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Prison industry boon

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Prison industry boon who's in the black
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Capers, Patricia Anne
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Since 1975 ( fast )
African American prisoners ( lcsh )
Racism -- United States ( lcsh )
African Americans -- Social conditions -- 1975- ( lcsh )
African Americans -- Drug use ( lcsh )
African American prisoners ( fast )
African Americans -- Drug use ( fast )
African Americans -- Social conditions ( fast )
Racism ( fast )
United States ( fast )
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bibliography ( marcgt )
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Includes bibliographical references (leaves 99-110).
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by Patricia Anne Capers.

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Full Text
PRISON INDUSTRY BOON: WHOS IN THE BLACK?
by
Patricia Anne Capers
B.A., Regis University, 1994
J.D., University of Denver College of Law, 2001
A thesis submitted to the
University of Colorado at Denver
in partial fulfillment
of the requirement for the degree of
Master of Arts
Political Science
2003


2003 by Patricia Anne Capers
All rights reserved.


This thesis for the Master of Arts
degree by
Patricia Anne Capers
has been approved
by
(jZ-a0 3
Date


Capers, Patricia Anne (M.A. Political Science)
Prison Industry Boon: Whos in the Black?
Thesis directed by Professor Glenn Morris
ABSTRACT
This thesis discusses the American pandemic of prison incarceration
principally of African Americans, of all ages, and its correlation to the growth of the
prison-industrial complex. From the early 80s to the late 90s political platforms
asserted that getting tough on crime was a high priority. For African Americans,
getting tough on crime was not the problem it was the implied face of crime that was
problematic. During the 1988 election, presidential hopeful George Bush used the
face of a black man, Willie Horton, to exploit the association of African Americans
with crime. White voters saw Horton as the universal African American criminal.
Politicians asserted that the infamous American People wanted intensification in
incarceration of people charged with drug related activity. The times created an
economic benefit derived from mass penal control. An apt metaphor, the prison
boon1 became the new slave trade.
1 Boon (boon) n. 1. A benefit bestowed, especially one bestowed in response to a request. A timely blessing or
benefit (The American Heritage College Dictionary 2000)
IV


Did black America deserve this new focus? Part I of this thesis examines the
deleterious consequences of poverty, racism, and political disenfranchisement as
central cohesive elements fundamental to the mass incarceration of blacks. Part II
reviews liberal and conservative views on social problems that affect minorities,
especially blacks. Part III discusses the basis upon which modem penal control
parallels the past economic underpinnings of slavery. Thereafter it extends that
discussion to the examination of slave labor under color of law. Part IV discusses the
paradox of drug use, in its simplicity, the paradigm of freedom versus incarceration
for the illegal and legal high. It discusses the problem of African Americans who are
uninsured yet suffer from Post-Traumatic Stress Disorder (PTSD) and other
psychosocial health issues who self medicate by illicit drug use. Part V observes that
a substantial populace of African Americans is fast approaching full circle of their
ancestral bondage and perverse economic exploitation in America.
This abstract accurately represents the content of the candidates thesis. I recommend
its publication.
v


DEDICATION
I dedicate this thesis to my sons Dorian 17 and Robert 15 for their steadfast support
and cooperation while I was writing this. Further, for their intellectual ability to
understand the system that I write about and to have the wherewithal to avoid the
snares before them in order to live out their dreams as free young black men.
A Dream Deferred
What happens to a dream deferred?
Does it dry up like a raisin in the sun?
Or fester like a sore
And then run?
Does it stink like rotten meat?
Or crust and sugar over like a syrupy sweet?
Or does it sag like a heavy load?
Or does it explode?
Langston Hughes


ACKNOWLEGEMENT
My special thanks to my advisor for his support in allowing me to write this thesis
from an African American perspective, and also to my co-advisors for their patience
and academic guidance during these past years of study. I also wish to thank the staff
of the Graduate School for their support and understanding.


CONTENTS
Figures .................................................ix
CHAPTER
1. INTRODUCTION............................................1
Poverty and African Americans.......................2
Racism and Black America............................7
The Bastardized Black Vote.........................13
Mass Incarceration of Blacks.......................15
2. REVIEW OF THE LITERATURE...............................25
3. SLAVE LABOR UNDER COLOR OF LAW.........................45
Prison Labor Laws and the Prison Industry.........51
Marketing the Prison Industry.....................57
4. THE PARADOX OF LEGAL AND ILLEGAL
DRUG ABUSE.............................................61
Mental Health and Medicine:
Drugs and Freedom.................................66
The Myth of Race Neutral Prosecutions.............76
5. CONCLUSION.............................................92
BIBLIGRAPHY..................................................99
Vlll


FIGURES
Figure
1.1 Middle Passage of the Slave Trade.................................x
1.2 African American Behind Prison Industry Bars......................x
3.2 Map of US Federal Prison System...................................60
4.1 Trapped Behind Bars...............................................66
IX


A
Fig 1.1 Middle Passage of the Slave Trade
Figure 1.2 African American Behind Prison Industry Bars
x


CHAPTER 1
INTRODUCTION
By January lsl 2001, your family will be safer because
we will be grabbing violent criminals by the throat
and not letting them go to get a better grip. (Applause)
The 7 percent of criminals who commit 70 percent of the
violent crimes in America will be in prison, where they
belong.. .The color televisions will be gone. The air
conditioning will be gone. The weight rooms will be
gone. We will turn our federal prisons into industrial parks.
Phil Gramm1996 Presidential Campaign
In 1903, W.E.B. Dubois wrote in his book The Souls of Black Folk, And
here, too, is the high white washed fence of the stockade as the county prison is
called: The white folks say it is ever full of black criminalsthe black folks say
that only colored boys are sent to jail, and they not because they are guilty, but
because the state needs criminals to eke out its income by their forced labor. 1
One hundred years later, as we begin the year 2003, Dubois message endures as
Americas prison industrial complex has within it 1 in 4 African Americans. This
phenomenon has as its foundation a matrix of poverty, racism, eugenics,2
and disenfranchisement, fueled by the war on drugs.
1 Du Bois, W.E.B. 1995. The Souls of Black Folk: I0tfh Anniversary Edition. New York: Dutton Press.
2 Nobel Prize winner William Shockley argued that evidence showed people of African origin to be lower on
the evolutionary scale. A supporter of Shockley, Arthur Jensen, a professor of psychology at the University
of California, that because black children are genetically inferior, even compensatory programs like Head
Start would fail because native talents are not there. See, Hacker, Andrew, Two Nations Black and White.
Separate. Hostile. Unequal. Balantine Books, New York, pp. 30-32 1992. See also, Jensen, Arthur, How
Much Can We Boost l.O. & Scholastic Achievement? Howard Educational Review, Feb 1, 1999.
1


Poverty and African Americans
Where there were once pristine Victorian-style homes aligned along well-
paved streets that led occupants to admirably groomed city parks, vibrant theatres,
and central government is no more. It has been replaced by dilapidated buildings,
crumbling infrastructures, fields of weeds, and occupants living in abject poverty,
driven by structural economic transformations and changing patterns of racial and
economic segregation. This happening began as blacks and immigrants moved to
the cities striving for the American dream, whites fled to suburbs that essentially
zoned out low income housing that essentially priced out blacks and poor
immigrants; and thereby, it recreated segregated safe havens. Thereafter,
businesses moved, theaters closed, and parks went to pot as the infrastructures
deteriorated. This unfortunate occurrence has created more and more residents in
urban areas who reside in high-poverty neighborhoods, whose social and
economic conditions in these neighborhoods are deplorable.
Today, the majority of successful blacks also flee to the suburbs seeking a
better life. However, very few actually escape urban plagues. They are bound by
race, and they are bound by blood to those left behind: their mothers, fathers,
grandparents, brothers, sisters, cousins and extended family. The suburban blacks
are only physically estranged from the ghetto but they are forever linked to the
2


negative conditions that their family and friends face, those of poverty, biased
police arrests, sickness, and drug dependency.
A growing body of empirical evidence suggests that living in poor
neighborhoods has deleterious effects on the people who live there, particularly
the children. Black children are subjected to gang violence, unsafe structures,
violent parolees, poor schools and a plethora of social ills that white America, as a
whole, would refuse to tolerate. Programs to serve the poor in the United States
have come under a withering attack by political conservatives, who argue that
these programs do more harm than good. While overblown, these claims have just
enough truth in them to leave the lasting impression that any attempt to improve
the lot of the poor is pointless no matter what. Barbara Bergman's new book
Saving Our Children from Poverty: What the United States Can Learn from
France, counteracts this defeatist notion by providing a concrete example of
social programs and institutional arrangements that have beneficial effects for the
poor while enjoying widespread popular support.3 The study includes all
metropolitan areas in the United States, improving upon previous studies that used
only a limited number of metropolitan areas or only central cities. In 1990, 8.4
million persons lived in high poverty areas, the majority of whom where members
3 Bergman, Barbara. 1996. Saving Our Children from Poverty: What the United States Can Learn from
France. New York: Russell Sage Foundation.
3


of minority groups living in highly segregated ghettos or barrios. 4 However, a
surprising number of high-poverty neighborhoods show a great deal of racial and
ethnic diversity, and about one-fourth of the residents of high-poverty areas were
non-Hispanic whites. Poverty and Place: Ghettos, Barrios, and the American
City, imparts the results of a comprehensive national study of the problem of
neighborhood poverty.5 The concentration of poverty has been worsening.
Among metropolitan blacks, the proportion living in ghettos and other high-
poverty neighborhoods has risen from 14.4 in 1970 to 17.4 percent in 1990. The
most recent statistics, published by the U.S. Census Bureau in 1999, show that
poverty rates for blacks and Hispanics was twice as high as whites, and that
among the black poor, the figure rose from 26.1 percent in 1980 to 33.5 percent in
1999. 6 However, the figure rose most rapidly for the white poor, rising from 2.9
in 1980 to 6.3 percent in 1999.7 The physical area of urban blight has expanded
even more rapidly than the population living in such areas, with a 144 percent
increase in the number of census tracts that have poverty rates in excess of 40
4 Ibid.
5 Jargowsky, Paul. 1998. Poverty and Place: Ghettos, Barrios, and the American City. New York: Russell
Sage Foundation.
6 U.S. Census Bureau, 1999. Households by Race/Ethnicity, 1980, 1990, 1998. (NCES, 1999).
1 Ibid.
4


o t
percent. Such increases are a cause for concern, because they fuel the flight of
the middle-class from the metropolitan core and exacerbate the fiscal tensions
between central cities and their suburbs. More importantly, they signal an
increasing economic balkanization of our society in which lower-income persons
are spatially isolated and unable to access the resources and opportunities they
need to become fully integrated with the larger society. 8 9
In the book Take the Money and Run: Economic Segregation in U.S.
Metropolitan Areas, researchers compared residential segregation by race. The
study specified that economic segregation has received relatively little attention in
recent empirical literature. 10 There have been steady increases in economic
segregation for whites, blacks, and Hispanics in both the 1970s and 1980s, but the
increases have been particularly large and widespread for blacks and Hispanics in
the 1980s. The causes of these changes are explored in a reduced form fixed-
effects model, meaning that many researchers, at the U.S. Census Bureau, assert
that poverty among blacks is not a matter of race but a direct result of fixed
8 Ibid.
9 Ibid. (For an in-depth view on capitalism and Black America, see also, Manning Marable, How Capitalism
Underdeveloped Black America Boston, South End Press, 1983.)
10 Ibid.
5


circumstances that of the lack of two-parent households and educational
attainment. Social distance and structural economic transformations do affect
economic segregation, but the large increases in economic segregation among
minorities in the 1980s cannot be explained within the model. These rapid
increases in economic segregation, especially in the context of recent, albeit small
declines in racial segregation, have important implications for urban policy,
poverty policy, and the stability of urban communities.11 What can be explained
is the lack of significant employment for blacks, and the method of redlining11 12
that denies blacks, that are similarly situated to their white counterparts, approval
of their loan applications. Without access to credit and investment opportunities,
urban blight is imminent.
11 Bergmann, Barbara. 2001. Review of Saving Our Children from Poverty: What the United States Can
Learn from France, By. Sociological Research Online, Vol. 2, no. 4 See also, "Take the Money and Run:
Economic Segregation in U.S. Metropolitan Areas, "American Sociological Review, Vol. 61, pp. 984-998.
12 Loeb, Penny. Warren Cohen, Constance Johnston. 1995. The disparities in mortgage lending by
neighborhood are important. The Community Redevelopment Agency (CRA) was passed as a key element of
the 1977 Housing and Urban Development Act, whose stated purpose was to outlaw "redlining" defined as
a refusal by a financial institution to make mortgage loans to certain neighborhoods because of their racial
composition, income level of the residents or age of the housing stock. The U.S. News findings for middle-
income black and white mortgage applicants are best understood not by the race of the applicant but by the
racial composition of the neighborhoods in which loan applicants sought to purchase homes. Jonathan
Fiechter, acting director of the U.S. Office of Thrift Supervision, one of four federal agencies responsible for
enforcing fair-lending laws, calls the trend dismaying. "I don't think we have the blatant discrimination we
had in the 1950s and 1960s," Fiechter says. "I think it tends to be more unintentional, which may be just as
egregious in some sense." U.S.News and World Report, April 17, 1995.
6


Racism and Black America
Nationwide, according to the Federal Bureau of Prisons, the number of
male adults in the correctional population increased by two-thirds from 1986-97
while the number of females doubled. Almost 5% of the adult males and 1% of
the adult females in the United States were under some form of correctional
supervision in 1997. For all races, the number of adults in the correctional
population increased from 1986-97; the number of blacks almost doubled and the
number of whites rose by two-thirds. In 1997, about 9% of the black population in
the U.S. was under some form of correctional supervision compared to 2% of the
white population and over 1% of other races.13 Why the racial disparity?
Manning Marable, Professor of History and Political Science, and the Director of
the Institute for Research in African-American Studies, Columbia University,
explains in his essay Racism, Prisons, and the Future of Black America, that
behind much of anti-crime rhetoric was a not-too-subtle racial dimension, the
projection of crude stereotypes about the link between criminality and black
people.14 Accordingly he writes that, for the same criminal records, blacks and
whites are treated in radically different ways. The professor writes that, according
to the Justice Department's study, among white youth offenders, 66% are referred
13 U.S. Department of Justice, Bureau of Justice Statistics, 08/28/01, p6, Table 5
14 Marable, Manning. 2000. Along the Color Line. Columbia University Press.
7


to juvenile courts, while only 31% of the African-American youth are taken there.
Blacks comprise 44% of those detained in juvenile jails, 46% of all those tried in
adult criminal courts, as well as 58% of all juveniles who are warehoused in adult
prison. In practical terms, this means that for young African Americans who are
arrested and charged with a crime, that they are more than six times more likely to
be assigned to prison that white youth offenders with identical criminal histories.
The findings were similar to those of a study of Georgia executions
released 16 years ago by the same author, Prof. David Baldus of the University of
Iowa College of Law, in Iowa City. The new report also found that 98 percent
(1,794) of prosecutors with death-penalty authority in the 38 states that have
capital punishment are white. According to the study, only 22 black prosecutors
and 22 Hispanic prosecutors are empowered to make similar decisions.15
According to a 2001 Justice Department study, among white youth offenders,
66% are referred to juvenile courts, while only 31% of the African-American
youth are taken there. The paltry average of 44 minority prosecutors bom out of
nearly 2,000 is pathetic. However whites assert that it is because minorities do
not want to prosecute one another. In practical terms, this means that for young
African Americans who are arrested and charged with a crime, that they are more
15 Rovella, David E..1998. Race Pervades Death Penalty, by anti-death group makes stark charges. In
National Law Journal (June 8, 1998).
8


than six times more likely to be assigned to prison that white youth offenders. As
a result of the overwhelming media focus on crime, drug use, gang violence, and
other forms of anti-social behavior focused mainly among African Americans, the
number of Black adult prisoners almost doubled. By the end of the year 2000,
among the more than 1.3 million sentenced inmates, 9.7% of Black males aged 25
to 29 were in prison, compared to 2.9% of Hispanic males and 1.1% of White
males in the same age group. 16
A key participant in the increase of imprisonment of blacks is the media
that for decades fostered a distorted and pernicious public perception of African
Americans. As national television networks sensationalize black crime and black
criminals, they downplayed white crime and white criminals. Research conducted
by Stephen Balkaran, published in the Yale Quarterly, entitled Mass Media and
Racism,17 revealed that race plays, and will continue to play, a crucial role in the
way white Americans perceive African Americans. The history of African
Americans is a centuries old struggle against oppression and discrimination. The
media have played a crucial role in perpetuating the effects of this historical
oppression and in contributing to African Americans' continuing status as second-
class citizens. As a result, white America has suffered from a deep uncertainty as
16 Ibid.
17 Balkaran, Stephen. 1999. Mass Media and Racism, In Yale Political Quarterly (October):Vol 21.
9


to who African Americans really are. Despite this racial divide, something
indisputably American about African Americans has raised doubts about the
white man's value system. 18
Balkarans research includes dialogue on the Segmentation Theory. In the
1980's, Michael Reich developed the Segmentation Theory or the Divide and
Rule, which attempted to explain racism from an economic point of view. In this
theory, Reich asserts that as a result, the exploiters will attempt to use any means
to: (1) suppress higher wages among the exploited class, (2) weaken the
bargaining power of the working class, often by attempting to split it along racial
lines, (3) promote prejudices, (4) segregate the black community, (5) ensure that
the elite benefit from the creation of stereotypes and racial prejudices against the
black community. 19
Reich argues that the major corporations in the U.S. (e.g. Time Warner,
Coca Cola, General Motors, etc.) all have at least one token black member on
each other's corporate boards of directors. As a result, it is in the interest of these
members to maximize profits while employing the above devices.20 The mere fact
of these corporate executives' sharing economic corporate power, combined with
18 Balkeran quoting, Ralph Ellison, What America Would be Like Without Blacks. 1970. Preager Press, pp.4.
19 Ibid, pp.4-8.
20 Ibid.
10


the quest for economic profit has now paved the way for economic prejudice. But
the question still remain, are the media a tool used to promote racism? Do the
elite use the media to ensure corporations maximize profits by any means
necessary? Media have divided the working class and stereotyped young African
American males as gangsters or drug dealers. As a result of such treatment, the
media have crushed youths' prospects for future employment and advancement.
The media have focused on the negative aspects of the black community (e.g.
engaging in drug use, criminal activity, welfare abuse) while maintaining the
cycle of poverty that the elite wants. 21There are no universally accepted and
recorded codes or rules, which apply to journalists in news selection and
production. The media have devoted too much time and space to "enumerating
the wounded" and too little time to describing the background problems of
African Americans.22 This deceptive myopic focus in the media, to include
media entertainment, has assisted in defining blacks as criminal, lacking moral
fortitude, and as genetically inferior with strong innate urges both sexual and
criminal. Thereafter, the surveillance, police treatment, and judicial control
command a high price. Presently, convicted felons are given little to no
21 Ibid.
22 Hartmann, Paul G. 1974. Racism and the MediaJR.O'ftmsm & Littlefield Press, pp,147.(See Also, Cornell
West, 1993. Race Matters. Cambridge, Mass: Blackwell Publishers, pp. 74.
11


opportunity to regain their voting privileges after having served their sentences
and, in the eyes of the law, atoned for their crimes. In Richardson v. Ramirez, 64
at 418 U.S. 24 (1974), the U.S. Supreme Court exempted criminal
disenfranchisement laws from constitutional law strict scrutiny. It construed
Section 2 of the Fourteenth Amendment as granting states an affirmative
sanction to disenfranchise those convicted of criminal offenses. In Hunter v.
Underwood, 471 U.S. 222 (1985) under U.S. law, a racially disparate impact is
not sufficient to establish a violation of equal protection guarantees; a
discriminatory intent or purpose is also required. In Baker v. Pataki, 85 F. 3d 919
(2d Cir. 1996), inmates claimed New York laws denying the franchise to
incarcerated and paroled felons violated the Voting Rights Act because of their
racially disproportionate impact. The court, sitting en banc, divided evenly on
whether Section 2's results only test could be applied to state criminal
disenfranchisement laws. The end result? No vote!
Mass incarceration of blacks for federal drug crimes has caused a problem
that is present within black communities. After paying their debt to society,
through long prison sentences, convicts are also often forever stripped of their
voting rights. Marc Mauer, assistant director of the Washington, DC-based
12


Sentencing Project, concludes that America's incarceration policies have
disproportionately impacted minorities, particularly African Americans.
The Bastardized Black Vote
In 1997,1.4 million African American men, or 13% of the black adult
male population, had lost the right to vote due to felony convictions charged
against them in the criminal justice system. In the states with the most restrictive
voting laws, 40% of African American men are likely to be permanently
disenfranchised.23 24 Even though African Americans made up only 13% of the
population, half of the 1.2 million state and federal prisoners were African
American (548,900). The nation's imprisonment policies have had their greatest
impact among young black men, resulting in alarming rates of incarceration and
disenfranchisement.25 A black male bom in 1991 stood a 29% chance of being
23Mauer, Marc. 1995. Hauling Young Black Americans and the Criminal Justice System: Five Years Later.
Washington: Sentencing Project Report.
24 Beck, Allen J. Bonczar, 1997. Thomas P. Lifetime Likelihood of Going to State or Federal Prison.
Washington, D.C. Bureau of Justice Statistics.
25 Ibid.
13


imprisoned at some point in his life, compared to 4% for a white male bom that
year.26 27 According to the American Civil Liberties Union, African Americans are
five times as likely as whites to be disenfranchised under felony voter measures.
27 1.46 million black men out of a total voting population of 10.4 million have
lost their right to vote due to felony convictions.28 Thirteen percent of all adult
black men 1.4 million are disenfranchised, representing one-third of the total
disenfranchised population and reflecting a rate of disenfranchisement that is
seven times the national average.29 One in three black men between the ages of
20 and 29 years old is under correctional supervision or control.30 31 At current
levels of incarceration, newborn Black males in this country have a greater than 1
in 4 chance of going to prison during their lifetimes, while Latin-American males
11
have a 1 in 6 chance, and white males have a one in 23 chance of serving time.
26 Miller, Jerome G.,1992. Hobbling a Generation: Young African American Males in the Criminal Justice
System of America's Cities, Baltimore, Maryland, Alexandria, VA. National Center on Institutions and
Alternatives.
27 ACLU Urges Congress to Restore Voting Fairness." October21,1999. pp.l0-8738sc-167.
28 Thomas, P., 1997. Study Suggests Black Male Prison Rate Impinges on Political Process. The Washington
Post, 30 January, 1997, pp. A3.
29 Fellner, Jamie and Marc Maur. 1998. Losing the Vote: The Impact of Felony Disenfranchisement Laws in
the United States (Washington, DC: Human Rights Watch & The Sentencing Project, 1998), pp. 8. Election
statistics cited are from the US Census Bureau, "Voting and Registration in the Election of November 1996"
(pp. 20-504), July 1998.
30 Mauer, M. & Hauling, T. 1995. Young Black Americans and the Criminal Justice System: Five Years
Later (Washington DC: The Sentencing Project).
31 Bonczar, T.P. & Beck, Allen J., Bureau of Justice Statistics. 1997. Lifetime Likelihood of Going to State or
Federal Prison. Washington DC: US Department of Justice.
14


The literature leaves little hope for change in the future. The American economy
and politics will take even a greater toll on the incarcerated and their families as
both justify mass incarceration of nonviolent substance abusers that are reacting
to their emotional, environmental and social conditions. Younger blacks are
being tried as adults and thousands will face very long sentences including life
without parole in many cases.
Mass Incarceration of Blacks
Record numbers of black nonviolent substance abusers are imprisoned.32
As a byproduct of mass incarceration, the prison industry is an economic
mainstay in America. "The United States has the highest prison population rate in
the world, some 700 per 100,000 of the national population, followed by Russia
(665), the Cayman Islands (600), Belarus (555), the US Virgin Islands (550),
Kazakhstan (520), Turkmenistan (490), the Bahamas (480), Belize (460), and
Bermuda (445). "However, almost two thirds of countries (63%) have rates of
150 per 100,000 or below. (The United Kingdoms rate of 125 per 100,000 of the
32 While African Americans constitute twelve percent of the U.S. population, and only thirteen percent of all
drug users, they represent 35 percent of drug arrests, 55 percent of drug convictions and a staggering 74
percent of drug prisoners. See, Parenti, Christian. 1999. Lockdown America: Police and Prisons in the Age of
Crisis. London: Verso Books, pp. 239. citing Marc Mauer and Tracy Hauling, Young Black Americans and
the Criminal Justice System: Five Years Later. Sentencing Project Report, 1995.
15


national population places it at about the mid-point in the World List. Among
European Union countries its rate is the second highest, after Portugals 130.)"33
Americas prisoners that are sentenced for drug offenses constitute the largest
group of Federal inmates 82,056 or (54%). In 2000, drug law violators
comprised 21% of all adults serving time in State prisons 251,100 out of
1,206,400 State prison inmates.34 Over 80% of the increase in the federal prison
population from 1985 to 1995 was due to drug convictions.35 Between 1984 and
1999, the number of defendants charged with a drug offense in U.S. district courts
increased about 3% annually, on average, from 8,152 (29.5%) in 1994 to 70,009
(54.7) in the year 2000.36 37 38 By 2001, 1 in every 146 US residents was incarcerated
in State or Federal prison or a local jail. The U.S. nonviolent prisoner
population is larger than the combined populations of Wyoming and Alaska.
Since 1995 the sentenced inmate population in US State prisons has grown 21%).
33 Walmsley, Roy. 2002. World Prison Population List 3rd ed. London, England, UK: Home Office
Research, Development and Statistics Directorate, pp. 1 2002.
34 Harrison, Paige M. & Allen J. Beck, US Department of Justice, Bureau of Justice Statistics, Prisoners in
2001 (Washington, DC: US Department of Justice, July 2002), pp. 12 & Table 17, pp. 13.
35 US Department of Justice, Bureau of Justice Statistics, Prisoners in 1996 (Washington DC: US Department
of Justice, 1997).
36 Scalia, John, US Dept, of Justice, Bureau of Justice Statistics, Federal Drug Offenders, 1999 with Trends
1984-99 (Washington, DC: US Dept, of Justice, August 2001), pp. 7.
37 Harrison, Paige M. & Allen J. Beck, PhD, US Department of Justice, Bureau of Justice Statistics, Prisoners
in 2001 (Washington DC: US Department of Justice, July 2002), pp. 2.
38 John Irwin, Ph. D., Vincent Schiraldi, and Jason Ziedenberg, America's One Million Nonviolent Prisoners
(Washington, DC: Justice Policy Institute, 1999), pp. 4.
16


During this period 10 States increased their sentenced inmate populations by at
least 50%, led by North Dakota (up 87%), Idaho (up 81%), and Oregon (up 75%).
Between 1995 and 2001 the Federal system reported an additional 52,846 inmates
sentenced to more than year [sic], an increase of 63%. While the State
sentenced prison population rose 0.3% during 2001, the sentenced Federal prison
population grew 9.2%. The Federal prison system added 11,465 sentenced
prisoners the equivalent of more than 220 new inmates per week.39 40 According
to the US Justice Department, between 1990 and 2000,"[0]verall, the percentage
of violent Federal inmates declined from 17% to 10%. While the number of
offenders in each major offense category increased, the number incarcerated for a
drug offense accounted for the largest percentage of the total growth (59%),
followed by public-order offenders (32%). 41 There were 5.9 million adults in the
correctional population by the end of 1998. This means that 2.9% of the U.S.
adult population 1 in every 34 was incarcerated, on probation or on parole.42
In 1990, of the 739,960 sentenced prisoners in Federal and State prisons, 370,400
39 Harrison, Paige M. & Allen J. Beck, PhD, US Department of Justice, Bureau of Justice Statistics, Prisoners
in 2001 (Washington DC: US Department of Justice, July 2002), pp. 5.
40 Ibid. pp. 4.
41 Beck, Allen J., Ph.D., and Paige M. Harrison, US Department of Justice, Bureau of Justice Statistics,
Prisoners in 2001 (Washington DC: US Department of Justice, July 2002), pp. 14.
42 Bonczar, Thomas & Glaze, Lauren, US Department of Justice, Bureau of Justice Statistics, Probation and
Parole in the United States (Washington DC: US Department of Justice, August 1999), pp. 1.
17


were African American. By 2001 the number of African Americans had grown to
562,000 out of a total of 1,206,400 sentenced prisoners. 43
Assuming recent incarceration rates remain unchanged, an estimated 1 of
every 20 Americans (5%) can be expected to serve time in prison during their
lifetime. For African American men, the number is greater than 1 in 4 (28.5%). 44
The Bureau of Justice Statistics reports that in 1999, the nation spent $146.5
billion on the Federal, State and Local justice systems. In that year, the United
States had 1,875,199 adult jail and prison inmates. Based on this information the
cost per inmate year was:
Corrections spending alone: $26,134 per inmate
Corrections, judicial and legal costs: $43,297 per inmate
Corrections, judicial, legal and police costs: $78,154 per
inmate. 45
In 1997, there were 216,254 drug offenders in state prisons (out of a total State
prison population of 1,046,706 that year). Of these, 92,373 were in for possession,
43 Beck, Allen J., Ph.D., and Christopher Mumola, US Department of Justice, Bureau of Justice Statistics,
Prisoners in 1998 (Washington, DC: US Department of Justice, August 1999), pp. 9; Harrison, Paige M. &
Allen J. Beck, PhD, US Department of Justice, Bureau of Justice Statistics, Prisoners in 2001 (Washington
DC: US Department of Justice, July 2002), pp. 12, Table 16.
44 Bonczar, T.P. & Beck, Allen J., US Department of Justice, Bureau of Justice Statistics, Lifetime
Likelihood of Going to State or Federal Prison (Washington DC: US Department of Justice, March 1997)
45 Gifford, Sidra Lea, US Department of Justice, Bureau of Justice Statistics, Justice Expenditure and
Employment in the United States, 1999 (Washington, DC: US Department of Justice, February 2002), pp. 4,
Table 6; Beck, Allen J., PhD, and Jennifer C. Karberg, US Department of Justice, Bureau of Justice Statistics,
Prison and Jail Inmates at Midyear 2000 (Washington, DC: US Department of Justice, March 2001).
18


