The U.S. experienced a 25% decline in its prison population between its peak year of 2009 and 2021. While all major racial and ethnic groups experienced decarceration, the Black prison population has downsized the most, says The Sentencing Project in a new report.
With the prison population in 2021 nearly six times as large as 50 years ago and Black Americans imprisoned at five times the rate of whites, the crisis of mass incarceration and its racial injustice remain undeniable, says the group. The progress is at risk of stalling or being reversed.
Thie report examines three key causes of racial inequality from within the criminal legal system. While the consequences of these policies perpetuate racial and ethnic disparities, at least 50 jurisdictions —including states, the federal government, and localities—have initiated promising reforms to lessen their impact.
In The Sentencing Project's view, extreme sentences for violent crimes and reliance on criminal histories as a basis for determining prison sentences are drivers of racial disparities in imprisonment. In addition, the punitive nature of the war on drugs and associated sentencing laws, including mandatory minimum sentences, crack-cocaine sentencing disparities, drug-free school zone laws, and the treatment of drug possession as felonies disproportionately impact Black Americans.
Washington, D.C, allows many inmates who have already served 15 years to petition the courts for resentencing. Pennsylvania’s sentencing commission has proposed scaling back the impact of criminal histories on sentencing guidelines. The federal government narrowed the crack-cocaine sentencing disparity in 2010 and applied it retroactively in 2018. Alaska, California, Connecticut, Oklahoma, and Utah have reduced prison admissions with de-felonization statutes that downgrade drug possession from a felony to a misdemeanor.
Communities of color are over-policed through biased traffic stops, pedestrian searches, and drug arrests. In addition, prosecutors and judges often treat Black and Latinx people more harshly in their charging and sentencing decisions. Bias also affects the work of juries, correctional officers, and parole boards. Police and prosecutors, via their unions and professional associations, often lobby, litigate, and engage in public advocacy against reforms.
Several jurisdictions have also taken steps to mitigate the impact of bias in discretion throughout the criminal legal process. Arizona is the first state to eliminate peremptory challenges in jury selection, so that prospective jurors cannot be rejected without an explanation. Michigan’s parole board uses evidence-based guidelines to minimize the influence of subjective factors on their decisions.
In a growing movement of reform-oriented prosecutors, district attorneys in Los Angeles and Philadelphia are using their discretion to avoid extreme sentences.
A financially burdensome and under-resourced criminal legal system puts people with low incomes, who are disproportionately people of color, at a disadvantage.
Pretrial release often requires cash bail,which disadvantages low-income people of color and increases the pressure to take a less favorable plea deal. State indigent defense programs are critically underfunded. In addition, incarcerated individuals struggling with substance use disorders often do not receive the treatment they need, jeopardizing successful reentry. Further, parole and probation supervision imposes scrutiny with few services.
Reforms are under way to curb punitive policies that disparately affect people with limited financial resources. Illinois became the first state to end cash bail in 2023, following New Jersey’s major bail overhaul in 2017.
istrict attorneys in jurisdictions including Boston and Manhattan have reduced prosecutions of “crimes of poverty.” Holistic defense models, which provide comprehensive support to individuals and their communities, are available from the Tribal Defense Offices and other communities including Bronx, N.Y., Oakland, Calif., and Houston. New York and California have reduced the footprint of community supervision.
Progress is under threat, the report says. Washington, D.C.’s mayor has sought to limit resentencing opportunities under the District’s second look law. Drug arrests remain high across the U.S. and Oregon’s struggle implementing its drug-decriminalization program has sparked calls for the policy’s reversal.
Backlash against reform-oriented prosecutors has led to recalls, litigation, and legislative attacks in California, Georgia, Florida, and Pennsylvania.
Crime concerns have also fueled pushback against bail reform in California and New York, and supported a reversion to enforcing “crimes of poverty” in Baltimore.