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This post is part of the Montana Innocence Project’s #barriers2innocence campaign. As an innocence organization, we work to combat systemic racism because we know that there are numerous barriers between Black, Indigenous, and People of Color (BIPOC) and justice that exist solely because of racism. This campaign aims to highlight some of those barriers. Today’s topic is mass incarceration:

You may have heard the term “mass incarceration.” It refers to the fact that the United States is the leading country in incarceration and prison populations; we incarcerate more than 2 million people. Our population makes up less than five percent of the world’s population, but our inmates make up nearly 25 percent of the world’s inmate population.

But the term mass incarceration does not only refer to the sheer number of people in our criminal justice system; it is also in reference to the underlying motivations.

History of Mass Incarceration

America did not always incarcerate at such a high rate. In fact, for the 50 years prior to 1972, the number of people in jails and prisons was steadily around 330,000. Since then, the numbers have increased six-fold.

Those aren’t the only shocking statistics though: about 60 percent of the population of incarcerated people in America are Black or Hispanic. One in three Black men and one in six Hispanic men will go to prison in our country.

How did we get here?

The short answer is the criminalization of BIPOC. We will delve deeper into these topics in the coming days, but the basic idea is that our country has done two things to increase incarceration rates: (1) made more things illegal and (2) made a push to surveil communities of color more.

“Mass incarceration is one outcome of the culture of criminalization,” said Deborah Small, the Executive Director of Break the Chains. “Criminalization includes the expansion of law enforcement and the surveillance state to a broad range of activities and settings: zero tolerance policies in schools that steer children into the criminal justice system; welfare policies that punish poor mothers and force them to work outside of the home; employment practices that require workers to compromise their basic civil liberties as a prerequisite for a job; immigration policies that stigmatize and humiliate people while making it difficult for them to access essential services like health care and housing.”

When BIPOC are policed more and there are an increasing amount of behaviors that are illegal, the result of mass incarceration makes sense. But why would our country do this?

The New Jim Crow

Many criminal justice and civil rights activists argue that mass incarceration is a result of our country’s desire to enact modern-day slavery. This perspective is famously asserted in the Netflix documentary “The 13th” by Ava DuVernay and the book “The New Jim Crow: Mass Incarceration in the Age of Colorblindness” by Michelle Alexander.

Here is the argument:

It is unconstitutional to enslave someone—unless they are a criminal. The 13th Amendment states, “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.” The amendment clearly allows for slavery in the form of a punishment for committing a crime.

If more laws are made, targeting behaviors that are mostly exhibited by BIPOC for social and economic reasons—like drug use, homelessness, and sex work—then our country is able to legally enslave more BIPOC, which promotes other Jim Crow-era values like voter disenfranchisement and limiting access to education. Considering this, it is not an overstatement to say that mass incarceration is modern-day slavery.

Watch Democracy Now’s interview with DuVernay:

Example: Mandatory Minimum Sentencing for Crack vs. Cocaine

A prime example of the motivations behind mass incarceration are made evident in the mandatory minimum sentencing guidelines for drug offenses–particularly when comparing crack cocaine to powder cocaine.

Before the passage of mandatory minimum guidelines in 1986, federal drug sentences were 11 percent higher for Black defendants than for White defendants. To reduce drug use and sales overall, The United States Department of Justice supported the passage of The Anti-Drug Abuse Act of 1986. Only four years after its implementation, the average federal drug sentence for Black drug offenders grew to 49 percent higher than White drug offenders. Mandatory minimums were almost instantly unjust.    

One of the most prominent examples of injustice with mandatory minimums is the approach to punishing crack cocaine users. In 2000, Black people received 85 percent of the sentences for crack cocaine possession. This correlates with the fact that the punishment for using the type of cocaine most commonly associated with Black drug users—crack—are immensely higher than for the version most commonly associated with White drug users—powder. The ratio for the quantity of crack cocaine to powder cocaine needed to qualify for the mandatory minimum sentence is 1:100. This means a drug offender would need to possess 100 times more powder cocaine to receive the same treatment from the criminal justice system a drug offender with a punishable amount of crack cocaine.

Proponents of The Anti-Drug Abuse Act of 1986 believe that crack cocaine offenses warrant harsher punishments because they are often coupled with the illegal use of a firearm. Therefore, the ratio is simply acting as a necessary deterrence. But this belief is not founded in fact.

In 2000, less than three percent of crack cocaine offenders used firearms. This statistic demonstrates a disregard for the truth on behalf of the Sentencing Commission that wrote the guidelines. Instead of treating powder and crack cocaine as the same substance—chemically, the only difference is the addition of water and baking soda to crack—lawmakers chose to rely on false beliefs that crack cocaine is somehow 100 times worse. In other words, lawmakers decided without evidence that when Black people use a cheaper version of cocaine, it is 100 times worse.

On August 3, 2010, President Obama signed the Fair Sentencing Act, changing the ratio from 100:1 to 18:1 to trigger the mandatory minimum sentence. However, the law is not retroactive. Those sentenced under the 100:1 ratio do not benefit from the new law.

Other Examples

Other examples of the motivations behind mass incarceration include the War on Drugs, an initiative originally enacted by the Nixon administration to stop illegal drug use by dramatically increasing prison sentences, and three-strikes laws, which impose mandatory life without parole sentences for people who are convicted of certain crimes on the third time.

If the idea that the government made these laws for the purpose of mass incarceration sounds like a conspiracy to you, consider this quote by former Nixon domestic policy chief John Ehrlichman:

“You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin. And then criminalizing both heavily, we could disrupt those communities,” Ehrlichman said. “We could arrest their leaders. raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.”

Action Steps:

  1. Watch “The 13th” on Netflix.
  2. Read “The New Jim Crow: Mass Incarceration in the Age of Colorblindness.”
  3. Read this article about how five states substantially decreased their prison populations, and promote decarceration efforts.

Thank you for participating in the Montana Innocence Project’s #barriers2innocence campaign. Tomorrow’s topic is over-policing BIPOC.