117,926 were in for trafficking, and 5,955 were in for other drug crimes. Also in
1997, there were 52,059 (59.6%) drug offenders in federal prisons (out of a total
Federal prison population of 128,090 that year). The Department of Corrections
data show that about a fourth of those initially imprisoned for nonviolent crimes
are sentenced for a second time for committing a violent offense. Whatever else it
reflects, this pattern highlights the possibility that prison serves to transmit violent
habits and values rather than to reduce them. 46 The United States operates the
biggest prison system on the planet.47 If one compares 1996 to 1984, the crime
index is 13 points higher. This dramatic increase occurred during an era of
mandatory minimum sentencing and "three strikes you're out. 48 The policies
and politics of social control have created an American gulag. 49
According to the Department of Justice, studies of recidivism report that
"the amount of time inmates serve in prison does not increase or decrease the
likelihood of recidivism, whether recidivism is measured as parole revocation, re-
46 Haney, Craig Ph.D., and Philip Zimbardo, Ph.D., The Past and Future of U.S. Prison Policy: Twenty-five
Years After the Stanford Prison Experiment, American Psychologist, Vol. 53, No. 7 (July 1998), pp. 720.
47 Currie, E., 1998. Crime and Punishment in America. New York, NY: Metropolitan Books: Henry Holt and
Company, Inc., pp. 3.
48 Federal Bureau of Investigation, Uniform Crime Reports 1996 (Washington DC: US Department of
Justice, 1997), pp. 62, Table 1.
49 McCaffery, Barry R., General (USA, Ret.), Director, ONDCP, Keynote Address, Opening Plenary Session,
National Conference on Drug Abuse Prevention Research, National Institute on Drug Abuse, September 19,
1996.
19


arrest, reconviction, or return to prison.50 States spent $32.5 billion on
corrections in 1999 alone. To compare, states only spent $22.2 billion on cash
assistance to the poor.51 Since the enactment of mandatory minimum sentencing
for drug users, the Federal Bureau of Prisons budget has increased by 1,954%. Its
budget has jumped from $220 million in 1986 to $4.3 billion in 2001.52 Despite
the investment of more than $5 billion for prison construction over the past
decade, the prison system is currently operating at 32 percent over rated capacity,
up from 22 percent at the end of 1997. These conditions could potentially
jeopardize public safety.53 In 2001, the federal prison system was operating at
31% over capacity, the same as the number reported in 2000. Overall, state
prisons in 2001 were operating at between 1% over their highest capacity and
16% above their lowest capacity. 54 From 1984 to 1996, California built 21 new
50 An Analysis of Nonviolent Drug Offenders with Minimal Criminal Histories, Washington D.C.: U.S.
Department of Justice (1994, February), pp. 41.
51 National Association of State Budget Officers (NASBO), 1999 State Expenditure Report (Washington,
DC: NASBO, June 2000), pp. 38,68.
52 US Department of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics 1996
(Washington DC: US Department of Justice, 1997), p. 20; Executive Office of the President, Budget of the
United States Government, Fiscal Year 2002 (Washington DC: US Government Printing Office, 2001), pp.
134.
53 Executive Office of the President, Budget of the United States Government, Fiscal Year 2002 (Washington
DC: US Government Printing Office, 2001), pp. 134.
54 Harrison, Paige M. & Allen J. Beck, PhD, US Department of Justice, Bureau of Justice Statistics, Prisoners
in 2001 (Washington DC: US Department of Justice, July 2002), pp. 10.
20


prisons, and only one new university.55 California state government expenditures
on prisons increased 30% from 1987 to 1995, while spending on higher education
decreased by 18%.56 In 1999, the United States spent a record $147 billion for
police protection, corrections, and judicial and legal activities. The nation's
expenditure for operations and outlay of the justice system increased 309% from
almost $36 billion in 1982. Discounting inflation, that represents a 145% increase
in constant dollars. 57 The total number of State and Federal inmates grew from
400.000 in 1982 to nearly 1,300,000 in 1999. This was accompanied by the
opening of over 600 State and at least 51 Federal correctional facilities. The
number of local jail inmates also tripled, from approximately 200,000 in 1982 to
600.000 in 1999. Adults on probation increased from over 1.3 to nearly 3.8
million persons. Overall corrections employment more than doubled from nearly
300.000 to over 716,000 during this period.58 94.1 million Americans aged 12 or
over (41.7% of the US population aged 12 and over) have used an illicit drug at
55 Ambrosio, T. & Schiraldi, V., 1997. Trends in State Spending, 1987-1995, Executive Summary-February
1997 (Washington DC: The Justice Policy Institute).
56 National Association of State Budget Officers, 1995 State Expenditures Report (Washington DC: National
Association of State Budget Officers, 1996).
57 Gifford, Sidra Lea, US Department of Justice, Bureau of Justice Statistics, Justice Expenditure and
Employment in the United States, 1999 (Washington, DC: US Dept, of Justice, February 2002), pp. 1
58 Ibid. pp. 7. (For a more complete perspective, see, (Drug War Facts sections on Alcohol, Crack, Drug Use
Estimates, Gateway Theory, Race and Prison, and Women).
21


least once in their lifetimes.59 According to the National Household Survey, in
2001,28.4 million Americans aged 12 or over (12.6% of the US population aged
12 and over) used an illicit drug. Of these, 21.1 million were White, 3.1 million
were Black, and 2.9 million were Hispanic.60 An estimated 971 thousand
Americans used crack cocaine in 1998. Of those, 462 thousand were White, 324
thousand were Black, and 157 thousand were Hispanic. 61 62
Annual expenditures for prisons run between $20 and $35 billion annually
[with] 523,000 full-time employees.. .more than in any Fortune 500 company
except General Motors. The incarceration of minorities, in representative
disproportion, particularly black men and women, is helping to economically
restore low-income rural white areas. Rural areas that lost the economic
livelihood of farming and simple manufacturingto economic market change-
now scramble to build or maintain prisons as a chief source of employment. In
Victorville, California, a new prison promised to produce up to 800 jobs and an
annual payroll of $1-2 million annually. 63
59 Substance Abuse and Mental Health Services Administration, US Department of Health and Human
Services, Results from the 2001 National Household Survey on Drug Abuse: Volume 1. Summary of
National Findings (Rockville, MD: Office of Applied Studies, August 2002), pp. 109, Table H.l & pp. 110,
Table H.2.
60 Ibid. pp. 109, Table H.l; pp. 110, Table H.2; pp. 102, Table G.4; and pp. 122, Table H.14.
61 Ibid. pp. 37-39.
62 Parenti, Christian, 1999. Lockdown America: Police and Prisons in the Age of Crisis. London: Verso
Books, pp. 214
63 Ibid. pp. 214
22


At present, predominant white rural communities, similar to the
community that touts the construction of Supermax a maximum-security 23-
hour lockdown facility in Florence Colorado, formulate committees to actively
seek out state and federal government contracts in their quest to acquire prisons to
boost their rural employment rate. There were already nine state-run lockups,
representing employment for 16% of the Colorado residents in the county, when
Florence residents bought 600 acres of land and gave the land to the federal
government, which used it to build four correctional facilities, including
Supermax.64 A significant and troubling benefit of locating prisons in rural areas
is that these prison communities are legally allowed to include black prisoners in
their census count. This allows the rural residents to derive federal funds from the
reapportionment process. This system permits the removal of blacks from inner
cities and confines them to rural prisons but classifies them as though they were
co-equal members of the rural community. A perverse type of gerrymandering;
created by this process whereby whites incur benefits that include jobs, new
schools, businesses, and state of the art infrastructures through the incarceration
of primarily prisoners of color.65 The penal and judicial control of black
64 URL: Newshawk: (Frank S. World). San Francisco Chronicle, 28 December, 1998 (CA)A3.
65 Tracy Hauling and Marc Mauer.2000. Locked Up In the Census Count: How Our Nation's Burgeoning
Prison Population Is Reversing Rural Population Loss. Chicago Tribune, 12 March, 00.
23


substance abusers held captive in prison industrial parks, are a part of a growth
industry that has become Americas new slave trade.66
66 Between 1980 and 1996 the state and federal prison population rose from 329,000 to nearly 1.2 million.
In 2002, the prison population is 2 million, the highest incarceration rate of any country in the world. The
U.S. incarceration rate for whites is 235 per 100,000, for blacks 1815 per 100,000. [Both black and whites
committed the same type of crimes yet received disproportionate sentenceswhites the more lenient.]
Progressive Review. In 1993,51% of inmates in state and federal prison were black. Reiman, Jeffery. 2001.
The Rich Get Richer and the Poor Get Prison: Ideology, Class and Criminal Justice. Boston: Allyn and
Bacon, pp. 130.
24


CHAPTER 2
REVIEW OF THE LITERATURE
I want to say this about my state: When Strom Thurmond ran
for president, we voted for him. We're proud of it. And if the rest
of the country had followed our lead, we wouldn't have had all
these problems over all these years, either....
Trent Lott~former~2003 Majority Leader,
United States Senate
Political scientists, civil rights activists, criminal justice specialists and
others have written about the disproportionate incarceration of African Americans
for decades. Logically, all races have too many of their loved ones behind bars;
however, research shows that Black America is suffering epidemic proportions of
bondage in America as a result of the penal system. Structural obstacles, such as
racial bias in arrests, prosecutions, and sentencing, have had obvious negative
effects on African Americans as an ethnic group socially, spiritually,
economically and politically. An unfortunate byproduct of the prison industrial
complex is the negative effect the system has on black women and their children.
Scholars such as Derrick Bell, Cornell West, Andrew Hacker, Mary Francis
Berry, Angela Davis, Christian Parenti, and Michael B. Katz have exposed the
structural bias of the legal and criminal justice system. Criminologists Samuel
25


Walker, Cassia Spohn, and Miriam Delone, in their book The Color of Justice:
Race, Ethnicity, and Crime in America, comprehensively investigate how racial
injustice is influencing the criminal justice system from arrest to trial to
punishment. Lawrence Friedman in his book Crime and Punishment in American
History writes that,
. .overt forms of discrimination have been
wiped from the books. But slavery and
oppression have left their mark, poverty and
social disorganization hangs like yokes of stone
around the necks of the urban black poor.
Draconian drug laws punish thousands of
blacks who are trapped in the drug world or bent
on self-destruction.67
In the book The Celling of America, the author spotlights the fact that
prisoners make an especially easy target for attracting the fear and loathing of the
American public. Prisoners have no economic or political power. They make the
perfect scapegoat. As such, the new politics of post-Soviet bogeymanism have
struck prisoners particularly hard. 68 The authors include research on prison labor
in the US, the money involved in human capital, racism, corruption, brutality, and
67 Friedman, Lawrence M.1993. Crime and Punishment in American History. New York: Harper Collins
Press, pp. 378.
68 Burton-Rose, Daniel and D. Pens and P. Wright. 1998. The Celling of America: An Inside Look At The US
Prison Industry. Monroe, Maine : Common Courage Press, pp. 4-5
26


the inhumane trend towards the proliferation of the isolation model of prisons.
The authors include essays from prisoners that humanize a group of people
dehumanized by the system. With reference to prison labor, the writers found that
named corporations use prison labor to offset their cost. Well-known companies
such as Honda, Ford, McDonalds, Microsoft, US West, Costco, Starbucks,
JanSport, Eddie Bauer, and the U.S. Armed Forces capitalize on prison labor.
The companies listed here are only a few among many more that maintain that if
prison labor were not utilized to keep the prisoners busy and out of the weight
rooms, the type of jobs prisoners perform would simply be outsourced to third
world countries. Author Christian Parenti writes a comprehensive book about the
tools of penal control from a close up and personal view. Parenti writes that as he
walked down the street in his neighborhood he was stopped by an undercover cop
yelling, Open your mouth! Open your mouth! Open your fucking mouth! The
officer grabbed the writer by the throat and flashed his badge. 69 Although Parenti
was released unharmed and free of being booked into the system, he realized that
thousands of men, women, and youth are not so lucky. Was Parenti accosted in
this manner because of his ethnicity? His book makes no excuses for the system
69 Partenti, Christian, 1999. Lockdown America: Police and Prisons in the Age of Crisis. London New York:
Verso Press, pp xi.
27


or for minorities who commit crimes; however, he confirms that race matters in
the manner in which police crack down on the war on drugs. His book covers
the Nixon era to the Bush administration and includes the escalation of police on
the street during the Clinton administration and the big bucks from the prison
industrial complex. Although the authors write about the injustice of the system
that fuels the prison industrial complex, there is another story that involves white
conservatives and black opportunists eager to gain approval of the dominant
culture and pleased to have a different point of view.
Commentary from select individuals outside of the prison industry
rationalize that external forces do not cause the problems of the poor and blacks.
Despite the substantial prison numbers and social injustice that minorities face,
particularly that of blacks, it appears that victim-bashing is a sure way to obtain
notoriety in America and help to silence the African American voice. Today, a
certain way for black conservatives, like columnist personality Ken Hamblin, of
getting their work published and gaining notoriety among conservatives is to
victim-bash most of the black race and decry that racial oppression today has no
28


bona fide effect or role in the lives of minorities.70 Hamblin has been socialized
through a sanitized version of American history that virtually turns a blind eye to
African American history and the contemporary political, social and economic
disenfranchisement of blacks. Among the rhetoric of talk show hosts are well-
respected conservatives who assert that blacks are inferior, essentially cause their
own problems, and perhaps cannot be helped due to their genetic makeup.
Conservatives have advanced discordant and divergent positions on race,
incarceration, poverty and political influence. The Bell Curve, published in 1994,
was written by Richard Hermstein and Charles Murray as a work designed to
explain, using empirical statistical analysis, the variations in intelligence in
American society, raise some warnings regarding the consequences of this
intelligence gap, and propose national social policy with the goal of mitigating the
worst of the consequences attributed to this intelligence gap. Most of the data are
70 Hamblin, Ken. 1999. Plain talk and common sense from the Black Avenger. New York: Simon & Schuster
Press. Hamblin, Ken. 1996. Pick a better country: an unassuming colored guy speaks his mind about
America. New York: Simon & Schuster Press. Pick a Better Country, Book Review Publishers Weekly
August 26,1996 243:35 pp. 83-85. Saying things that a white person wouldnt get away with, Hamblin
criticizes black trash if theres white trash, then it follows that there can be black trash [as if blacks were
ever though of as anything other than] The difference is that weve allowed this sick culture of gangsta rap,
drugs, gangs, and welfare to be glorified by some as the only authentic black American culture; brood
mares what else can you call black girls who are having babies, more than 90 percent illegitimate, with no
means other than welfare to care for them?; black thugs they go on crime rampages, claiming to be leading
a phony social justice crusade on behalf of their race, but the truth is that they have probably snuffed out
more of their own than any white racist group; poverty pimps these black urban politicians devote their
entire political careers to delivering nothing but government welfare to their stagnant communities of isolated
constituents; quota blacks theyll always be second-class citizens because emotionally and numerically they
fill outmoded affirmative action minority slots in the workplace; and egg-sucking dog liberals by furthering
the patronizing notion that blacks cant get ahead on their own, these white liberals are sucking the substance
out of the promise America holds for its black citizens.
29


very controversial, ranging from the relationships between low measured
intelligence and anti-social behavior, to the observed relationship between, low
African American test scores (compared to whites and Asians), and genetic
factors in intelligence abilities. The book was released and received with a large
public response. In the first several months of its release, 400,000 copies of the
book were sold around the world. Several thousand reviews and interpretations
have been written in the short time since the book's publication.71
Author Gary Earl Ross responds with an essay entitled The Insidiousness
of the Bell Curve. The writer retorts that the book is simply an attempt to
validate the incarceration of the poor and blacks that began with scientific
assertions that Blacks have a naturally low IQ, possess innate criminal behavior,
and run rampant with impulsive lawlessness.72 Reinforced through social
practices, the science of eugenics preached that blacks be barred from certain jobs
and should be relegated to a social sub-class. Ross criticizes the writing in that,
In calling for an end to social redress of inequalities,
Murray and Hemstein elevate IQ testing to an importance
that justifies the racist perceptions ofthose people and
their troubles. Scientific sanctioning of such ideas
consigns me and every other African American to a
71 Hermstein, Richard and Charles Murray. 1994. The Bell Curve. New York: Simon & Schuster Press.
72 Ibid.
30


human scrap heap, a writhing black mass of problem
people. It will not matter to the casual passerby that
I have published prose and poetry or taught two
thousand students or been listed in several Whos
Who publications. Mine will simply be another dark
face in the pile.73
The I.Q. argument is extended by attempting to correlate I.Q. to crime, state
welfare subsidies, unemployment, child neglect, and poverty, and by extension,
incarceration rates. These ideas have been associated with conservatism.
William Shockley, Michael Novak, and African-Americans Shelby Steele and
Michael Grant, have written conservative points of view that conflict with writers
that oppose the continued proliferation of the incarceration of blacks. Following
the controversy of Trent Lotts racial remarks at the 100th birthday party of former
senator Strom Thurmond, in Steeles editorial Of Race and Imagination: How far
will Trent Lott set back conservative principles? he writes that,
This is all terrible for Republicans and conservatives
because the best thinking on social problems and
race in recent years has come from their ranks.. .it
has taken years of careful argument to even slightly
convince minorities that conservative principles
could be relevant to their problems. 74
This best thinking is of conservatives that are outward enthusiasts of neo-
73 Jacoby, Russell N. and Ed Glauberman. 1995. The Bell Curve Debate: History, Documents, Opinions.
New York: Times Book Press.
74 Steele, Shelby. 2002. Of Race and Imagination: How far will Trent Lott set back conservative principles?
The Wall Street Journal, Wednesday, December 18, 02.
31


conservative etiology. Conservatives, identified as eugenics proponents of the
1930s, initially stressed the importance of special institutions, where non-criminal
defectives could be incarcerated throughout their fertile years.75 American neo-
eugenic research emerged after the 1960s that argued for the innate intellectual
inferiority of black Americans and the inheritability of criminal tendencies.76 The
view of genetic inferiority has not been eradicated and is supported by current and
emerging race critics to justify incarceration of blacks, particularly black males.77
The matter was debated and the outcome of the debates determined the Negros
75 Selden, Steven. 1999. Inheriting Shams: The Story of Eugenics & Racism in America City, Teachers
College Press. Carlson, Elof Axel. 2001. The Unfit: A History of A Bad Idea. Cold Spring Harbor Laboratory
Press. Stefan Kuhl. 2002. The Nazi Connection: Eugenics American Racism, & German National Socialism.
Oxford Press.
76 Shockley, William. Shockley. 1992.Eugenics and Race: The Application of Science to the Solution of
Human Problems. Scott Townsend Publishers. See also, (Hermstein and Murray. The Bell Curve, 1994,346)
77 Rushton, J. Philips. 2000. Race Evolution and Behavior: A Life History Perspective. In J. P. Rushton's
book Race, Evolution, and Behavior he collected and analyzed many of the data sets on race differences in
brain size and intelligence and personality and temperament first noted by Darwin, Galton, and other 19th
century visionaries. Using evidence from psychology, anthropology, sociology and other scientific
disciplines, Race, Evolution, and Behavior shows there are at least three biological races (subspecies) of man
- Orientals (i.e., Mongoloids or Asians), Blacks (i.e., Negroid or Africans), and Whites (i.e., Caucasoid or
Europeans). There are recognizable profiles for the three major racial groups on brain size, intelligence,
personality and temperament, sexual behavior, and rates of fertility, maturation and longevity. On average,
Orientals and their descendants around the world fall at one end of the continuum, Blacks and their
descendants around the world fall at the other end of the continuum, Europeans regularly fall in between.
This worldwide pattern implies evolutionary and genetic, rather than purely social, political, economic, or
cultural causes.
32


destiny and place in America.78 The assertion of genetic inferiority exacerbates
the recent anti-affirmative action climate. The argument attempts to demonstrate
that affirmative action in higher education does not select Americas best;
therefore, inferior blacks are unfairly afforded opportunities in higher education
along side whites and others. President Bush supports the dismantling of
affirmative action. Bushs statement against affirmative action may endear him to
his conservative base but may also send the wrong message to blacks in the midst
of mass incarceration. The Supreme Court agreed to decide whether affirmative
action programs in the nation's universities should continue to help minorities, or
whether they represent "reverse discrimination." The court will decide by
summer 2003 if race can be used in college admissions, an issue that the justices
78 On August 19, 1791, Benjamin Banneker wrote a lengthy letter to Thomas Jefferson, then Secretary of
State, in which "having taken up my pen in order to direct to you as a present, a copy of an Almanac... I was
unexpectedly and unavoidably led" to develop a discourse on race and rights. Banneker made it a point to
"freely and cheerfully acknowledge, that I am of the African race." Though not himself a slave, Banneker
encouraged Jefferson to accept "the indispensable duty of those who maintain for themselves the rights of
human nature," by ending the "State of tyrannical serfdom, and inhuman captivity, to which too many of my
brethren are doomed." Appealing to Jefferson's "measurably friendly and well-disposed" attitude toward
blacks, Banneker presumed that he would "readily embrace every opportunity to eradicate that train of absurd
and false ideas and opinions which so generally prevail with respect to us." After acknowledging that by
writing to Jefferson he was taking "a liberty which Seemed to me scarcely allowable," considering "the
almost general prejudice and prepossession which is so prevalent in the world against those of my
complexion," Banneker launched into a critical response to Jefferson's published ideas about the inferiority of
blacks. With restrained passion, Banneker chided Jefferson and other framers of the Declaration of
Independence for the hypocrisy "in detaining by fraud and violence so numerous a part of my brethren under
groaning captivity and cruel oppression, that you should at the Same time be found guilty of that most
criminal act, which you professedly detested in others, with respect to yourselves." Citing Jefferson's own
words from the Declaration the "Self-Evident" truth "that all men are created equal" -- Banneker
challenged Jefferson and his fellows "to wean yourselves from those narrow prejudices which you have
imbibed with respect to" African Americans. (Reprinted from the Public Broadcasting Service "Africans in
America Resource Bank")
33


have dealt with only once before, in a cloudy 1978 ruling that led to more
confusion.79 80 At issue is whether race is used as a factor in admissions to state-
funded colleges, to increase diversity in the student body. Justices will be asked to
decide whether a state has a "compelling interest" to promote a diverse student
body, or whether the Equal Protection Clause of the 14th Amendment forbids
giving one ethnic group or culture special advantages over another. Without
policies that support and at times enforce diversity, where will the blacks turn?
Cornell West writes in his book Race Matters that progressives should view
affirmative action as neither a major solution to poverty nor a sufficient means to
equality. West says that we should see it as primarily playing a negative role,
namely, to ensure that discriminatory practices against women and people of color
are abated. Given the history of this country, it is a virtual certainty that without
affirmative action, racial and sexual discrimination would return with a
vengeance. West says that the fundamental crisis in black America is twofold:
too much poverty and too little self-love. The urgent problem of black poverty is
primarily due to the distribution of wealth, power, and income distribution
influenced by the racial caste system that denied opportunities to most qualified
79 University of California vs. Bakke (1978).
80 West, Cornell. 1994. Race Matters. New York: Vintage Press, pp. 93-5
34


black people until two decades ago, West contends. The historic role of
American progressives is to promote redistributive measures that enhance the
standard of living and quality of life for the have-nots and have-too-littles.* 82
Affirmative action was one such redistributive measure that surfaced in the heat
of battle in the 1960s among those fighting for racial equality. Like earlier de
facto affirmative action measures in the American past-contracts, jobs, and loans
to select immigrants granted by political machines; subsidies to certain farmers;
FHA mortgage loans to specific home buyers; or GI Bill benefits to particular
courageous Americans; recent efforts to broaden access to Americas prosperity
have been based upon preferential policies.83
Despite the climate of race relations and strained communication between
the right and the left, writers continue to be overly optimistic across the board.
African American, Michael A. Grant, J.D., a motivational speaker and respected
81
82
83
Ibid.
Ibid.
Ibid.
35


critic of African Americans and politics, writes in his book Beyond Blame: Race
Relations for the Twenty-First Century that,
While it is conjecture on my part, I sincerely believe
that the race problem in America is dying a slow death.
There are many on both sides of the race line that will
conclude that my optimism is groundless, that I am out
of touch with reality. Yet, my prognosis is based, at
least in part, on a new alignment of power in this
country.. .The election of two moderate baby boomers
will certainly move the White House beyond the status
quo on the race issue. 84
Both sides of the race line may share Grants optimism; however, the number of
blacks incarcerated in American prisons, since the latter part of the century,
exceeds the positive powers two moderate baby boomers may have to slow
down the figure. Once politicians convince the voting populace that mass
incarceration is the best insurance of safety for everyone, those who have not
already been disenfranchised, validate the racist assumptions of campaigns.85
Angela Davis, civil-rights activist and Princeton professor, states in her book
Race and Criminalization: Black Americans and the Punishment Industry that,
.. .Republican and Democratic elected officials alike have successfully called for
84 Grant, Michael. 1995. Beyond Blame: Race Relations for the Twenty-first Century. New York: Smithson-
Berrty Publications.
85 One of the most blatant of these campaigns was the 1988 campaign commercial in the presidential
campaign of George Bush and Michael Dukakis. Bush used Dukakis furlough of African American prisoner
Willie Horton to stir racial fear in the campaign. In virtually every campaign year since, a variation of Bushs
race-baiting theme can be found. See Hacker, 1992, pp. 210-212.
36


laws mandating life sentences for three-time criminals without having to answer
for the racial implications of these laws... Because race is ostracized from some
of the most impassioned political debates of this period, the racialized character
becomes increasingly difficult to identify, especially by those who are unableor
o/
do not wantto decipher the encoded language. Davis says that the exclusion
of race in the political debates minimizes the role that race plays in ensuring
blacks remain at the lowest rung in society.86 87 Davis suggests that black leaders
are being shamed into a type of political correctness that disavows their ability
to speak candidly about contemporary conceptions of race and its profound
negative effect. Davis words illuminate the particularly difficult plight of
African American women drawn into the system. It can be argued that for the
black woman in particular, poverty and the absent imprisoned fathers of their
children are also contributing factors to their unique position in the substance
abuse and the incarceration game. According to Davis, the black womens rate of
incarceration is even more dramatic than mens. Davis quotes criminal justice
86 Davis, Angela.2001. Race and Criminalization: Black Americans and the Punishment Industry, California:
Princeton Press, pp. 265.
87 Ibid. pp. 265-267.
37


authors and researchers, Marc Mauer and Tracy Hauling, that,
The 78% increase in criminal justice control rates
for black women was more than double the increase
for black men and for white women, and more than
QQ
mne times the increase for white men...
Additional research on the women and the penal complex reveals that the number
of women incarcerated in prisons and jails in the USA is approximately ten times
more than the number of women incarcerated in Western European countries,
even though Western Europe's combined female population is about the same size
as that of the USA.88 89 During 2001 the number of women under the jurisdiction
of State or Federal prison authorities decreased by 0.2%, while the number of men
incarcerated in a State or Federal prison rose 1.2%. During the year 2001 there
were 93,031 women and 1,313,000 men in State or Federal prisons.90 Since 1995
the annual rate of growth of the female inmate population has averaged 5.2%,
higher than the 3.7% average increase in the number of male inmates. While the
total number of male prisoners has grown 24% since 1995, the number of female
prisoners has increased 36%. By 2001 women accounted for 6.6% of all
88 Mauer, Marc, Tracy Hauling. 1995. Young Black Americans and the Criminal Justice System: Five Years
Later. Sentencing Project.
89 Amnesty International. 1999. Not Part of My Sentence: Violations of the Human Rights of Women in
Custody. (Washington, DC: Amnesty International, March), pp. 15.
90 Harrison, Paige M. & Allen J. Beck, PhD, Bureau of Justice Statistics, Prisoners in 2001 (Washington, DC:
US Dept, of Justice, July 2002), pp. 6, Table 7.
38


prisoners, up from 6.1% in 1995.91 92 Relative to their number in the US resident
population, men were about 15 times more likely than women to be incarcerated
in a State or Federal prison. Reported in 2001, there was 58 sentenced female
inmates per 100,000 women in the United States, compared to 896 sentenced
male inmates per 100,000 men. Women are the fastest growing, and least
violent, segment of prison and jail populations. 85.1% of female jail inmates are
behind bars for nonviolent offenses. 93 From 1986 (the year mandatory
sentencing was enacted) to 1996, the number of women sentenced to state prison
for drug crimes increased tenfold (from around 2,370 to 23,700) and has been the
main element in the overall increase in the imprisonment of women. 94 From
1985 to 1996, female drug arrests increased by 95%, while male drug arrests
increased by 55.1%.95 In 1998, there were an estimated 3,170,520 arrests of
women, of which 272,073 were for drug offenses 18% of the total drug arrests
in that year. 96
91 Ibid. pp. 6
92 Harrison, Paige M. & Allen J. Beck, PhD, Bureau of Justice Statistics, Prisoners in 2001 (Washington DC:
US Department of Justice, July 2002), pp. 6.
93 Irwin, John Ph. D., Vincent Schiraldi, and Jason Ziedenberg. 1999. America's One Million Nonviolent
Prisoners (Washington, DC: Justice Policy Institute, March), pp. 6-7.
94 Amnesty International. 1999. Not Part of My Sentence: Violations of the Human Rights of Women in
Custody (Washington, DC: Amnesty International, March), pp. 26.
95 Ibid. pp. 26-27
96 Greenfield, Lawrence A., and Snell, Tracy L., Bureau of Justice Statistics, Women Offenders (Washington,
DC: US Department of Justice, December 1999), pp. 5, Table 10.
39


It is a reality that most of these women have small children who are socially,
psychologically, and economically damaged by the incarceration of their mothers.
These children are subjected to a cruel world that not only lets them know that
their mother is locked up but the additional message is that the children now fall
even lower on the human scale of importance and respect than ever imagined.
Between 1990 and 1996, the number of women convicted of drug felonies
increased by 37% (from 43,000 in 1990 to 59,536 in 1996). The number of
convictions for simple possession increased 41% over that period, from 18,438 in
1990 to 26,022 in 1996. 97 The most serious offense for 72% of women in federal
prisons and 32.3% of women in state prisons is violation of drug laws. 98 Female
incarceration rates, though substantially lower than male incarceration rates at
every age, reveal similar racial and ethnic disparities. Black non-Hispanic females
(with an incarceration rate of 199 per 100,000) were more than 3 times as likely
as Hispanic females (61 per 100,000) and 5 times more likely than white non-
Hispanic females (36 per 100,000) to be in prison on December 31,2001. These
differences among white, black, and Hispanic females were consistent across all
age groups.99 Approximately 516,200 women on probation (72% of the total),
97 Greenfield, Lawrence A., and Snell, Tracy L., Bureau of Justice Statistics, Women Offenders (Washington,
DC: US Department of Justice, December 1999), pp. 5, Table 11.
98 Ibid. pp. 6, Table 15 pp. 13, Table 17.
99 Harrison, Paige M. & Allen J. Beck, PhD, Bureau of Justice Statistics, Prisoners in 2001 (Washington DC:
US Department of Justice, July 2002), pp. 12.
40


44,700 women in local jails (70% of the total), 49,200 women in state prisons
(65% of the total), and 5,400 women in federal prisons (59% of the total) have
minor children.100 Of the nation's 72.3 million minor children in 1999,2.1% had
a parent in state or federal prison. Black children (7.0%) were nearly 9 times more
likely to have a parent in prison than white children (0.8%). Hispanic children
(2.6%) were 3 times as likely as white children to have an inmate parent.101 In
1997 an estimated 2.8% of all children under age 18 had at least one parent in a
local jail or a state or federal prison. About 1 in 359 children have an incarcerated
mother for a total of 194,504 children with their mothers behind bars.102 It is
indeed extremely important to include the voice of children, especially those
children who have mothers and fathers behind bars for nonviolent crimes.
Sociologists have written that most children who lose a parent, for any reason are
at higher risk to suffer from detachment disorder and develop antisocial behavior.
These findings certainly would apply to children of the incarcerated.
100 Greenfield, Lawrence A., and Snell, Tracy L., Bureau of Justice Statistics, Women Offenders
(Washington, DC: US Department of Justice, December 1999), pp. 7, Table 17.
101 Mumola, Christopher J., Bureau of Justice Statistics, Incarcerated Parents and Their Children
(Washington, DC: US Department of Justice, August 2000), pp. 2.
102 Greenfield, Lawrence A., and Snell, Tracy L., Bureau of Justice Statistics, Women Offenders
(Washington, DC: US Department of Justice, December 1999), pp. 7-8, Tables 17 and 18.
41


These children are often unable to communicate in school, fall behind their
classmates in their education and often find solace by drinking alcohol or taking
drugs at very early ages. Grandparents who live on social security and family and
friends, who have their own problems to deal with, are left to care for the children
if they are not carted off to orphanages or foster homes.
Black children who go to school hungry and get to school on violent
streets cannot possibly compete on a level education playing field with their white
suburban peers. Tamara Henry reports that, school dropouts, teenage pregnancy,
poor academic achievement, and crime all of these are downstream
consequences of not learning to read. 103 The chief of the Child Development and
Behavior Branch of the National Institute of Child Health and Human
Development (NIH), and a Bush adviser, noted that thirty-three years of study by
the NIH found that of the 10% to 15% of children who will eventually drop out of
school, more than 75% will report reading difficulties. 104 Only 2% of students
getting special education for reading problems will complete a four-year college
program. Further research shows that half of the adolescents and young adults
103 Henry, Tamara. 2001. Lawmakers Move to Improve Literacy: The New Civil Right. 2001, USA TODAY
June 20, 01.
104 Ibid.
42


with criminal records have difficulty reading. In some states, the size of
prisons a decade in the future is predicted by fourth-grade reading failure
rates. 105[emphasis added] In addition to the negative influence on the children,
the women while inside the prison gates suffer atrocities that are not fully
addressed upon their release back to their families and children. Forty-four
percent of women under correctional authority, including 57% of the women in
State prisons, reported that they were physically or sexually abused at some point
in their lives. Sixty-nine percent of women reporting an assault said that it had
occurred before age 18. 106 Many women in prisons and jails in the USA are
victims of sexual abuse by staff, including male staff touching inmates' breasts
and genitals when conducting searches; and male staff watching female inmates
while they are naked; and being raped. 107 Women locked up for drug crimes are
victimized by the system as free citizens and as prisoners. Their numbers are
escalating and their plight is virtually going unnoticed by the politics of the war
on drugs. This victimization is reminiscent of the master slave relationship
played out on plantations. The wardens and prison staff do not believe most of
the inmates or they simply turn a blind eye to what has become common practice
105 Ibid.
106 Greenfield, Lawrence A., and Snell, Tracy L., Bureau of Justice Statistics, Women Offenders
(Washington, DC: US Department of Justice, December 1999), pp. 8, Table 20.
107 Amnesty International, "Not Part of My Sentence: Violations of the Human Rights of Women in Custody
(Washington, DC: Amnesty International, March 1999), pp. 38.
43


behind bars. The inmates are vulnerable to abuse and all capable of work must
work or suffer disciplinary action.
44


