe that there is greater likelihood of not returning to crime from these approaches than from the more harsh, punitive “lock-’em-up-and-throw-away-the-key” traditional approach driven by long term incarceration and mandatory sentences.

Simply put, we have an opportunity to move in a more productive direction. We can focus resources in a proactive preventive, early intervention mode. We can target the thousands of nonviolent drug prisoners in a more humane fashion. We can shift the focus from incarcerations of nonviolent offenders to a wide range of community-based intermediate sanctions and punishments. Finally, we can be more conscientious in our efforts to develop strategies and programs that minimize racial bias. Where efforts have taken place, there is evidence that public safety is not the only benefit The lives of individuals and their families are restored; the credibility and legitimacy of the criminal justice system are enhanced.

More and more people are growing weary and angry over the failed and destructive policies of the past that continue to shape our overly punitive incarceration policies. The insatiable appetite of the prison industrial complex is consuming the dignity of communities of color and the humanity of the larger society.

George Napper Jr. is a native of California and has an extensive background in both criminology and sociology. With a Ph.D. in criminology from the University of California at Berkeley, he came to Atlanta in 1970 as a professor at Spelman College, Emory University, and Morris Brown College. In 1978, he was appointed Atlanta’s first African-American Chief of Police by Mayor Maynard Jackson and in 1982, he was appointed Commissioner of the Department of Public Safety for the City of Atlanta by Mayor Andrew Young. In 1992, Governor Zell Miller appointed Dr. Napper as the first Commissioner of the newly created Department of Children and Youth Services (now called the Department of Juvenile Justice). Napper is presently an Adjunct Professor of Criminal Justice at Clark Atlanta University.

Cells for Sale

By Si Kahn

Vol. 22, No. 3, 2001 pp. 16-20

Begin your journey through time in Durham, North Carolina, driving north on Interstate 85 towards Richmond, one-time capital of the Confederacy. Just before the Virginia border, turn east onto U.S. 158. Travel through Littleton, where members of the Lumbee-Tuscarora tribe routed the Ku Klux Klan in the 1950S. Pass through Roanoke Rapids, where in 1974 workers at the town’s seven J.P. Stevens cotton mills voted to join the Textile Workers Union of America and started a historic six-year national campaign for a contract. Keep traveling through history until you cross into Hertford County and there, not far from where the Meherrin River flows into the Chowan, you’ll come to the old Vann plantation.

These days, it doesn’t look like much, just some cotton fields backed by scrub forest. But in 1850, it was a major plantation with more than fifty slaves. In 1860, only 611 plantations in the entire state owned more than fifty slaves, making the Vanns one of the larger slaveholding families in North Carolina.

But, if Corporate America has its way, the old Vann place will soon be back in business with a vengeance. Wackenhut Corrections, a multi-national corporation that builds and runs private prisons for profit, is planning to build a 1,320-bed prison here. They will operate it under a contract from the Federal Bureau of Prisons, which plans to ship the prison 1,200 inmates from the District of Columbia, almost all of them African Americans. So Wackenhut will be importing well over one thousand Black men from the District of Columbia and imprisoning them on the same plantation where African Americans, possibly including some of their own ancestors, were held as slaves 150 years ago.

This is just one example of the ways in which the for-profit prison industry is changing the nature of criminal justice in the United States. The rise of for-profit private prisons raises critical issues for democracy, as well as for

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the balance of public and private power in an open society.

For-profit private prisons are a relatively recent development. The current wave of privatization generally in the U.S. is less than twenty years old and is still heavily contested. It’s paralleled by the recent unprecedented rise in the prison population and in new prison construction. And, of course, for-profit prison privatization is emerging as a major factor in this dynamic, as well as a major growth industry and social phenomenon. Between 1990 and 1999, the number of prisoners in for-profit private prisons in creased over 1500 percent, from less than 8,000 to over 123,000.

This is partly a response to recent economic and political conditions. States, counties, and cities are hard pressed financially and politically by the “need” for increased prison “beds” and have turned to for-profit private corporations to

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provide them. By contracting with for-profit private prison corporations, elected officials avoid the need to go to the voters with politically risky bond issues for new prison construction. They can also report the costs of these con tracts under operating expenses, thus appearing to cut costs and “government jobs.”

To for-profit private prison corporations, the issue is simple: the more prisoners, the more profit. This partly accounts for their aggressiveness in trying to privatize as much as possible as quickly as they can. In addition, they’re obviously trying to grab as much territory as they can before resistance to for-profits prisons hardens.

But the private prison corporations have another strategic reason for speed. If the present trend towards prison privatization continues, it will quickly reach a “tipping point” where private rather than public prisons are the norm. At this point, any possibility of restoring prisons to public confront even less hope than it does today. As difficult as it is for inmates and theft supporters, including progressive corrections officers, to change conditions when prisons are publicly held and operated, imagine how much harder that will be if the majority of prisons and detention facilities are in private corporate hands. If all prisons turn private, their parent corporations will have no more interest in reducing the shameful number of inmates in this country than Marriott does in holding down its number of hotel guests. Through campaign contributions made possible by in creased profits, they’ll become an even more significant pressure than they are now towards imprisoning the maxi mum number of people for as long as possible. Profit rather than the public good becomes the measure of all things.

