President Donald J. Trump and U.S. Attorney Jeff Sessions want to increase this nation’s mass incarceration—Trump through his commitment to the private prison industry and Sessions through policy rollbacks deliberately designed to undo the reform progress made in the criminal justice system in recent years. Trump is driven by the pay-to-play ideology while Sessions is driven by a 1950s conservative political ideology.
The concept of “mass incarceration” became a byproduct of a term coined in 2000 by the fame socialist David W. Garland who is also a law professor at New York University. The concept signifies a national penal policy of locking up millions of low-level offenders for the purpose of making America’s “streets safe” from criminal predators.
In 1994, Clinton signed into law the Violent Crime Control And Law Enforcement Act of 1994 that created a “three strikes” provision mandated at the federal level a life without parole sentence for anyone convicted of three felonies (a concept created by the State of Washington in 1993 followed by California in 1994); provided states $8.7 billion if they adopted “truth in sentencing” laws requiring violent offenders to serve 85 percent of their sentence; stockpiled funds for local police and drug courts who accepted the money as a mandate to bust and incarcerate drug offenders; and gave birth at the federal level to a life without parole sentence for offenders who are convicted of a violent felony and have two or more prior convictions
Whether intended or not, that 1994 draconian crime bill had the horribly unfair consequence of the mass imprisonment of people of color, mostly African-American and Latinos. President Clinton did not earn the moniker “Slick Willie” for nothing. On October 17, 1995, in a speech on race relations at the University of Texas, Clinton spoke to the unfairness and injustice of the mass incarceration of African Americans in the nation’s penal system:
“Blacks are right to think something is terribly wrong [with our criminal justice system] … when there are more African American men in our correction system than in our colleges, when almost one in three African American men, in their twenties, are either in jail, on parole, or otherwise under the supervision of the criminal [justice] system. Nearly one in three.”
But what did Clinton do in reality?
Crack Cocaine Sentencing Disparity
On October 30, 1995, less than two weeks after his UT speech, the president signed Republican-driven legislation that rejected a recommendation to reduce the 100-to-1 sentencing disparity between crack and powder cocaine—one of the worse pieces of sentencing-related legislation in American penal history. The 100-to-1 sentencing disparity overwhelmingly impacted African Americans, particularly men, ensuring that they would receive harsher drug sentences and spend longer terms in prison for crack cocaine. In signing the legislation, Clinton told the nation:
“We have to send a constant message to our children that drugs are illegal, drugs are dangerous, drugs may cost you your life—and the penalties for dealing drugs are severe. I am not going to let anyone who peddles drugs get the idea that the cost of doing business is going down.
“Trafficking in crack, and the violence it fosters, has a devastating impact on communities across America, especially inner-city communities. Tough penalties for crack trafficking are required because of the effect on individuals and families, related gang activity, turf battles, and other violence.”
Race Issues in Criminal Justice System New Frontier for Civil Rights
Five days before Clinton signed this legislation reauthorizing the 100-to-l sentencing disparity in the two types of cocaine, Laura Murphy, director of the Washington D.C. chapter of the American Civil Liberties Union, told the New York Times that “race issues” in the criminal justice system was the “new frontier” of civil rights. She said the legislation Clinton was about to sign was “unfair, impractical, and unwarranted. How can you go to an inner-city family and tell them their son is given 20 years, while someone in the suburbs who’s using powdered cocaine in great quantities can get off with 90 days’ probation? When people understand the truth about the ways these laws are imposed, the fact they had no deterrent, and the race-based nature of these prosecutions, then I think a sleeping giant is going to roar.”
President Clinton was aware, or he should have been, of the race-based nature of the legislation he signed into law and the dreadful, horrendous impact it would have on African American communities throughout the country. It would take fifteen long years before an African American President named Barak Obama would lead Congress to pass the Fair Sentencing Act of 2010 that reduced the disparity between crack and powder cocaine from 100-to-l to 18-1.
More Tough on Crime Legislation by President Clinton
On April 24, 1996, the president signed into law the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA)—legislation that would once again have a disproportionate impact on African Americans. AEDPA would be used by an increasingly conservative judiciary to send a disproportionate number of African Americans to state death chambers and would result in a disproportionate number of them being kept confined in state prisons under wrongful convictions for years, even decades because the federal writ of habeas corpus was effectively foreclosed to them.
Writing in the June 21, 2015 edition of the New Yorker Magazine, Lincoln Caplan said AEDPA effectively “gutted the federal writ of habeas corpus” because even if a state court misapplies the Constitution, a state prisoner (most of whom are African Americans) cannot secure relief in federal court unless he or she can show that the state court decision is “contrary to … clearly established federal law” or that the decision was an “unreasonable application” of federal law. He called AEDPA “one of the worst statutes ever passed by Congress and signed into law by a President.”
Worst Statute Passed by Congress and Signed into Law
Before AEDPA, Caplan wrote, the courts found serious reversible error in 7 out of 10 of the death sentences reviewed by the judiciary between 1973 and 1995. Post-AEDPA reduced the rate of reversal of death sentences for constitutional violations to 40 percent. In effect, AEDPA reduced the once Great Writ to a skeleton of injustice, racism, and disrespect for the constitutional rule of law.
Writing in the July 17, 2015 edition of the New York Times, Emily Bazelon called AEDPA “the law that keeps people on death row despite flawed trials.”
During President Obama’s eight-year tenure, the nation’s criminal justice system saw a steady decrease in the “mass incarceration” rate. Still, America leads the world in the mass imprisonment of its citizens. At the end of 2014, there were 3.9 million people on probation and another 2.2 million people in prison or jail, according to the Brennan Center for Justice. The American Civil Liberties calls America the “world’s largest jailer,” with 25 percent of the world’s prisoners while representing only 5 percent of the world’s population.
President Clinton with two pieces of “tough of crime” legislation effectively gave America “mass incarceration” as the way to “combat crime” in this country. President Obama did everything in his power to undo the policy of mass incarceration and bring about criminal justice reform. He became the first president to visit an American prison, calling the nation’s justice system an “injustice system.”
The Trump administration has now given every possible sign that it will undo the Obama reforms and perpetuate this nation’s reputation as the “world’s largest jailer” through increased mass incarceration. This is an insult to notions of fairness and justice that cannot stand.