CHAPTER 3
SLAVE LABOR UNDER COLOR OF LAW
.. .One hundred years later, the Negro lives on a lonely island
of poverty in the midst of a vast ocean of material prosperity.
One hundred years later, the Negro is still languishing in the
comers of American society and finds himself an exile in his
own land. So we have come here today to dramatize an appalling
condition...
I have a Dream by Martin Luther King, Jr. (1963)
Slave labor concepts have continued in some form throughout the decades,
such as under the guise of sharecropping. 108 In the 18th Century it kept blacks
108 The African American intellectual W. E. B. Du Bois once wrote that "[t]he slave went free; stood for a
brief moment in the sun; then moved back again toward slavery." Indeed, in the century between
Emancipation and such Civil Rights Movement victories as the 1964 Civil Rights Act and Voting Rights Act
of 1965, several factors conspired to keep former slaves in an inferior position in American society.
Disfranchisement, discriminatory Jim Crow laws, segregated schools, and lynching reinforced the political,
legal, educational, and social inequality that African Americans faced. But the picture of racial injustice
would not be complete without including economic factorsranging from official and unofficial job
discrimination to exclusion from white labor unionsthat kept African Americans separate and unequal.
Chief among these unequal financial arrangements for rural Southern blacks was sharecropping. Although the
details varied throughout time and place, sharecropping wasand is, in the less developed nations that still
use it widelya system in which landlords lease the use of their farmland to tenants, or sharecroppers, in
exchange for a percentage of the crop yield. With the collapse of Reconstruction in the late 1870s, however,
most sharecropping contracts became more overtly unequal in nature. Landowners used crop-lien laws and
high-interest-rate credit at company stores to keep sharecroppers in a state of perpetual debt. Since most
sharecroppers raised only one croptypically cottonthe increasingly depleted soil could not provide them
the livestock feed, fruits, and vegetables for their families that subsistence farming would have supplied. By
mortgaging next year's crop to pay for this years food, clothing, and other necessities, many black
sharecroppers entered a state of bondage nearly as complete as the one that they had endured under slavery;
meanwhile, landowners faced lower financial risk and reduced responsibility for the people who farmed their
land. Records show that in 1876 approximately 95 percent of Southern black farmers owned no land at all.
As late as the 1920s, studies by the U. S. Department of Agriculture showed that life on a cotton plantation
differed little from slavery days, with multiple black workers (including children) supervised by white
overseers. Some landowners farmed with chain gangs of convicted criminals in exchange for housing and
guarding the prisoners, most of whom were black men.
45


in bondage on plantations. It carried over into the 19th Century through Jim Crow
laws and Black Codes and now in the 21st Century in the form of penal control.
Black economic oppression has now reinvented itself through the prison industrial
complex model. Each period had a constant, the social and economic subjugation
of Blacks, this fact has been an integral part of Americas economy and the initial
model has shown its resiliency and has exposed itself as critical over time.
The first blacks who came to Virginia in 1619 were indentured servants. After
1670, all blacks coming to Virginia were slaves for life. The change came because
planters learned they could make more money with slaves than with indentured
servants. Indentured servants were free after 4 to 7 years. 109 Slaves had to work
for life. From the beginning slavery was an integral part of the economy. Slaves
formed the core of the early labor force, working on the construction of public
and private buildings almost as frequently as they served as household servants.
110 When the government embarked on public works, it also hired slave labor; the
Treasury Department paid the absentee masters for the use of their human chattel.
9 Green, Constance McLaughlin. 1962. Washington: Village and Capital 1800-1878. Princeton: Princeton
University Press, pp. 53-54.)
" Ibid.
46


To protect slaveholders in the city, a special tax was levied on nonresident slave
labor. Wedged between two slave states, the District of Columbia was ideally
located to become the hub of the domestic slave trade.
With the increased demand for slaves caused by the expansion of cotton
cultivation in the lower South and the slow but steady reduction of tobacco
cultivation in Maryland and Virginia, a growing "surplus" of slaves developed in
the vicinity of the capital. Slaves hired from their masters by Pierre L'Enfant
worked on the construction of the White House. Since much was accomplished
very quickly there must have been many; the conditions of their labor from
daybreak to dark under the command of tough, hard-drinking James Dermott can
only be imagined. Due to lack of skilled labor in Washington, DC, The White
House master stonemason, Collen Williamson, had to train hired slaves on the
spot at the quarry to cut the stone to build the foundation of the White House. 111
The slave trade was one of the most important business enterprises of the 17th
century. The states of Europe stabilized themselves and developed their economy
mainly at the expense of African people. During the latter half of the century;
Colbert, a Frenchman, stated that, "no commerce in the world produces 111
111 (The President's House: a History by William, Seale and Harry N. A brams, White House Historical
Association with the Cooperation of the National Geographic Society, 1986, vol. I, pp. 38, 50, 52,57,60)
47


as many advantages as that of the slave trade"(Williams, From Columbus to
Castro). The wealth of the New World in the form of sugar, tobacco, metals, gold,
cotton, etc. was extracted by African labor and then exported from the colonies
through the capitalistic enterprise of western Europe. Western Europe drew
profits from the trade in slaves, commodities produced, service of shipping, the
development of new industries based on processing raw materials, financing, and
insurance. According to Eric Williams, no other commerce required so large a
capital as the slave trade, which kept the wheels of metropolitan industry turning.
Cities such as Liverpool, Amsterdam, and Bristol were built upon slave labor. The
capital and raw materials derived from the African slave trade contributed
significantly to the Commercial and Industrial revolution. That contribution has
never waned over centuries and has contributed to America becoming a Super
Power among other countries in the world. According to James Rawleys book
The Transatlantic Slave Trade that, "black slavery was essential to the carrying on
of commerce, which in turn was fundamental to the making of the modem world."
In other words, the modem world was built upon the blood, sweat, and tears of
our African ancestors. 112
112 Francis, Anika. 2002. Economics of the African Slave Trade, cardell@eniac.seas.upenn.edu
48


Today, incarcerated men and women, and possibly thousands of children
in the very near future, will be subject to prison labor programs. Millions of
African Americans, just as their ancestors, are essential to the carrying on of
commerce, which is fundamental to the modem penal system today as it was in
early history. Professor Davis incorporates within her essay the fact that prisons
themselves are becoming a source of cheap labor that attracts corporate
capitalism. She states that,
the new American worker will be drawn from the
ranks of a racialized population whose historical
super exploitationfrom the era of slavery to the
1 1 T
presenthas been legitimized by racism.
Slavery or an extension of 21st Century chains are not new-fangled nor is the legal
and societal reasons for it. Americas history is replete with documentation of
state and federal slave labor programs sanctioned under the United States
Constitution. The use of the phrase sanctioned slavery is not a liberalized knee
jerk reaction to the criminal justice system nor is it used for shock appeal.
Slavery isas it was in the pastvalid under color of American law.
Segregation laws were used to perpetuate servitude and oppression of Negroes in 113
113 Davis, Angela. 2001. Race and Criminalization: Black Americans and the Punishment Industry
California: Princeton Press.
49


the United States.114 The South Carolina Black Code established regulation of the
domestic relations of persons of color, and to propagate penal laws in relation to
minorities, paupers and vagrants.115 Black Codes were commonplace among the
several states. The first clause of the Carolina Black code demands that, [a]ll
persons of color who make contracts for service or labor, shall be known as
servants, and those with whom they contract shall be known as masters where the
master shall receive, to his own use, the profits of the labor of his apprentice. 116
Such laws were designed for colored children, between the ages of two and
eighteen who had neither father nor mother, and vagrants unable to find work in
the free world. Targeted groups, accused of violating the laws, became subject to
incarceration and to a life of servitude at the hand of the state.
Particularly effective was the criminal-surety system, which had carried
over from the bad days of the Black Codes. Lawrence M. Friedman effectively
describes the system in his book Crime and Punishment in American History.117
If a black was convicted of vagrancy, or some other minor offense such as petty
larceny, or drunkenness, and thereafter assessed a fine, he effectively became a
114 For a history of the term, Jim Crow and its application in law, see Irons, Peter. Jim Crow's Children:
The Broken Promise of the Brown Decision.. New York: Viking Press. 2002 pp. 1-20.
115 Mullane, Deirde, Ed., 1993. Crossing the Danger Water: Three Hundred Years of African American
Writing., New York: Anchor Books.
116 Ibid. pp. 225
117 Friedman, Lawrence M.1993. Crime and Punishment in American History. New York: W.W. Norton &
Company.
50


kind of slave. He was turned over to a white employer who paid the fine and got
a permanent bonded laborer in return. For the black, moreover, there was no way
out once he was forced to work. A black defendant, uneducated and without a
lawyer, entered a courtroom of whites who were convinced he was guilty, or that
his rights, feelings and interests mattered less than that of whites, if they mattered
at all. Edward Ayers study of southern counties found conviction rates for blacks
much higher than for white in the late nineteenth century; whites were convinced
that blacks were congenital thieves and this belief was deeply embedded in
southern folklore. The national prison industry debate continues with a veiled
rhetoric that results in an expanding prison superstructure that effectively retains
Blacks and especially Black men, in a system of bonded labor and political and
social disenfranchisement.
Labor Laws and the Prison Industry
Morgan O. Reynolds, Director of the Criminal Justice Center and
economics professor at Texas A&M University, concludes that, prison industries
are positive developments because prisoners have the potential to produce
valuable goods and services consumers want to buy at a low cost. Prison
industries produced more than $1 billion worth of goods and services in 1994,
mostly for other government agencies. However, since prison industries have
51


historically been state-run rather than privately run, the output was often shoddy,
overpriced merchandise that other state agencies were required to buy from the
prison industry monopoly. The largest prison supplier was the Federal Bureau of
Prisons with $433 million in output for federal agencies, yet the system employed
only 16,000 inmates out of 61,000 inmates eligible to work (i.e., those not in
solitary confinement, considered dangerous or being transferred) from its total of
85,000 inmates.118
Arguably, productive prison work can be a good thing and, theoretically,
private enterprise might make it even better. For example, in 1923, when the
private sector still played a significant role in prisoner employment, productivity
was four times greater under private than under public control, even when the
same industries were compared. Consider a prisoner who is earning $14,000 per
year. His productivity adds to the economy just as does that of a non-
institutionalized person. If 800,000 prisoners worked a labor force equal to those
of Wyoming, Alaska and Vermont combined their productivity would add more
than $20 billion to the economy. The optimistic view of prison privatization and
an incarcerated labor force is spreading, according to Reynolds. 119
118 Reynolds, Morgan. 1997. The Economic Impact of Prison Labor, National Center for Policy Analysis
(Washington DC: Federal Bureau of Prisons. November 17, 1997).
1,9 Ibid.
52


In his book Penology for Profit: A History of the Texas Prison System 1867-1912
Donald Walker wrote that the state prison system in relation to blacks is that,
the principal explanation for the preponderance
of blacks among the inmate population in this
period can be found by examining their status
[blacks] in Texas. With regard to the legal system,
black Texans existed essentially outside protections
of the law. For the most part, their overwrought
financial circumstances rendered them unable to
avail himself or herself of legal counsel to defend
their interests in court. 120
Jeffrey Reiman describes the various philosophical justifications for designing a
system that would encourage incarceration. He lists five proposals:
"First. Have a number of irrational laws on the
books, such as laws against heroin or prostitution.
Second. It would be good to give police, prosecutors,
and judges broad discretion to decide who got arrested,
who got charged, and who got sentenced to prison.
Third. The prison experience should be not only
painful but also demeaning. By placing prisoners
in an enforced childhood characterized by no privacy
and no control over their time and actions is sure to
overcome any deterrent effect by weakening whatever
capacities a prisoner has for self-control.
Fourth. It goes without saying that prisoners
should neither be trained in a marketable skill
nor provided with a job after release.
120 Walker (1988) pp. 250.
53


Fifth. The ex-offenders sense that they
can never pay their debt to society, that they
will always be different from decent citizens,
reinforced by deprivation of the right to vote,
harassed by police and characterized as chronically
untrustworthy, unreliable, and unfit to truly
reenter society. 121
Reimans analysis of the politics of incarceration of minorities, particularly
blacks, is echoed time and again by criminologists and civil rights leaders.
Reimans five criteria comprise the core of a criminal justice loop in which blacks
become perpetually confinedreinforced even for them through perpetual
offender (three strikes youre out) laws that eventually create a permanent
prison labor force. With a scheme of incarceration and recidivism in place, laws
institutionalize the model.
The Fair Labor Standards Act of 1938 applies to any individual
employed by the Government of the United States 122In this case, the plaintiff
argued that when a prisoner is required to do any work, as distinguished from
merely spending time in prison, this amounts to slave labor. The court held
that, the Thirteenth Amendment, in abolishing slavery and involuntary servitude,
specifically adds the phrase, except as a punishment for crime whereof the party
121 Reiman pp. 82-84
122 29 U.S.C. § 203(e)(2)(A) (1976). (Emerson Emory M.D. v. the United States, 2 Cl. Ct. 579 1983).
54


shall have been duly convicted, which covers the plaintiffs situation. The law
does not apply to prisoners who are not determined to be employees within the
meaning of the Act. Alexander v. Sara, Inc., 505 F. Supp. 1080, 1081 (M.D. La.
1981). As recent as 1991, the court held in Williams v. Meese, 926 F.2d 994 (10th
Cir, 1991), that not only did the Fair Wage Act not apply to prisoners, neither
does Title VII of the 1964 Civil Rights Act, employment discrimination laws, or
the American with Disabilities Act (ADA) or the Age Discrimination in
Employment Act (ADEA). Therefore, within prison walls the same descendants
of slaves can be racially discriminated against and afforded no legal protections.
Some might argue that this system of prison labor applies to all prisoners,
regardless of race. Even if the point is conceded that prison labor, as currently
configured, is oppressive to all inmates, the historical and present position of
blacks in the U.S. creates a disproportionate impact through this regime. Given
that blacks and other people of color are disproportionately represented in both
state and federal prison populations, the unfairness and injustice of forced prison
labor falls inordinately on black inmates. Unquestionably reminiscent of
Americas early slave laws. Congressional support for prison privatization
schemes has grown dramatically over the past two decades. Former speaker of
the U.S. House of Representatives, Newt Gingrich, and Representative Dick
Armey outlined in Contract With America, the Republican Party design through,
55


The Taking Back Our Street Act, that set aside $ 10.5 billion dollars for state
prison construction grants, established truth-in-sentencing guidelines, reformed
the habeas corpus appeals process, [limiting prisoners to come before the courts
after conviction regardless of new evidence] and allowed police who in good
faith seize incriminating evidence in violation of the exclusionary rule to use
the evidence in court.. .the bill also authorized an additional $10 billion for local
law enforcement spending. 123 More than 100 Republicans around the country
signed this contract. It is arguable that the contract died an early death, but to the
imprisoned and impoverished African American, what the contract accomplished
was the initiative to supply tax dollars to be used for increased deportation;
limitations or complete restrictions from welfare assistance without complete
establishment of paternity by the mother, and freezes in welfare programs to
include head start. Gingrich and company ignored any initiative that would
provide monetary assistance to disadvantaged groups for quality education, small
business loans, or humane medical and social services to end a cycle of poverty.
On the contrary, prison construction and operation became the fastest growing
industry in the U.S. for federal funds to set aside land in rural areas to begin
construction of human warehouses.
123 Gillespie and Schellhas, Ed. 1994. Contract with America: The Bold Plan by Rep. Newt Grinrich, Rep.
Dick Army and the House Republicans to Change the Nation. New York: Randam House Press.
56


Marketing the Prison Industry
The marketing of the prison industry is viable, with the prison economy
making its way into all areas of market productivity. In basic economics terms,
there is a supply of blacks and there is a demand for their incarceration. Selling
goods to prisons has become another avenue of profit for businessmen and
women. Announcements of new prison construction, jobs and procurement
contracts can be found on the FBOP. It announced an opening of a new
correctional institution. The $100 million facility, will employ 350-400 staff and
have an annual operating budget of $25 million, will be located just north of
Interstate 68 at the Hazelton Exit near Bruceton Mills New York several hundred
miles away from urban blacks. The FBOP has determined the site due to what
they believe is its superior topography and access can be developed quickly and
at reasonable cost and is a convenient location for law enforcement.
Many of the private prison corporations have public stock that is also sold via the
internet. The private prison markets help to reinforce incarceration of nonviolent
offenders and privatization of prisons has become all the more popular. The US
Federal Bureau of Investigations (FBI) has studied black social conditions and
their consequences for decades. Coincidentally, former FBI official George
Wackenhut founded Wackenhut a multi-million dollar security firm corporation
in 1954. This diversified private security firm first entered the prison business in
57


1987 when it opened a 250-bed Immigration and Naturalization Service detention
center. (Federal Bureau of Prisons, 2001) Wackenhut reported $8.3 million in
profits on $137.8 million in revenue in 1997. (Federal Bureau of Prisons, 2001)
Wackenhut Corrections Corporation Correctional services includes the
management of a broad spectrum of facilities, including male and female adult
prisons; juvenile prisons; community corrections; work programs; prison
industries; substance abuse treatment facilities; and mental health, geriatric and
other special needs institutions. Other management contracts include psychiatric
health care, electronic home monitoring, prisoner transportation, correctional
health services, and facility maintenance.
The Company has an in-house capability for the design of new facilities,
and offers a full privatization package to government agencies, to include
financing. The Company operates in the United States, Europe, Australia, New
Zealand and South Africa. One of the greatest concerns with private corporations
operating prisons for the state is the degree to which federal and state
constitutional safeguards apply. In private prisons, the application of
constitutional standards for abusive or inhumane conditions is not as clear,
because constitutional standards apply to state action, not private action.
Recently, the state of Louisiana withdrew Wackenhuts contracts because of
consistent charges of abuse of inmates and inadequate and unsafe conditions in
58


Wackenhuts facilities. For blacks especially, the historical denial of equal
protection, due process guarantees presents deep concern in the present
arrangements between government and private industry. The public private
distinction was used in law for decades to prevent remedies for blacks suffering
from rampant discrimination.124 Even though facilities were no longer under
Wackenhut control, in 1997, Corrections Corporation of Americas stock doubled
to more than $41 a share. (Federal Bureau of Prisons) Today, Wackenhut has
merged with a Dutch security company thereby forming the largest security
company in the world. Company stock tripled. Since the enactment of mandatory
minimum sentencing for drug users, the Federal Bureau of Prisons budget has
increased by 1,350%. Its budget has jumped from $220 million in 1986 to $3.19
billion in 1997.125 From California to Maine prisons are booming!
124 Kluger, Richard. 1976. Simple Justice: The History ofBrown v. Board of Education and Black America's
Struggle for Equality. The main critics of the private prison industry was crystallized by Paul Leighton who
wrote that private prisons create large numbers of people who have a vested financial interest in having a
large and increasing incarceration rate. Leighton, Paul. Industrialized Social Control. Peach Review 7, no.
% (1995), pp. 390.
125 Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics 1996, Washington D.C.: U.S.
Government Printing Office (1997), pp. 20. Office of National Drug Control Policy, Executive Office of the
White House, National Drug Control Strategy 1997, Budget Summary, Washington D.C.: U.S. Government
Printing Office (1997), pp. Ill
59


UNITED STATES FEDERAL PRISON SYSTEM
ison Population Rate (per 100,000 ofthe populntion)

10-49 | 1100-149
| 150-99 | | 150-199
200-299
300-499
500-999
1000+
International Centre for Prison Studies (2001)
Friday, 23-Mar-2001 18:54:01 GMT by Alastair Dunning
Fig. 3.2 United States Federal Prison System
60


CHAPTER 4
THE PARADOX OF LEGAL AND
ILLEGAL DRUG ABUSE
The paradox of drug use, in its simplicity, is the paradigm of freedom
versus incarceration for the illegal and legal high. The racially disproportionate
nature of the war on drugs is not just devastating to black Americans. It
contradicts faith in the principles of justice and equal protection of the laws that
should be the bedrock of any constitutional democracy; it exposes and deepens
the racial fault lines that continue to weaken the country and belies its promise as
a land of equal opportunity; and it undermines faith among all races in the fairness
and efficacy of the criminal justice system. Urgent action is needed, at both the
state and federal level, to address this crisis for the American nation. Authors of
Justice On Trial: Racial Disparities in the American Criminal Justice System
write that, our criminal laws, while facially neutral, are enforced in a manner that
is massively and pervasively biased. The injustices of the criminal justice system
1 Oft
threaten to render irrelevant fifty years of hard-fought civil rights progress. 126
126 Welch, Ronald H. and Angulo, Carlos T. 2001. Justice On Trial: Racial Disparities in the American
Criminal Justice System (Washington, DC: Leadership Conference on Civil Rights / Leadership Conference
Education Fund, May 2000), pp. v.
61


Regarding state prison population growth from 1990 through 2000, the US Dept,
of Justice reports, "Overall, the increasing number of drug offenses accounted for
27% of the total growth among black inmates, 7% of the total growth among
Hispanic inmates, and 15% among white inmates.127 According to the federal
Household Survey, "most current illicit drug users are white. There were an
estimated 9.9 million whites (72 percent of all users), 2.0 million blacks (15
percent), and 1.4 million Hispanics (10 percent) who were current illicit drug
users in 1998." And yet, blacks constitute 36.8% of those arrested for drug
violations, over 42% of those in federal prisons for drug violations. African
Americans comprise almost 58% of those in state prisons for drug felonies;
Hispanics account for 20.7%.128
As aforementioned in this writing, it is documented that, among persons
convicted of drug felonies in state courts, whites with identical drug crime
convictions were less likely than African Americans to be sent to prison. Only
thirty-three percent (33%) of convicted white defendants received a prison
127 Harrison, Paige M. & Allen J. Beck, PhD, US Dept, of Justice, Bureau of Justice Statistics, Prisoners in
2001 (Washington, DC: US Dept, of Justice, July 2002), pp. 13.
128 Substance Abuse and Mental Health Services Administration, National Household Survey on Drug Abuse:
Summary Report 1998 (Rockville, MD: Substance Abuse and Mental Health Services Administration, 1999),
pp. 13; Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics 1998 (Washington DC: US
Department of Justice, August 1999), pp. 343, Table 4.10, pp. 435, Table 5.48, and pp. 505, Table 6.52;
Beck, Allen J., Ph.D. and Mumola, Christopher J., Bureau of Justice Statistics, Prisoners in 1998
(Washington DC: US Department of Justice, August 1999), pp. 10, Table 16; Beck, Allen J., PhD, and Paige
M. Harrison, US Dept, of Justice, Bureau of Justice Statistics (Washington, DC: US Dept, of Justice, August
2001), pp. 11, Table 16.
62


sentence, while 51% of African American defendants received prison sentences. It
should also be noted that Hispanic felons are included in both demographic
groups rather than being tracked separately so no separate statistic is available.129
Expressed in terms of percentages, 10.0% of black non-Hispanic males age 25 to
29 were in prison on December 31, 2001, compared to 2.9% of Hispanic males
and about 1.2% of white males in the same age group. Although incarceration
rates drop with age, the percentage of black males age 45 to 54 in prison in 2001
was still nearly 2.7% -- only slightly lower than the highest rate (2.9%) among
Hispanic males (age 25-29) and more than twice the highest rate (1.3%) among
white males (age 30 to 34).130 According to the US Census Bureau, the US
population in 2000 was 281,421,906. Of that, 194,552,774 (69.1%) were white;
33,947,837 (12.1%) were black; and 35,305,818 (12.5%) were of Hispanic origin.
Additionally, 2,068,883 (0.7%) were Native American, and 10,123,169 (3.8%)
were Asian. 131
The San Francisco Department of Planning determined that 62% of
billboards in African American communities and 42% of billboards in Latino
129 Durose, Matthew R., and Langan, Patrick A., Bureau of Justice Statistics, State Court Sentencing of
Convicted Felons, 1998 Statistical Tables (Washington DC: US Department of Justice, December 2001)
130 Harrison, Paige M. & Allen J. Beck, PhD, US Dept, of Justice, Bureau of Justice Statistics, Prisoners in
2001 (Washington, DC: US Dept, of Justice, July 2002), pp 12.
131 US Census Bureau, Department of Commerce, Census 2000 Redistricting Data (pp. 94-171) Summary
File for states, Population by Race and Hispanic or Latino Origin for the United States: 2000 (PHC-T-a)
Table 1.
63


communities advertised cigarettes and alcohol, compared to only 36% citywide in
1986. The Boston Globe found ten times as many tobacco and alcohol ads in
black neighborhoods as in white neighborhoods.132 133 The dependency on alcohol
was also prevalent among arrestees who may also face the ill effects of this drug,
which lower inhibitions and muddles the senses. However, the use of alcohol is
not a mitigating factor in booking decisions. If anything, it tends to support
additional charges. Very few arrestees are provided proper follow up treatment
for alcohol substance abuse that compounds the proclivity toward illicit drug use.
According to the federal Household Survey, there are more than 48 million
Americans who abuse alcohol an average of one or more days each week of the
year. This is more than the combined total number of Americans who have ever
tried cocaine, crack, and/or heroin (29.7 million), and two and a half times the
number of Americans who have used marijuana once in the last year (18.7
million). On an average day in 1996, an estimated 5.3 million convicted
offenders were under the supervision of criminal justice authorities. Nearly 40%
of these offenders, about 2 million, had been using alcohol at the time of the
132 Center for Science in the Public Interest 1990. Neighborhood in Action: A guide for Drug for Drug Abuse
Prevention, Scott Newman Center, 1992.
133 Substance Abuse and Mental Health Services Administration, US Department of Health and Human
Services, National Household Survey on Drug Abuse: Population Estimates 1998 (Washington DC: US
Department of Health and Human Services, 1999), pp. 19,25,31, 37, 85,91, 105.
64


offense for which they were convicted. 134 About 6 in 10 convicted jail inmates
said that they had been drinking on a regular basis during the year before the
offense for which they were serving time. Nearly 2 out of 3 of these inmates,
regardless of whether they drank daily or less often, reported having previously
been in a treatment program for an alcohol dependency problem. 135 About a
quarter of the women on probation nationwide had been drinking at the time of
their offense compared to more than 40% of male probationers. For individuals
convicted of public-order crimes, nearly two-thirds of women and three-quarters
of men had been drinking at the time of the offense.136 For more than 4 in 10
convicted murderers being held either in jail or in State prison, alcohol use is
reported to have been a factor in the crime. Nearly half convicted of assault and
sentenced to probation had been drinking when the offense occurred.137
134 Greenfield, Lawrence A., US Department of Justice, Bureau of Justice Statistics, Alcohol and Crime: An
Analysis of National Data on the Prevalence of Alcohol Involvement in Crime (Washington, DC: US
Department of Justice, April, 1998), pp. 20.
135 Ibid. pp. 27.
136 Ibid. pp. 24.
137 Ibid. pp. 21.
65


Mental Health and Medicine:
Drugs and Freedom
Illegal drug users are among the Americans without medical insurance and
private physicians. Individuals who abuse legal drugs essentially live without
threat of incarceration. As for blacks, lack of medical insurance, poverty, and a
general distrust of white doctors hinder their ability to obtain legal psychotropic
and painkillers. The history of distrust is well founded. African Americans
misgivings about the medical system in general and their reason for failing to seek
medical help for ailments to include mental health treatment rests with recorded
horrific mistreatment of the race. An example of the fear that is prevalent among
blacks is that of a Washington family that came to the Rev. Jim Holley seeking
66


guidance. Their elderly father was on a respirator. The doctors had said it was
time to let him go. The doctors seemed respectful. Still, the family wondered.
Might the white doctors pull the plug on their black father to give the machine to
someone else? "When we went back in there, the man had passed. And the
machine was being used by a white person," A coincidence? Holley believes it
was. But for many black families, he said, such a coincidence "does lend itself to
suspicion." From the notorious Tuskegee, Ala., syphilis study to more recent
findings that black patients often get less treatment than whites, the black
community has long seen evidence that the U.S. medical establishment devalues
black lives. Now, as the nation debates physician-assisted suicide and other limits
on life-sustaining care, some black leaders fear right-to-die choices are giving
doctors new opportunities to victimize blacks.138 139 In addition to the fear, mistrust,
and horrors of the past, is the failed health system that blacks face daily.
The Americans who can afford their "high" are mostly white American men and
women armed with health insurance and the backing of their personal doctors.
According to a new Institute of Medicine study, minorities in the United States
138 The impact of the Tuskegee Study, in which blacks in the South were not treated for syphilis as part of a
government study, continues to be felt as the mistrust it generated interferes with attempts to combat AIDS in
certain black areas. Cornelius Baker, director of the National Association of People with AIDS, reports that
"many blacks, especially in the South, simply won't take medicines," because they fear being "killed off as
part of the master plan." AIDS education programs in black communities have often prompted the topic of
Tuskegee. New York Times (04/13/1997)
139 Montgomery, Lori. Blacks Fearful of White Doctors Pulling the Plug, February 26, 1997 Washington Free
Press.
67


receive lower-quality health care than whites doeven when they have the same
medical problems, insurance coverage and income.140 The study showed that
members of minority groups are disproportionately represented among the
uninsured. Almost 4 in 10 uninsured adults are Latino (23%) or African
American (16%), even though only 10% of the total population is Latino and 11%
is African American. 141 The study also found that the majority of the uninsured
say they do not have health insurance because it is too expensive (74%) and their
job does not offer coverage (48%) uninsured are less likely than the insured to
have a regular place they go for medical advice while the insured (91%) are more
likely than the uninsured to have a place to go.142 More than 8 in 10 uninsured
Americans are workers or dependents of workers.143 Although open to further
examination, researchers have conducted unprecedented studies that found that
140 The Henry J. Kaiser Family Foundation study entitled, National Survey on the Uninsured). 2000
141 Ibid. pp. 1-27.
142 Ibid pp. 8.
143 Ibid pp. 8-10.
68


blacks in violent ghettoes suffer from mental illness to include Post Traumatic
Stress Disorder that contributes to their illicit drug use.144 The study found that,
inner-city youngsters are more likely than middle-class adolescents living in
suburban or rural areas to be the victims of or witnesses to community-based
violence. 145The study also revealed that several community-based studies have
reported that more than 80% of inner-city adolescents have seen someone
physically assaulted, 40% have seen someone shot or stabbed, and almost 25% of
Dr. Eric Schneider of Harvard University's School of Public Health led an unprecedented study and found
that blacks get inferior care compared with whites when it comes to mental illness and certain other ailments.
(Schneider, Harvard University School of Public Health 1997) A study of patients enrolled in government
managed-care plans suggests medical bias in treatment. While other studies have found broad racial
inequities in medicine, this is one of the first to show it exists in mental health treatment. (Schneider 1997. pg
430) The reasons for the gap found in the study are unclear, but the researchers said lack of access to medical
care a reason cited in other research is unlikely because they compared blacks and whites enrolled in
similar plans. The doctor said that the possible explanations include racial bias among doctors and cultural
differences, including a tendency among some blacks to shun some preventive health care measures.
(Schneider, pp. 450) The study involved 305,574 patients in more than 200 Medicare managed care plans in
1997. Blacks were less likely than whites to receive follow-up care after being hospitalized for mental illness,
33.2% vs. 54%; and less likely to receive commonly used beta-blockers after heart attacks, 64% versus
73.8%. Black diabetics were less likely than white diabetics to receive directions from physicians to obtain
needed eye exams, 43.6% compared with 50.4%. (Schneider, Harvard University School of Public Health
1997) Representative of the psychosocial illnesses affecting the African American populace is a study of
urban adolescent girls conducted to identify clinical and functional correlates of Post Traumatic Stress
Disorder (PTSD) in trauma-exposed urban black America. (Lipschitz 2001) PTSD is a condition that arises
from exposure to life-threatening circumstances first diagnosed among some of the survivors of wartime
combat. (Lipschitz 2001) The syndrome was known as Shell Shock and it was thought to be primarily
motivated by the soldiers effort at self-preservation. Individuals experiencing PTSD may be diagnosed with
other problems including Adjustment Disorder, Acute Stress Disorder, Obsessive-Compulsive Disorder,
Generalized Anxiety Disorder, Mood Disorder, Substance Abuse, Organic Brain Syndrome and Malingering.
(Lipschitz 2001) The Harvard and Yale studies confirm that, among African Americans suffering from
PSTD, discrete and negative and dependent events, resulted in school failure, school suspension, legal
difficulties, incarceration and pregnancy. (Lipschitz 2001).
145 Boney-McCoy and Finkelhor, 1995. Gladstein et al., 1992.
69


youngsters have witnessed a homicide.146 The investigated clinical correlates of
PTSD included rates of depression, anxiety, and substance use. These
adolescent PSTD sufferers are a reflection of adult inner city survivors subject to
the war on drugs portrayed in the media among reciprocal violent acts of
cartels, traffickers, dealers and petty users.
In 2001, the United States Surgeon General reported that, for African
Americans, overall rates of mental illness appear to be similar to those of non-
Hispanic whites. Differences do arise when assessing the prevalence of specific
illnesses. Dr. Satcher observed that mental illnesses are real, disabling conditions
that affect all populations in the nation. He emphasized they are as treatable or
more treatable than other illnesses like diabetes, cancer or heart disease. Overall,
only one-third of Americans with a mental illness or a mental health problem get
care. Yet, the percentage of African Americans receiving needed care is only half
that of non-Hispanic whites. One study reported that nearly 60% of older African
American adults were not receiving needed services. For example: African
146 Bell and Jenkins, 1993; Schubiner et.al, 1993; Schwab-Stone et.al, 1995.
70