The development and growth of for-profit private prisons has many negative consequences, including the current interstate commerce in prisoners by for-profit private prison corporations. This is one of the tragedies of prison privatization. Prisoners are incarcerated at great distances from their families, homes and communities, basically to suit the convenience of corporations. Many studies have shown that prisoners in these circumstances are significantly less likely to reintegrate themselves successfully on release and, of course, are therefore far more likely to be returned to prison.

This “export-import” business has a particular impact on the South. The “exporting” states tend to be those with higher costs per day for prisoners. Exporting prisoners is not just about solving prison over-crowding but about saving money, including the capital costs of building new prisons. The “Importing” states tend to be those with lower costs per prisoner per day, often a reflection of their significantly lower labor costs as a result of lack of unionization among corrections officers and other prison employees. Not surprisingly, the importing states tend to be in the South, with its historic low labor costs and lack of unionization.

It’s possible to foresee a scenario where the South, already the site for so many of its own prisoners, becomes the holding area for many of the prisoners from the rest of the nation, the vast majority of whom will be African Americans and other people of color. The South already has a long and shameful history of incarceration and the racialized use of imprisonment as a tool of social control, including chain gangs and convict labor, which tend to make prison privatization more acceptable. According to recent statistics, almost 70 percent of all prisoners in private facilities are in the eleven states of the old Confederacy and over 95 percent of all private prison facilities and detention centers in the U.S. are owned or operated by Southern prison corporations.

Another negative consequence is the growth of “speculation” or “spec” prisons. The for-profit private prison corporations are using speculation prisons as a way of side stepping current state legislative restrictions on the construction of private prisons for designated state use. Speculation prisons are particularly insidious, not just because they side step the intention of responsible state legislators to restrict and control prison privatization, but because they create pressure for more prisoners. From a management point of view, a prison is like a hotel or motel: you want to fill every bed, every night. If you don’t have enough guests, you do whatever you can to get them — including supporting campaigns for mandatory and longer sentences.

For-profit private prisons have experienced incidents involving deaths, disturbances, physical, and sexual abuse of prisoners, than extent much higher than that in public prisons. To a large extent, such incidents are inherent to the operation of for-profit private prisons, due to their high employee turnover rates and consequent lack of experience among prison personnel. Experience at many prisons which have been established by private corporations in rural areas has shown a turnover rate considerably in excess of that found in public facilities. It is not uncommon for the local workforce to become depleted, with the consequent need to recruit prison personnel from farther and farther away. The long distances such personnel need to drive to work further increases the likelihood of high turn over rates.

Prison privatization also privatizes decision making and access. For example, for-profit private prisons can refuse to supply the basic information about their operations that public prisons are required to provide. Within the prison industry, such conditions, ranging from privacy to secrecy, are obvious incentives to corruption. It’s difficult enough to

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control corruption in prisons under any circumstances. When you also impose the veil of secrecy and legal protection which is standard operating procedure in most major corporations, you are not only inviting additional corruption, you are also making sure it will be more difficult to root out.

For-profit private prisons are also one of the forces driving the increased incarceration of young people of color. Whole inner-city communities are being robbed of their economic and social potential as young African- American and Latino men and, increasingly, women are arrested and incarcerated, a pattern which is also repeated in other communities of color. The statistics related to the African- American community are both well-known and discouraging:

• Of African-American men between age 20 and twenty-nine, one out of three is either in prison, on probation or on parole.
• There are more African-American men in prison than in college.

It is common knowledge how devastating this development has been to communities of color. Prison not only robs young people of their youth, it too often bars them from future employment. Should we then be surprised when communities of color are left behind economically and politically? Or when young people of color say that

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things today are worse than forty years ago, that the Civil Rights Movement accomplished nothing?

One of the ironies of the growth in incarceration, however, is that it’s created economic opportunity for some people of color. Increasing numbers of correctional officers are themselves people of color. Because public prisons tend to be organized, these employees enjoy reasonable wages and benefits, along with considerable job security.

But all this changes when prisons are privatized. Some for-profit private prisons pay wages that are barely above the minimum wage, with few or no benefits other than those required bylaw. Turnover for employees in private prisons is astounding, ranging up to 100 percent a year. Working conditions are both difficult and dangerous.

It is unfortunate that one of the few economic opportunities open to people of color in so many poor and rural communities is guarding other people of color. But as long as these are the few jobs that are available to them, they need to be good jobs, with decent salaries, good fringe benefits, job security, adequate training, and protection.

