Yo, is this racist?: Length of sentencing and “three strikes” policies

Julian Robbins

The equal protection clause of the 14th amendment is, ostensibly, meant to ensure that all citizens of the United States, regardless of skin color, are equally protected under the law, meaning that they should be equally protected from both crimes against them and unfair prosecution. When you look at the statistics regarding prison population and sentencing though, it doesn’t appear that the 14th amendment has actually been respected.

 

It’s often said that the US is a country of  “mass incarceration.” The ACLU states, “despite making up close to 5% of the global population, the U.S. has nearly 25% of the world’s prison population. Since 1970, our incarcerated population has increased by 700%.” This increase is a result of both more convictions resulting in prison sentences, and an increase in the average length of those sentences (Turner & Bunting, 2013). That prison population is disproportionately Black. Black people make up 12.6% of the U.S. population (2010 Census) but are currently 38.5% of our prison population (Federal Bureau of prisons).

The percent of the prison population who are Black has remained roughly the same since the 1950s, but the 700% rise in total prison population, combined with the disproportionate rate of incarceration of Black people, means the proportion of the Black population who are incarcerated has skyrocketed. As it stands, a Black boy has a 1 in 3 chance of being incarcerated during his lifetime (compared to 1 in 17 for a white boy) (ACLU). So, What’s changed since the 70s? The legal cause of the skyrocketing prison population is the “tough on crime” policies started in the 70s and championed by politicians like Ronald Reagan. Sentencing guidelines introduced in the 1980s were meant to reduce disparity in sentencing, but only served to increase the prison population. These sentencing guidelines included the introduction of “mandatory minimum” sentences for drug offenses which, among other things, meant that people convicted for non-violent drug possession crimes could receive sentences up to and including life without parole (Turner & Bunting, 2013).

But, some argue, the racial disparities in incarceration aren’t racially motivated or racist, it’s just that Black people commit more crimes. The bases of these lines of reasoning range from the openly white supremacist (“Black people are ‘thugs,’ or violent, or unwilling to integrate into ‘civilized’ White society”) to the saccharine and paternalistic, (“Black people lack the skills, or knowledge, or ability to survive without resorting to crime as a result of the legacy of slavery”). Both of these views are fundamentally, racist. The second line of reasoning may not seem racist at first glance, but when examined further, what it really claims is that Black people are helpless in the face of their oppression (and therefore require a white savior to “save” them). This is not all that far from the reasoning used to justify owning Black lives as property.

So, if it is not a moral failure, and it’s not lack of ability, what accounts for the proportion of incarcerated Black people? The “real” explanation is multi-faceted. At the simplest, at least in some jurisdictions, Black people are sentenced to longer terms and higher fines for the same crimes, and have their cases dismissed less frequently (Ortiz & Kovacs, 2020). The issues found with mandatory minimum sentences are compounded when systems like the “three strikes” and “habitual offender” systems are introduced. 28 states have some variation of these systems that allow for, and sometimes require, a life sentence on the commission of a third felony, regardless of how much time has passed since the previous conviction. In most cases, only “violent” offenses count as a “strike” but some states have expanded what counts as a strike to include unarmed robbery, drug possession, and in California, even some misdemeanors (“Three Strikes Law”). The ACLU states that nearly 80 percent of those convicted as “habitual offenders” are Black.

A recent news story highlights the extreme unfairness of these policies. The dramatic headline reads “Black Man Serving Life Sentence for Stealing Hedge Clippers Granted Parole in Louisiana.” Fair Wayne Bryant was given a life sentence in 1997 for the crime of, as mentioned, stealing a pair of hedge clippers. The reason why he was able to be sentenced for a life term- the punishment we normally reserved for murderers and rapists- is that Louisiana has a “habitual offender” system, giving judges the ability to hand down life sentences for proportionally light crimes. Bryant had previously been convicted in 1979 for attempted armed robbery, in 1987 for possession of stolen goods, in 1989 for forgery of a check worth $150, and in 1992 for simple (unarmed) home burglary. The Louisiana Supreme Court voted 5 to 6 in favor of upholding his sentence this August. It is also important to note that “released on parole” is very different from “freed.” Bryant lost 23 years of his life, and is still not free.