Americans may be less likely to suffer from major depression and more likely to
suffer from phobias than are non-Hispanic whites. Somatization147 is common
among African Americans (15%) than among whites (9%).148 Moreover, African
Americans experience culture-bound syndromes such as isolated sleep paralysis,
an inability to move while falling asleep or waking up, and falling out, a sudden
collapse sometimes preceded by dizziness. While non-Hispanic whites are nearly
twice as likely as African Americans to commit suicide, suicide rates among
young black men are as high as those of young white men. Moreover, from 1980
- 1995, the suicide rate among African Americans ages 10 to 14 increased 233%,
compared to 120% of comparable non-Hispanic whites. The U.S. Surgeon
General reports that, African Americans are over-represented in high-need
populations that is particularly at risk for mental illnesses:
147 Bruns, Daniel. 1988. Somatization is a phenomena typically underlying feelings of depression, anxiety
or other feelings, which are not recognized or acknowledged by the person. Instead, what the person may be
aware of is all the physical correlates of these underlying difficulties. For example, a somatizer may not
recognize that he or she is depressed, but instead may complain of fatigue. A somatizer may not recognize
that he or she is anxious, but may instead report that his or her hands become tremulous, or that there is a
chronic tightness in the back of the neck. Published at http:Avww.healthpsych.com.
148 United States Surgeon General: Press Release, Sunday, August 26,2001. Culture Counts In Mental
Health Services and Research Finds New Surgeon General Report. Striking disparities in access, quality and
availability of mental health services exist for racial and ethnic minority Americans, according to the new
report of the Surgeon General released today, Mental Health: Culture, Race and Ethnicity. The report, a
supplement to the 1999 first-ever Surgeon General's report on mental health, highlights the role culture and
society play in mental health, mental illness, and the types of mental health services people seek. It finds that,
although effective, well-documented treatments for mental illnesses are available, racial and ethnic minorities
are less likely to receive quality care than the general population. Overall, one in three Americans who need
mental health services currently receives care. A critical consequence of this disparity is that racial and ethnic
minority communities bear a disproportionately high burden of disability from untreated or inadequately
treated mental health problems and mental illnesses.
71


People who are homeless. While representing only 12% of
the U.S. population, African Americans make up about
40% of the homeless population.
Children in foster care and the child welfare system.
African American children and youth constitute about 45%
of children in public foster care and more than half of all
children waiting to be adopted.
People exposed to violence. African Americans of all ages
are more likely to be victims of serious violent crime than
are non-Hispanic whites. One study reported that over 25%
of African American youth exposed to violence met
diagnostic criteria for post-traumatic stress disorder
(PTSD). Among Vietnam War veterans, 21% of black
veterans, compared to 14% of non-Hispanic white veterans,
suffer from PTSD, apparently because of the greater
exposure of blacks to war-zone trauma.
People who are incarcerated. Nearly half of all prisoners in
state and federal jurisdictions and almost 40% of juveniles
in legal custody are African Americans.149
The United States Surgeon General emphasizes that cultures of clinicians and the
service system itself further influence diagnosis and treatment. His report states
that, providers need to know how to build upon the cultural strengths of the
149
Ibid.
72


people in their care. After all, while not the sole determinants, cultural and social
influences do play important roles in mental health, mental illness and service use,
when added to biological, psychological and environmental factors.150 In
addition to the reports and research on (PTSD) among blacks are additional
studies that find perverse prescription drug abuse among whites that also suffer
from mental illness yet escape incarceration by obtaining prescriptions from their
doctors or friends who have been prescribed the drugs legally.151
Reporter, Claudia Kalb, investigated prescription drug addiction and found that,
in 1999 an estimated 4 million Americans over the age of 12 used prescription
pain killers relievers, sedatives and stimulants for non-medical reasons.
Prescription drug abuse does not carry the parallel mandatory minimum
incarceration sentences associated with street drugs. For decades legal
psychotropic drugs have been manufactured for distribution to insured Americans.
Their pushers are licensed doctors who receive free samples of mood-altering
drugs from pharmaceutical companies. Legal tranquilizers, painkillers and
psychotropics such as Valium, Vicodin, Percodan, and Halcion represent a multi-
billion dollar pharmaceutical industry. These drugs are abused and used in a
150 ibid.
151 Ibid.
73


recreational manner just as street drugs are. 152 The Institute of Medicine
convened a committee on the study of Halcion, manufactured by Upjohn The
Committee reports that since 1982 an estimated 11 billion prescriptions for
Halcion (triazolam) alone have been filled worldwide. 153
In 1996 the U.S. Food and Drug Administration (FDA) task force looked
into the medical, procedural and legal aspects of the drug's approval process and
concluded that the hypnotic drug was "safe when prescribed according to current
labeling" and allowed it onto the market. 154 Another legal psychotropic drug
available to those who can afford it, have insurance and exhibit proper symptoms
for its prescription is the widely used painkiller OxyCotin. Reporters, Barry
Meier and Melody Petersen's, research found that in about four years,
OxyContin's sales have hit $1 billion, more than even Viagra's. OxyContin has
been a factor in the deaths of at least 120 people, and medical examiners are still
counting. The company was criticized for its marketing strategy of providing
doctors with free trips and paid weekends at resort hotels. 155 Following a racially
charged remark about black quarterbacks, Rush Limbaugh a conservative radio
personality, found himself being investigated for the alleged illegal purchase of
152 Kalb, Claudia.2001. Playing With Pain Killers. Newsweek, 9April 01.
153 Bunney, William. 1997. Committee on Halcion: An Assessment of Data Adequacy and Confidence.
National Academy Press.
154 Ibid.
155 Meier, Barry, M. Peterson. 2001.0xycotin and Prescription Drugs. New York Times, 5 March 01.
74


OxyContin. Law enforcement officials who spoke on condition of anonymity
confirmed to The Associated Press that Limbaugh is being investigated by the
Palm Beach (Fla.) County state attorney's office for allegedly illegally buying and
abusing prescription painkillers. Limbaugh had previously touted to his listeners
that people charged with drug use should be exiled to another country.
Individuals who promote legalized drugs such as that alleged to be purchased and
abused by Limbaugh are similar to street pushers who are paid bonuses from
dealers. Thousands of doctors in support of certain drugs are paid promotional
bonuses as high as $7,000.00 per speaking engagement. The pharmaceutical
market doubled to $145 billion between 1996 and 2000.156 Until the appearance
of Prozac in the 1980's, Valium was the largest selling pharmaceutical drug in
history and by the middle of the 1970's more than 60 million Valium prescriptions
were written each year. According to the research firm, IMS America LTD,
Prozac is prescribed 350,000 times each year to children under the age of sixteen.
157 White America provides billions of dollars to pharmaceutical drug dealers for
mood altering substances; the difference is that, their drug sales are not 157
157 Kennedy, Bruce. 1999. The Tranquilizing of America: How Mood-altering Prescription Drugs Changed
the Cultural Landscape. CNN Interactive.
75


considered drug pushing and their users are not predominantly uninsured like
poor black drug users who are incarcerated for using street drugs.
The Myth of Race Neutral Prosecutions
An American Bar Association study found a pattern of racial
discrimination in arrests and prosecution of minorities for drug possession and
other crimes. At the start of the 1990s, the U.S. had more Black men (between
the ages of 20 and 29) under the control of the nation's criminal justice system
than the total number in college. This and other factors have led some scholars to
conclude that crime control policies are a major contributor to the disruption of
the family, the prevalence of single-parent families, and children raised without a
father in the ghetto, and the inability of people to get the jobs. In the year 1986,
before mandatory minimums for crack offenses became effective, the average
federal drug offense sentence for blacks was 11% higher than for whites.
Following the implementation of harsher drug sentencing laws, the average
federal drug offense sentence was 49% higher for blacks.158 Regardless of similar
or equal levels of illicit drug use during pregnancy, black women are 10 times
more likely than white women to be reported to child welfare agencies for
158 Meierhoefer, B. S. 1992. The General Effect of Mandatory Minimum Prison Terms: A Longitudinal Study
of Federal Sentences Imposed (Washington DC: Federal Judicial Center), pp. 20.
76


prenatal drug use.159 Due to harsh new sentencing guidelines, such as three-
strikes, you're out, a disproportionate number of young Black and Hispanic men
are likely to be imprisoned for life under scenarios in which they are guilty of
little more than a history of untreated addiction and several prior drug-related
offenses. States will absorb the staggering cost of not only constructing
additional prisons to accommodate increasing numbers of prisoners who will
never be released but also warehousing them into old age. 160 Mandatory
minimums have not actually reduced sentencing discretion. Control has merely
been transferred from judges to prosecutors.161 Prosecutors, not judges, have the
discretion to decide whether to reduce a charge, whether to accept or deny a plea
bargain, whether to reward or deny a defendant's "substantial assistance" or
cooperation in the prosecution of someone else, and ultimately, to determine what
the final sentence will be.162 After eleven years, it should be obvious that the
system has failed and that it cannot be fixed even by the Supreme Court -
159 Neuspiel, D.R., "Racism and Perinatal Addiction," Ethnicity and Disease, pp. 6: 47-55 (1996); Chasnoff,
I.J., Landress, H.J., & Barrett, M.E., "The Prevalence of Illicit-Drug or Alcohol Use during Pregnancy and
Discrepancies in Mandatory Reporting in Pinellas County, Florida," New England Journal of Medicine, pp.
322: 1202-1206(1990).
160 Haney, Craig Ph.D., and Philip Zimbardo, Ph.D., "The Past and Future of U.S. Prison Policy: Twenty-five
Years After the Stanford Prison Experiment," American Psychologist, Vol. 53, No. 7 (July 1998), pp. 718.
For a more complete perspective, read Drug War Facts sections on Alcohol, Civil and Human Rights, Crack,
Drug Use Estimates, Gateway Theory, Prison, and Women.
161 Caulkins, J., et al., Mandatory Minimum Drug Sentences: Throwing Away the Key or the Taxpayers'
Money? (Santa Monica, CA: RAND Corporation, 1997), pp. 24.
162 Ibid. pp. 16-18.
77


because the criminal justice system has been distorted: the enhanced power of the
prosecutor in sentencing has diminished the traditional role of the judge. The
result has been even less fairness, and a huge rise in the prison population.163
Most of the judges we interviewed were quite bitter about the operation of the
sentencing guidelines. As one of them remarked: 'The people who drew up these
guidelines never sat in a court and had to look a defendant in the eye while
imposing some of these sentences. 164 Fifty-five percent (55%) of all federal drug
defendants are low-level offenders, such as mules or street-dealers. Only 11% are
classified as high-level dealers.165 According to the U.S. Sentencing
Commission, during the lat 1980s to the early 1990s, only 5.5% of federal crack
defendants are considered high-level crack dealers.166 Though it is still too early
to make a final judgment, RAND found that three-strikes and truth-in-sentencing
laws had little significant impact on crime and arrest rates. The Uniform Crime
Reports held neither a three-strikes nor a truth-in-sentencing law had the lowest
rates of index crimes, whereas index crime rates were highest in states with both
163 Smith, Alexander, and Polack, Harriet, "Curtailing the Sentencing Power of Trial Judges: The Unintended
Consequences", Court Review (Williamsburg, VA: American Judges Association, Summer 1999), pp. 6-7.
164 Ibid pp. 6.
165 US Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy
(Washington DC: US Sentencing Commission, February 1995), Table 18.
166 Ibid Table 18.
78


1 f\l
types of get-tough laws. This suggests that more research needs to be done to
prove the effectiveness of the laws. Despite the uncertainties of the laws, since
the mid 1990s, enactment of mandatory minimum sentencing for drug users, the
Federal Bureau of Prisons budget increased by more than 1,350%, from $220
million in 1986 to about $3.19 billion in 1997.167 168 The ONDCP in its 2000 annual
report detailed administration requests for major increases in funding to the
Federal Bureau of Prisons for drug-related prison construction. These include an
extra $420 Million in fiscal year 2001, and advanced appropriations of $467
Million in 2002, and an additional $316 Million in 2003 all drug-related.169
Powder cocaine and crack cocaine are two forms of the same drug, containing the
same active ingredient.170 Crack cocaine is the only drug for which the first
offense of simple possession can trigger a federal mandatory minimum sentence.
Possession of 5 grams of crack will trigger a 5-year mandatory minimum
sentence. "Simple possession of any quantity of any other substance by a first-
167 Turner, Susan, RAND Corporation Criminal Justice Program, Justice Research & Statistics Association,
"Impact of Truth-in-Sentencing and Three Strikes Legislation on Crime", Crime and Justice Atlas 2000
(Washington, DC: US Dept, of Justice, June 2000), pp. 10.
168 Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics (Washington, DC: US Government
Printing Office, 1997), pp. 20; Office of National Drug Control Policy, Executive Office of the White
House, National Drug Control Strategy, 1997: Budget Summary (Washington DC: US Government Printing
Office, 1997),pp. 111.
169 Ibid. pp. 20- 96.
170 US Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy
(Washington DC: US Sentencing Commission (February 1995), pp. v.
79


time offender-including powder cocaine-is a misdemeanor offense punishable by
a maximum of one year in prison." (21 U.S.C. 844.)
In 1986, before mandatory minimums for crack offenses became effective,
the average federal drug offense sentence for blacks was 11% higher than for
whites. Four years later following the implementation of harsher drug sentencing
laws, the average federal drug offense sentence was 49% higher for blacks.171
The US Sentencing Commission found in its 1997 report that "nearly 90 percent
of the offenders convicted in federal court for crack cocaine distribution are
African American while the majority of crack cocaine users is white. Thus,
sentences appear to be harsher and more severe for racial minorities than others as
a result of this law. The current penalty structure results in a perception of
unfairness and inconsistency.172 In federal court today, low-level crack dealers
and first-time offenders sentenced for trafficking of crack cocaine receive an
average sentence of 10 years and six months.
171 Meierhoefer, Barbara S. 1992. The General Effect of Mandatory Minimum Prison Terms: A Longitudinal
Study of Federal Sentences /m/7oserf.(Washington DC: Federal Judicial Center), pp. 20.
172 US Sentencing Commission, Special Report to the Congress: Cocaine and Federal Sentencing Policy
(Washington, DC: US Sentencing Commission, April 1997), pp. 8.
80


According to the U.S. Sentencing Commission, only 5.5% of all federal crack
defendants are high-level dealers.173 The Sentencing Commission also notes a
problem regarding "prosecutorial and investigative sentencing manipulation. For
example, because powder cocaine is easily converted into crack cocaine and
because the penalties for crack cocaine offenses are significantly higher than for
similar quantity powder cocaine offenses, law enforcement and prosecutorial
decisions to wait until powder has been converted into crack can have a dramatic
impact on a defendant's final sentence.174 In 1999,1,350 wiretaps were
authorized by state and Federal courts. Of these, 978 a total of 72.4% were for
drug investigations, 139 (10%) were for racketeering, 60 (4.4%) were for
gambling, 62 (4.6%) were for homicide or assault, and only seven about half a
percent were for kidnapping.175 Contrary to international standards, prisons and
jails in the USA employ men to guard women and place relatively few restrictions
on the duties of male staff. As a consequence, much of the touching and viewing
of their bodies by staff that women experience as shocking and humiliating to
173 US Sentencing Commission, Special Report to the Congress: Cocaine and Federal Sentencing Policy
(Washington DC: US Sentencing Commission, February 1995), pp. 150; Bureau of Justice Statistics,
Sourcebook of Criminal Justice Statistics 1996 (Washington DC: Bureau of Justice Statistics, 1997), pp. 476,
Table 5.58.
174 US Sentencing Commission, Special Report to the Congress: Cocaine and Federal Sentencing Policy
(Washington, DC: US Sentencing Commission, April 1997), pp. 8.
175 Administrative Office of the United States Courts, 1999 Wiretap Report (Washington, DC: USGPO,
2000), pp 17.
81


them is permitted by law.176 Retaliation for reports of abuse impedes womens
access to protection of their human rights. One woman who won a lawsuit against
the Federal Bureau of Prisons for sexual abuse reported that she was beaten, raped
and sodomized by three men who in the course of the attack told her that they
were attacking her in retaliation for providing a statement to investigators.177 178 179 180
Nationwide, one in every 20 black men over the age of 18 is in prison. In five
states, between one in 13 and one in 14 black men is in prison. This compares to
one in 180 white men. Nationwide, black men are sent to prison on drug
charges at 13 times the rate of white men. Most drug offenders are white. Five
times as many whites use drugs as blacks. Yet blacks comprise the great majority
of drug offenders sent to prison. The solution to this racial inequity is not to
incarcerate more whites, but to reduce the use of prison for low-level drug
i on
offenders and to increase the availability of substance abuse treatment.
The Mollen Commission was appointed to investigate corruption in the New York
City Police Department. The Commission "found that police corruption, brutality,
and violence were present in every high-crime precinct with an active narcotics
176 Amnesty International, "Not Part of My Sentence": Violations of the Human Rights of Women in Custody
(Washington, DC: Amnesty International, March 1999), pp. 39.
177 Ibid. pp. 59.
178 Human Rights Watch, Racial Disparities in the War on Drugs (Washington, DC: Human Rights Watch,
2000.
179 Ibid.
180 Ibid.
82


trade that it studied, all of which have predominantly minority populations. It
found disturbing patterns of police corruption and brutality, including stealing
from drug dealers, engaging in unlawful searches, seizures, and car stops, dealing
and using drugs, lying in order to justify unlawful searches and arrests and to
forestall complaints of abuse, and indiscriminate beating of innocent and guilty
alike. In his book No Equal Justice, Georgetown Law Professor David Cole
notes, the Supreme Court's removal of meaningful Fourth Amendment review
allows the police to rely on un-particularized discretion, unsubstantiated hunches,
and non-individualized suspicion. Racial prejudice and stereotypes linking racial
minorities to crime rush to fill the void.181 182 In Maryland, a state survey of police
traffic stops ordered by the state court in response to state troopers' use of racial
profiling found that from January 1995 through December 1997, 70 percent of
the drivers stopped on Interstate 95 were African Americans. According to an
ACLU survey conducted around that time, only 17.5 percent of the traffic and
speeders on that road were African American. As of March 2001,16 of the 49
State police agencies with patrol duties required officers to collect the race or
181 Cole, David. 1999. No Equal Justice: Race and Class in the American Criminal Justice System. New
York: The New Press, pp. 23-4.
182 Ibid. pp. 35-53.
83


ethnicity of all drivers involved in a traffic stop Thirty-seven State agencies
collected the race or ethnicity of motorists when an arrest was made, and 22
agencies did so following a vehicle or occupant search. Ten State police agencies
Arizona, Arkansas, Idaho, Illinois, Minnesota, Montana, New Mexico, North
Dakota, Oklahoma, and Utah did not require their State troopers to collect race
or ethnicity data.183 In addition to the increase in the number of States that
required State law enforcement agencies to collect race and ethnicity statistics
during traffic stops, States have recently enacted statutes that prohibit law
enforcement officers from engaging in racial profiling (California, Connecticut,
Kentucky, Oklahoma, and Rhode Island). These statutes generally defined racial
profiling as stopping a person based solely on race or ethnicity instead of an
individualized suspicion arising from the persons behavior.184 Of the 16 State
police agencies with procedures that require the collection of race data for each
stop, seven agencies responded to a State law or executive order, seven
implemented an internal policy, one (Maryland) responded to both an internal
policy and a court action, and one state police agency (New Jersey) was acting in
183 Bureau of Justice Statistics, "Traffic Stop Data Collection" (Washington, DC: US Dept, of Justice,
December 2001) pp. 1.
184 Ibid. pp. 1.
84


accordance with both internal police agency policy and a Federal consent decree.
185
In his book No Equal Justice, Georgetown Law Professor David Cole
remarks, "A Lexis review of all federal court decisions from January 1,1990, to
August 2,1995, in which drug-courier profiles were used and the race of the
suspect was discernible revealed that of sixty-three such cases, all but three
suspects were minorities: thirty-four were black, twenty-five were Hispanic, one
was Asian, and three were white.185 186 The report Justice on Trial from the
Leadership Conference on Civil Rights, notes that though "blacks are just 12
percent of the population and 13 percent of the drug users, and despite the fact
that traffic stops and similar enforcement yield equal arrest rates for minorities
and whites alike, blacks are 38 percent of those arrested for drug offenses and 59
percent of those convicted of drug offenses. Moreover, more frequent stops, and
therefore arrests, of minorities will also result in longer average prison terms for
minorities because patterns of disproportionate arrests generate more extensive
criminal histories for minorities, which in turn influence sentencing outcomes.187
185 Ibid. pp. 2.
186 Cole, David. 1999. No Equal Justice: Race and Class in the American Criminal Justice System (New
York: The New Press, pp. 50.
187 Welch, Ronald H., and Angulo, Carlos T. 2000. Leadership Conference on Civil Rights, Justice on Trial:
Racial Disparities in the American Criminal Justice System (Washington, DC: Leadership Conference on
Civil Rights, May 2000), pp. 7.
85


Black and Hispanic Americans, and other minority groups as well, are victimized
by disproportionate targeting and unfair treatment by police and other front-line
law enforcement officials; by racially skewed charging and plea bargaining
decisions of prosecutors; by discriminatory sentencing practices; and by the
failure of judges, elected officials and other criminal justice policy makers to
redress the inequities that become more glaring every day.188
The problem of strong racial bias in sentencing and punishment among
youth offenders based on race is wide spread across America. And Justice for
Some, a new study by Eileen Poe-Yamagata and Michael A. Jones, senior
researchers with the National Council on Crime and Delinquency, reveals that
there is a strong racial bias in the way the criminal justice system treats Black and
Latino youth more severely. The study also found that:
A greater percentage of African American youth are detained
than white youth for every category of offense. White youth
were 66 percent of those referred to juvenile courts but only 53
percent of those placed in detention. Black youth, on the other
hand, were 31 percent of those referred (though African
Americans are less than 15 percent of the population), but 44
percent of those detained.
188 Ibid. pp. vi
86


Similarly, white youth were 66 percent of those referred to the
juvenile justice system and only 44 percent of those detained in
drug cases. Black youth, on the other hand, were 32 percent of
those referred, but 55 percent of those detained.
Minority youth are one-third of the U.S. population, but they
are two-thirds of the 100,000 juveniles confined in detention
facilities and prisons.
Black youth with no prior admissions were six times more
likely (and Latino youth were three times more likely) to be
incarcerated in public facilities than white youth with no prior
admissions when charged with the same offense.
Two-thirds of the 7,400 youth under 18 admitted in 1997 to
adult prisons were minorities. Between 1985 and 1997, the
number of people under 18 who were sentenced to adult
prisons more than doubled from 3,400 to 7,400.
Though Black youth were 41 percent of cases processed
through the juvenile justice system involving a juvenile
charged with a felony, they were 67 percent of such cases
transferred from juvenile courts to the adult criminal justice
system.
White youth were 59 percent of all drug -related cases
petitioned o be sent to adult courts, but only 35 percent of cases
actually waived to adult courts. Black youth charged with
similar offenses were 39 percent of cases petitioned for adult
court, but 63 percent of cases sent to adult court.
87


As compared to a white juvenile who committed the same
violent crime, a Black juvenile is 18.4 times more likely to be
sentenced to prison by an adult court, Hispanics 7.3 times more
likely, and Asian Americans 4.5 times more likely.
In 1997, three times as many African American youth as white
youth were sent to juvenile prison for the same drug offense.
Black youth are more likely to be detained before trial than
white youth, even for the same offense. Whereas 27 percent of
African American youth are detained before trial, only 15
percent of white youth are detained. When the case involves
drugs, 38 percent of African American youth are detained
before trial, and only 16 percent of white youth are detained.
Seventy-eight percent of drug offense cases involving African
American youth are formally processed through the judicial
system, while only 56 percent of similar cases involving white
youth are formally processed.
Nationally, custody rates for Black youth are five times as high
as for white youth. For Latino youth, custody rates are 2.5
times as high as for white youth.189
Edwin Sutherland and Donald Cressey write, in their widely used textbook,
Criminology, that, numerous studies have shown that African Americans are more
likely to be arrested, indicted, convicted, and committed to an institution than are
whites who commit the same offenses, and many other studies have shown that
189 Eileen Poe-Yamagata and Michael A. Jones. 'And Justice for Some.' National Council on Crime and
Delinquency, dsusa/crime/crimedel.html>. Jessica Portner, 'Author says fear of youth crime outstrips the
Facts,' Teacher Magazine, March 3, 1999. Quoted in 'Superscapegoating: Teen esuperpredators' hype sets
stage for draconian legislation,' EXTRA! January/February 1999.
88


blacks have a poorer chance then whites to receive probation, a suspended
sentence, parole, commutation of a death sentence, or pardon.190 Criminal justice
scholars Michael Sherman and Gordon Hawkins write that, the crisis mentality
encourages officials to regard prison policy as a one shot problem, divorced
from the past and even from the future. 191 Legalized slave labor has taken on a
mammoth appeal as prison privatization entrepreneurs require a readily
accessible, no-cost, controllable and consistently available, labor force. In Jeffrey
Reiman lists five hypotheses about the way in which criminal justice policy in the
U.S. is made. He writes that the criminal justice system is a "carnival mirror" that
gives us a distorted image of the dangers that threaten us. The publics image of
crime is comprised of the following:
Of the Decisions of Legislators: That the definitions of crime in
the criminal law do not reflect the only or the most dangerous
of antisocial behavior.
Of the Decisions of Police and Prosecutors: That the decisions
of whom to arrest or charge do not reflect the only or the most
dangerous behaviors legally defined as "criminal."
190 Sutherland, Edwin H., D.R. Cressey Criminology, 9th 3d., Philadelphia: Lippencott.1974.
191 Hawkins, Sherman. 1981. Imprisonment in America: Choosing the Future. Chicago: University Press.
89


Of the Decisions of Juries and Judges: That criminal
convictions do not reflect the only or most dangerous
individuals among those arrested and charged
Of the Decisions of Sentencing Judges: That sentencing
decisions do not reflect the goal of protecting society from the
only or the most dangerous of those convicted by meting out
punishments proportionate to the harmfulness of the crime
committed.
Of All These Decisions Taken Together: That what criminal
justice policy decisions (in hypothesis 1 to 4) do reflect is the
implicit identification of crime with the dangerous acts of the
Reiman writes that the justice system has two transmission belts, one for the rich
and one for the poor. Through this process, decisions concerning arrest, charging
of criminal offenses, access to legal counsel, methods and intensity of
prosecution, length and method of trial, sentencing options, and methods of
incarceration are all driven by considerations of race, class, and income. The low-
income transmission belt is easier to ride without falling off and it gets to prison
in short order. The transmission belt for the affluent is a little slower and it passes
innumerable stations where exits are temptingly convenient, especially since
staying on the affluent belt is extremely expensive. Reiman discusses the
fabrication of the typical criminal and typical crime whereby almost always 192
192 Reiman, Jeffrey. 1990. The Rich Get Richer and the Poor Get Prison: Ideology, Class and Criminal
Justice, 3rd Ed., New York: MacMillian Publishing, pp. 67-68.
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Full Text

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PRISON INDUSTRY BOON: WHO'S IN THE BLACK? by Patricia Anne Capers B.A., Regis University, 1994 J.D., University ofDenver College of Law, 2001 A thesis submitted to the University of Colorado at Denver in partial fulfillment ofthe requirement for the degree of Master of Arts Political Science 2003 r., ........_, l !'!! '! :' l-'""J I --.

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2003 by Patricia Anne Capers All rights reserved.

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This thesis for the Master of Arts degree by Patricia Anne Capers has been approved by Date

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Capers, Patricia Anne (M.A. Political Science) Prison Industry Boon: Who's in the Black? Thesis directed by Professor Glenn Morris ABSTRACT This thesis discusses the American pandemic of prison incarceration principally of African Americans, of all ages, and its correlation to the growth of the prison-industrial complex. From the early 80's to the late 90's political platforms asserted that "getting tough on crime" was a high priority. For African Americans getting tough on crime was not the problem it was the implied face of crime that was problematic. During the 1988 election, presidential hopeful George Bush used the face of a black man, Willie Horton, to exploit the association of African Americans with crime. White voters saw Horton as the "universal" African American criminal. Politicians asserted that the infamous "American People" wanted intensification in incarceration of people charged with drug related activity. The times created an economic benefit derived from mass penal control. An apt metaphor, the prison boon1 became the "new slave trade." 1 Boon (boon) n I A benefit bestowed, especially one bestowed in response to a request A timely blessing or benefit (The American Heritage College Dictionary 2000) lV

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Did black America "deserve" this new focus? Part I of this thesis examines the deleterious consequences of poverty, racism, and political disenfranchisement as central cohesive elements fundamental to the mass incarceration ofblacks. Part II reviews liberal and conservative views on social problems that affect minorities, especially blacks. Part III discusses the basis upon which modem penal control parallels the past economic underpinnings of slavery Thereafter it extends that discussion to the examination of slave labor under color of law. Part IV discusses the paradox of drug use, in its simplicity, the paradigm of freedom versus incarceration for the illegal and legal high. It discusses the problem of African Americans who are uninsured yet suffer from PostTraumatic Stress Disorder (PTSD) and other psychosocial health issues who self medicate by illicit drug use. Part V observes that a substantial populace of African Americans is fast approaching full circle of their ancestral bondage and perverse economic exploitation in America. This abstract accurately represents the content of the candidate's thesis. I recommend its publication. v

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DEDICATION I dedicate this thesis to my sons Dorian 17 and Robert 15 for their steadfast support and cooperation while I was writing this. Further, for their intellectual ability to understand the system that I write about and to have the wherewithal to avoid the snares before them in order to live out their dreams as free young black men. A Dream Deferred What happens to a dream deferred? Does it dry up like a raisin in the sun? Or fester like a sore And then run? Does it stink like rotten meat? Or crust and sugar over like a syrupy sweet? Or does it sag like a heavy load? Or does it explode? Langston Hughes

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ACKNOWLEGEMENT My special thanks to my advisor for his support in allowing me to write this thesis from an African American perspective, and also to my co-advisors for their patience and academic guidance during these past years of study. I also wish to thank the staff of the Graduate School for their support and understanding.