To summarize the political situation and to cow dude, three parallel developments have been taking place over the past ten years:

• Demands by political leaders and, to some extent by the public, for more prisons, a product of our seeing incarceration as an easy answer to all social problems;
• Resistance by voters to increased taxes and/or new bond issues; and,
• The development and growth of the for-profit private prison industry.

These three developments are much more related than any of us have realized. To put it simply: Politicians are building careers on being “tough on crime” (which translates to many white voters as “tough on people of color”). So they promise to build more and more prisons. But they also can’t go to these same voters to approve prison construction bonds, which would involve higher taxes: these days, almost any politician who goes to the voters with a major bond issue is putting her/his career on the line. So they’re between a rock and a hard place. They want to build prisons so they can build their careers, but they lack and can’t get the capital to do so.

Enter the for-profit private prison corporations, with their ability to capitalize prison construction themselves. No bonds, no referendums, no tax increases, no political risks. No wonder so many elected officials are willing to cut these deals.

But if for-profit private prisons become publicly unacceptable, politically risky, economically unfeasible, or even illegal, it will also create a different dynamic for elected officials. Without an easy way to build new prisons, to promote incarceration as the politically acceptable be-all and end-all for social problems, they may need to come to grips with the limits of the current criminal justice system. In such a situation, rights, reform, rehabilitation, and restorative justice again be come imaginable-but only in a public and publicly- accountable system of justice, as is not only appropriate but critical to a democratic society.

Si Kahn is executive director of Grassroots Leadership and is campaign director for the Public Justice and Safety Campaign based in Charlotte, North Carolina.

Sidebar: The Public Safety and Justice Campaign

For-profit private prisons, jails, and detention centers have no place in a democratic society. Profiteering from the imprisonment of human beings compromises public safety and corrupts justice. In the spirit of democracy and accountability, we call for an end to all incarceration for profit. Statement of Principles
Public Safety and Justice Campaign

The Public Safety andJustice Campaign (PSJC) is a cooperative Southern and national campaign to stop for-profit private prisons. The campaign was founded by community labor, student, criminal justice, religious, civil rights, and prisoner advocacy organizations.

Working together, the organizations cooperating in PSJC have adopted the following strategy:

• Research: Sharing research information and working cooperatively to meet research needs. Currently, this includes developing an early warning system on attempts to establish for-profit private prisons and tracking state legislation related to the issue.
• Community education: Training, speaking, and writing with the goal of moving critical constituencies to action, so that participants learn as they act.
• Coalition-building: Bringing a broad range of organizations into the campaign, particularly those directly influenced by for-profit private prisons.
• Public policy development: Working to counter the lobbying efforts of for-profit private prison corporations by educating legislators on the harm done by for-profit prisons and the need for legislation at the local, state, and national level to end prison privatization.
• Crisis intervention: Providing organizing and strategy assistance to communities threatened by prison privatization, particularly those chosen as potential for-profit private prison sites.
• Direct action: Creating opportunities for action, so that people’s potential power is publicly expressed and brought to bear on decision-makers.

Central staffing for the Public Safety and Justice Campaign is provided by Grassroots Leadership, based in Charlotte, North Carolina, which has done community, labor, and civil rights organizing in the South for over twenty years.

Grassroots Leadership’s executive director, Si Kahn, serves as Campaign Director for PSJC. Other participating organizations contribute research, legislative lobbying, public relations, legal resources and, above all, time and expertise.

If you’d like to help the Public Safety and Justice Campaign stop for-profit private prisons, we invite you to do any or all of the following:

• Ask your organization to officially adopt the statement of principles and send a confirming letter PSJC at the above address.
• Let PSJC know about any action you’re taking to stop for-profit private prisons, including lessons learned that might be helpful to others.
• Share research with PSJC, including any advance information about where the prison privateers may be going next.
• Put PSJC in touch with others who are active on the issue, including local leaders, lawyers, researchers. legislators, writers, organizers, and anyone else who is fighting for justice on this issue.
• Receive our daily email bulletins by sending an email to: ken@flpba.org.
• Visit the Public Safety and Justice Campaign website at www.stopprivateprisons.org.

For more information, please contact
Si Kahn, Campaign Director
Public Safety and Justice Campaign
P.O. Box 36006, Charlotte, North Carolina 28236
704-376-9206 phone; 704-332-0445 fax
email skahn00000@aol.com

Sidebar: Old Vann Plantation

I was hiding in the brush
By the Ohio River
Sarah by my side
The baby in my arms
When the slavecatchers found us
With our backs against the water
Winter come late
And the ice not formed

And they sold me back South
To the old Vann Plantation
Two hundred miles
From my home and kin
To be buried in a grave
With no marker on it
Right on the spot
Where the new prison stands
Right on the spot
Where the new prison stands

I was walking the streets
By the Anacostia River
But no one was hiring
A young Black man
Wben the District police
Picked me up for no reason
Gave me 15 years
For less than ten grams

And they sent me down South
To the old Vann Plantation
Two hundred miles
From my home and kin
To be buried in a cell
In a for-profit prison
To make some men rich
From the trouble I’m in
To make some men rich
From the trouble I’m in

There were four million slaves
From the African nation
Now there’s two million prisoners
In the land of the free
It might be right on this spot
That my great-great-grandmother
Had done to her
What they’re doing to me

I can feel her spirit
On the old Vann Plantation
Beneath the towers
And the razor wire
All for the profit
Of some prison corporation
If you say that’s not slavery
You’re a goddamn liar
If you say that’s not slavery
You’re a goddamn liar

Copyright 2000 Joe Hill Music (ASCAP). All rights reserved.