Another offender is the fine and cash bond system which criminalizes poverty- even small fines can result in jail time you are unable to pay. Jumping off of poverty- poverty is, in my opinion, the way in which legal inequality best “hides.” One, poverty creates desperation, and desperation creates crime, and two, Black people (and non-black people of color) are disproportionately trapped in poverty due to systemic injustice. The premise that poverty motivates crime is not hard to grasp- a hungry man is much more likely to steal food than a man who has a stocked pantry at home, and a man with no opportunities might sell drugs to make rent and avoid being evicted. But, we’ve created this “bootstraps” narrative in America that places the blame for poverty on the impoverished people themselves- people will claim that, with the exception of the moral, pious, poor, worthy of their support and pity, the majority of the impoverished are poor because they made bad choices, or are unwilling to work hard enough to pull themselves out of poverty. The hard-to-accept reality is that, with the exception of a few popularized “rags-to-riches” stories, there is no class mobility in America. Those born into the middle class will not fall into poverty except under extreme circumstances (often relating to becoming a member of a marginalized group, including coming out as LGBT+ or becoming disabled) and those who are born poor will die poor. The reasons why people of color, especially Black Americans are disproportionately affected by poverty are many: the system of inherited family wealth (that black people were locked out of due to their not-so-distant ancestors not being not able to own property because they were property), hiring and educational discrimination, and cyles of poverty inducing being locked in debt by predatory loan agencies are just some of the contributing factors. And, when you pretend that poverty is a choice, it’s easier to justify the criminalization of poverty- after all, it’s not like those other, illegal, forms of discrimination, right?

So, as we can see, the sentencing guidelines of the 1980s did not solve disparity in sentencing, they in fact, increased it, with no benefits to the national crime rate. If, then, “uniform” sentencing doesn’t solve racial disparity, and being “tough on crime” doesn’t protect people from being victimized, how can we ensure our citizens have equal protection both from and under the law? There’s two major policies to be enacted: decriminalization, and elimination of poverty. Under the umbrella of decriminalization, is the removal of victimless crimes from the legal code, including possession and use of recreational drugs, “loitering,” “vagrancy,” and other similar crimes that only serve to criminalize poverty. The second policy, though, is the most important. I am not talking about crimes like murder and rape, but property crimes, drug crimes, and theft are almost always motivated by poverty. If you want to reduce these crimes, you need to fight poverty, not the impoverished. Our current system of pittance social “welfare” is not enough. I am a supporter of Universal Basic Income, but there are other, less radical, ways that poverty can be alleviated, if not eliminated. Universal Healthcare is one, as drug and healthcare costs frequently bankrupt or citizens. Also an area for exploration is an interest cap on the predatory payday loan industry.

So, mandatory minimums, “three strikes” policies, are they racist? In execution, yes. These policies add to the racial disparity already present in our criminal justice system, with no benefit to the public. But, they are not the cause of racial disparity in sentencing, only a symptom. Simply eliminating them will not solve the issue of racial injustice. Solving systemic injustice is a daunting task, but the current refrain is for every person to be committed to being not just “not racist” but to be actively “anti racist” in every sphere of their lives, from amplifying the voices of people of color on important issues, to dedicating time and resources to important causes in the fight for racial justice.

 

“Introduction to the Sentencing Reform Act” (PDF). U.S. Sentencing Commission. Archived from the original (PDF) on September 6, 2012

Ortiz, A., & Kovacs, M. (2020) The Racial Divide of Prosecutions in the Maricopa County Attorney’s Office. ACLU of Arizona.

Skene, Lea. “He Got Life for Stealing Hedge Clippers under Louisiana’s Habitual Offender Law. Now He’s Free after 24 Years.” The Advocate, 15 Oct. 2020, www.theadvocate.com/baton_rouge/news/article_4ef13e22-0efa-11eb-b5e0-27db0371d9f8.html

“The Law That Sent a Man to Prison for Life for Stealing a Pair of Hedge Clippers – and What Prosecutors Can Do About It.” ACLU of Louisiana, 4 Oct. 2020, www.laaclu.org/en/news/law-sent-man-prison-life-stealing-pair-hedge-clippers-and-what-prosecutors-can-do-about-it.

“Three-Strikes Law.” Wikipedia, Wikimedia Foundation, 21 Oct. 2020, en.wikipedia.org/wiki/Three-strikes_law.

Turner, J., & Bunting, W. (2013). A living death: Life without parole for nonviolent offenses. Washington, DC: American Civil Liberties Union.

Vera, Amir, and Rebekah Riess. “Black Man Serving Life Sentence for Stealing Hedge Clippers Granted Parole in Louisiana.” CNN, Cable News Network, 17 Oct. 2020, www.cnn.com/2020/10/16/us/louisiana-supreme-court-fair-wayne-bryant-parole-trnd/index.html.