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CONTENTS Figures .......................................................................................................... 1x CHAPTER 1. mTRODUCTION ..................................................................................... Poverty and African Americans ......................................................... 2 Racism and Black America ............................................................... 7 The Bastardized Black Vote ............................................................. 13 Mass Incarceration ofBlacks ........................................................... 15 2. REVIEW OF THE LITERATURE ........................................................ 25 3. SLAVE LABOR UNDER COLOR OF LAW ....................................... .45 Prison Labor Laws and the Prison Industry ................................... 51 Marketing the Prison Industry ....................................................... 57 4. THE PARADOX OF LEGAL AND ILLEGAL DRUG ABUSE ....................................................................................... 61 Mental Health and Medicine: Drugs and Freedom ........................................................................ 66 The Myth ofRace Neutral Prosecutions ........................................ 76 5. CONCLUSION ........................................................................ .............. 92 BIBLIGRAPHY ..................................................................................................... 99 Vlll

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FIGURES Figure 1.1 Middle Passage of the Slave Trade ................................................................... x 1.2 African American Behind Prison Industry Bars .............................................. x 3.2 Map ofUS Federal Prison System .................................................................. 60 4.1 Trapped Behind Bars ...................................................................................... 66 IX

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Fig 1.1 Middle Passage of the Slave Trade Figure 1.2 African American Behind Prison Industry Bars X

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-CHAPTER 1 INTRODUCTION By January 1512001, your family will be safer because we will be grabbing violent criminals by the throat and not letting them go to get a better grip. (Applause) The 7 percent of criminals who commit 70 percent of the violent crimes in America will be in prison, where they belong The color televisions will be gone. The air conditioning will be gone The weight rooms will be gone We will turn our federal prisons into industrial parks. Phil Gramm-1996 Presidential Campaign In 1903, W.E.B. Dubois wrote in his book The Souls of Black Folk, "And here, too, is the high white washed fence of the 'stockade' as the county prison is called: The white folks say it is ever full of black criminals---the black folks say that only colored boys are sent to jail, and they not because they are guilty, but because the state needs criminals to eke out its income by their forced labor." 1 One hundred years later, as we begin the year 2003, Dubois' message endures as America's prison industrial complex has within it 1 in 4 African Americans. This phenomenon has as its foundation a matrix of poverty, racism, eugenics, 2 and disenfranchisement, fueled by the "war on drugs." 1 Du Bois, W E B 1995 The Souls of Black Folk : I OO'h Anniversary Edition New York: Dutton Press. 2 Nobel Prize winner William Shockley argued that evidence showed people of African origin to be lower on the evolutionary scale A supporter of Shockley Arthur Jensen, a professor of psychology at the University of California that because black children are genetically inferior even compensatory programs like Head Start would fail because nat i ve talents are not there See, Hacker, Andrew Two Nations Black and White. Separate. Hostile. Unequal, Balantine Books New York pp 30-32 1992. See also, Jensen, Arthur How Much Can We Boost 1.0. & Scholastic Achievement? Howard Educational Review, Feb I, 1999 1

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Poverty and African Americans Where there were once pristine Victorian-style homes aligned along well paved streets that led occupants to admirably groomed city parks, vibrant theatres, and central government is no more. It has been replaced by dilapidated buildings, crumbling infrastructures, fields of weeds, and occupants living in abject poverty, driven by structural economic transformations and changing patterns of racial and economic segregation. This happening began as blacks and immigrants moved to the cities striving for the American dream, whites fled to suburbs that essentially zoned out low income housing that essentially priced out blacks and poor immigrants; and thereby, it recreated segregated safe havens. Thereafter, businesses moved, theaters closed, and parks went to pot as the infrastructures deteriorated. This unfortunate occurrence has created more and more residents in urban areas who reside in high-poverty neighborhoods, whose social and economic conditions in these neighborhoods are deplorable. Today, the majority of successful blacks also flee to the suburbs seeking a better life. However, very few actually escape urban plagues. They are bound by race, and they are bound by blood to those left behind: their mothers, fathers, grandparents, brothers, sisters, cousins and extended family. The suburban blacks are only physically estranged from the ghetto but they are forever linked to the 2

PAGE 13

negative conditions that their family and friends face, those of poverty, biased police arrests, sickness, and drug dependency. A growing body of empirical evidence suggests that living in poor neighborhoods has deleterious effects on the people who live there, particularly the children. Black children are subjected to gang violence, unsafe structures, violent parolees, poor schools and a plethora of social ills that white America, as a whole, would refuse to tolerate. Programs to serve the poor in the United States have come under a withering attack by political conservatives, who argue that these programs do more harm than good. While overblown, these claims have just enough truth in them to leave the lasting impression that any attempt to improve the lot of the poor is pointless no matter what. Barbara Bergman's new book Saving Our Children from Poverty: What the United States Can Learn from France, counteracts this defeatist notion by providing a concrete example of social programs and institutional arrangements that have beneficial effects for the poor while enjoying widespread popular support. 3 The study includes all metropolitan areas in the United States, improving upon previous studies that used only a limited number of metropolitan areas or only central cities. In 1990, 8.4 million persons lived in high poverty areas, the majority of whom where members 3 Bergman Barbara. 1996. Saving Our Children from Povert y: What the United States Can Learn from France New York: Russell Sage Foundation 3

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of minority groups living in highly segregated ghettos or barrios. 4 However, a surprising number of high-poverty neighborhoods show a great deal of racial and ethnic diversity, and about one-fourth of the residents ofhigh-poverty areas were non-Hispanic whites. Poverty and Place: Ghettos, Barrios and the American City, imparts the results of a comprehensive national study of the problem of neighborhood poverty. 5 The concentration of poverty has been worsening. Among metropolitan blacks, the proportion living in ghettos and other highpoverty neighborhoods has risen from 14.4 in 1970 to 17.4 percent in 1990. The most recent statistics, published by the U.S. Census Bureau in 1999, show that poverty rates for blacks and Hispanics was twice as high as whites, and that among the black poor, the figure rose from 26.1 percent in 1980 to 33.5 percent in 1999. 6 However, the figure rose most rapidly for the white poor, rising from 2.9 in 1980 to 6.3 percent in 1999.7 The physical area of urban blight has expanded even more rapidly than the population living in such areas with a 144 percent increase in the number of census tracts that have poverty rates in excess of 40 4 Ibid s Jargowsky Paul. 1998. Poverty and Pla ce: Ghettos, Barrios, and the American City New York: Russell Sage Foundation 6 U.S. Census Bureau, 1999 Households by Race/Ethnicity, 1980, 1990, 1998. (NCES, 1999) 7 Ibid 4

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percent. 8 Such increases are a cause for concern, because they fuel the flight of the middle-class from the metropolitan core and exacerbate the fiscal tensions between central cities and their suburbs. More importantly, they signal an increasing economic balkanization of our society in which lower-income persons are spatially isolated and unable to access the resources and opportunities they need to become fully integrated with the larger society. 9 In the book Take the Money and Run: Economic Segregation in US. Metropolitan Areas, researchers compared residential segregation by race. The study specified that economic segregation has received relatively little attention in recent empirical literature. 10 There have been steady increases in economic segregation for whites, blacks, and Hispanics in both the 1970s and 1980s, but the increases have been particularly large and widespread for blacks and Hispanics in the 1980s. The causes of these changes are explored in a "reduced form fixedeffects model", meaning that many researchers, at the U.S. Census Bureau, assert that poverty among blacks is not a matter of race but a direct result of fixed 8 Ibid. 9 Ibid (For an in-depth view on capitalism and Black America, see also, Manning Marable, How Capitalism Underdeveloped Black America Boston, South End Press, 1983. ) 1 0 Ibid 5

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circumstances that of the lack of two-parent households and educational attainment. Social distance and structural economic transformations do affect economic segregation, but the large increases in economic segregation among minorities in the 1980s cannot be explained within the model. These rapid increases in economic segregation, especially in the context of recent, albeit small declines in racial segregation, have important implications for urban policy, poverty policy, and the stability of urban communities.11 What can be explained is the lack of significant employment for blacks, and the method of"redlining"1 2 that denies blacks, that are similarly situated to their white counterparts, approval of their loan applications. Without access to credit and investment opportunities, urban blight is imminent. 11 Bergmann, Barbara 200 I Rev iew of Saving Our Children from Poverty: What the United States Can Learn from France, By. Sociological Re search Online Vol. 2 no 4 See also, "Take the Money and Run : Economic Segregation in U.S Metropolitan Areas," American Sociological R eview, Vol. 61, pp 984-998. 12 Loeb Penny. Warren Cohen, Constance Johnston 1995 ''The disparities in mortgage lending by neighborhood are important. The Community Redevelopment Agency (CRA) was passed as a key element of the 1977 Housing and Urban Development Act, whose stated purpose was to outlaw "redlining" --defined as a refusal by a financial institution to make mortgage loans to certain neighborhoods because of their racial composition, income level of the residents or age of the housing stock. The U.S. News findings for middle income black and white mortgage applicants are best understood not by the race of the applicant but by the racial composition of the neighborhoods in which loan applicants sought to purchase homes Jonathan Fiechter, acting director of the U.S. Office of Thrift Supervision, one of four federal agencies responsible for enforcing fair-lending laws calls the trend dismaying. "I don't think we have the blatant discrimination we had in the 1950s and 1960s," Fiechter says "I think it tends to be more unint enti onal which may be just as egregious in some sense U.S.News and World R epo rt April 17, 1995. 6

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Racism and Black America Nationwide, according to the Federal Bureau of Prisons, the number of male adults in the correctional population increased by two-thirds from 1986-97 while the number of females doubled. Almost 5% of the adult males and 1% of the adult females in the United States were under some form of correctional supervision in 1997. For all races, the number of adults in the correctional population increased from 1986-97; the number ofblacks almost doubled and the number of whites rose by two-thirds. In 1997, about 9% of the black population in the U.S. was under some form of correctional supervision compared to 2% of the white population and over 1% of other races. 13 Why the racial disparity? Manning Marable, Professor of History and Political Science, and the Director of the Institute for Research in African-American Studies, Columbia University, explains in his essay Racism, Prisons, and the Future of Black America, that behind much of anti-crime rhetoric was a not-too-subtle racial dimension, the projection of crude stereotypes about the link between criminality and black people. 14 Accordingly he writes that, for the same criminal records, blacks and whites are treated in radically different ways. The professor writes that, according to the Justice Department's study, among white youth offenders, 66% are referred 13 U.S Department of Justice, Bureau of Justice Statistics, 08/28/01, p6, Table 5 14 Marable, Manning. 2000 Along the Color Line. Columbia University Press. 7

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to juvenile courts, while only 31% of the African-American youth are taken there. Blacks comprise 44% ofthose detained injuvenilejails, 46% of all those tried in adult criminal courts, as well as 58% of all juveniles who are warehoused in adult prison. In practical terms, this means that for young African Americans who are arrested and charged with a crime, that they are more than six times more likely to be assigned to prison that white youth offenders with identical criminal histories. The findings were similar to those of a study of Georgia executions released 16 years ago by the same author, Prof. David Baldus of the University of Iowa College of Law, in Iowa City. The new report also found that 98 percent (1,794) ofprosecutors with death-penalty authority in the 38 states that have capital punishment are white. According to the study, only 22 black prosecutors and 22 Hispanic prosecutors are empowered to make similar decisions. 15 According to a 2001 Justice Department study, among white youth offenders, 66% are referred to juvenile courts, while only 31% of the African-American youth are taken there. The paltry average of 44 minority prosecutors born out of nearly 2,000 is pathetic. However whites assert that it is because minorities do not want to prosecute one another. In practical terms, this means that for young African Americans who are arrested and charged with a crime, that they are more 15 Rovella, David E l998. Race Pervades Death Penalty, by anti-death group makes stark charges. In National Law Journal (June 8 1998) 8

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than six times more likely to be assigned to prison that white youth offenders. As a result of the overwhelming media focus on crime, drug use, gang violence, and other forms of anti-social behavior focused mainly among African Americans, the number of Black adult prisoners almost doubled. By the end of the year 2000, among the more than 1.3 million sentenced inmates, 9.7% ofBlack males aged 25 to 29 were in prison, compared to 2.9% of Hispanic males and 1.1% of White males in the same age group. 16 A key participant in the increase of imprisonment ofblacks is the media that for decades fostered a distorted and pernicious public perception of African Americans. As national television networks sensationalize black crime and black criminals, they downplayed white crime and white criminals. Research conducted by Stephen Balkaran, published in the Yale Quarterly, entitled "Mass Media and Racism,"17 revealed that race plays, and will continue to play, a crucial role in the way white Americans perceive African Americans. The history of African Americans is a centuries old struggle against oppression and discrimination. The media have played a crucial role in perpetuating the effects of this historical oppression and in contributing to African Americans' continuing status as secondclass citizens. As a result, white America has suffered from a deep uncertainty as 161bid. 17 Balkaran, Stephen. 1999 Mass M e dia and Ra cis m In Yale Political Quart e rl y (October): Vol 21. 9

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to who African Americans really are. Despite this racial divide, something indisputably American about African Americans has raised doubts about the white man's value system. 18 Balkaran's research includes dialogue on the Segmentation Theory. In the 1980's, Michael Reich developed the Segmentation Theory or the Divide and Rule, which attempted to explain racism from an economic point of view. In this theory, Reich asserts that as a result, the exploiters will attempt to use any means to: (1) suppress higher wages among the exploited class, (2) weaken the bargaining power of the working class, often by attempting to split it along racial lines, (3) promote prejudices, (4) segregate the black community, (5) ensure that the elite benefit from the creation of stereotypes and racial prejudices against the black community. 1 9 Reich argues that the major corporations in the U.S. (e.g. Time Warner, Coca Cola, General Motors, etc.) all have at least one token black member on each other's corporate boards of directors. As a result, it is in the interest of these members to maximize profits while employing the above devices. 20 The mere fact of these corporate executives' sharing economic corporate power, combined with 18 Balkeran quoting Ralph Ellison, What A m e ri c a Would b e Like Without Bla c ks. 1970. Preager Press pp.4 1 9 Ibid. pp 4-8 20 Ibid 10

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the quest for economic profit has now paved the way for economic prejudice. But the question still remain, are the media a tool used to promote racism? Do the elite use the media to ensure corporations maximize profits by any means necessary? Media have divided the working class and stereotyped young African American males as gangsters or drug dealers. As a result of such treatment, the media have crushed youths' prospects for future employment and advancement. The media have focused on the negative aspects of the black community (e.g. engaging in drug use, criminal activity, welfare abuse) while maintaining the cycle of poverty that the elite wants. 2 1There are no universally accepted and recorded codes or rules, which apply to journalists in news selection and production. The media have devoted too much time and space to "enumerating the wounded" and too little time to describing the background problems of African Americans. 2 2 This deceptive myopic focus in the media, to include media entertainment, has assisted in defining blacks as criminal, lacking moral fortitude, and as genetically inferior with strong innate urges both sexual and criminal. Thereafter, the surveillance police treatment, and judicial control command a high price. Presently, convicted felons are given little to no 2 1 Ibid 22 Hartmann Paul G. 1974 Rac i s m and the & Littlefield Press, pp.I47 (See Also Cornell West 1993 Race Matt e r s Cambrid g e M as s : Bla ckwell Publishers pp. 74 11

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opportunity to regain their voting privileges after having served their sentences and, in the eyes of the law, atoned for their crimes. In Richardson v. Ramirez, 64 at 418 U.S. 24 (1974), the U.S. Supreme Court exempted criminal disenfranchisement laws from constitutional law strict scrutiny. It construed Section 2 of the Fourteenth Amendment as granting states an "affirmative sanction" to disenfranchise those convicted of criminal offenses. In Hunter v. Underwood, 471 U.S. 222 (1985) under U.S. law, a racially disparate impact is not sufficient to establish a violation of equal protection guarantees; a discriminatory intent or purpose is also required. In Baker v. Pataki, 85 F. 3d 919 (2d Cir. 1996), inmates claimed New York laws denying the franchise to incarcerated and paroled felons violated the Voting Rights Act because of their racially disproportionate impact. The court, sitting en bane, divided evenly on whether Section 2's "results only" test could be applied to state criminal disenfranchisement laws. The end result? No vote! Mass incarceration of blacks for federal drug crimes has caused a problem that is present within black communities. After paying their debt to society, through long prison sentences, convicts are also often forever stripped of their voting rights. Marc Mauer, assistant director of the Washington, DC-based 12

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Sentencing Project, concludes that America's incarceration policies have disproportionately impacted minorities, particularly African Americans. 23 The Bastardized Black Vote In 1997, 1.4 million African American men, or 13% of the black adult male population, had lost the right to vote due to felony convictions charged against them in the criminal justice system. In the states with the most restrictive voting laws, 40% of African American men are likely to be permanently disenfranchised. 24 Even though African Americans made up only 13% of the population, half of the 1.2 million state and federal prisoners were African American (548,900). The nation's imprisonment policies have had their greatest impact among young black men, resulting in alarming rates of incarceration and disenfranchisement. 25 A black male born in 1991 stood a 29% chance of being 23Mauer, Marc. 1995. Hauling Young Black Americans and the Criminal Justice System: Five Years Later. Washington: Sentencing Project Report. 24 Beck, Allen J. Bonczar, 1997. Thomas P. Lifetime Likelihood of Going to State or Federal Prison. Washington, D.C. Bureau of Justice Statistics. 25 Ibid. 13

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imprisoned at some point in his life, compared to 4% for a white male born that year. 26 According to the American Civil Liberties Union, "African Americans are five times as likely as whites to be disenfranchised under felony voter measures." 27 1.46 million black men out of a total voting population of 10.4 million have lost their right to vote due to felony convictions. 28 Thirteen percent of all adult black men --1.4 million -are disenfranchised, representing one-third of the total disenfranchised population and reflecting a rate of disenfranchisement that is seven times the national average. 29 One in three black men between the ages of 20 and 29 years old is under correctional supervision or control. 30 At current levels of incarceration, newborn Black males in this country have a greater than 1 in 4 chance of going to prison during their lifetimes, while Latin-American males have a 1 in 6 chance, and white males have a one in 23 chance of serving time. 31 26 Miller, Jerome G., 1992. Hobbling a Generation: Young African American Males in the Criminal Justice System of America's Cities, Baltimore, Maryland, Alexandria, VA. National Center on Institutions and Alternatives. 27 ACLU Urges Congress to Restore Voting Fairness." October 21, 1999. pp.10-8738sc-167. 28 Thomas, P., 1997. Study Suggests Black Male Prison Rate Impinges on Political Process, The Washington Post, 30 January, 1997, pp. A3. 29 Fellner, Jamie and Marc Maur. 1998. Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States (Washington, DC: Human Rights Watch & The Sentencing Project, 1998), pp. 8. Election statistics cited are from the US Census Bureau, "Voting and Registration in the Election ofNovember 1996" 20-504), July 1998. 3 Mauer, M. & Hauling, T. 1995. Young Black Americans and the Criminal Justice System : Five Years Later (Washington DC: The Sentencing Project). 31 Bonczar, T.P. & Beck, Allen J., Bureau of Justice Statistics. 1997. Lifetime Likelihood of Going to State or Federal Prison. Washington DC: US Department of Justice. 14

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The literature leaves little hope for change in the future. The American economy and politics will take even a greater toll on the incarcerated and their families as both justify mass incarceration of nonviolent substance abusers that are reacting to their emotional, environmental and social conditions. Younger blacks are being tried as adults and thousands will face very long sentences including life without parole in many cases. Mass Incarceration ofBlacks Record numbers ofblack nonviolent substance abusers are imprisoned.32 As a byproduct of mass incarceration, the prison industry is an economic mainstay in America. "The United States has the highest prison population rate in the world, some 700 per 100,000 of the national population, followed by Russia (665), the Cayman Islands (600), Belarus (555), the US Virgin Islands (550), Kazakhstan (520), Turkmenistan (490), the Bahamas (480), Belize (460), and Bermuda (445)". "However, almost two thirds of countries (63%) have rates of 150 per 100,000 or below. (The United Kingdom's rate of 125 per 100,000 of the 32 While African Americans constitute twelve percent ofthe U.S. population, and only thirteen percent of all drug users, they represent 35 percent of drug arrests, 55 percent of drug convictions and a staggering 74 percent of drug prisoners. See, Parenti, Christian. 1999 Lockdown America: Police and Prisons in the Age of Crisis. London: Verso Books, pp. 239. citing Marc Mauer and Tracy Hauling, Young Black Americans and the Criminal Justice System : Five Years Later Sentencing Project Report, 1995. 15

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national population places it at about the mid-point in the World List. Among European Union countries its rate is the second highest, after Portugal s 130.)" 3 3 America's prisoners that are sentenced for drug offenses constitute the largest group of Federal inmates 82,056 or (54%). In 2000, drug law violators comprised 21% of all adults serving time in State prisons 251,1 00 out of 1,206,400 State prison inmates. 34 Over 80% of the increase in the federal prison population from 1985 to 1995 was due to drug convictions.35 Between 1984 and 1999, the number of defendants charged with a drug offense in U.S district courts increased about 3% annually, on average, from 8,152 (29.5%) in 1994 to 70,009 (54.7) in the year 2000 .36 By 2001, 1 in every 146 US residents was incarcerated in State or Federal prison or a local jail. 3 7 The U.S. nonviolent prisoner population is larger than the combined populations of Wyoming and Alaska. 38 Since 1995 the sentenced inmate population in US State prisons has grown 21 %). 3 3 Walmsley, Roy 2002 World Pri s on Population List 3rd ed. London England UK: Home Office Research Development and Statistics Directorate pp I 2002 3 4 Harrison, Paige M & Allen J Beck US Department of Justice, Bureau of Justice Statistics Prisoners in 2001 (Washington, DC : US Department of Justice July 2002), pp 12 & Table 17, pp 13. 35 US D e partment of Justice Bureau of Justice Statistics Prisoners in 1996 (Washington DC: US Department of Justice, 1997). 36 Scalia, John, US Dept. of Justice Bureau of Justice Statistics Federal Dru g Offenders, 1999 with Trends 1984-99 (Washington, DC : US Dept. of Justice August 2001) pp 7 37 Harrison Paige M & Allen J Beck, PhD US Department of Justice, Bureau of Justice Statistics Prisoners in 2001 ( Washington DC : US Department of Justice, July 2002) pp 2 38 John Irwin, Ph D V i ncent Schiraldi and Jason Ziedenberg America s One Million Non v iolent Prisoner s (Washington DC : Justice Policy Institute 1999) pp 4 16

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I i i I During this period 10 States increased their sentenced inmate populations by at least 50%, led by North Dakota (up 87%), Idaho (up 81 %), and Oregon (up 75%). Between 1995 and 2001 the Federal system reported an additional52,846 inmates sentenced to more than year [sic], an increase of63%. 39 While the State sentenced prison population rose 0.3% during 2001, the sentenced Federal prison population grew 9.2%. The Federal prison system added 11,465 sentenced prisoners --the equivalent of more than 220 new inmates per week. 40 According to the US Justice Department, between 1990 and 2000,"[0]verall, the percentage ofviolent Federal inmates declined from 17% to 10%. While the number of offenders in each major offense category increased, the number incarcerated for a drug offense accounted for the largest percentage of the total growth (59%), followed by public-order offenders (32%). 41 There were 5.9 million adults in the correctional population by the end of 1998. This means that 2.9% of the U.S. adult population -1 in every 34 -was incarcerated, on probation or on parole. 42 In 1990, of the 739,960 sentenced prisoners in Federal and State prisons, 370,400 39 Harrison, Paige M. & Allen J. Beck, PhD, US Department of Justice, Bureau of Justice Statistics, Prisoners in 2001 (Washington.DC: US Department of Justice, July 2002), pp. 5. 40 Ibid. pp. 4. 41 Beck, Allen J., Ph.D., and Paige M. Harrison, US Department of Justice, Bureau of Justice Statistics, Prisoners in 2001 (Washington DC: US Department of Justice, July 2002), pp. 14. 42 Bonczar, Thomas & Glaze, Lauren, US Department of Justice, Bureau of Justice Statistics, Probation and Parole in the United States (Washington DC : US Department of Justice, August 1999), pp. I. 17

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were African American. By 2001 the number of African Americans had grown to 562,000 out of a total of 1,206,400 sentenced prisoners. 43 Assuming recent incarceration rates remain unchanged, an estimated 1 of every 20 Americans (5%) can be expected to serve time in prison during their lifetime. For African American men, the number is greater than 1 in 4 (28.5%). 44 The Bureau of Justice Statistics reports that in 1999, the nation spent $146.5 billion on the Federal, State and Local justice systems. In that year, the United States had 1,875,199 adult jail and prison inmates. Based on this information the cost per inmate year was: Corrections spending alone: $26,134 per inmate Corrections, judicial and legal costs: $43,297 per inmate Corrections, judicial, legal and police costs: $78,154 per inmate. 45 In 1997, there were 216,254 drug offenders in state prisons (out of a total State prison population of 1,046,706 that year). Of these, 92,373 were in for possession, 43 Beck, Allen J., Ph.D., and Christopher Mumola, US Department of Justice, Bureau of Justice Statistics, Prisoners in 1998 (Washington, DC: US Department of Justice, August 1999), pp. 9; Harrison, Paige M. & Allen J. Beck, PhD, US Department of Justice, Bureau of Justice Statistics, Prisoners in 2001 (Washington DC: US Department of Justice, July 2002), pp. 12, Table 16. 44 Bonczar, T.P. & Beck, Allen J., US Department of Justice, Bureau of Justice Statistics, Lifetime Likelihood of Going to State or Federal Prison (Washington DC: US Department of Justice, March 1997) 45 Gifford, Sidra Lea, US Department of Justice, Bureau of Justice Statistics, Justice Expenditure and Employment in the United States, 1999 (Washington, DC: US Department of Justice, February 2002), pp. 4, Table 6; Beck, Allen J., PhD, and Jennifer C. Karberg, US Department of Justice, Bureau of Justice Statistics, Prison and Jail Inmates at Midyear 2000 (Washington, DC: US Department of Justice, March 2001). 18

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117,926 were in for trafficking, and 5,955 were in for other drug crimes. Also in 1997, there were 52,059 (59.6%) drug offenders in federal prisons (out of a total Federal prison population of 128,090 that year). The Department of Corrections data show that about a fourth of those initially imprisoned for nonviolent crimes are sentenced for a second time for committing a violent offense. Whatever else it reflects, this pattern highlights the possibility that prison serves to transmit violent habits and values rather than to reduce them. 46 The United States operates the biggest prison system on the planet. 47 If one compares 1996 to 1984, the crime index is 13 points higher. This dramatic increase occurred during an era of mandatory minimum sentencing and "three strikes you're out." 48 The policies and politics of social control have created an American gulag. 49 According to the Department of Justice, studies of recidivism report that "the amount of time inmates serve in prison does not increase or decrease the likelihood of recidivism, whether recidivism is measured as parole revocation, re-46 Haney, Craig Ph.D., and Philip Zimbardo, Ph.D., The Past and Future of U.S. Prison Policy: Twenty-jive Years After the Stanford Prison Experiment, American Psychologist, Vol. 53, No.7 (July 1998), pp. 720. 47 Currie, E., 1998. Crime and Punishment in America. New York, NY: Metropolitan Books: Henry Holt and Company, Inc., pp. 3: 48 Federal Bureau of Investigation, Uniform Crime Reports 1996 (Washington DC: US Department of Justice, 1997), pp. 62, Table I. 49 McCaffery, Barry R., General (USA, Ret.), Director, ONDCP, Keynote Address, Opening Plenary Session, National Conference on Drug Abuse Prevention Research, National Institute on Drug Abuse, September 19, 1996. 19

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arrest, reconviction, or return to prison. 50 States spent $32.5 billion on corrections in 1999 alone. To compare, states only spent $22.2 billion on cash assistance to the poor. 51 Since the enactment of mandatory minimum sentencing for drug users, the Federal Bureau of Prisons budget has increased by 1,954%. Its budget has jumped from $220 million in 1986 to $4.3 billion in 2001. 52 Despite the investment of more than $5 billion for prison construction over the past decade, the prison system is currently operating at 32 percent over rated capacity, up from 22 percent at the end of 1997. These conditions could potentially jeopardize public safety. 53 In 2001, the federal prison system was operating at 31% over capacity, the same as the number reported in 2000. Overall, state prisons in 2001 were operating at between 1% over their highest capacity and 16% above their lowest capacity. 54 From 1984 to 1996, California built 21 new 50 An Analysis ofNonviolent Drug Offenders with Minimal Criminal Histories, Washington D.C.: U.S. Department of Justice (1994, February), pp. 41. 51 National Association of State Budget Officers (NASBO), 1999 State Expenditure Report (Washington, DC: NASBO, June 2000), pp. 38, 68. 52 US Department of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics 1996 (Washington DC: US Department of Justice, 1997), p. 20; Executive Office of the President, Budget of the United States Government, Fiscal Year 2002 (Washington DC: US Government Printing Office, 2001), pp. 134. 53 Executive Office of the President, Budget of the United States Government, Fiscal Year 2002 (Washington DC: US Government Printing Office, 2001), pp. 134. 54 Harrison, Paige M. & Allen J. Beck, PhD, US Department of Justice, Bureau of Justice Statistics, Prisoners in 2001 (Washington DC: US Department of Justice, July 2002), pp. 10. 20

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prisons, and only one new university 55 California state government expenditures on prisons increased 30% from 1987 to 1995, while spending on higher education decreased by 18%. 56 In 1999 the United States spent a record $147 billion for police protection, corrections, and judicial and legal activities. The nation's expenditure for operations and outlay of the justice system increased 309% from almost $36 billion in 1982. Discounting inflation, that represents a 145% increase in constant dollars. 57 The total number of State and Federal inmates grew from 400,000 in 1982 to nearly 1,300,000 in 1999. This was accompanied by the opening of over 600 State and at least 51 Federal correctional facilities. The number oflocal jail inmates also tripled, from approximately 200,000 in 1982 to 600,000 in 1999. Adults on probation increased from over 1.3 to nearly 3.8 million persons. Overall corrections employment more than doubled from nearly 300,000 to over 716 000 during this period 58 94.1 million Americans aged 12 or over (41.7% ofthe US population aged 12 and over) have used an illicit drug at 55 Ambrosio, T & Schiraldi V., 1997 Trends in State Spending, 1987-1995, Executive Summary-February 1997 (Washington DC: The Justice Policy Institute) 56 National Association of State Bud ge t Officers 1995 State Expenditures Report (Washington DC: National Association of State Bud get Officers, 1996 ) 57 Gifford Sidra Lea, US Department of Justice, Bureau of Justice Statistics, Justice Expenditure and Employment in the United States, 1999 (Washington, DC : US Dept. of Justice February 2002), pp I 58 Ibid pp 7 (For a more complete perspective, see, (Drug War Facts se ction s on Alcohol, Crack, Drug Use Estimates Gateway Theory, R ace and Pri son, and Women) 21

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least once in their lifetimes. 59 According to the National Household Survey, in 2001, 28.4 million Americans aged 12 or over (12.6% of the US population aged 12 and over) used an illicit drug. Of these, 21.1 million were White, 3.1 million were Black, and 2.9 million were Hispanic. 60 An estimated 971 thousand Americans used crack cocaine in 1998. Ofthose, 462 thousand were White, 324 were Black, and 157 thousand were Hispanic. 61 Annual expenditures for prisons run between $20 and $35 billion annually [with] 523,000 full-time employees ... more than in any Fortune 500 company except General Motors."62 The incarceration of minorities, in representative disproportion, particularly black men and women, is helping to economically restore low-income rural white areas. Rural areas that lost the economic livelihood of farming and simple manufacturing--to economic market change-now scramble to build or maintain prisons as a chief source of employment. In Victorville, California, a new prison promised to produce up to 800 jobs and an annual payroll of$1-2 million annually. 63 59 Substance Abuse and Mental Health Services Administration, US Department of Health and Human Services, Results from the 2001 National Household Survey on Drug Abuse: Volume 1. Summary of National Findings (Rockville, MD: Office of Applied Studies, August 2002), pp. 109, Table H.l & pp. 110, TableH.2. 60 Ibid. pp. 109, Table H.l; pp. 110, Table H.2; pp. 102, Table G.4; and pp. 122, Table H.14. 61 Ibid. pp. 37-39. 62 Parenti, Christian, 1999. Lockdown America: Police and Prisons in the Age of Crisis. London: Verso Books. pp. 214 63 Ibid. pp. 214 22

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At present, predominant white rural communities, similar to the community that touts the construction of "Supermax" a maximum-security 23hour lockdown facility in Florence Colorado, formulate committees to actively seek out state and federal government contracts in their quest to acquire prisons to boost their rural employment rate. There were already nine state-run lockups, representing employment for 16% of the Colorado residents in the county, when Florence residents bought 600 acres ofland and gave the land to the federal government, which used it to build four correctional facilities, including Supermax. 64 A significant and troubling benefit of locating prisons in rural areas is that these prison communities are legally allowed to include black prisoners in their census count. This allows the rural residents to derive federal funds from the reapportionment process. This system permits the removal of blacks from inner cities and confines them to rural prisons but classifies them as though they were co-equal members of the rural community. A perverse type of gerrymandering; created by this process whereby whites incur benefits that include jobs, new schools, businesses, and state of the art infrastructures through the incarceration of primarily prisoners of color.65 The penal and judicial control of black 64 URL: Newshawk: (FrankS. World). San Francisco Chronicle. 28 December, 1998 (CA)A3. 65 Tracy Hauling and Marc Mauer.2000. Locked Up In the Census Count: How Our Nation's Burgeoning Prison Population Is Reversing Rural Population Loss. Chicago Tribune, 12 March, 00. 23

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substance abusers held captive in "prison industrial parks," are a part of a growth industry that has become America's new "slave trade."66 66 Between 1980 and 1996 the state and federal prison population rose from 329, 000 to nearly 1.2 million. In 2002, the prison population is 2 million, the highest incarceration rate of any country in the world. The U.S. incarceration rate for whites is 235 per 100,000, for blacks 1815 per 100,000. [Both black and whites committed the same type of crimes yet received disproportionate sentences-whites the more lenient.] Progressive Review In 1993, 51% of inmates in state and federal prison were black. Reiman, Jeffery. 2001. The Rich Get Richer and the Poor Get Prison: Ideology, Class and Criminal Justice. Boston: Allyn and Bacon, pp. 130. 24

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CHAPTER2 REVIEW OF THE LITERATURE I want to say this about my state: When Strom Thurmond ran for president, we voted for him. We're proud of it. And if the rest of the country had followed our lead, we wouldn't have had all these problems over all these years, either .... Trent Lott--former--2003 Majority Leader, United States Senate Political scientists, civil rights activists, criminal justice specialists and others have written about the disproportionate incarceration of African Americans for decades. Logically, all races have too many of their loved ones behind bars; however, research shows that Black America is suffering epidemic proportions of bondage in America as a result of the penal system. Structural obstacles, such as racial bias in arrests, prosecutions, and sentencing, have had obvious negative effects on African Americans as an ethnic group socially, spiritually, economically and politically. An unfortunate byproduct of the prison industrial complex is the negative effect the system has on black women and their children. Scholars such as Derrick Bell, Cornell West, Andrew Hacker, Mary Francis Berry, Angela Davis, Christian Parenti, and Michael B. Katz have exposed the structural bias ofthe legal and criminaljusticesystem. Criminologists Samuel 25