Prison Slavery

By Rev. Murphy Davis

Vol. 22, No. 3, 2000 pp. 21-24

Our friend Thony is locked up for a sentence of 481 years in an infamous Southern plantation-style prison. He spends his days with a swing blade cutting grass on the edge of ditches over the 20,000-acre prison. For his labor he is paid two cents per hour. One penny per hour is banked until his parole consideration (2070); the other is his to spend at the prison store.

Mary Louise sews blue stripes down the pants legs of prison uniforms at the garment factory near the women’s prison. For her eight hours a day she is paid nothing. She begs stamps from friends to write to her children.

Charles stands, day after day, in front of a machine, watching it stamp out license plates. The work is monotonous, and he is paid nothing for it The prison tells him he is building “work skills.” But since license plates are only made in prison industries, he is not being prepared for any work in the outside market.

Frank sits on death row. Day in, day out, he is, for all practical purposes, idle. Television, exercise, writing letters, and playing checkers pass the time. Frank, though young, strong, and energetic, is not allowed to work. He has spent the past ten years of his life unable to do anything of use to anyone.

Thony, Mary Louise, Charles, and Frank, like more than two million men, women, and children in the United States, cannot control their own labor. They are slaves.

Slavery is, of course, not a fashionable word in the early days of the twenty-first century. We assume ourselves to be rid of it. But an often-overlooked fact of U.S. political life and history is that the Thirteenth Amendment to the Constitution did not abolish slavery in this country. It simply narrowed the practice. The amendment reads “Neither slavery nor involuntary servitude except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction” (emphasis mine). Prisoners are, by mandate of the United States Constitution, slaves.

In the 1970s, the terminology of the prison system started to change. We began to have “Correctional Institutions,” -Diagnostic and Classification Centers,” “Youth Development Centers,” etc. Wardens became “Superintendents;” guards became “Correctional Officers;” prisoners became “inmates.” Solitary confinement, or the “hole,” became the “Adjustment Center?’ The language of scientific penology attempts to mask harsh reality.

Some of the tough talk of recent years has abandoned the “new” penology and reverted to the chain gang approach. But whatever words we use for the system or its captives, prisoners are people from whom most rights of citizenship have been taken. They have no right to control where they are, with whom, or how they spend their time in forced labor or forced idleness. Whether we say they are given over to the prison system to be “corrected,” “rehabilitated,” or “incapacitated,” the fact remains that they are in the system to accomplish one goal: punishment.

Why? And for whom? Can we be satisfied to live with the commonly held assumption that people are in prison solely because they have done bad things? If this assumption were true then why would there be such wide variation in incarceration rates around the world and even within the United States? The United States goes back and forth with Russia for the distinction of being the world’s number one jailer. That is to say that the U.S. depends more than any ether government in the world-on caging people as a response to our problems. In recent decades, we have closed mental hospitals, addiction services, and community programs for the retarded and the disabled, not to mention support services for families, children, and the elderly. Prisons and jails have become the one-stop solution for all our problems. There are, in many states, more mentally ill people in county jails and state prisons than in hospitals. Most expressions of ‘deviance” have been criminalized and the criminal control system is supposed to take care of it all.

Prisons have not always been such major institutions in the United States. Georgia’s penal history is representative of most Southern states: The first state prison was opened in Milledgeville (then the state capital) in 1817. The prison was based on the “Auburn plan” which assumed that hard work would simultaneously punish and reform. The average number of prisoners remained around two-hundred–all white. Black people, of course, were slaves and were dealt with inside the system of private ownership.

This development in Georgia roughly coincided with the opening of state prisons in other states. Thomas Jefferson took from Italian philosopher Cesare Beccaria the notion of confined convict slavery and designed a prison for Virginia that opened to receive prisoners in 1800. Centuries earlier, governments had learned that the punishment of slavery could be used to the benefit of the state. Galley slavery of ancient Greece and Rome was used again in France and Spain during the fourteenth and fifteenth

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centuries.

In the nineteenth century, slavery as punishment was tailored to the needs of the American system. The benefits of this form of punishment to general social control were frankly admitted. A prison report in 1820 stressed that convict submission was ‘demanded not so much for the smooth functioning of the prison but for the sake of the convict himself, who shall learn to submit willingly to the fate of the lower classes.”

