Guest Columns

HUDSON: INJUSTICE PREVAILS

Criminal penalties stacked against the poor

The Colorado Statesman

Several weeks ago Michelle Alexander, author of the bestselling examination of our exploding African-American prison population in The New Jim Crow, spoke at the Turnhalle on the Auraria campus. Her appearance drew a standing room only, turn away crowd. A civil rights attorney in California, where she graduated from Stanford, and today a law school faculty member at Ohio State, Alexander began her research on American prison populations more than a decade ago. When her book first appeared in 2010 it drew modest critical acclaim, but little public attention. Yet, once it was released in paperback last year, it has enjoyed 35 weeks on the New York Times bestseller index and turned its author into a celebrity.

Subtitled “Mass Incarceration in the Age of Colorblindness” her treatise explores how the imposition of mandatory minimum drug sentences, three strike laws and a public enthusiasm for punishment over rehabilitation since 1980 has created a 600 percent increase in prison populations without a corresponding increase in crime rates. Colorado has followed this national pattern with a prison population of about 3,000 in 1980 peaking at 23,000 under former Denver District Attorney Bill Ritter’s residence in the Governor’s mansion. This has declined to about 20,000 under John Hickenlooper’s administration. The state’s population doubled during the past three decades, but that cannot account for the nearly 700 percent increase in the Colorado Corrections budget which has crowded out higher education and other traditional components of state spending.

Alexander points out that the changes adopted in criminal penalties were stacked in a way that has worked against poor and minority offenders. In Colorado, an arrested African-American is 6.6 times as likely to serve time as a white counterpart for a similar offense. A Hispanic is twice as likely to be sentenced to jail. Perhaps the most insidious aspect of this imbalance is the fact that it is not the product of direct or overt racial discrimination. This isn’t our grandfather’s Jim Crow. Rather, it is the imposition of social control over a population, primarily young black men, who find themselves immersed in a culture and social circumstances that is often viewed as inherently criminal. Gary Johnson, the former Republican Governor of New Mexico who ran for President on the Libertarian ticket in 2012, was leading the campaign to legalize marijuana for a number of years. One of his most telling arguments was posed in the form of a question. Observing that nearly two-thirds of the inmates in New Mexico prisons for drug crimes were Black or Hispanic, he would instruct his audience, “If you believe these communities are smoking half the grass, please raise your hand!”

Last winter I had the occasion to attend several sessions in the Jefferson County Criminal Courts. Those defendants who could afford private attorneys, mostly white and suburban, were busy negotiating plea deals with prosecutors — deals that, particularly for first offenders, rarely involved jail or prison time. The remainder of the defendants, largely black and Hispanic although including some obviously impoverished whites, were relying on the assistance of public defenders. These attorneys, usually fresh out of law school, were burdened with multiple cases where they were cajoling clients to accept plea bargains. But the power dynamic was very different between these groups. The private attorneys implicitly could threaten prosecutors with a lengthy and expensive trial, while public defenders were offered ‘take it or leave it’ proposals. On one morning, a single public defender was representing defendants in nine of the morning’s twelve appearances. Plea bargains are the only expeditious way to handle this caseload and defendants can be easily bullied with threats that prosecutors will demand even more severe penalties if a case is taken to trial.

Without economic resources from family or their community, it is probably smart to accept most of these “deals.” Of course, the occasional abuse of the system draws sufficient attention to save kids from egregious injustice, like the three young basketball players arrested last week in Rochester, New York while they waited for their school bus to pick them up for an early morning practice. Police charged these black athletes with obstructing a public sidewalk at 8:30 a.m. Or, the New Mexico State Troopers who fired at a van filled with children. But, it has been the drug trade that has fueled much of the growth in African-American prison populations. Just as with prostitution, it has more often than not been the seller, rather than the purchaser who gets busted. Then, once in the system, the ‘color of justice’ metes out far longer sentences for crack cocaine than it does for powdered cocaine, the drug of choice for yuppies, as Alexander points out. The legal deck is stacked and no “rights” campaign exists for the incarcerated — that would entail the political crime of acting soft on real crime.

Alexander summarizes our predicament by observing, “The reality is that, just a few decades after the collapse of one caste system, we constructed another. Our nation declared a war on people trapped in racially segregated ghettos… of course those communities are suffering from serious crime and dysfunction today. Did we expect otherwise?” Correcting this injustice will not be quick or easy. It won’t begin until we acknowledge that an injustice prevails. It was evident that many of the students at the Turnhalle recognized the problem. Solutions were in short supply.

Miller Hudson is a columnist for The Colorado Statesman.