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Walker, Cassia Spohn, and Miriam Delone, in their book The Color of Justice: Race, Ethnicity, and Crime in America, comprehensively investigate how racial injustice is influencing the criminal justice system from arrest to trial to punishment. Lawrence Friedman in his book Crime and Punishment in American History writes that, ... overt forms of discrimination have been wiped from the books. But slavery and oppression have left their mark, poverty and social disorganization hangs like yokes of stone around the necks of the urban black poor. Draconian drug laws punish thousands of blacks who are trapped in the drug world or bent on self-destruction." 67 In the book The Ceiling of America, the author spotlights the fact that prisoners make an especially easy target for attracting the fear and loathing of the American public. Prisoners have no economic or political power. They make the perfect scapegoat. As such, the new politics of post-Soviet "bogeymanism" have struck prisoners particularly hard. 68 The authors include research on prison labor in the US, the money involved in human capital, racism, corruption, brutality, and 67 Friedman, Lawrence M.1993. Crime and Punishment in American History. New York : Harper Collins Press. pp. 378. 68 Burton-Rose, Daniel and D. Pens and P. Wright. 1998. The Ceiling of America: An Inside Look At The US Prison Industry. Monroe, Maine : Common Courage Press, pp 4-5 26

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the inhumane trend towards the proliferation of the isolation model of prisons. The authors include essays from prisoners that humanize a group of people dehumanized by the system. With reference to prison labor, the writers found that named corporations use prison labor to offset their cost. Well-known companies such as Honda, Ford, McDonalds, Microsoft, US West, Costco, Starbucks, JanSport, Eddie Bauer and the U .S. Armed Forces capitalize on prison labor. The companies listed here are only a few among many more that maintain that if prison labor were not utilized to keep the prisoners busy and out of the weight rooms the type of jobs prisoners perform would simply be outsourced to third world countries. Author Christian Parenti writes a comprehensive book about the tools of penal control from a close up and personal view. Parenti writes that as he walked down the street in his neighborhood he was stopped by an undercover cop yelling Open your mouth! Open your mouth! Open you r fucking mouth!" The officer grabbed the writer by the throat and flashed his badge. 6 9 Although Parenti was released unharmed and free of being booked into the system, he realized that thousands of men, women, and youth are not so lucky. Was Parenti accosted in this manner because of his ethnicity? His book makes no excuses for the system 69 P a rt e nti, Chr i stian 199 9. Lo c kdo w n A m eric a : P o li ce and Pr is on s i n th e Age o f C r is i s. London N e w York : Verso Pr es s pp xi. 27

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or for minorities who commit crimes; however, he confirms that race matters in the manner in which police crack down on the ''war on drugs". His book covers the Nixon era to the Bush administration and includes the escalation of police on the street during the Clinton administration and the "big bucks" from the prison industrial complex. Although the authors write about the injustice of the system that fuels the prison industrial complex, there is another story that involves white conservatives and black opportunists eager to gain approval of the dominant culture and pleased to have "a different point of view." Commentary from select individuals outside of the prison industry rationalize that external forces do not cause the problems ofthe poor and blacks. Despite the substantial prison numbers and social injustice that minorities face, particularly that of blacks, it appears that "victim-bashing" is a sure way to obtain notoriety in America and help to silence the African American voice. Today, a certain way for black conservatives, like columnist personality Ken Hamblin, of getting their work published and gaining notoriety among conservatives is to victim-bash most of the black race and decry that racial oppression today has no 28

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bona fide effect or role in the lives ofminorities.70 Hamblin has been socialized through a sanitized version of American history that virtually turns a blind eye to African American history and the contemporary political, social and economic disenfranchisement of blacks. Among the rhetoric of talk show hosts are wellrespected conservatives who assert that blacks are inferior, essentially cause their own problems, and perhaps cannot be helped due to their genetic makeup. Conservatives have advanced discordant and divergent positions on race, incarceration, poverty and political influence. The Bell Curve, published in 1994, was written by Richard Hermstein and Charles Murray as a work designed to explain, using empirical statistical analysis, the variations in intelligence in American society, raise some warnings regarding the consequences of this intelligence gap, and propose national social policy with the goal of mitigating the worst ofthe consequences attributed to this intelligence gap. Most of the data are 70 Hamblin, Ken. 1999. Plain talk and common sense from the Black Avenger. New York: Simon & Schuster Press. Hamblin, Ken.l996. Pick a better country: an unassuming colored guy speaks his mind about America. New York: Simon & Schuster Press. Pick a Better Country, Book Review Publisher's Weekly August 26, 1996 243:35 pp. 83-85. "Saying things that a white person wouldn't get away with, Hamblin criticizes black "trash"-"ifthere's white trash, then it follows that there can be black trash [as if blacks were ever though of as anything other than] The difference is that we've allowed this sick culture of gangsta rap, drugs, gangs, and welfare to be glorified by some as the only 'authentic' black American culture; brood mares what else can you call black girls who are having babies, more than 90 percent illegitimate, with no means other than welfare to care for them?; black thugs they go on crime rampages, claiming to be leading a phony social justice crusade on behalf of their race, but the truth is that they have probably snuffed out more of their own than any white racist group; poverty pimps-these black urban politicians devote their entire political careers to delivering nothing but government welfare to their stagnant communities of isolated constituents; quota blacks-they'll always be second-class citizens because emotionally and numerically they fill outmoded affirmative action minority slots in the workplace; and egg-sucking dog liberals-by furthering the patronizing notion that blacks can't get ahead on their own, these white liberals are sucking the substance out of the promise America holds for its black citizens." 29

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very controversial, ranging from the relationships between low measured intelligence and anti-social behavior, to the observed relationship between, low African American test scores (compared to whites and Asians), and genetic factors in intelligence abilities. The book was released and received with a large public response. In the first several months of its release, 400,000 copies ofthe book were sold around the world. Several thousand reviews and interpretations have been written in the short time since the book's publication. 71 Author Gary Earl Ross responds with an essay entitled "The Insidiousness of the Bell Curve". The writer retorts that the book is simply an attempt to validate the incarceration of the poor and blacks that began with scientific assertions that Blacks have a naturally low IQ, possess innate criminal behavior, and run rampant with impulsive lawlessness 72 Reinforced through social practices, the science of eugenics preached that blacks be barred from certain jobs and should be relegated to a social sub-class Ross criticizes the writing in that, "In calling for an end to social redress of inequalities, Murray and Hemstein elevate IQ testing to an importance that justifies the racist' perceptions of 'those people' and 'their troubles.' Scientific sanctioning of such ideas consigns me and every other African American to a 7 1 Herrnstein Richard and Charles Murray 1994 The B e ll Curve. N e w Yor k : Simon & Schuster Press. 72 Ib i d 30

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human scrap heap, a writhing black mass of problem people. It will not matter to the casual passerby that I have published prose and poetry or taught two thousand students or been listed in several Who 's Who publications. Mine will simply be another dark face in the pile." 73 The I.Q. argument is extended by attempting to correlate I.Q. to crime, state welfare subsidies, unemployment, child neglect, and poverty, and by extension, incarceration rates. These ideas have been associated with conservatism. William Shockley, Michael Novak, and African-Americans Shelby Steele and Michael Grant, have written conservative points of view that conflict with writers that oppose the continued proliferation of the incarceration of blacks. Following the controversy of Trent Lott's racial remarks at the 1001h birthday party of former senator Strom Thurmond, in Steele's editorial Of Race and Imagination: How far will Trent Lott set back conservative principles? he writes that, "This is all terrible for Republicans and conservatives because the best thinking on social problems and race in recent years has come from their ranks .. .it has taken years of careful argument to even slightly convince minorities that 'conservative' principles could be relevant to their problems." 74 This "best thinking" is of conservatives that are outward enthusiasts ofneo-73 Jacoby, Russell N. and Ed Glauberman 1995. The Bell Curve Debate : History, Documents, Opinions New York: Times Book Press. 74 Steele, Shelby. 2002. Of Race and Imagination : How far will Trent Lott set back conservative principles? The Wall Street Journal, Wednesday, December 18, 02. 31

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conservative etiology. Conservatives, identified as eugenics proponents of the 1930s, initially stressed the importance of special institutions, where non-criminal "defectives" could be incarcerated throughout their fertile years. 75 American neoeugenic research emerged after the 1960's that argued for the innate intellectual inferiority of black Americans and the inheritability of criminal tendencies. 76 The view of genetic inferiority has not been eradicated and is supported by current and emerging race critics to justify incarceration of blacks, particularly black males. 77 The matter was debated and the outcome ofthe debates determined the Negro's 15 Selden, Steven. 1999. Inheriting Shams: The Story of Eugenics & Racism in America City, Teachers College Press. Carlson, Elof Axel. 2001. The Unfit: A History of A Bad Idea. Cold Spring Harbor Laboratory Press. Stefan Kuhl. 2002. The Nazi Connection: Eugenics American Racism, & German National Socialism. Oxford Press. 76 Shockley, William. Shockley. 1992.Eugenics and Race : The Application of Science to the Solution of Human Problems. Scott Townsend Publishers. See also, (Herrnstein and Murray. The Bell Curve, 1994, 346) 77 Rushton, J. Philips. 2000. Race Evolution and Behavior: A Life History Perspective. In J.P. Rushton's book Race, Evolution, and Behavior he collected and analyzed many of the data sets on race differences in brain size and intelligence and personality and temperament first noted by Darwin, Galton, and other 191 h century visionaries. Using evidence from psychology, anthropology, sociology and other scientific disciplines, Race, Evolution, and Behavior shows there are at least three biological races (subspecies) of man -Orientals (i.e., Mongoloids or Asians), Blacks (i.e., Negroid or Africans), and Whites (i.e., Caucasoid or Europeans). There are recognizable profiles for the three major racial groups on brain size, intelligence, personality and temperament, sexual behavior, and rates offertility, maturation and longevity. On average, Orientals and their descendants around the world fall at one end of the continuum, Blacks and their descendants around the world fall at the other end of the continuum, Europeans regularly fall in between. This worldwide pattern implies evolutionary and genetic, rather than purely social, political, economic, or cultural causes. 32

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destiny and place in America.78 The assertion of genetic inferiority exacerbates the recent anti-affirmative action climate. The argument attempts to demonstrate that affirmative action in higher education does not select America's best; therefore, inferior blacks are unfairly afforded opportunities in higher education along side whites and others. President Bush supports the dismantling of affirmative action. Bush's statement against affirmative action may endear him to his conservative base but may also send the wrong message to blacks in the midst of mass incarceration. The Supreme Court agreed to decide whether affirmative action programs in the nation's universities should continue to help minorities, or whether they represent "reverse discrimination." The court will decide by summer 2003 if race can be used in college admissions, an issue that the justices 78 On August 19, 1791, Benjamin Banneker wrote a lengthy letter to Thomas Jefferson, then Secretary of State, in which "having taken up my pen in order to direct to you as a present, a copy of an Almanac ... I was unexpectedly and unavoidably led" to develop a discourse on race and rights. Banneker made it a point to "freely and cheerfully acknowledge, that I am ofthe African race." Though not himself a slave, Banneker encouraged Jefferson to accept "the indispensable duty of those who maintain for themselves the rights of human nature," by ending the "State of tyrannical serfdom, and inhuman captivity, to which too many of my brethren are doomed." Appealing to Jefferson's "measurably friendly and well-disposed" attitude toward blacks, Banneker presumed that he would "readily embrace every opportunity to eradicate that train of absurd and false ideas and opinions which so generally prevail with respect to us." After acknowledging that by writing to Jefferson he was taking "a liberty which Seemed to me scarcely allowable," considering "the almost general prejudice and prepossession which is so prevalent in the world against those of my complexion," Banneker launched into a critical response to Jefferson's published ideas about the inferiority of blacks. With restrained passion, Banneker chided Jefferson and other framers of the Declaration of Independence for the hypocrisy "in detaining by fraud and violence so numerous a part of my brethren under groaning captivity and cruel oppression, that you should at the Same time be found guilty of that most criminal act, which you professedly detested in others, with respect to yourselves." Citing Jefferson's own words from the Declaration-the "Self-Evident" truth "that all men are created equal"--Banneker challenged Jefferson and his fellows "to wean yourselves from those narrow prejudices which you have imbibed with respect to" African Americans. (Reprinted from the Public Broadcasting Service "Africans in America Resource Bank") 33

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have dealt with only once before, in a cloudy 1978 ruling that led to more confusion. 79 At issue is whether race is used as a factor in admissions to statefunded colleges, to increase diversity in the student body. Justices will be asked to decide whether a state has a "compelling interest" to promote a diverse student body, or whether the Equal Protection Clause of the 14th Amendment forbids giving one ethnic group or culture special advantages over another. Without policies that support and at times enforce diversity, where will the blacks turn? Cornell West writes in his book Race Matters that progressives should view affirmative action as neither a major solution to poverty nor a sufficient means to equality. West says that we should see it as primarily playing a negative role, namely, to ensure that discriminatory practices against women and people of color are abated. Given the history of this country, it is a virtual certainty that without affirmative action, racial and sexual discrimination would return with a vengeance. 80 West says that the fundamental crisis in black America is twofold: too much poverty and too little self-love. The urgent problem of black poverty is primarily due to the distribution of wealth, power, and income distribution influenced by the racial caste system that denied opportunities to most "qualified" 79 University of California vs Bakke (1978). 80 West, Cornell. 1994. Ra ce Matter s New York : Vintage Press pp 93-5 34

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black people until two decades ago, West contends.81 The historic role of American progressives is to promote redistributive measures that enhance the standard of living and quality of life for the have-nots and have-too-littles. 82 Affirmative action was one such redistributive measure that surfaced in the heat ofbattle in the 1960s among those fighting for racial equality. Like earlier de facto affirmative action measures in the American past-contracts, jobs, and loans to select immigrants granted by political machines; subsidies to certain farmers; FHA mortgage loans to specific home buyers; or GI Bill benefits to particular courageous Americans; recent efforts to broaden access to America's prosperity have been based upon preferential policies. 8 3 Despite the climate of race relations and strained communication between the right and the left, writers continue to be overly optimistic across the board. African American, Michael A. Grant, J.D., a motivational speaker and respected 8 1 Ibid 82 Ibid. 8 3 Ibid 35

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critic of African Americans and politics, writes in his book Beyond Blame: Race Relations for the Twenty-First Century that, "While it is conjecture on my part, I sincerely believe that the race problem in America is dying a slow death. There are many on both sides of the race line that will conclude that my optimism is groundless, that I am out oftouch with reality. Yet, my prognosis is based, at least in part, on a new alignment of power in this country ... The election of two moderate baby boomers will certainly move the White House beyond the status quo on the race issue." 84 Both sides of the race line may share Grant's optimism; however, the number of blacks incarcerated in American prisons, since the latter part of the century, exceeds the positive powers "two moderate baby boomers" may have to slow down the figure. Once politicians convince the voting populace that mass incarceration is the best insurance of safety for everyone, those who have not already been disenfranchised, validate the racist assumptions of campaigns.85 Angela Davis, civil-rights activist and Princeton professor, states in her book Race and Criminalization: Black Americans and the Punishment Industry that, ... Republican and Democratic elected officials alike have successfully called for 84 Grant, Michael. 1995. Beyond Blame: Race Relations for the Twenty-first Century. New York: Smithson Berrty Publications. 85 One ofthe most blatant ofthese campaigns was the 1988 campaign commercial in the presidential campaign of George Bush and Michael Dukakis. Bush used Dukakis furlough of African American prisoner Willie Horton to stir racial fear in the campaign. In virtually every campaign year since, a variation of Bush's race-baiting theme can be found See Hacker, 1992, pp. 210-212. 36

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laws mandating life sentences for three-time criminals without having to answer for the racial implications ofthese laws ... Because race is ostracized from some ofthe most impassioned political debates of this period, the racialized character becomes increasingly difficult to identify, especially by those who are unable----or do not want-to decipher the encoded language." 86 Davis says that the exclusion of race in the political debates minimizes the role that race plays in ensuring blacks remain at the lowest rung in society. 87 Davis suggests that black leaders are being shamed into a type of"political correctness" that disavows their ability to speak candidly about contemporary conceptions of race and its profound negative effect. Davis' words illuminate the particularly difficult plight of African American women drawn into the system. It can be argued that for the black woman in particular, poverty and the absent imprisoned fathers of their children are also contributing factors to their unique position in the substance abuse and the incarceration game. According to Davis, the black women's rate of incarceration is even more dramatic than men's. Davis quotes criminal justice 86 Davis, Angela.200 1. Race and Crimina/ization: Black Americans and the Punishment Industry, California: Princeton Press. pp. 265. 87 Ibid. pp. 265-267. 37

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authors and researchers, Marc Mauer and Tracy Hauling, that, The 78% increase in criminal justice control rates for black women was more than double the increase for black men and for white women, and more than nine times the increase for white men ... 88 Additional research on the women and the penal complex reveals that the number of women incarcerated in prisons and jails in the USA is approximately ten times more than the number of women incarcerated in Western European countries, even though Western Europe's combined female population is about the same size as that of the USA. 89 During 2001 the number of women under the jurisdiction of State or Federal prison authorities decreased by 0.2%, while the number of men incarcerated in a State or Federal prison rose 1.2%. During the year 2001 there were93,031 women and 1,313,000meninStateorFederalprisons. 90 Since 1995 the annual rate of growth of the female inmate population has averaged 5.2%, higher than the 3. 7% average increase in the number of male inmates. While the total number of male prisoners has grown 24% since 1995, the number of female prisoners has increased 36%. By 2001 women accounted for 6.6% of all 88 Mauer, Marc, Tracy Hauling 1995. Young Black Americans and the Criminal Justice System: Five Years Later. Sentencing Project. 89 Amnesty International. 1999. Not Part of My Sentence: Violations of the Human Rights of Women in Custody. (Washington, DC: Amnesty International, March), pp. 15. 90 Harrison, Paige M. & Allen J. Beck, PhD, Bureau of Justice Statistics, Prisoners in 2001 (Washington, DC: US Dept. of Justice, July 2002), pp. 6, Table 7. 38

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prisoners, up from 6.1% in 1995. 91 Relative to their number in the US resident population men were about 15 times more likely than women to be incarcerated in a State or Federal prison. Reported in 2001, there was 58 sentenced female inmates per 100,000 women in the United States, compared to 896 sentenced male inmates per 100,000 men 92 Women are the fastest growing, and least violent segment of prison and jail populations. 85.1% of female jail inmates are behind bars for nonviolent offenses. 93 From 1986 (the year mandatory sentencing was enacted) to 1996 the number of women sentenced to state prison for drug crimes increased tenfold (from around 2,370 to 23,700) and has been the main element in the overall increase in the imprisonment of women. 94 From 1985 to 1996, female drug arrests increased by 95%, while male drug arrests increased by 55.1%.9 5 In 1998, there were an estimated 3 170,520 arrests of women ofwhich 272,073 were for drug offenses-18% ofthe total drug arrests in that year. 96 9 1 Ibid pp 6 92 Harrison Paige M & Allen J Beck PhD Bureau of Justice Statistics Prisoners in 200 I (Washington DC : US Department of Justice July 2002), pp. 6 93 Irwin, John Ph. D ., Vincent Schiraldi and Jason Ziedenberg. 1999 Am e rica's One Million Nonviolent Prisoners (Washington DC: Justice Policy Institute March) pp. 6-7 94 Amnesty International. 1999 Not Part o f M y Sentenc e : V iolation s of the Human Right s o f Wome n in C ustod y ( Washington, DC: Amnesty International March) pp 26 95 Ibid pp 26-27 96 Greenfield Lawrence A ., and Snell Tracy L., Bureau of Justice Statistics Women Offenders (Washington, DC : US Department of Justice Decembe r 1999), pp. 5 Table 10. 39

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It is a reality that most of these women have small children who are socially, psychologically, and economically damaged by the incarceration of their mothers. These children are subjected to a cruel world that not only lets them know that their mother is "locked up" but the additional message is that the children now fall even lower on the human scale of importance and respect than ever imagined. Between 1990 and 1996, the number of women convicted of drug felonies increased by 37% (from 43,000 in 1990 to 59,536 in 1996). The number of convictions for simple possession increased 41% over that period, from 18,438 in 1990 to 26,022 in 1996. 97 The most serious offense for 72% of women in federal prisons and 32.3% of women in state prisons is violation of drug laws. 98 Female incarceration rates, though substantially lower than male incarceration rates at every age, reveal similar racial and ethnic disparities. Black non-Hispanic females (with an incarceration rate of 199 per 100,000) were more than 3 times as likely as Hispanic females (61 per 100,000) and 5 times more likely than white nonHispanic females (36 per 100,000) to be in prison on December 31, 2001. These differences among white, black, and Hispanic females were consistent across all age groups. 99 Approximately 516,200 women on probation (72% of the total), 97 Greenfield, Lawrence A., and Snell, Tracy L., Bureau of Justice Statistics, Women Offenders (Washington, DC: US Department of Justice, December 1999), pp. 5, Table II. 98 Ibid. pp. 6, Table IS pp. 13, Table 17. 99 Harrison, Paige M. & Allen J. Beck, PhD, Bureau of Justice Statistics, Prisoners in 2001 (Washington DC: US Department of Justice, July 2002), pp. 12. 40

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44,700 women in local jails (70% of the total), 49,200 women in state prisons (65% ofthe total), and 5,400 women in federal prisons (59% of the total) have minor children. 100 Of the nation's 72.3 million minor children in 1999,2.1% had a parent in state or federal prison. Black children (7.0%) were nearly 9 times more likely to have a parent in prison than white children (0.8%). Hispanic children (2.6%) were 3 times as likely as white children to have an inmate parent. 101 In 1997 an estimated 2.8% of all children under age 18 had at least one parent in a local jail or a state or federal prison. About 1 in 359 children have an incarcerated mother-for a total of 194,504 children with their mothers behind bars. 102 It is indeed extremely important to include the voice of children, especially those children who have mothers and fathers behind bars for nonviolent crimes. Sociologists have written that most children who lose a parent, for any reason are at higher risk to suffer from detachment disorder and develop antisocial behavior. These findings certainly would apply to children of the incarcerated. 100 Greenfield, Lawrence A., and Snell, Tracy L., Bureau of Justice Statistics, Women Offenders (Washington, DC: US Department of Justice, December 1999), pp. 7, Table 17. 101 Mumola, Christopher J., Bureau of Justice Statistics, Incarcerated Parents and Their Children (Washington, DC: US Department of Justice, August 2000), pp. 2 102 Greenfield, Lawrence A., and Snell, Tracy L., Bureau of Justice Statistics, Women Offenders (Washington, DC: US Department of Justice, December 1999), pp. 7-8, Tables 17 and 18. 41

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These children are often unable to communicate in school, fall behind their classmates in their education and often find solace by drinking alcohol or taking drugs at very early ages. Grandparents who live on social security and family and friends who have their own problems to deal with, are left to care for the children if they are not carted off to orphanages or foster homes. Black children who go to school hungry and get to school on violent streets cannot possibly compete on a level education playing field with their white suburban peers. Tamara Henry reports that, school dropouts, teenage pregnancy, poor academic achievement, and crime -all of these are downstream consequences of not learning to read. 1 0 3 The chief of the Child Development and Behavior Branch of the National Institute of Child Health and Human Development (NIH), and a Bush adviser, noted that thirty-three years of study by the NIH found that of the 10% to 15% of children who will eventually drop out of school more than 75% will report reading difficulties. 1 04 Only 2% of students getting special education for reading problems will complete a four-year college program. Further research shows that half of the adolescents and young adults 103 Henry Tamara. 200 I Lawmakers Mo v e to Improve Literacy : The New C i vil Right. 200 I USA TODAYJune 20 01. 1041bid. 42

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with criminal records have difficulty reading. "In some states, the size of prisons a decade in the future is predicted by fourth-grade reading failure rates." 105[emphasis added] In addition to the negative influence on the children, the women while inside the prison gates suffer atrocities that are not fully addressed upon their release back to their families and children. Forty-four percent of women under correctional authority, including 57% of the women in State prisons, reported that they were physically or sexually abused at some point in their lives. Sixty-nine percent of women reporting an assault said that it had occurred before age 18. 106 Many women in prisons and jails in the USA are victims of sexual abuse by staff, including male staff touching inmates' breasts and genitals when conducting searches; and male staff watching female inmates while they are naked; and being raped. 107 Women locked up for drug crimes are victimized by the system as free citizens and as prisoners. Their numbers are escalating and their plight is virtually going unnoticed by the politics of the war on drugs. This victimization is reminiscent of the master slave relationship played out on plantations. The wardens and prison staff do not believe most of the inmates or they simply turn a blind eye to what has become common practice lOS Ibid. 106 Greenfield, Lawrence A. and Snell, Tracy L., Bureau of Justice Statistics Women Offenders (Washington, DC: US Department of Justice December 1999) pp 8, Table 20. 107 Amnesty International "Not Part of My Sentence: Violations of the Human Rights of Women in Custody" (Washington, DC: Amnesty International March 1999) pp 38. 43

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behind bars. The inmates are vulnerable to abuse and all "capable of work" must work or suffer disciplinary action. 44

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CHAPTER3 SLAVE LABOR UNDER COLOR OF LAW ... One hundred years later, the Negro lives on a lonely island of poverty in the midst of a vast ocean of material prosperity. One hundred years later, the Negro is still languishing in the comers of American society and finds himself an exile in his own land. So we have come here today to dramatize an appalling condition ... I have a Dream by Martin Luther King, Jr. (1963) Slave labor concepts have continued in some form throughout the decades, such as under the guise of"sharecropping." 108 In the 181 h Century it kept blacks 1 0 8 The African American intellectual W E. B Du Bois once wrote that "[t]he slave went free ; stood for a brief moment in the sun ; then moved back a gain toward slavery Indeed, in the century between Emancipation and such Civil Rights Movement victories as the 1964 Civil Rights Act and Voting Rights Act of 1965 several factors conspired to keep former slaves in an inferior position in American society Disfranchisement, discriminatory Jim Crow laws segregated schools, and lynching reinforced the political legal, educational and social inequality that African Amer i cans faced But the picture of racial injustice would not be complete without including economic factors-ranging from official and unofficial job discrimination to exclusion from white labor unions-that kept African Americans separate and unequal. Chief among these unequal financial arrangements for rural Southern blacks was sharecropping Although the details varied throughout time and place sharecropping was-and is, in the less developed nations that still use it widely-a system in which landlords lease the use of their farmland to tenants or sharecroppers in exchange for a percentage of the crop yield With the collapse of Reconstruction in the late 1870s however, most sharecropping contracts became more o v ertly unequal in nature. Landowners used crop-lien laws and high-interest-rate credit at company stores to keep sharecroppers in a state of perpetual debt. Since most sharecroppers raised only one crop-typically cotton-the increasingly depleted soil could not provide them the livestock feed fruits and vegetables for their families that subsistence farming would have supplied By mortgaging next year's crop to pay for this year s food clothing and other necessities, many black sharecroppers entered a state of bondage nearly as complete as the one that they had endured under slavery ; meanwhile, landowners faced lower financial risk and reduced responsibility for the people who farmed their land. Records show that in 1876 approximately 95 percent of Southern black farmers owned no land at all. As late as the 1920s, studies by the U S. Department of Agriculture showed that life on a cotton plantation differed little from slavery days with multiple black workers (including children) supervised by white overseers. Some landowners farmed with chain gangs of convicted criminals in exchange for housing and g uarding the prisoners, most of whom were black men. 45

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in bondage on plantations. It carried over into the 191h Century through Jim Crow laws and Black Codes and now in the 21st Century in the form of penal control. Black economic oppression has now reinvented itself through the prison industrial complex model. Each period had a constant, the social and economic subjugation of Blacks, this fact has been an integral part of America's economy and the initial model has shown its resiliency and has exposed itself as critical over time. The first blacks who came to Virginia in 1619 were indentured servants. After 1670, all blacks coming to Virginia were slaves for life. The change came because planters learned they could make more money with slaves than with indentured servants. Indentured servants were free after 4 to 7 years. 109 Slaves had to work for life. From the beginning slavery was an integral part of the economy. Slaves formed the core of the early labor force, working on the construction of public and private buildings almost as frequently as they served as household servants. 110 When the govennnent embarked on public works, it also hired slave labor; the Treasury Department paid the absentee masters for the use of their human chattel. 109 Green, Constance McLaughlin. 1962. Washington: Village and Capital 1800-1878. Princeton: Princeton University Press. pp. 53-54.) 110 Ibid. 46

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To protect slaveholders in the city, a special tax was levied on nonresident slave labor. Wedged between two slave states, the District of Columbia was ideally located to become the hub of the domestic slave trade. With the increased demand for slaves caused by the expansion of cotton cultivation in the lower South and the slow but steady reduction of tobacco cultivation in Maryland and Virginia, a growing "surplus" of slaves developed in the vicinity of the capital. Slaves hired from their masters by Pierre L'Enfant worked on the construction of the White House. Since much was accomplished very quickly there must have been many; the conditions of their labor from daybreak to dark under the command of tough, hard-drinking James Dermott can only be imagined. Due to lack of skilled labor in Washington, DC, The White House master stonemason, Collen Williamson, had to train hired slaves on the spot at the quarry to cut the stone to build the foundation of the White House. 111 The slave trade was one of the most important business enterprises of the 17th century. The states of Europe stabilized themselves and developed their economy mainly at the expense of African people. During the latter half of the century; Colbert, a Frenchman, stated that, "no commerce in the world produces 111 (The President's House : a History by William, Seale and Harry N Abrams, White House Historical Association with the Cooperation of the National Geographic Society, 1986, vol I, pp. 38, 50 52,57,60) 47

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as many advantages as that of the slave trade"(Williams, From Columbus to Castro). The wealth ofthe New World in the form of sugar, tobacco, metals, gold, cotton, etc. was extracted by African labor and then exported from the colonies through the capitalistic enterprise ofwestern Europe. Western Europe drew profits from the trade in slaves, commodities produced, service of shipping, the development of new industries based on processing raw materials, financing, and insurance. According to Eric Williams, no other commerce required so large a capital as the slave trade, which kept the wheels of metropolitan industry turning. Cities such as Liverpool, Amsterdam, and Bristol were built upon slave labor. The capital and raw materials derived from the African slave trade contributed significantly to the Commercial and Industrial revolution. That contribution has never waned over centuries and has contributed to America becoming a "Super Power" among other countries in the world. According to James Rawley's book The Transatlantic Slave Trade that, "black slavery was essential to the carrying on of commerce, which in turn was fundamental to the making of the modern world." In other words, the modern world was built upon the blood, sweat, and tears of our African ancestors 112 112 Francis Anika. 2002. Economics of the African Slave Trade. cardell @ eniac .s eas upenn.edu 48

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Today, incarcerated men and women, and possibly thousands of children in the very near future, will be subject to prison labor programs. Millions of African Americans, just as their ancestors, are essential to the carrying on of commerce, which is fundamental to the modem penal system today as it was in early history. Professor Davis incorporates within her essay the fact that prisons themselves are becoming a source of cheap labor that attracts corporate capitalism. She states that, "the new American worker will be drawn from the ranks of a racialized population whose historical super exploitation---from the era of slavery to the present---has been legitimized by racism." 113 Slavery or an extension of21 st Century chains are not new-fangled nor is the legal and societal reasons for it. America's history is replete with documentation of state and federal slave labor programs sanctioned under the United States Constitution. The use of the phrase "sanctioned slavery'' is not a liberalized knee jerk reaction to the criminal justice system nor is it used for shock appeal. Slavery is---as it was in the past---valid under color of American law. Segregation laws were used to perpetuate servitude and oppression ofNegroes in 113 Davis, Angela 200 I. Ra ce and Crimina/i z ation : Bla c k A m e rican s and th e Punishm e nt Indu s t ry California : Princeton Press 49

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the United States. 114 The South Carolina Black Code established regulation of the domestic relations of persons of color, and to propagate penal laws in relation to minorities, paupers and vagrants. 115 Black Codes were commonplace among the several states. The first clause of the Carolina Black code demands that, "[a]ll persons of color who make contracts for service or labor, shall be known as servants, and those with whom they contract shall be known as masters where the master shall receive, to his own use, the profits of the labor of his apprentice." 116 Such laws were designed for colored children, between the ages of two and eighteen who had neither father nor mother, and vagrants unable to find work in the free world. Targeted groups, accused of violating the laws, became subject to incarceration and to a life of servitude at the hand of the state. Particularly effective was the criminal-surety system, which had carried over from the bad days of the Black Codes. Lawrence M. Friedman effectively describes the system in his book Crime and Punishment in American History. 117 If a black was convicted of vagrancy, or some other minor offense such as petty larceny, or drunkenness, and thereafter assessed a fine, he effectively became a 114 For a history ofthe term, "Jim Crow" and its application in law, see Irons, Peter. Jim Grow's Children: The Broken Promise of the Brown Decision .. New York: Viking Press. 2002 pp. 1-20. 115 Mullane, Deirde, Ed., 1993 Crossing the Danger Water : Three Hundred Years of African American Writing New York: Anchor Books. 116 Ibid. pp. 225 117 Friedman, Lawrence M.1993. Crime and Punishment in American History. New York : W.W. Norton & Company. 50