As the system of American prison slavery was honed, the controversy raged over the practice of chattel slavery. At the close of the Civil War, the controversy focused on the wording of the Constitutional Amendment to legally abolish slavery. Led by Massachusetts Senator Charles Sumner, those who argued for the complete abolition of slavery in the United States lost their struggle. The Thirteenth Amendment as it was passed, and as it stands, forbids slavery “except as a punishment for crime.” This was a major victory for the white political forces of the old Confederacy, bitter over the loss of their captive labor force. Rather than legally abolishing slavery, the amendment changed the system to permit the state, not private citizens, to be slave owners.

After the Civil War, Southern planters thought themselves lost without their slaves. The one legal form of slavery still available to them was imprisonment Some states passed “Black Codes.” Georgia and other states passed vagrancy laws, and similar statutes and ordinances as a way to lock up black people who were seen not to be in their “proper” place.

In 1868 Georgia established by law the convict lease system modeled after the Massachusetts system begun in 1798. Convicts could be leased to counties or county contractors for use on public works. In 1874 the Georgia law was altered to permit leasing convicts to private individuals and companies. By 1877, Georgia had 1.100 prisoners-994 (90 percent) of them were black.

In 1878, former Confederate Colonel Robert Alston. serving as state representative from DeKalb County, visited convict work camps all over the state. As head of the Committee on the Penitentiary he wrote a scathing report: “The lease system at best is a bad one, and seems to have been forced upon the State by an inability to provide for the great increase in the number of criminals growing out of the changed relations of labor. To turn the prisoners over to private parties, who have no interest in them except that which is prompted by avarice, is to subject them to treatment which is as various as the characters of those in charge and in many cases amount to nothing less than capital punishment with slow torture added.” Alston encouraged leading citizens to withdraw from the companies leasing convicts. Before long, a man who

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leased convicts murdered Colonel Alston.

As difficult as it must have been in the harsh days of, the post-Reconstruction era,, the black community found various ways to protest the lease system. One of their methods was an annual memorial service and “decoration of the grave” for Alston as the first white person to “condemn and denounce the workings of the abominable, blasphemous and vile penitentiary lease system, under which so many of our race are doomed to horror, agony, and pollution.”

In 1908 the Georgia Prison Commission reported that, in the penitentiary and chain gangs combined, there were 4,290 Negro males, 209 Negro women, 461 white males, and six white women. In that same year a committee report to the legislature on corruption and cruelty in the lease system led the legislature to abolish the lease. After that, chain gangs worked on public works rather than for private individuals and companies. But abuses continued. One infamous warden used to send black trustees with a pitchfork to make the hogs squeal so that the townsfolk would not hear the human screams as the warden beat a prisoner with hosepipe. Submission to the “fate of the lower classes” seems to have continued as an agenda in the prisons.

In 1957, forty-one prisoners at the Buford Rock Quarry broke their own legs with their sledgehammers to protest harsh working and living conditions. When the investigations promised by prison officials never took place, a second and then a third group of prisoners broke their own legs. As recently as 1979, a number of prisoners at the Wayne County “Correctional Institution” cut their own Achilles tendons in protest of harsh and demeaning working conditions.

I will never forget my first visit to the Georgia State Prison at Reidsville in the spring of 1978. We drove onto the prison “reservation” and there, as far as I could see, were groups of men (mostly black) bent over working in the fields. Over them sat a uniformed white man on horseback with a rifle across his lap. I was utterly amazed; nothing in my formal education had prepared me to see this contemporary picture of slavery. Indeed, the privilege inherent in my formal education had contributed to my inability to see.

I did not realize then that slavery still existed as a legal institution in the United States. Most American citizens probably do not But as the Committee to Abolish Prison Slavery has said: “In any form, slavery dehumanizes, cripples, and destroys anyone who willingly, or unwillingly, partakes in its practice.” Prisons and prison slavery are crucial institutions in this country for controlling labor in the interest of the powerful few and to the benefit of all people of privilege.

It is beyond dispute that imprisonment rates have always gone straight up and down with rates of unemployment among the poor and especially people of color. But this has changed. Today, unemployment is at its lowest rate in recorded history, and crime rates have dropped dramatically, but still the imprisonment rate has continued to grow. What now drives the criminal control system is it crime and punishment but the drive to feed the vast Prison Industrial Complex which has been created to seek growing profits from prison labor. Within this monstrous system, creating even more political and social obfuscation, the phenomenon of privatization of prisons has now made marketable commodities of even prisoners themselves. To feed corporate profits, our legislative bodies have steadily passed harsher laws and longer mandatory sentences while the courts have dutifully imposed the draconian laws and turned a blind eye to selective enforcement and prosecution. The portrayal of “crime” by the corporate media feeds the process. Since prisons on local, state, and federal levels have become multi-billion dollar industries, an increasing number of individuals and institutions are dependent on their continued existence.

