Free Radical

A State Representative once asked me if there are racial disparities in the criminal justice system. I took a moment to think about it, because there are so many ways to answer that question.  I chose the more academic answer: “African Americans and Latinos are disproportionately represented at every level of our criminal justice system.”  I left it at that. By using the academic term, “disproportionality,” however, I failed to convey a reality far more disturbing than most people fully comprehend. 

The term merely states that one particular group is over represented in relation to its share of an overall population.  For instance, African Americans comprise about 12 percent of the Texas population, yet make up more than 34 percent of the state prison population. If such a statement didn’t make the listener’s eyes glaze over, the fact could easily be dismissed as a sad statement about higher crime rates in certain communities. 

We’re not talking about “disproportionality.” At 34 percent, African Americans represent the majority of people doing time in state prison.  Latinos represent 33 percent of state prisoners; and Whites represent only 31 percent of the TDCJ population, despite being the largest racial group in the state.

Incarceration rates give an even more stark illustration.  The state prison incarceration rate is about 557 people out of 100,000. This rate puts Texas near the top in terms of the percentage of the overall population in prison.  The rate does not include people in federal prison, county jail, and other detention facilities.  

That rate is closer to 800 out of 100,000, which places Texas on par with the incarceration rate in the USSR under Stalin. 

But, it is only when you break down the incarceration rates by race that you see the real driver of mass incarceration.  The state prison incarceration rate for Whites in Texas is 407 out of 100,000.  It’s 478 out of 100,000 for Latinos.  For African Americans in Texas, the incarceration rate is 1547 out of 100,000; nearly four times the rate for Whites, three times the state rate, and twice the rate compared to the most oppressive regime in the 20^th century.  When you add in the people in county jail and federal prison, the inequality becomes even more pronounced, approaching 3000 for every 100,000. 

Let’s be clear – the incarceration rate for Whites, 407 out of 100,000, is obscenely high.  I would never suggest that we should correct the problem of mass incarceration by bringing the incarceration rates of racial minorities down to the level of Whites.  Most countries in the world consider a rate of 100 out of 100,000 to be extremely high, so we have to reform our overall approach to criminal justice.  

However, the staggering difference between White and African American incarceration rates in Texas tells us of something far more insidious.

 You don’t achieve a state prison incarceration rate of 1547 out of 100,000 by accident.  Crime rates do not account for the disparity.  So many things would have to happen at every level to ensure that such an inordinately high percentage of a particular group’s population is placed behind bars.

You would have to actively target that population with aggressive and militarized tactics, and abandon any commitment to community policing.  This would ensure a greater number of arrests within one community versus another, especially for low-level offenses that don’t require arrest.  In fact, those same offenses would have to be designated as felonies, so that criminal justice system involvement is prolonged.  You would have to establish a bonding system to preclude low income individuals from getting out of jail to deal with the charges without losing jobs or housing, guaranteeing that people will take a plea deal instead of defending themselves in court.

You would then have to restrict employment and housing opportunities due to criminal justice involvement, so that people become frequent flyers in jails and prison. Then you would have to create enhanced penalties for frequent arrests, leading to lifelong criminal justice system involvement. 

But, all of that effort would only yield an incarceration rate on par with the USSR under Stalin. To double that rate, you would have to compound economic disadvantage by taking those institutions and programs that were intended to build a bridge of opportunity into the larger economy, and turn them into vehicles that funnel people into the criminal justice system.  In fact, you would have to ensure that the most vulnerable members of a particular community actually come out worse by virtue of having touched those same institutions. 

Most people would be outraged by such a system.  Historians would talk about a system like that hundreds of years from now, using it as a case example of an unjust and merciless culture. 

To keep the populace from demanding a new, more just and equitable system, you would have to characterize anyone who opposed the system as “extreme.”  In fact, those who dared to be honest about racial injustice would be discredited outright. You would have to remove voting rights from the victims of this system, keeping them voiceless. 

To create a system like the one we have in Texas, one would have to be truly radical.  

For more information, check out the interactive map developed by the Sentencing Project.