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kind of slave. He was turned over to a white employer who paid the fine and got a permanent bonded laborer in return. For the black, moreover, there was no way out once he was forced to work. A black defendant, uneducated and without a lawyer, entered a courtroom of whites who were convinced he was guilty, or that his rights, feelings and interests mattered less than that of whites, if they mattered at all. Edward Ayer' s study of southern counties found conviction rates for blacks much higher than for white in the late nineteenth century; whites were convinced that blacks were congenital thieves and this belief was deeply embedded in southern folklore. The national prison industry debate continues with a veiled rhetoric that results in an expanding prison superstructure that effectively retains Blacks and especially Black men, in a system of bonded labor and political and social disenfranchisement. Labor Laws and the Prison Industry Morgan 0. Reynolds, Director of the Criminal Justice Center and economics professor at Texas A&M University, concludes that, prison industries are positive developments because prisoners have the potential to produce valuable goods and services consumers want to buy at a low cost. Prison industries produced more than $1 billion worth of goods and services in 1994, mostly for other government agencies. However, since prison industries have 51

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historically been state-run rather than privately run, the output was often shoddy, overpriced merchandise that other state agencies were required to buy from the prison industry monopoly. The largest prison supplier was the Federal Bureau of Prisons with $433 million in output for federal agencies, yet the system employed only 16,000 inmates out of61,000 inmates eligible to work (i.e., those not in solitary confinement, considered dangerous or being transferred) from its total of 85,000 inmates 118 Arguably, productive prison work can be a good thing and, theoretically, private enterprise might make it even better. For example, in 1923, when the private sector still played a significant role in prisoner employment, productivity was four times greater under private than under public control, even when the same industries were compared. Consider a prisoner who is earning $14,000 per year. His productivity adds to the economy just as does that of a noninstitutionalized person. If 800,000 prisoners worked -a labor force equal to those of Wyoming, Alaska and Vermont combinedtheir productivity would add more than $20 billion to the economy. The optimistic view of prison privatization and an incarcerated labor force is spreading, according to Reynolds. 119 118 Reynolds, Morgan. 1997. The Economic Impact of Prison Labor, National Center for Policy Analysis (Washington DC: Federal Bureau ofPrisons. November 17, 1997). 119 Ibid. 52

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In his book Penology for Profit: A History of the Texas Prison System 1867-1912 Donald Walker wrote that the state prison system in relation to blacks is that, "the principal explanation for the preponderance of blacks among the inmate population in this period can be found by examining their status [blacks] in Texas. With regard to the legal system, black Texans existed essentially outside protections of the law. For the most part, their overwrought financial circumstances rendered them unable to avail himself or herself of legal counsel to defend their interests in court." 120 Jeffrey Reiman describes the various philosophical justifications for designing a system that would encourage incarceration. He lists five proposals: "First. Have a number of irrational laws on the books, such as laws against heroin or prostitution. Second. It would be good to give police, prosecutors, and judges' broad discretion to decide who got arrested, who got charged, and who got sentenced to prison. Third. The prison experience should be not only painful but also demeaning. By placing prisoners in an enforced childhood characterized by no privacy and no control over their time and actions is sure to overcome any deterrent effect by weakening whatever capacities a prisoner has for self-control. Fourth. It goes without saying that prisoners should neither be trained in a marketable skill nor provided with a job after release. 120 Walker (1988) pp. 250. 53

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Fifth. The ex-offenders' sense that they can never pay their debt to society, that they will always be different from "decent citizens," reinforced by deprivation of the right to vote, harassed by police and characterized as chronically untrustworthy, unreliable, and unfit to truly reenter society." 121 Reiman's analysis of the politics of incarceration of minorities, particularly blacks, is echoed time and again by criminologists and civil rights leaders. Reiman's five criteria comprise the core of a criminal justice loop in which blacks become perpetually confined-reinforced even for them through perpetual offender ("three strikes you're out") laws that eventually create a permanent prison labor force. With a scheme of incarceration and recidivism in place, laws institutionalize the model. The Fair Labor Standards Act of 1938 applies to "any individual employed by the Government ofthe United States" 122In this case, the plaintiff argued that when a prisoner is required to do any work, as distinguished from merely spending time in prison, this amounts to "slave labor." The court held that, "the Thirteenth Amendment, in abolishing slavery and involuntary servitude, specifically adds the phrase, 'except as a punishment for crime whereof the party 121 Reiman pp. 82-84 122 29 U S.C. 203(e)(2)(A) (1976). (Emerson Emory M.D. v. the United States, 2 Cl. Ct. 579 1983). 54

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shall have been duly convicted,' which covers the plaintiffs situation. The law does not apply to prisoners who are not determined to be employees within the meaning of the Act. Alexander v. Sara, Inc. 505 F. Supp. 1080, 1081 (M.D. La. 1981). As recent as 1991, the court held in Williams v. Meese, 926 F.2d 994 (101 h Cir, 1991), that not only did the Fair Wage Act not apply to prisoners, neither does Title VII ofthe 1964 Civil Rights Act, employment discrimination laws, or the American with Disabilities Act (ADA) or the Age Discrimination in Employment Act (ADEA). Therefore, within prison walls the same descendants of slaves can be racially discriminated against and afforded no legal protections. Some might argue that this system of prison labor applies to all prisoners, regardless of race. Even if the point is conceded that prison labor, as currently configured, is oppressive to all inmates, the historical and present position of blacks in the U.S. creates a disproportionate impact through this regime Given that blacks and other people of color are disproportionately represented in both state and federal prison populations the unfairness and injustice of forced prison labor falls inordinately on black inmates. Unquestionably reminiscent of America's early slave laws. Congressional support for prison privatization schemes has grown dramatically over the past two decades. Former speaker of the U.S. House ofRepresentatives, Newt Gingrich, and Representative Dick Armey outlined in Contract With America, the Republican Party design through, 55

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The Taking Back Our Street Act, that set aside $10.5 billion dollars for state prison construction grants, established truth-in-sentencing guidelines, reformed the habeas corpus appeals process, [limiting prisoners to come before the courts after conviction regardless of new evidence] and allowed police who in 'good faith' seize incriminating evidence in violation of the 'exclusionary rule' to use the evidence in court ... the bill also authorized an additional $10 billion for local law enforcement spending." 123 More than 100 Republicans around the country signed this contract. It is arguable that the contract died an early death, but to the imprisoned and impoverished African American, what the contract accomplished was the initiative to supply tax dollars to be used for increased deportation; limitations or complete restrictions from welfare assistance without complete establishment of paternity by the mother, and freezes in welfare programs to include head start. Gingrich and company ignored any initiative that would provide monetary assistance to disadvantaged groups for quality education, small business loans, or humane medical and social services to end a cycle of poverty. On the contrary, prison construction and operation became the fastest growing industry in the U.S. for federal funds to set aside land in rural areas to begin construction of human warehouses. 123 Gillespie and Schellhas, Ed 1994. Contract with America: The Bold Plan by Rep Newt Grinrich, Rep. Dick Army and the House Republicans to Change the Nation. New York: Randam House Press. 56

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Marketing the Prison Industry The marketing of the prison industry is viable, with the prison economy making its way into all areas of market productivity. In basic economics terms, there is a supply of blacks and there is a demand for their incarceration Selling goods to prisons has become another avenue of profit for businessmen and women Announcements ofnew prison construction, jobs and procurement contracts can be found on the FBOP. It announced an opening of a new correctional institution. The $100 million facility, will employ 350-400 staff and have an annual operating budget of $25 million, will be located just north of Interstate 68 at the Hazelton Ex i t near Bruceton Mills New York several hundred miles away from urban blacks. The FBOP has determined the site "due to what they believe is "its superior topography and access" can be developed quickly and at reasonable cost and is a convenient location for law enforcement. Many of the private prison corporations have public stock that is also sold via the internet. The private prison markets help to reinforce incarceration of nonviolent offenders and privatization of prisons has become all the more popular. The US Federal Bureau of Investigations (FBI) has studied black social conditions and their consequences for decades Coincidentally, former FBI official George Wackenhut founded Wackenhut a multi-million dollar security firm corporation in 1954. This diversified private security firm first entered the prison business in 57

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1987 when it opened a 250-bed Immigration and Naturalization Service detention center. (Federal Bureau of Prisons, 2001) Wackenhut reported $8.3 million in profits on $137.8 million in revenue in 1997. (Federal Bureau of Prisons, 2001) W ackenhut Corrections Corporation Correctional services includes the management of a broad spectrum of facilities, including male and female adult prisons; juvenile prisons; community corrections; work programs; prison industries; substance abuse treatment facilities; and mental health, geriatric and other special needs institutions. Other management contracts include psychiatric health care, electronic home monitoring, prisoner transportation, correctional health services, and facility maintenance. The Company has an in-house capability for the design of new facilities, and offers a full privatization package to government agencies, to include financing. The Company operates in the United States, Europe, Australia, New Zealand and South Africa. One of the greatest concerns with private corporations operating prisons for the state is the degree to which federal and state constitutional safeguards apply. In private prisons, the application of constitutional standards for abusive or inhumane conditions is not as clear, because constitutional standards apply to state action, not private action. Recently, the state of Louisiana withdrew Wackenhufs contracts because of consistent charges of abuse of inmates and inadequate and unsafe conditions in 58

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Wackenhut's facilities. For blacks especially, the historical denial of equal protection, due process guarantees presents deep concern in the present arrangements between government and private industry. The public private distinction was used in law for decades to prevent remedies for blacks suffering from rampant discrimination. 124 Even though facilities were no longer under Wackenhut control, in 1997, Corrections Corporation of America's stock doubled to more than $41 a share. (Federal Bureau ofPrisons) Today, Wackenhut has merged with a Dutch security company thereby forming the largest security company in the world. Company stock tripled. Since the enactment of mandatory minimum sentencing for drug users, the Federal Bureau of Prisons budget has increased by 1,350%. Its budget has jumped from $220 million in 1986 to $3.19 billion in 1997. 125 From California to Maine prisons are booming! 124 Kluger, Richard. 1976. Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality. The main critics ofthe private prison industry was crystallized by Paul Leighton who wrote that private prisons "create large numbers of people who have a vested financial interest in having a large and increasing incarceration rate." Leighton, Paul. "Industrialized Social Control." Peach Review 7, no. :y. (1995), pp. 390. 125 Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics 1996, Washington D.C.: U.S. Government Printing Office (1997), pp. 20. Office ofNational Drug Control Policy, Executive Office of the White House, National Drug Control Strategy 1997, Budget Summary, Washington D.C.: U.S. Government Printing Office (1997), pp. Ill 59

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UNITED STATES FEDERAL PRISON SYSTEM Co1u1ecticut Delawllfe Disbict of Columbia Matyland Massachusetts International Centre for Prison Studies (2001) Friday, 23-Mar-200 I 18:54:0 I GMT by Alastair Dunning Fig. 3.2 United States Federal Prison System 60

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CHAPTER4 THE PARADOX OF LEGAL AND ILLEGAL DRUG ABUSE The paradox of drug use, in its simplicity, is the paradigm of freedom versus incarceration for the illegal and legal high. The racially disproportionate nature of the ''war on drugs" is not just devastating to black Americans. It contradicts faith in the principles of justice and equal protection of the laws that should be the bedrock of any constitutional democracy; it exposes and deepens the racial fault lines that continue to weaken the country and belies its promise as a land of equal opportunity; and it undermines faith among all races in the fairness and efficacy of the criminal justice system. Urgent action is needed, at both the state and federal level, to address this crisis for the American nation. Authors of Justice On Trial: Racial Disparities in the American Criminal Justice System write that, "our criminal laws, while facially neutral, are enforced in a manner that is massively and pervasively biased. The injustices of the criminal justice system threaten to render irrelevant fifty years of hard-fought civil rights progress". 126 126 Welch Ronald H. and Angulo Carlos T 200 I Justice On Trial : Racial Disparities in the American Criminal Justice System (Washington, DC : Leadership Conference on Civil Rights I Leadership Conference Education Fund, May 2000), pp. v. 61

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Regarding state prison population growth from 1990 through 2000, the US Dept. of Justice reports, "Overall, the increasing number of drug offenses accounted for 27% of the total growth among black inmates, 7% of the total growth among Hispanic inmates, and 15% among white inmates. 127 According to the federal Household Survey, "most current illicit drug users are white. There were an estimated 9.9 million whites (72 percent of all users), 2.0 million blacks (15 percent), and 1.4 million Hispanics (10 percent) who were current illicit drug users in 1998." And yet, blacks constitute 36.8% of those arrested for drug violations, over 42% of those in federal prisons for drug violations. African Americans comprise almost 58% of those in state prisons for drug felonies; Hispanics account for 20.7%.128 As aforementioned in this writing, it is documented that, among persons convicted of drug felonies in state courts, whites with identical drug crime convictions were less likely than African Americans to be sent to prison. Only thirty-three percent (33%) of convicted white defendants received a prison 127 Harrison, Paige M. & Allen J. Beck, PhD, US Dept. of Justice, Bureau of Justice Statistics, Prisoners in 2001 (Washington, DC: US Dept. of Justice, July 2002), pp. 13. 128 Substance Abuse and Mental Health Services Administration, National Household Survey on Drug Abuse: Summary Report 1998 (Rockville, MD: Substance Abuse and Mental Health Services Administration, 1999), pp. 13; Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics 1998 (Washington DC: US Department of Justice, August 1999), pp. 343, Table 4.10, pp. 435, Table 5.48, and pp. 505, Table 6.52; Beck, Allen J., Ph.D. and Mumola, Christopher J., Bureau of Justice Statistics, Prisoners in 1998 (Washington DC: US Department of Justice, August 1999), pp. 10, Table 16; Beck, Allen J., PhD, and Paige M. Harrison, US Dept. of Justice, Bureau of Justice Statistics (Washington, DC: US Dept. of Justice, August 2001), pp. 11, Table 16. 62

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sentence, while 51% of African American defendants received prison sentences. It should also be noted that Hispanic felons are included in both demographic groups rather than being tracked separately so no separate statistic is available. 129 Expressed in terms of percentages, 10.0% ofblack non-Hispanic males age 25 to 29 were in prison on December 31, 2001, compared to 2.9% ofHispanic males and about 1.2% ofwhite males in the same age group. Although incarceration rates drop with age, the percentage ofblack males age 45 to 54 in prison in 2001 was still nearly 2.7% --only slightly lower than the highest rate (2.9%) among Hispanic males (age 25-29) and more than twice the highest rate (1.3%) among white males (age 30 to 34). 130 According to the US Census Bureau, the US population in 2000 was 281,421,906. Ofthat, 194,552,774 (69.1%) were white; 33,947,837 (12.1 %) were black; and 35,305,818 (12.5%) were ofHispanic origin. Additionally, 2 068 883 (0 7%) were Native American, and 10,123,169 (3.8%) were Asian 131 The San Francisco Department of Planning determined that 62% of billboards in African American communities and 42% of billboards in Latino 129 Durose Matthew R., and Langan, Patrick A., Bureau of Justice Statistics State Court Sentencing of Convicted Felons, 1998 Statistical Tables (Washington DC : US Department of Justice, December 200 I) 130 Harrison, Paige M. & Allen J. Beck PhD US Dept. of Justice Bureau of Justice Statistics Prisoners in 2001 (Washington, DC: US Dept. of Justice July 2002), pp 12. 131 US Census Bureau, Department of Commerce, Census 2000 Redistricting Data (pp. 94-171) Summary File for states, Population by Race and Hispanic or Latino Origin for the United States : 2000 (PHC-T-a) Table I 63

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communities advertised cigarettes and alcohol, compared to only 36% citywide in 1986. The Boston Globe found ten times as many tobacco and alcohol ads in black neighborhoods as in white neighborhoods.132 The dependency on alcohol was also prevalent among arrestees who may also face the ill effects ofthis drug, which lower inhibitions and muddles the senses. However, the use of alcohol is not a mitigating factor in booking decisions. If anything, it tends to support additional charges. Very few arrestees are provided proper follow up treatment for alcohol substance abuse that compounds the proclivity toward illicit drug use. According to the federal Household Survey, there are more than 48 million Americans who abuse alcohol an average of one or more days each week of the year. This is more than the combined total number of Americans who have ever tried cocaine, crack, and/or heroin (29.7 million), and two and a halftimes the number of Americans who have used marijuana once in the last year (18.7 million).133 On an average day in 1996, an estimated 5.3 million convicted offenders were under the supervision of criminal justice authorities. Nearly 40% of these offenders, about 2 million, had been using alcohol at the time of the 132 Center for Science in the Public Interest 1990. Neighborhood in Action: A guide for Drug for Drug Abuse Prevention, Scott Newman Center, 1992. 133 Substance Abuse and Mental Health Services Administration, US Department of Health and Human Services, National Household Survey on Drug Abuse: Population Estimates 1998 (Washington DC: US Department of Health and Human Services, 1999), pp. 19, 25, 31, 37, 85, 91, 105. 64

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offense for which they were convicted. 134 About 6 in 10 convicted jail inmates said that they had been drinking on a regular basis during the year before the offense for which they were serving time. Nearly 2 out of3 of these inmates, regardless of whether they drank daily or less often, reported having previously been in a treatment program for an alcohol dependency problem. 135 About a quarter of the women on probation nationwide had been drinking at the time of their offense compared to more than 40% of male probationers. For individuals convicted of public-order crimes, nearly two-thirds of women and three-quarters of men had been drinking at the time of the offense. 136 For more than 4 in 10 convicted murderers being held either in jail or in State prison, alcohol use is reported to have been a factor in the crime. Nearly half convicted of assault and sentenced to probation had been drinking when the offense occurred. 137 134 Greenfield Lawrence A., US Department of Justice, Bureau of Justice Statistics, Alcohol and Crime: An Analysis of National Data on the Prevalence of Alcohol Involvement in Crime (Washington, DC: US Department of Justice, April 1998), pp. 20. 135 Ibid. pp. 27. 136 Ibid. pp. 24. 137 Ibid. pp. 21. 65

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4.1 Trapped Behind Bars. Mental Health and Medicine: Drugs and Freedom Illegal drug users are among the Americans without medical insurance and private physicians. Individuals who abuse legal drugs essentially live without threat of incarceration. As for blacks, lack of medical insurance, poverty, and a general distrust of white doctors hinder their ability to obtain legal psychotropic and painkillers. The history of distrust is well founded. African Americans' misgivings about the medical system in general and their reason for failing to seek medical help for ailments to include mental health treatment rests with recorded horrific mistreatment of the race. An example ofthe fear that is prevalent among blacks is that of a Washington family that came to the Rev. Jim Holley seeking 66

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guidance. Their elderly father was on a respirator. The doctors had said it was time to let him go. The doctors seemed respectful. Still, the family wondered. Might the white doctors pull the plug on their black father to give the machine to someone else? "When we went back in there, the man had passed. And the machine was being used by a white person," A coincidence? Holley believes it was. But for many black families, he said, such a coincidence "does lend itself to suspicion." 138 From the notorious Tuskegee, Ala., syphilis study to more recent findings that black patients often get less treatment than whites, the black community has long seen evidence that the U.S. medical establishment devalues black lives. Now, as the nation debates physician-assisted suicide and other limits on life-sustaining care, some black leaders fear right-to-die choices are giving doctors new opportunities to victimize blacks. 139 In addition to the fear, mistrust, and horrors of the past, is the failed health system that blacks face daily The Americans who can afford their "high" are mostly white American men and women armed with health insurance and the backing of their personal doctors. According to a new Institute of Medicine study, minorities in the United States 138 The impact of the Tuskegee Study, in which blacks in the South were not treated for syphilis as part of a government study, continues to be felt as the mistrust it generated interferes with attempts to combat AIDS in certain black areas Cornelius Baker director of the National Association of People with AJDS, reports that "ma ny blacks especially in the South simply won't take medicines," because they fear being "ki lled off as part of the master plan." AIDS education programs in black communities have often prompted the topic of Tuskegee. New York Times (0411311997) 139 Montgomery Lori. Bla cks Fearful of White Doctors Pulling the Plug, February 26, 1997 Washington Free Press. 67

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receive lower-quality health care than whites do--even when they have the same medical problems, insurance coverage and income. 140 The study showed that members of minority groups are disproportionately represented among the uninsured. Almost 4 in 10 uninsured adults are Latino (23%) or African American (16%), even though only 10% of the total population is Latino and 11% is African American. 141 The study also found that the majority of the uninsured say they do not have health insurance because it is too expensive (74%) and their job does not offer coverage (48%) uninsured are less likely than the insured to have a regular place they go for medical advice while the insured (91 %) are more likely than the uninsured to have a place to go. 142 More than 8 in 10 uninsured Americans are workers or dependents of workers. 143 Although open to further examination, researchers have conducted unprecedented studies that found that 140 The Henry J Kaiser Family Foundation study entitled, National Survey on the Uninsured) 2000 141 Ibid pp. 1-27. 142 Ibid pp. 8. 143 Ibid pp. 8-10. 68

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blacks in violent ghettoes suffer from mental illness to include Post Traumatic Stress Disorder that contributes to their illicit drug use. 144 The study found that, inner-city youngsters are more likely than middle-class adolescents living in suburban or rural areas to be the victims of or witnesses to community-based violence. 145The study also revealed that "several community-based studies have reported that more than 80% of inner-city adolescents have seen someone physically assaulted, 40% have seen someone shot or stabbed, and almost 25% of 144 Dr. Eric Schneider of Harvard University's School of Public H eal th led an unprecedented study and found that blacks get inferior care compared with whites when it comes to mental illness and certain other ailments. (Schneider, Harvard University School of Public Health 1997) A study of patients enrolled in government managed-care plans suggests medical bias in treatment. While other studies have found broad racial inequities in medicine this is one of the first to show it exists in mental health treatment. (Schneider 1997 pg 430) The reasons for the gap found in the study are unclear but the researchers said lack of access to medical care-a reason cited in other research is unlikely because they compared blacks and whites enrolled in similar plans The doctor said that the possible explanations include racial bias among doctors and cultural differences including a tendency among some blacks to shun some preventive health care measures. (Schneider. pp 450 ) The study involved 305 574 patients in more than 200 Medicare managed care plans in 1997. Black s were less likely than whites to receive follow-up care after being hospitalized for mental illness, 33 2% vs 54% ; and less likely to receive commonly used beta-blockers after heart attacks, 64% versus 73.8% Black diabetics were less likely than white diabetics to receive directions from physicians to obtain needed eye exams 43.6 % compared with 50.4%. (Schneider, Harvard University School of Public Health 1997) Representative of the psychosocial illnesses affecting the African American populace is a study of urban adolescent girls conducted to identify clinical and functional correlates of Post Traumatic Stress Disorder (PTSD) in trauma-exposed urban black America (Lipsc hitz 200 I) PTSD is a condit ion that arises from exposure to life-thre ate ning circumstances first diagnos ed among some of the survivors of wartime combat. (Lipschitz 2001) The syndrome was known as Shell Shock' and it was thought to be primarily motivated by the soldier's effort at self-preservation. Individuals experiencing PTSD may be diagnosed with other problems including Adjustment Disorder Acute Stress Disorder, Obsessive-Compulsive Disorder, Generalized Anxiety Disorder Mood Disorder Substance Abuse, Organic Brain Syndrome and Malingering (Lipschitz 200 I) The Harvard and Yale studies confirm that among African Americans suffering from PSTD, "discre te and negative and dependent events, resulted in school failure, school suspension, legal difficulti es, incarceration and pregnancy ." (Li p sc hit z 2001) 145 Boney-McCoy and Finkelhor, 1995 Gladstein et al., 1992 69

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youngsters have witnessed a homicide.146 The investigated clinical correlates of PTSD included rates of"depression, anxiety, and substance use." These adolescent PSTD sufferers are a reflection of adult inner city survivors subject to the "war on drugs" portrayed in the media among reciprocal violent acts of cartels, traffickers, dealers and petty users. In 2001, the United States Surgeon General reported that, for African Americans, overall rates of mental illness appear to be similar to those of non Hispanic whites. Differences do arise when assessing the prevalence of specific illnesses. Dr. Satcher observed that mental illnesses are real, disabling conditions that affect all populations in the nation. He emphasized they are as treatable or more treatable than other illnesses like diabetes, cancer or heart disease. Overall, only one-third of Americans with a mental illness or a mental health problem get care. Yet, the percentage of African Americans receiving needed care is only half that of non-Hispanic whites. One study reported that nearly 60% of older African American adults were not receiving needed services. For example: African 146 Bell and Jenkins, 1993; Schubiner et.a1, 1993; Schwab-Stone et.al, 1995 70

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Americans may be less likely to suffer from major depression and more likely to suffer from phobias than are non-Hispanic whites. Somatization147 is common among African Americans (15%) than among whites (9%). 148 Moreover, African Americans experience culture-bound syndromes such as isolated sleep paralysis, an inability to move while falling asleep or waking up, and falling out, a sudden collapse sometimes preceded by dizziness. While non-Hispanic whites are nearly twice as likely as African Americans to commit suicide, suicide rates among young black men are as high as those of young white men. Moreover, from 1980 1995, the suicide rate among African Americans ages 10 to 14 increased 233%, compared to 120% of comparable non-Hispanic whites. The U.S. Surgeon General reports that, African Americans are over-represented in high-need populations that is particularly at risk for mental illnesses: 147 Bruns, Daniel. 1988. "Somatization is a phenomena typically underlying feelings of depression, anxiety or other feelings, which are not recognized or acknowledged by the person. Instead, what the person may be aware of is all the physical correlates of these underlying difficulties. For example, a somatizer may not recognize that he or she is depressed, but instead may complain offatigue. A somatizer may not recognize that he or she is anxious, but may instead report that his or her hands become tremulous, or that there is a chronic tightness in the back ofthe neck." Published at http:/www.healthpsych.com. 148 United States Surgeon General: Press Release, Sunday, August 26, 2001. Culture Counts In Mental Health Services and Research Finds New Surgeon General Report. Striking disparities in access, quality and availability of mental health services exist for racial and ethnic minority Americans, according to the new report of the Surgeon General released today, Mental Health: Culture, Race and Ethnicity. The report, a supplement to the 1999 first-ever Surgeon General's report on mental health, highlights the role culture and society play in mental health mental illness, and the types of mental health services people seek. It finds that, although effective, well-documented treatments for mental illnesses are available, racial and ethnic minorities are Jess likely to receive quality care than the general population. Overall, one in three Americans who need mental health services currently receives care. A critical consequence of this disparity is that racial and ethnic minority communities bear a disproportionately high burden of disability from untreated or inadequately treated mental health problems and mental illnesses. 71

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People who are homeless. While representing only 12% of the U.S. population, African Americans make up about 40% of the homeless population. Children in foster care and the child welfare system. African American children and youth constitute about 45% of children in public foster care and more than half of all children waiting to be adopted. People exposed to violence. African Americans of all ages are more likely to be victims of serious violent crime than are non-Hispanic whites. One study reported that over 25% of African American youth exposed to violence met diagnostic criteria for post-traumatic stress disorder (PTSD). Among Vietnam War veterans, 21% of black veterans, compared to 14% of non-Hispanic white veterans, suffer from PTSD, apparently because of the greater exposure of blacks to war-zone trauma. People who are incarcerated. Nearly half of all prisoners in state and federal jurisdictions and almost 40% of juveniles in legal custody are African Americans. 149 The United States Surgeon General emphasizes that cultures of clinicians and the service system itself further influence diagnosis and treatment. His report states that, providers need to know how to build upon the cultural strengths of the 149 Ibid. 72

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people in their care. After all, while not the sole determinants, cultural and social influences do play important roles in mental health, mental illness and service use, when added to biological, psychological and environmental factors. 150 In addition to the reports and research on (PTSD) among blacks are additional studies that find perverse prescription drug abuse among whites that also suffer from mental illness yet escape incarceration by obtaining prescriptions from their doctors or friends who have been prescribed the drugs legally. 151 Reporter, Claudia Kalb, investigated prescription drug addiction and found that, "in 1999 an estimated 4 million Americans over the age of 12 used prescription pain killers relievers, sedatives and stimulants for 'non-medical' reasons. Prescription drug abuse does not carry the parallel mandatory minimum incarceration sentences associated with street drugs. For decades legal psychotropic drugs have been manufactured for distribution to insured Americans. Their "pushers" are licensed doctors who receive free samples of mood-altering drugs from pharmaceutical companies. Legal tranquilizers, painkillers and psychotropics such as Valium, Vicodin, Percodan, and Halcion represent a multibillion dollar pharmaceutical industry. These drugs are abused and used in a ISO Ibid. lSI Ibid. 73

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recreational manner just as street drugs are. 1 5 2 The Institute of Medicine convened a committee on the study ofHalcion, manufactured by Upjohn The Committee reports that since 1982 an estimated 11 billion prescriptions for Halcion (triazolam) alone have been filled worldwide. 153 In 1996 the U.S. Food and Drug Administration (FDA) task force looked into the medical, procedural and legal aspects of the drug's approval process and concluded that the hypnotic drug was "safe when prescribed according to current labeling" and allowed it onto the market. 154 Another legal psychotropic drug available to those who can afford it, have insurance and exhibit proper symptoms for its prescription is the widely used painkiller OxyCotin Reporters, Barry Meier and Melody Petersen's, research found that in about four years, OxyContin's sales have hit $1 billion, more than even Viagra's. OxyContin has been a factor in the deaths of at least 120 people, and medical examiners are still counting. The company was criticized for its marketing strategy of providing doctors with free trips and paid weekends at resort hotels. 155 Following a racially charged remark about black quarterbacks, Rush Limbaugh a conservative radio personality found himself being investigated for the alleged illegal purchase of 1s2 Kalb C l a udia 2001. Playi n g With Pain K ille r s N ewsweek, 9April 01. ISJ Bunne y W illi am. 1997 Co mmitt ee on Hal cio n : A n Asse s s m e nt o f Data A d eq u acy and Confi d e n ce. N ational Aca d e my Press 154Jbid ISS Mei e r Barry M Pet e r s on 2001.0xy c otin and Prescript ion Dru g s N ew Y ork Times, 5 March 01. 74

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OxyContin Law enforcement officials who spoke on condition of anonymity confirmed to The Associated Press that Limbaugh is being investigated by the Palm Beach (Fla.) County state attorney's office for allegedly illegally buying and abusing prescription painkillers. Limbaugh had previously touted to his listeners that people charged with drug use should be exiled to another country. Individuals who promote legali z ed drugs such as that alleged to be purchased and abused by Limbaugh are similar to street pushers who are paid bonuses from dealers Thousands of doctors in support of certain drugs are paid promotional bonuses as high as $7,000.00 per speaking engagement. The pharmaceutical market doubled to $145 billion between 1996 and 2000 156 Until the appearance of Prozac in the 1980's Valium was the largest selling pharmaceutical drug in history and by the middle of the 1970's more than 60 million Valium prescriptions were written each year. According to the research firm, IMS America LTD, Prozac is prescribed 350,000 times each year to children under the age of sixteen 1 5 7 White America provides billions of dollars to pharmaceutical drug dealers for mood altering substances; the difference is that their drug sales are not 156 Ibid 151 Kenn edy, Bruc e 1999. T h e Tranquili z ing of A m e rica : How Moo d-alt e r i n g P r esc ription Drugs C hang ed th e C ultural L andsc ape. CN N Int e ractive 75

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considered drug pushing and their users are not predominantly uninsured like poor black drug users who are incarcerated for using street drugs. The Mvth of Race Neutral Prosecutions An American Bar Association study found a pattern of racial discrimination in arrests and prosecution of minorities for drug possession and other crimes. At the start of the 1990s, the U.S. had more Black men (between the ages of 20 and 29) under the control of the nation's criminal justice system than the total number in college. This and other factors have led some scholars to conclude that crime control policies are a major contributor to the disruption of the family, the prevalence of single-parent families, and children raised without a father in the ghetto, and the inability of people to get the jobs. In the year 1986, before mandatory minimums for crack offenses became effective, the average federal drug offense sentence for blacks was 11% higher than for whites. Following the implementation of harsher drug sentencing laws, the average federal drug offense sentence was 49% higher for blacks. 158 Regardless of similar or equal levels of illicit drug use during pregnancy, black women are 10 times more likely than white women to be reported to child welfare agencies for 158 Meierhoefer B S 1992 The General E ffec t of Mandatory Minimum Pri s on T e rms : A Longitudinal Stud y of Federal S e nt e n ce s Impo se d (Washington DC : Federal Judicial Center), pp. 20. 76