Prison slavery infects all of us, whether we make ourselves aware of its use or not. Prisons are off the beaten path for most people. Middle and upper class people have very little reason to know anything of prisons or prisoners except when it becomes a local issue. Just a few years ago, communities could be quickly whipped into a frenzy to keep a new prison from being built “in our neighborhood.” But with the frequently decimated economic base of small towns and rural areas and the increased “marketing” of prisons as an economic boon to small communities, many of these counties and municipalities now hire professionals to lobby the legislature and Departments of Corrections, begging them to put the next new prison in their area.

This marriage made in hell of racial polarization and discrimination with corporate greed has formed the bottom line of the Prison Industrial Complex and its devastating consequences.

The damage done to the human family by this unchecked pattern is inestimable. When a breadwinner is taken to prison her/his children often become wards of the state-by foster care or welfare. More often than not, prisoners are assigned to prisons far from family and community ties, so that relationships are usually at least damaged and sometimes completely broken. Because prisoners earn nothing, or nearly nothing; for their labor, there is no possibility of helping to support their own families or making reparations where appropriate. Millions of men and women and children are being “disappeared” from their communities, losing their families, their access to education and decent employment, and even the right to

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vote when they are released. The situation becomes more complex by the day as we allow the prison industrial complex to be woven into our social, political, and economic fabric.

Pretending to be untouched by systems of degradation and dehumanization can only be a self-defeating game. Perhaps we had to come to this point to begin to face the futility and self-destructiveness of our corporate behavior. Perhaps it took this level of abuse of the system to make us stop and see that our basic document-namely the Thirteenth Amendment to the Constitution-is wrong as long as it allows penal slavery to replace chattel slavery.

It is time for a movement to take up the unfulfilled agenda of the nineteenth Century Abolitionists. The slaveholders who fought to maintain penal slavery in the Constitution understood that the criminal control system would be a lynchpin in the political economy of the post-Reconstruction South. It was later a basic underpinning of the Jim Crow system. In our day, the system of police, prisons, and courts are basic to any consideration of racial justice. We will not honestly confront race in our society until we take it on. Prison slavery must and will someday be abolished. Until then we will not even begin to take an honest look at how we might move toward fair labor practices, a living wage, and the ongoing task of dismantling the racism that infects our common life. It is the least we can do to be about the task of seeking human dignity and liberation for all of God’s children.

Rev. Murphy Davis is a partner at the Open Door Community, an Atlanta community of Christians who minister with the homeless and prisoners. Davis is coordinator of the Southern Prison Ministry.

Criminalization of Women

By Sarah Torian

Vol. 22, No. 3, 2000 pp. 24-25

In 1994, Kemba Smith became a symbol of a national trend in criminal justice. A twenty-three year old African American woman from the suburbs of Richmond, Virginia, she was sentenced to 24 years in prison for her involvement in a four million-dollar crack and powder cocaine drug operation led by her physically and verbally abusive boyfriend and his brother. She had pleaded guilty to conspiracy to drug trafficking, money laundering, and making false statements to federal agents. She had never used nor sold any drugs and had no direct knowledge of any sales. Kemba Smith is representative of a significant part of a national trend, the escalating number of women who are finding themselves behind bars for low-level involvement in drugs and other crimes.

Between 1980 and 1997, the number of women in state and federal prisons increased by 573 per cent. Much of this increase is a result of the “war on drugs” and the mandatory minimum sentencing guidelines now imposed for drug offenses. “The impact of sentencing guidelines on women is astronomical,” reports Michelle Jacobs, professor at Howard University Law School which hosted a three-day conference sponsored by the Lawyer’s’ Committee for Civil Rights Under ‘the law that examined the increase in the criminalization of women. ‘A woman may just be married to a man who deals drugs and the woman has only a very basic low-level involvement. She may answer the phone and take messages, receive packages at the door, and yet, with drug laws the way they are now, she gets charged with conspiracy for the total amount of the drugs. Before, judges could take into account prior convictions, families, the potential to rehabilitate. Now they can’t.” Drug offenses make up one-third, of women’s convictions, a greater proportion than for men. Between 1990 and 1996, drug felony convictions among women in state courts jumped 37 percent to 59,027.

Drugs are not the only reason that women now comprise 16 percent of the nation’s

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correction population. According to a Bureau of Justice Statistics (BJS) special report released in December of 1999, felony convictions of women in state courts increased by more than 20 percent for seven out of nine major crimes. (Only murder and robbery witnessed a drop in convictions.) Fraud was the crime for which there were the most convictions (33,902) in 1996, an increase of 55 percent from 1990. Larceny, the offense category with the most arrests, saw an increase in convictions of 39 percent, reaching a total of 28,786 in 1996.

The South leads the nation in the imprisonment of women. In 1998, of female state prisoners, 44 percent were held by states in the South where the incarceration rate is the highest of any region. In the South, Texas leads the way in locking up women with 10,343 female prisoners and a rate of 102 per 100,000 residents.