Arrested Humanity

Last Thursday, July 30^th, I gave testimony before the House Committee on County Affairs regarding the issues arising from Sandra Bland’s death in a small county jail in East Texas.  The tragedy raises so many concerns, that it’s impossible to frame solutions within one policy.  The series of mistakes span the distance from racial profiling to dismal treatment inside county jails.  To emphasize one aspect over another deprives Sandra and her family of justice. 

I showed up to offer six strategies for reform.  My colleagues and I had worked 14 hours per day leading up to the hearing, studying racial profiling data, de-escalation techniques, and Supreme Court decisions urging states to stop arresting people for minor infractions.  We also researched pre-booking diversion programs, mental health assessments, and county jail oversight.  We prepared our written testimony, and I drew the short straw to testify at the actual hearing. 

The hearing room was crowded with news media.  I had to edge past camera crews to make my way to a seat near the front.  More importantly, the room was crowded with people who had ventured across the state to give witness to generations of police encounters that have divided communities into “us” versus “them.”  I could hear the women in the row behind me groan with impatience when the first panel spent too long discussing mental health assessments and jail standards.  

To them, the issues were clear – Sandra Bland dared to assert her rights, and she was treated with brutality as a result.  She shouldn’t have been in jail at all, and now she’s dead. 

I realized that we were grappling with issues as a community, and that I couldn’t go to the microphone as merely a policy analyst.  The issues were too personal.  I remembered my own treatment inside county jail, and I shared it with the Members.  I admitted that my descent into addiction and criminality included several stops at psychiatric hospitals along the way, including two Intensive Care Units after I had attempted suicide.  Out of desperation for drugs, I had committed four counts of robbery with a highlight marker wrapped in a shirt.  When I was arrested and taken to county jail, I told the truth about my mental health history. 

What happened to me because I told the truth was nothing short of torture.  They sat me in a metal chair and strapped my head, arms, and feet to immobilize me for hours.  Later, they stripped me naked and put me in an icy cold padded room for the night.  They kept me in isolation for days. Someone in the next cell had combined alcohol with Xanax, and spent the night screaming at imaginary attackers.  It was a horrific experience. 

I recounted my experience to the Legislators to help them see the inhumane treatment people experience inside county jails.  It didn’t change the fact that Sandra should never have had to step foot inside of a jail.  I tried to relate the issues to mass incarceration, the need for bail reform, and pre-booking diversion, but it was my personal story that seemed to have the most impact.  When I sat down, one of the women seated in the row behind me put her hand on my shoulder and leaned forward to say something in my ear: 

“I want you to know how much good you’ve done for my people today.” 

The issue is about inhumanity at every level of the criminal justice system from law enforcement to corrections.  Racial minorities are treated with suspicion and contempt by law enforcement.  We arrest people for minor infractions, and allow counties to complain about jail costs and overcrowding.  We treat drug addiction as a crime instead of a disease, investing untold sums into the criminal justice system that could have been used for treatment.  We allow the bail industry to dominate the system for their own profit, holding low income people in jail for months, often for crimes they didn’t commit, simply because they can’t afford to post bail.  We do this despite the fact that people are just as likely to show up for trial on a personal recognizance bond as they are when they post bail. We deprive people with mental illness continuity of care while they are incarcerated, and subject them to torture.  And then we deprive children and families the right to a face-to-face visit with loved ones, because jails have learned to cut costs and make a profit on video-only visitation. 

Yes, there are so many issues involved that it’s difficult to name just one reform.  It starts with humanity.  Police must have an actual reason to stop someone.  Suspicion is not enough.  Nearly 71% of the people whom police perceive as “suspicious” are racial minorities.  Anytime a police officer uses force outside of the context of defense of self or others is a failure of good policing, and police departments must be held accountable when it happens.  We have to recognize that the criminal justice system is not equipped to deal with problems of addiction and mental illness, and we must divert people to community organizations more frequently.  Finally, we must acknowledge that most of the people who enter the criminal justice system will rejoin our community.  

When we allow mistreatment of our once and future neighbors by police and jailers, we all must be held accountable. 

For more information about the six strategies for reform in the wake of Sandra Bland's death, check out our written testimony on the Texas Criminal Justice Coalition's website:

http://publicpolicycenter.texascjc.org/download/county-affairs-law-enforcement-and-jail-standards-testimony