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prenatal drug use. 159 Due to harsh new sentencing guidelines, such as "threestrikes, you're out," a disproportionate number of young Black and Hispanic men are likely to be imprisoned for life under scenarios in which they are guilty of little more than a history of untreated addiction and several prior drug-related offenses. States will absorb the staggering cost of not only constructing additional prisons to accommodate increasing numbers of prisoners who will never be released but also warehousing them into old age. 160 Mandatory minimums have not actually reduced sentencing discretion. Control has merely been transferred from judges to prosecutors. 161 Prosecutors, not judges, have the discretion to decide whether to reduce a charge, whether to accept or deny a plea bargain, whether to reward or deny a defendant's "substantial assistance" or cooperation in the prosecution of someone else, and ultimately, to determine what the final sentence will be.162 After eleven years, it should be obvious that the system has failed and that it cannot be fixed even by the Supreme Court 159 Neuspiel, D.R "Racism and Perinatal Addiction," Ethnicity and Disease, pp 6 : 47-55 ( 1996); Chasnotf, I.J. Landress, H.J., & Barrett, M.E. "The Prevalence of fllicit-Drug or Alcohol Use during Pregnancy and Discrepancies in Mandatory Reporting in Pin e llas County, Florida New England Journal of Medicine, pp 322: 1202-1206 ( 1990). 160 Haney, Craig Ph.D., and Philip Zimbardo, Ph D "The Past and Future of U.S. Prison Policy : Twenty-five Years After the Stanford Prison Experiment," American Psychologist, Vol. 53, No.7 (July 1998), pp 718 For a more complete perspective, read Drug War Facts sections on Alcohol Civil and Human Rights Crack, Drug Use Estimates, Gateway Theory, Prison and Women 161 Caulkins J ., et al., Mandatory Minimum Drug Sentences : Throwing Away the Key or the Taxpayers' Money? (Santa Monica CA : RAND Corporation, 1997), pp 24 162 Ibid pp 16-18 77

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because the criminal justice system has been distorted: the enhanced power of the prosecutor in sentencing has diminished the traditional role of the judge. The result has been even less fairness, and a huge rise in the prison population. 163 Most of the judges we interviewed were quite bitter about the operation of the sentencing guidelines. As one of them remarked: 'The people who drew up these guidelines never sat in a court and had to look a defendant in the eye while imposing some of these sentences. 164 Fifty-five percent (55%) of all federal drug defendants are low-level offenders, such as mules or street-dealers. Only 11% are classified as high-level dealers. 165 According to the U.S. Sentencing Commission, during the lat 1980's to the early 1990's, only 5.5% of federal crack defendants are considered high-level crack dealers. 166 Though it is still too early to make a final judgment, RAND found that three-strikes and truth-in-sentencing laws had little significant impact on crime and arrest rates. The Uniform Crime Reports held neither a three-strikes nor a truth-in-sentencing law had the lowest rates of index crimes, whereas index crime rates were highest in states with both 163 Smith, Alexander, and Polack, Harriet, "Curtailing the Sentencing Power of Trial Judges: The Unintended Consequences", Court Review (Williamsburg, VA: American Judges Association, Summer 1999), pp. 6-7. 164 Ibid pp. 6. 165 US Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy (Washington DC: US Sentencing Commission, February 1995), Table 18. 166 Ibid Table 18. 78

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types of get-tough laws. 167 This suggests that more research needs to be done to prove the effectiveness of the laws. Despite the uncertainties of the laws, since the mid 1990's, enactment of mandatory minimum sentencing for drug users, the Federal Bureau of Prisons budget increased by more than 1,350%, from $220 million in 1986 to about $3.19 billion in 1997. 168 The ONDCP in its 2000 annual report detailed administration requests for major increases in funding to the Federal Bureau of Prisons for drug-related prison construction. These include an extra $420 Million in fiscal year 2001, and advanced appropriations of$467 Million in 2002, and an additional $316 Million in 2003 all drug-related. 169 Powder cocaine and crack cocaine are two forms of the same drug, containing the same active ingredient. 17 Crack cocaine is the only drug for which the first offense of simple possession can trigger a federal mandatory minimum sentence. Possession of 5 grams of crack will trigger a 5-year mandatory minimum sentence. "Simple possession of any quantity of any other substance by a first-167 Turner, Susan, RAND Corporation Criminal Justice Program, Justice Research & Statistics Association, "Impact of Truth-in-Sentencing and Three Strikes Legislation on Crime", Crime and Justice Atlas 2000 (Washington, DC: US Dept. of Justice, June 2000), pp. 10. 168 Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics (Washington, DC: US Government Printing Office, 1997), pp. 20; Office ofNational Drug Control Policy, Executive Office of the White House, National Drug Control Strategy, 1997: Budget Summary (Washington DC: US Government Printing Office, 1997), pp. 111. 169 Ibid. pp. 2096. 170 US Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy (Washington DC : US Sentencing Commission (February 1995), pp v. 79

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time offender-including powder cocaine-is a misdemeanor offense punishable by a maximum of one year in prison." (21 U.S.C. 844.) In 1986, before mandatory minimums for crack offenses became effective, the average federal drug offense sentence for blacks was 11% higher than for whites. Four years later following the implementation of harsher drug sentencing laws, the average federal drug offense sentence was 49% higher for blacks. 171 The US Sentencing Commission found in its 1997 report that "nearly 90 percent of the offenders convicted in federal court for crack cocaine distribution are African American while the majority of crack cocaine users is white. Thus, sentences appear to be harsher and more severe for racial minorities than others as a result ofthis law. The current penalty structure results in a perception of unfairness and inconsistency. 172 In federal court today, low-level crack dealers and first-time offenders sentenced for trafficking of crack cocaine receive an average sentence of 10 years and six months. 171 Meierhoefer, Barbara S.l992. The General Effect of Mandatory Minimum Prison Terms : A Longitudinal Study of Federal Sentences Imposed_(Washington DC: Federal Judicial Center), pp. 20. 172 US Sentencing Commission, Special Report to the Congress: Cocaine and Federal Sentencing Policy (Washington, DC: US Sentencing Commission, Aprill997), pp. 8. 80

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According to the U.S. Sentencing Commission, only 5.5% of all federal crack defendants are high-level dealers. 173 The Sentencing Commission also notes a problem regarding "prosecutorial and investigative sentencing manipulation. For example, because powder cocaine is easily converted into crack cocaine and because the penalties for crack cocaine offenses are significantly higher than for similar quantity powder cocaine offenses, law enforcement and prosecutorial decisions to wait until powder has been converted into crack can have a dramatic impact on a defendant's final sentence. 174In 1999, 1,350 wiretaps were authorized by state and Federal courts. Of these, 978-a total of72.4% --were for drug investigations, 139 (10%) were for racketeering, 60 (4.4%) were for gambling, 62 ( 4.6%) were for homicide or assault, and only seven-about half a percent-were for kidnapping. 175 Contrary to international standards, prisons and jails in the USA employ men to guard women and place relatively few restrictions on the duties of male staff. As a consequence, much of the touching and viewing of their bodies by staff that women experience as shocking and humiliating to 173 US Sentencing Commission, Special Report to the Congress: Cocaine and Federal Sentencing Policy (Washington DC: US Sentencing Commission, February 1995), pp. 150; Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics 1996 (Washington DC: Bureau of Justice Statistics, 1997), pp. 476, Table 5.58. 174 US Sentencing Commission, Special Report to the Congress: Cocaine and Federal Sentencing Policy (Washington, DC: US Sentencing Commission, April 1997), pp. 8. 175 Administrative Office of the United States Courts, 1999 Wiretap Report (Washington, DC: USGPO, 2000), pp 17. 81

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them is permitted by law. 176 Retaliation for reports of abuse impedes women's access to protection of their human rights. One woman who won a lawsuit against the Federal Bureau of Prisons for sexual abuse reported that she was beaten, raped and sodomized by three men who in the course of the attack told her that they were attacking her in retaliation for providing a statement to investigators. 177 Nationwide, one in every 20 black men over the age of 18 is in prison. hl five states, between one in 13 and one in 14 black men is in prison. This compares to one in 180 white men. 178 Nationwide, black men are sent to prison on drug charges at 13 times the rate of white men. 179 Most drug offenders are white. Five times as many whites use drugs as blacks. Yet blacks comprise the great majority of drug offenders sent to prison. The solution to this racial inequity is not to incarcerate more whites, but to reduce the use of prison for low-level drug offenders and to increase the availability of substance abuse treatment. 180 The Mollen Commission was appointed to investigate corruption in the New York City Police Department. The Commission "found that police corruption, brutality, and violence were present in every high-crime precinct with an active narcotics 176 Amnesty International, "Not Part of My Sentence": Violations ofthe Human Rights of Women in Custody (Washington, DC: Amnesty International, March 1999), pp. 39. 177 Ibid. pp 59. 178 Human Rights Watch, Racial Disparities in the War on Drugs (Washington, DC: Human Rights Watch, 2000 179 Ibid. 180 Ibid. 82

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trade that it studied, all of which have predominantly minority populations. It found disturbing patterns of police corruption and brutality, including stealing from drug dealers, engaging in unlawful searches, seizures, and car stops, dealing and using drugs, lying in order to justify unlawful searches and arrests and to forestall complaints of abuse, and indiscriminate beating of innocent and guilty alike.181 In his book No Equal Justice, Georgetown Law Professor David Cole notes, the Supreme Court's removal of meaningful Fourth Amendment review allows the police to rely on un-particularized discretion, unsubstantiated hunches, and non-individualized suspicion. Racial prejudice and stereotypes linking racial minorities to crime rush to fill the void. 182 In Maryland, a state survey of police traffic stops -ordered by the state court in response to state troopers' use of racial profiling-found that from January 1995 through December 1997, 70 percent of the drivers stopped on Interstate 95 were African Americans. According to an ACLU survey conducted around that time, only 17.5 percent of the traffic and speeders on that road were African American. As of March 2001, 16 of the 49 State police agencies with patrol duties required officers to collect the race or 181 Cole, David. 1999. No Equal Justice: Race and Class in the American Criminal Justice System. New York: The New Press. pp. 23-4. 182 Ibid. pp. 35-53. 83

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ethnicity of all drivers involved in a traffic stop Thirty-seven State agencies collected the race or ethnicity of motorists when an arrest was made, and 22 agencies did so following a vehicle or occupant search. Ten State police agencies -Arizona, Arkansas, Idaho, Illinois, Minnesota, Montana, New Mexico, North Dakota, Oklahoma, and Utahdid not require their State troopers to collect race or ethnicity data. 183 In addition to the increase in the number of States that required State law enforcement agencies to collect race and ethnicity statistics during traffic stops, States have recently enacted statutes that prohibit law enforcement officers from engaging in racial profiling (California, Connecticut, Kentucky, Oklahoma, and Rhode Island). These statutes generally defined racial profiling as stopping a person based solely on race or ethnicity instead of an individualized suspicion arising from the person's behavior. 184 Of the 16 State police agencies with procedures that require the collection of race data for each stop, seven agencies responded to a State law or executive order, seven implemented an internal policy, one (Maryland) responded to both an internal policy and a court action, and one state police agency (New Jersey) was acting in 183 Bureau of Justice Statistics, "Traffic Stop Data Collection" (Washington, DC: US Dept. of Justice, December 200 1) pp. I. 184 Ibid. pp. I. 84

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accordance with both internal police agency policy and a Federal consent decree. 185 In his book No Equal Justice, Georgetown Law Professor David Cole remarks, "ALexis review of all federal court decisions from January 1, 1990, to August 2, 1995, in which drug-courier profiles were used and the race of the suspect was discernible revealed that of sixty-three such cases, all but three suspects were minorities: thirty-four were black, twenty-five were Hispanic, one was Asian, and three were white. 186 The report Justice on Trial from the Leadership Conference on Civil Rights, notes that though "blacks are just 12 percent of the population and 13 percent of the drug users, and despite the fact that traffic stops and similar enforcement yield equal arrest rates for minorities and whites alike, blacks are 38 percent of those arrested for drug offenses and 59 percent of those convicted of drug offenses. Moreover, more frequent stops, and therefore arrests, of minorities will also result in longer average prison terms for minorities because patterns of disproportionate arrests generate more extensive criminal histories for minorities, which in tum influence sentencing outcomes. 187 185 Ibid. pp. 2. 186 Cole, David. 1999. No Equal Justice: Race and Class in the American Criminal Justice System (New York: The New Press pp 50 187 Welch, Ronald H., and Angulo, Carlos T 2000. Leadersh i p Conference on Civil Rights, Justice on Trial: Racial Disparities in the American Criminal Justice System (Washington, DC: Leadership Conference on Civil Rights May 2000), pp 7. 85

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Black and Hispanic Americans, and other minority groups as well, are victimized by disproportionate targeting and unfair treatment by police and other front-line law enforcement officials; by racially skewed charging and plea bargaining decisions of prosecutors; by discriminatory sentencing practices; and by the failure of judges, elected officials and other criminal justice policy makers to redress the inequities that become more glaring every day. 188 The problem of strong racial bias in sentencing and punishment among youth offenders based on race is wide spread across America. "And Justice for Some," a new study by Eileen PoeYamagata and Michael A. Jones, senior researchers with the National Council on Crime and Delinquency, reveals that there is a strong racial bias in the way the criminal justice system treats Black and Latino youth more severely. The study also found that: 188 Ibid. pp. vi A greater percentage of African American youth are detained than white youth for every category of offense. White youth were 66 percent ofthose referred to juvenile courts but only 53 percent ofthose placed in detention. Black youth, on the other hand, were 31 percent of those referred (though African Americans are less than 15 percent of the population), but 44 percent of those detained. 86

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---------- Similarly, white youth were 66 percent of those referred to the juvenile justice system and only 44 percent of those detained in drug cases. Black youth, on the other hand, were 32 percent of those referred, but 55 percent of those detained. Minority youth are one-third of the U.S. population, but they are two-thirds of the 100,000 juveniles confined in detention facilities and prisons Black youth with no prior admissions were six times more likely (and Latino youth were three times more likely) to be incarcerated in public facilities than white youth with no prior admissions when charged with the same offense. Two-thirds ofthe 7,400 youth under 18 admitted in 1997 to adult prisons were minorities. Between 1985 and 1997, the number of people under 18 who were sentenced to adult prisons more than doubled from 3,400 to 7 ,400. Though Black youth were 41 percent of cases processed through the juvenile justice system involving a juvenile charged with a felony, they were 67 percent of such cases transferred from juvenile courts to the adult criminal justice system. White youth were 59 percent of all drug -related cases petitioned o be sent to adult courts, but only 35 percent of cases actually waived to adult courts. Black youth charged with similar offenses were 39 percent of cases petitioned for adult court, but 63 percent of cases sent to adult court. 87

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As compared to a white juvenile who committed the same violent crime, a Black juvenile is 18.4 times more likely to be sentenced to prison by an adult court, Hispanics 7.3 times more likely, and Asian Americans 4.5 times more likely. In 1997, three times as many African American youth as white youth were sent to juvenile prison for the same drug offense. Black youth are more likely to be detained before trial than white youth, even for the smp.e offense. Whereas 27 percent of African American youth are detained before trial, only 15 percent of white youth are detained. When the case involves drugs, 38 percent of African American youth are detained before trial, and only 16 percent of white youth are detained. Seventy-eight percent of drug offense cases involving African American youth are formally processed through the judicial system, while only 56 percent of similar cases involving white youth are formally processed. Nationally, custody rates for Black youth are five times as high as for white youth. For Latino youth, custody rates are 2.5 times as high as for white youth. 189 Edwin Sutherland and Donald Cressey write, in their widely used textbook, Criminology, that, numerous studies have shown that African Americans are more likely to be arrested, indicted, convicted, and committed to an Institution than are whites who commit the same offenses, and many other studies have shown that 189 Eileen PoeYamagata and Michael A. Jones. 'And Justice for Some,' National Council on Crime and Delinquency, dsusa/crime/crimedel.html>.Jessica Portner, 'Author says fear of youth crime outstrips the Facts,' Teacher Magazine, March 3, 1999. Quoted in 'Superscapegoating: Teen esuperpredators' hype sets stage for draconian legislation,' EXTRA! January/February 1999. 88

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blacks have a poorer chance then whites to receive probation, a suspended sentence, parole, commutation of a death sentence, or pardon. 19 Criminal justice scholars Michael Sherman and Gordon Hawkins write that, "the crisis mentality encourages officials to regard prison policy as a 'one shot' problem, divorced from the past and even from the future." 191 Legalized slave labor has taken on a mammoth appeal as prison privatization entrepreneurs require a readily accessible, no-cost, controllable and consistently available, labor force. In Jeffrey Reiman lists five hypotheses about the way in which criminal justice policy in the U.S. is made. He writes that the criminal justice system is a "carnival mirror" that gives us a distorted image of the dangers that threaten us. The public's image of crime is comprised of the following: Of the Decisions of Legislators: That the definitions of crime in the criminal law do not reflect the only or the most dangerous of antisocial behavior. Of the Decisions of Police and Prosecutors: That the decisions of whom to arrest or charge do not reflect the only or the most dangerous behaviors legally defined as "criminal." 190 Sutherland, Edwin H., D.R. Cressey Criminology, 91 h 3d., Philadelphia: Lippencott.1974. 191 Hawkins, Sherman. 1981. Imprisonment in America: Choosing the Future. Chicago: University Press. 89

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Of the Decisions of Juries and Judges: That criminal convictions do not reflect the only or most dangerous individuals among those arrested and charged Ofthe Decisions of Sentencing Judges: That sentencing decisions do not reflect the goal of protecting society from the only or the most dangerous of those convicted by meting out punishments proportionate to the harmfulness of the crime committed. Of All These Decisions Taken Together: That what criminal justice policy decisions (in hypothesis 1 to 4) do reflect is the implicit identification of crime with the dangerous acts of the poor. 192 Reiman writes that the justice system has two transmission belts, one for the rich and one for the poor. Through this process, decisions concerning arrest, charging of criminal offenses, access to legal counsel, methods and intensity of prosecution, length and method of trial, sentencing options, and methods of incarceration are all driven by considerations of race, class, and income. The lowincome transmission belt is easier to ride without falling off and it gets to prison in short order. The transmission belt for the affluent is a little slower and it passes innumerable stations where exits are temptingly convenient, especially since staying on the affluent belt is extremely expensive. Reiman discusses the fabrication of the "typical criminal" and "typical crime" whereby almost always 192 Reiman, Jeffrey. 1990. The Rich Get Richer and the Poor Get Prison: Ideology, Class and Criminal Justice, 3rd Ed., New York: MacMillian Publishing. pp. 67-68. 90

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the typical criminal is poor and a minority, and "typical crime" never includes those ofEnron, environmental crimes resulting in death, or other corporate/governmental actors. 193 Federal class action securities fraud is a common, controversial, and a complex event. The average and median class action settlement for January 1991 through June 1999, for example, was reported to be $8.3 million and $4.2 million respectively. 194 The Enron and Westcom accounting scandals report corruption in the billions of dollars. While a bust for manufacturing the dangerous drug "Meth" involves hazardous material teams (a staggering cost to cities over time), fire department response, police and investigators, and yet most ofthe offenders who are white receive relatively light sentences despite the cost to society. This is juxtaposed against the plight of blacks locked up in federal prisons for a five-year minimum for mere possession of$5.00 dollars of crack. 193 Ibid. pp. 170-171 194 Walker, Donald .1988. Penology for Profit: A History of the Texas Prison System 1867-1912. Texas A&M University Press. 91

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CHAPTERS CONCLUSION ... Suddenly there was a violent earthquake that the foundations of the prison were shaken. At once all the prison doors flew open, and everybody's chains came loose. Acts 16:25 King James Bible The prison industrial complex is an intricate cooperative institution supported by a government system that coalesces with private organizations. This partnership is one that results in a requirement of perpetual incarceration for economic and political purposes. The system begins with the necessity and the power to construct history. It continues with the science and laws through social engineering that defines America's societal reality that strengthens the position of the application of white power and minority oppression through institutional force. Individuals in and outside of the prison industrial complex should be compelled to endeavor to explain, interpret, and evaluate political penological transformations. During periods of dramatic change in crime and punishment compounded by deteriorating race relations, we need not only be required to describe the ordinary functioning of judicial politics, but also to theorize the political itself, that is to say, openly reveal the fundamental assumptions that structure our own and other societies' laws and politics as it relates to race control, retribution, subjugation, and incarceration. 92

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The task of this thesis was to identify the moral, political and economic beliefs and ideals about crime control, penal control and profit, and how race matters in the equation of the new slave trade identified as the prison industrial complex. We must subject those beliefs and practices to critical scrutiny, to clarify and defend the standards and ideals implicit in the task of social and cultural criticism, and to advance distinctive and liberating visions of justice and freedom. Philosopher and theologian Cornel West elegantly framed what has been valued within the industry of cultural criticism in a Public Broadcasting Station (PBS) interview with journalist and commentator, Bill Moyers. West maintained that "the quest for truth, the quest for the good, the quest for the beautiful, for me, presupposes allowing the suffering to speak, allowing victims to be visible, and allowing social misery to be put on the agenda of those with power." In order to allow social misery within the prison industrial complex to be put on an agenda, the U.S. must face what plagues black Americans. Black mental illness, poverty and political rhetoric must be managed within an acceptable framework for White America. Further, Black America should not be ashamed to rely on White America to help solve the incarceration epidemic because ownership, laws, construction, and control lie in their hands. The reversal of Black incarceration rates cannot be achieved ifblacks cannot escape the confines that they currently face. For many blacks in the prison 93

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cycle, liberation may be impossible. However, it is not too late to put before Congress legislation that mandates that the majority of proceeds from their labor be applied to initiatives such as reading programs for inner city children and towards child support for the children of inmates. Creative strategies can be employed to redirect the profitability ofthe incarcerated away from the current profiteers back into the hands of the oppressed. Prisoners could be allotted work accounts that deduct these funds from their work proceeds and forwards a portion of that income to their children or family member. Equally important is an agenda to stem the ever-expanding prison population in the future central to reversing these trends. There must be conscious decisions made within the media to reflect upon and change who is often promoted as the "typical criminal" the model of young black men on television programs such as "Cops" and "America's Most Wanted," while ignoring the genuine structural causes of mental illness among blacks, poverty and crime in the inner cities to include the face of crime by other ethnic groups. America knows more about the former President Clinton's indiscretions than about the plague of mental illness of black children. America knows more about Chandra Levy and Brittany Spears than the fact that suicide is the leading cause of death among young black males. This must not be allowed to continue. 94

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Rehabilitation of the incarcerated should be placed high upon the agenda of those in power. Vengeful punishment over reform seems to have become the only choice for voters for at least a decade. Racial and class disparity for substance abusers may never see parity as prison rosters grow. The next generation of prison laborers will most likely be the children of prisoners along with children immersed in poverty. Unfortunately, black women with children have become the fastest growing group imprisoned. The children of the incarcerated live in a world of inhumanity. Their incarcerated mothers and fathers are most often moved thousands of miles away from them even though classified as nonviolent drug offenders. The children are left without the love and support their natural families could provide. If prisoners were paid the same wage that their counterparts earn on the outside, their children would be considered middle class. For instance, prison general laborers currently work for Fortune 500 companies such as Ford Motor Company for about 39 cents per day. A counterpart at Ford Motor Company earns between 16 and 30 dollars per hour for the same type of manual labor. The prison labor system operates a sweatshop that reinforces processes of race and class inequality, not only for inmates, but also for their families outside of prison. Money could be federally mandated for the children of inmates who are left behind to endure a life of poverty and subjugation. The children, for now, are invisible. They are invisible to the 95

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politicians and to the rich. The rich will continue to have the luxury of protection from their ability to hide behind private gated communities or within segregated suburbs. The following ideas are offered as an alternative model for dealing with nonviolent drug offenders: Seek solutions such as an increase in teaching salaries to draw individuals such as individuals with professional degrees to use their skills to counter the underachiever's lack in academic success due to correlates of poverty, degradation, humiliation, hopelessness and mental health problems suffered by black youth. Abandon the failed ''war on drugs" and begin a ''war on addictions" that addresses the causes of addictions and focuses on treatment not imprisonment. Do not incarcerate nonviolent offenders in concrete jungles that make them susceptible to mental breakdowns and the inability to fully re-enter society. Move nonviolent drug offender prisons into the inner city or at a minimum near their homes or communities, away from the violent offenders. Avoid moving nonviolent drug offenders out of their home state where they are separated from their families. Allow the families and children of nonviolent offenders to continue to have real relationships with the prisoners. 96

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Limit census counts of offenders to be tallied in their own state of origin in the areas they came from to offset continued poverty and slave trade fiscal gains among rural areas, or if prisoners are counted, then allow convicts to vote from prison in those jurisdictions. Create a political platform seeking parity among all drug users and allow the poor to purchase generic low cost psychotropic drugs and to get adequate mental health treatment. Petition for prisoners from the inner city to work within their own areas to rebuild infrastructure. Demand that the ideas from minorities on police presence in their neighborhoods and solutions to mass incarceration be included in the political debate and laws. Do not allow the "drug war" rhetoric to overshadow the nonviolent acts and the cruel penalties suffered by human victims of the war. Reverse the economic trend that invests in the prison industrial projects over rehabilitation of the humans incarcerated. Attack mental illness and educate all races and particularly minorities on the benefits of seeking and demanding proper care. The glimmer of hope rests in our link as a human species and the ability to vote out unjust and insensitive policies. Unfortunately, the literature seems to indicate that the problem only stands to get worse. There is also hope in the globalization and inclusion of nations in human politics worldwide, and that hope extends to the United Nation's ability to become stronger rather than tom asunder at the close of 97

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the recent "Gulf Crisis." Domestically, careful examination of contributing causes ofthe cancer of incarceration should include welcomed dialogue from the very individuals entrenched in the system that subjects them to penal control. This inclusive discussion must be incorporated as part of the resolution to the proliferation of incarceration in America. Otherwise we continue toward the mirror image of slavery of old, then too sanctioned by the United States Constitution. 98

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BIBLIOGRAPHY ACLU Urges Congress to Restore Voting Fairness. October 21, 1999 10-8738sc-167. Administrative Office of the United States Courts. 1999 Wiretap Report. Washington, DC: USGPO, March 2000. Ambrosio, Tara-Jen and Schiraldi, Vincent. From Classrooms to Cellblocks: A National Perspective. Washington, DC: The Justice Policy Institute. 1997. Amnesty International, Not Part of My Sentence: Violations of the Human Rights of Women in Custody. Washington, DC: Amnesty International. 2001. Atwater v. City of Lago Vista, decided April24, 2001. (not yet officially published) Balkaran, Stephen. Mass Media and Racism. Yale Political Quarterly Vol21, Num 1 (October 1999). Bartusch, D. Legal Cynicism and Subcultural Tolerance ofDeviance: The Neighborhood Context of Racial Differences. Law and Society Review 32 (4): 777-804. 1998. Beck, Allen J. Prison and Jail Inmates at Midyear 1999. Washington DC: US Department of Justice Statistics. 2000. Beck, Allen J. and Thomas P. Lifetime Likelihood of Going to State or Federal Prison. Washington, DC: Bureau of Justice Statistics. 1997. Beck, Allen J. and Christopher Mumola. US Department of Justice, Bureau of Justice Statistics, Prisoners in 1998 Washington, DC: US Department of Justice, August 1999, p. 9. Beck, Allen J. and Paige M. Harrison. US Department of Justice, Bureau of Justice Statistics, Prisoners in 2001 Washington DC: US Department of Justice, July 2002, p. 5-14. 99

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Beckett, Katherine and Bruce Western. How Unregulated is the U.S. Labor Market? The Penal System as a Labor Market Institution. Toronto: 1997 American Sociological Association Conference. 1997. Bell, Derrick. Confronting Authority. Massachusetts: Beacon Press. 1994. Bergmann, Barbara. Review of Saving Our Children From Poverty: What the United States Can Learn from France. Sociological Research Online Vol. 2, pg. 4. Berry, Mary Francis. Black Resistance: White Law. New York: Penguin Books. 1994. Bonczar, Thomas and Lauren Glaze. US Department of Justice, Bureau of Justice Statistics. Probation and Parole in the United States. Washington DC: US Department of Justice, August 1999, p. 1. Bruns, Daniel. 1988. Published@ www.healthpsych.com Bunney, William. Committee on Hal cion: An Assessment of Data Adequacy and Confidence. National Academy Press. 1997. (Copies of the report are available from the National Academy Press, 2101 Constitution Avenue, New York, Box 285, Washington DC 20055 or call (1-800-624-6242)). 1997. Burton-Rose, Daniel and D. Pens and P. Wright. The Ceiling of America: An Inside Look At The US Prison Industry. Monroe, Maine: Common Courage. 1998, p. 4-5. Bureau of Justice Statistics. Sourcebook of Criminal Justice Statistics, 1996. Washington, DC: US Government Printing Office, 1997. p. 20. Bureau of Justice Statistics. Sourcebook of Criminal Justice Statistics 1998. Washington DC: US Department of Justice, August 1999, p. 343, Table 4.10, p. 435, Table 5.48, and p. 505, Table 6.52; Bureau of Justice Statistics. Traffic Stop Data Collection. Washington, DC: US Dept. of Justice, December 2001. 100

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Carlson, Eloif Axel. The Unfit: A History of a Bad Idea. Cold Spring Harbor: Laboratory Press. 2001. Caulkins, J., et al., Mandatory Minimum Drug Sentences: Throwing Away the Key or the Taxpayers' Money? Santa Monica, CA: RAND Corporation, 1997. Chang, Nancy. Silencing Political Dissent: How Post-September 11 Anti terrorism Measures Threaten Our Civil Liberties. New York: Seven Stones Press. 2002. Chasnoff, I.J., H.J. Landress, and M.E, Barrett. The Prevalence oflllicit-Drug or Alcohol Use during Pregnancy and Discrepancies in Mandatory Reporting in Pinellas County, Florida New England Journal of Medicine 322: 1202-1206. 1990. Cole, David. No Equal Justice: Race and Class in the American Criminal Justice System. New York: The New Press, 1999. Currie, E. Crime and Punishment in America. New York, NY: Metropolitan Books, Henry Holt and Company, Inc. 1998. Davis, Angela. Race and Criminalization: Black Americans and the Punishment Industry. California: Princeton Press. 2001. Decker, John F. Revolution to the Right: Criminal Procedure Jurisprudence During the Burger-Rehnquist Court Era. New York: Garland Publishing. 1992. Dilulio, John J. No Escape. New York: Harper Collins. 1991. Dubois, W.E.B. The Souls of Black Folk: 1 Od11 Anniversary Edition. New York: Dutton. (1903) 1995. Durose, Matthew R. and Patrick A. Langan. Bureau of Justice Statistics. State Court Sentencing of Convicted Felons, 1998 Statistical Tables. Washington DC: US Department of Justice, December 2001. Earls, FJ. Urban Poverty: Scientific and Ethical Considerations. Annals of the AAPSS. Vol572.-53-65. 2000. 101

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Edwards v. United States, (DC Cir. 1996). Emerson Emory M.D. v. United States, 2 Cl. Ct. 579 (1983). Executive Office ofthe President Budget of the United States Government, Fiscal Year 2000. Washington DC: US Government Printing Office, 2001, p. 134. Federal Bureau oflnvestigation Uniform Crime Reports, 1996. Washington DC: US Department of Justice, 1997, p. 62, Table 1. Fellner, Jamie and Mauer, Marc. Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States. Washington, DC: The Sentencing Project and Human Rights Watch. 1999. Fellner, Jamie and Marc Mauer. Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States. Washington, DC: Human Rights Watch & The Sentencing Project, 1998, p. 8. Fitzpatrick, Boldizar. The Prevelance and Consequences of Exposure to Violence Among African American Youth. Journal of American Child Adolescence Psychiatry 32:424-430, 1993. Forer, Lois G. A Rage to Punish: The Unintended Consequences of Mandatory Sentencing. New York: W.W. Norton & Company. 1994. Friedman, Lawrence M. Crime and Punishment in American History. New York: Harper Collins. 1993. Friedman, Lawrence M. Crime and Punishment in American History. New York: W.W. Norton & Company. 1993. Gifford, Sidra Lea, US Department of Justice, Bureau of Justice Statistics. Justice Expenditure and Employment in the United States, 1999 (Washington, DC: US Dept. of Justice, February 2002), p.1-7. Gillespie and Ed Schellhas. Contract with America: The Bold Plan by Rep. Newt Grinrich, Rep. Dick Army and the House Republicans to Change the Nation. New York: Random House Press. 1994. 102

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