One of the most disturbing statistics revealed by the BJS report was the racial breakdowns of female prisoners. White women make up a great majority of the women on probation (62 percent) where African-American women represent 27 percent and Hispanic women 10 percent. Looking at women in jails and prisons, however, the numbers change drastically. White women make up only 36 percent of women in local jails, 33 percent of women in state prisons, and 29 percent of women in federal prisons. African-American women make up 44 percent of women in local jails, 48 percent in state prisons, and 35 percent in federal prisons. Hispanic women represent 15 percent of women in local jails, 15 percent in state prisons, and leap to 32 percent of women in federal prisons.

Tracy Snell, co-writer of the BJS report on women offenders could not definitively explain these differences. “This is reflective of a number of things,” she explained. “It depends on the types of offenses, the criminal history, if the offender was on probation or parole at the time or the offense and so forth. But we did not collect that kind of data for this study, so it is really tough to explain.”

The exponential increase in female imprisonment has a broad and devastating impact on the communities that the women leave. More than 233,600 minor children have mothers who are in jails or prisons and 1.3 million minor children have mothers under supervision by the justice system, including parole and probation. These children lose their mothers. “The impact on the community [of the imprisonment of women] is multi-layered,” argues Michelle Jacobs. “If a man is arrested, the woman usually continues to care for the family. If the woman is arrested, there is rarely reciprocity. The children are usually shuttled off to foster homes or left with grandmothers who don’t have the support they need.”

The Center for Children of Incarcerated Mothers reports that children whose mothers are imprisoned are five times more likely to go to prisons themselves. Grassroots orgnizations like Aid to Children of Imprisoned Mothers, Inc. (AIM) are working to support all three generations impacted by the imprisonment of mothers to turn this trend around. AIM in Atlanta is a member of this national network of community-based organizations that offers support to children, including an after-school program and transportation to visit mothers in nearby prisons; to mothers, including parenting skills and job readiness training: and to grandmothers and caregivers, including support and fellowship groups. “Our focus is intergenerational–across three generations,” says Sandra Barnhill, executive director of AIM in Atlanta “AIM works intensively over a long period with all family members involved to allow for a complete investment in the entire family to begin to turn these trends around.”

But the imprisonment of women is indicative of a larger economic injustice. The women who are being incarcerated are in much more dire financial straits than their male counterparts, Nearly 30 percent of women in state prisons reported receiving welfare assistance prior to their arrest, compared to 8 percent of men in state prisons. Thirty-seven percent of women in state prisons had incomes of less than six hundred dollars prior to their arrest, compared to 27 percent of men. With so much emphasis on men we haven’t really been thinking about women and criminal justice.” explains Jacobs. We don’t know the conditions of poverty and domestic violence that lead her to an economic crime.”

Sarah Torian is editorial coordinator at the Southern Regional Council.

A Second Chance

By Deborah Poole

Vol. 22, No. 3, 2000 p. 26

In August 1998, I took the first step–in what I have since concluded will be my life’s work–indigent criminal defense. I went to work as a staff attorney at Georgia Justice Project. Clearly, the attraction was not the sexiness of the work, nor was it the compensation, which is meager compared to first year associates in most law firms. Rather I was lured by the philosophy of the Georgia Justice Project: “Changing Our Community One Person at a Time.” Trite in its simplicity, this idea captures the essence of the Project: If we deal with clients holistically by considering how they arrived at their current circumstances, and if we address their problems rather than simply adjudicate their legal cases, they can break the cycle which keeps them in the criminal justice system.

My first client was a young black woman named Skye. Her mother died when she was nine. Her father turned to alcohol and drugs. At age fourteen, Skye began to use drugs. Her abuse of cocaine, speed, pot, and crack continued for ten years during which Skye gave birth to five children, with five different fathers.

Skye came to us charged with armed robbery, a crime that carries a ten-year mandatory sentence. She had been up for two days straight doing drugs, and doing whatever it took to get the next hit After an episode where Skye sold her body for money to buy more drugs, the “John” refused to pay. Skye, with a box cutter as a weapon, confronted him. Her money secured, Skye drove away, only to be quickly picked up and charged with armed robbery.

It took nearly a year to resolve Skye’s case, but when she came before the judge, the hours of work put in by Georgia Justice Project’s social work team and addiction counselor paid off. Instead of being sentenced to prison, Skye was ordered to a residential treatment facility for her addiction, and to serve the remainder of her sentence on probation.

That was two years ago. Skye completed her residential treatment program and is now united with her five children.

Last month, I received a letter from Skye. She is buying a three-bedroom home in South Carolina (She received permission from her probation officer to move out of state). She is healthy, happy, and has not used drugs in two years.

Skye is an example of what Georgia justice Project is about– supporting human potential, and helping individuals create second chances for themselves.

Deborah Poole is a staff attorney at the Georgia Justice Project.

Criminal Court as the New Voting Rights Arena

By Marc Mauer

Vol. 22, No. 3, 2000 pp. 27-28

When voters go to the polls for the November elections, nearly four million people will be forced to stay away. These are not necessarily uninterested voters, but rather people who currently serve or have previously served a felony sentence and are thereby disqualified from voting under state laws. The combined impact of these laws and the dramatic growth of the criminal justice system has led to a situation whereby thirty-five years after the passage of the Voting Rights Act, a record number of Americans in the modern era are now excluded from voting.

The dramatic escalation in the number of people enmeshed in the criminal justice system since 1970 and the racial disparities that have marked that rise have led to the loss of voting rights for an estimated 13 percent of African-American males.

The scope of disfranchisement laws today is quite broad–forty-seven states disqualify prisoners from voting (only Maine, Massachusetts, and Vermont permit inmates to vote),while thirty-two states exclude persons on parole. Twenty-nine states exclude offenders on probation from voting. Further, fifteen states including Alabama, Florida, Kentucky, Mississippi, Tennessee, and Virginia–exclude ex-felons from voting, persons who have “paid their debt to society.” In most of these states, ex-felons are disfranchised for life unless they can secure a pardon from the governor, an action that is often logistically and financially difficult for many ex-offenders to achieve. In Virginia, for example, during a recent two-year period, 404 ex-felons regained their voting rights out of an estimated ex-felon population of more than 200,000.

While disfranchisement laws are often described as a natural consequence of a felony conviction, in fact the United States stands at one extreme of industrialized nations in regard to these policies. No other democracy disfranchises convicted offenders for life and many nations, including Denmark, France, Israel, and Poland. permit prisoners to vote. Even when felons lose their voting rights for a period of time, it is often related to specific offenses or is imposed by a judge, as opposed to being legislatively mandated for all offenders.

Policymakers who support disfranchisement offer several justifications as a, rationale for the loss of voting rights. The first is that disfranchisement is a legitimate aspect of the punishment for committing a crime. A 1975 federal court ruling held that felons “have breached their social contract and, like an insane person, have raised doubts about their ability to vote responsibly. This argument confuses the goals of punishment, which may include the temporary deprivation of liberty, with the loss of fundamental rights. Persons convicted of a felony, for example, do not normally forfeit the right to own property, to marry or divorce, or to initiate a lawsuit. Further, while punishment is normally expected to be proportionate to the offense, disfranchisement is applied to murderers and burglars alike, with no judicial intervention.

The 1974 Supreme Court case of Richardson v.

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Ramirez

raised the possibility of electoral fraud by felons as a reason for felony disfranchisement. While there might be some merit to this argument for those offenders convicted of bribery or fraud, it is difficult to see why the 99 percent of offenders not convicted of these offenses would be considered likely to engage in this type of crime.

Proponents of these policies, like Roger Clegg of the Center for Equal Opportunity, also raise the specter of criminals conspiring to thwart the interests of law-abiding citizens through the ballot box. Clegg suggests that “those who have committed serious crimes may be presumed to lack this trustworthyness and loyalty.” This might seem threatening at first blush, but is actually rather ludicrous.

Suppose, for example, a group of car thieves wanted to lower the penalties for car theft. They would need to field candidates to run on this platform, get elected to a state legislature, and then convince a majority of legislators and a governor to enact such policies. This hardly seems like a threat to public safety or democracy.

Perhaps a more likely challenge might emerge from persons convicted of drug offenses who believe that current sentencing laws are overly harsh. This, in fact, is a belief shared by a growing number of Americans. Should not the voices and experiences of those persons most affected by these policies be heard in this debate?

Participation in the electoral process can actually play a significant role in rehabilitation. Persons who feel they have a connection and obligation to a community are less likely to victimize their fellow citizens. The criminal justice system should foster such sense of responsibility, and the right to vote presents a strong means of doing so.

Felony disfranchisement laws would be troublesome at any time, but are particularly so today as a result of the dramatic increase in the punitive dimensions of the criminal justice system.

In recent years, there have been some encouraging developments on the felony voting issue. Legislators in at least seven states, including Alabama, Florida, and Virginia, have introduced bills to scale back or repeal some of the most egregious laws and there is reason for cautious optimism for passage of such laws in several states in the next year or two. In the 2000 legislative session. Delaware lawmakers scaled back the state’s lifetime ban on voting for felons, and now restore voting rights five years after completion of the sentence. At the federal level, Rep. John Conyers (D-Michigan) has introduced HR 906, a bill that would permit non-incarcerated felons and ex-felons to vote in federal elections even if they are prohibited from voting in state elections. The rationale for this is that under the current system, there is no uniformity in national elections–an ex-felon in West Virginia can vote for president, but not one in Virginia.

At this country’s founding, only adult white male property-holders were permitted to vote. The majority of the population who could not vote included women. African Americans, illiterates, poor people, and felons. Today, all excluded groups except felons and ex-felons have gained the right to vote, and we look back on these former exclusions with a great deal of national embarrassment. As we begin the new century, it is long past time to reconsider the meaning of democracy in a society striving for full inclusion.

Marc Mauer is assistant director of The Sentencing Project and author of Race to Incarcerate (The New Press).