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Par for the course? Exploring the impacts of incarceration and marginalization on poor black men in the U.S.

Table of Contents

I.  INTRODUCTION
II. THE WAR ON DRUGS AS A WAR ON THE BLACK FAMILY?
     A. Children of Incarcerated Parents
     B. Impacts on Poor Black Men
     C. The Connection between the Thirteenth Amendment
        and the Criminal Justice System
III. RACE, POVERTY & INCARCERATION IN DETROIT
IV.  COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTIONS
V.   PROPOSED SOLUTION
VI.  CONCLUSION


I. INTRODUCTION

For the last three decades, an incarceration crisis has been brewing in America. Alarmingly, the United States holds just five percent of the world's population, but 25 percent of the world's prisoners. (2) According to recent estimates, more than 2.3 million adults are currently incarcerated in U.S. prisons, jails, or detention centers. (3) Additionally, roughly 7.3 million adults are under some form of correctional supervision or control. (4) The U.S. prison population began ballooning to unsustainable levels in the mid-1980s, largely as a result of Congress' decision to wage the "war on drugs." (5) Media reports, detailing increased rates of violence, drug-related crime, purported gang turf wars over crack-cocaine distribution channels, (6) and growing public concern about the "surging" use of illicit drugs in the U.S., particularly in poor, inner-city communities, prompted this "war". (7) Despite evidence that African-American and white individuals use drugs at roughly even rates, the media overwhelmingly [mis]portrayed young black males as most heavily involved in the drug-related crimes. (8) The stereotyping of African-American men as violent drug dealers persisted and without a doubt had an impact on Congress's decision to wage the war on drugs, resulting in harsh punishments for the violation of federal drug laws. (9)

Draconian sentencing laws that comprised the war on drugs, mandated lengthy prison terms for those involved in or connected to drug trafficking rings. (10) Additionally, numerous states followed the lead of the federal government by enacting punitive drug laws that mirrored federal statutes. (11) This resulted in the implementation of harsh mandatory minimum sentences and sentencing guidelines that led to the incarceration of scores of low-level, nonviolent persons for extended periods of time. (12) Notably, these lengthy prison terms were coupled with a decreased level of discretion by federal sentencing judges to reduce excessively long sentences in cases that warranted such a reduced recourse. (13) Instead, federal prosecutors were given the unfettered power to base charging decisions upon the level of "substantial assistance" that a defendant could supply. (14)

This significant shift in our country's drug war policies and laws has had a disproportionate impact on poor African-American men, women, and children (15); and these changes have arguably served to weaken the family unit and community cohesiveness, factors that have been sustaining forces throughout American history. (16) Not surprisingly, drug conspiracy laws that provide significant punishment for both high-level drug dealers and individuals who are peripherally involved in drug-related crime have hit African-American men particularly hard. (17) One of the reasons that poor African-American men are particularly more likely to come into contact with the criminal justice system for drug-related crimes is because they are over-represented amongst those who live in poverty and amongst those who are unemployed. These men also have lower levels of education, which increases their likelihood of involvement in survival crimes such as low-level drug trafficking. (18) Further, poor African-American men have historically experienced racial discrimination and inequities that have resulted in sustained exclusion from the labor market. To compound this problem, these men have disproportionately experienced the negative effects of unjust laws and policies, such as those that comprise the war on drugs. (19) As one observer noted:
   Race has been and remains inextricably involved in drug law
   enforcement, shaping the public perception of and response to the
   drug problem. A recent study in Seattle is illustrative. Although
   the majority of those who shared, sold, or transferred serious
   drugs in Seattle are white (indeed seventy percent of the general
   Seattle population is white), almost two-thirds (64.2%) of drug
   arrestees are black. The racially disproportionate drug arrests
   result from the police department's emphasis on the outdoor drug
   market in the racially diverse downtown area of the city, its lack
   of attention to other outdoor markets that are predominantly white,
   and its emphasis on crack. Three-quarters of the drug arrests were
   crack-related even though only an estimated one-third of the city's
   drug transactions involved crack. Whites constitute the majority of
   those who deliver methamphetamine, ecstasy, powder cocaine, and
   heroin in Seattle; blacks are the majority of those who deliver
   crack. Not surprisingly then, seventy-nine percent of those
   arrested on crack charges were black. The researchers could not
   find a "racially neutral" explanation for the police prioritization
   of the downtown drug markets and crack. The focus on crack
   offenders, for example, did not appear to be a function of the
   frequency of crack transactions compared to other drugs, public
   safety or public health concerns, crime rates, or citizen
   complaints. The researchers ultimately concluded that the Seattle
   Police Department's drug law enforcement efforts reflect implicit
   racial bias: the unconscious impact of race on official perceptions
   of who and what constitutes Seattle's drug problem.... Indeed, the
   widespread racial typification of drug offenders as racialized
   "others" has deep historical roots and was intensified by the
   diffusion of potent cultural images of dangerous black crack
   offenders. These images appear to have had a powerful impact on
   popular perceptions of potential drug offenders, and, as a result,
   law enforcement practices in Seattle. (20)


Unfortunately, the challenges that African-American men face in Seattle are not unique. Another area of the country that clearly demonstrates the negative impacts of poverty, unemployment, educational disparities, and incarceration on African-American men is Detroit, Michigan. (21) Due to a declining labor market and inadequate access to quality education and employment opportunities, African-American men have an astounding unemployment rate of nearly 50 percent and also high rates of involvement with the criminal justice system in the Detroit metro area. (22)

As evidenced by the circumstances occurring in Detroit and in other large cities nationwide, the mass incarceration of poor African-American men has, in many cases, left poor African-American women without husbands and poor African-American children without father figures who can help provide for them. (23) Not only has the mass incarceration of poor African-American men been a force of disintegration of the black family, it has also deprived poor African-Americans of family and economic stability, and the opportunity for upward economic mobility. (24) Equally disturbing is what happens to African-American men exiting prisons. Since comprehensive re-entry initiatives are few and far between, African-American men exiting prisons find it difficult, if not impossible, to obtain gainful employment, housing, and the resources necessary to have a decent quality of life. (25) Since employers are often unwilling to hire persons with criminal histories, this all but ensures recently released prisoners will recidivate or remain unemployed, and thus unable to provide for their families through legitimate means. (26) Thus, this article seeks to explore the causes and effects of the debilitating cycles of poverty, unemployment, and incarceration on poor African-American men and will also proffer solutions to address these long-running and systemic challenges.

II. THE WAR ON DRUGS AS A WAR ON THE BLACK FAMILY?

Throughout their prolonged history in the U.S., African-Americans have experienced the detrimental and lingering effects of slavery, Jim Crow segregation laws, political disenfranchisement, and social isolation and marginalization. (27) Although African-Americans have made significant gains in a range of arenas, they still lag far behind their white counterparts in income, educational attainment, net worth, and overall quality of life indicators. (28) Additionally, African-Americans are more likely to experience poverty, educational disparities, and high rates of unemployment and involvement in the criminal justice system. (29) Due to socio-economic and historical inequities, poor African-Americans are often relegated to live in inner-city communities with a high concentration of poverty and an over-saturation of law enforcement. (30) Professor James Forman, Jr. aptly notes:
   Just as Jim Crow defined blacks as inferior, mass imprisonment
   encourages the larger society to see a subset of the black
   population--young black men in low-income communities--as potential
   threats. This stigma increases their social and economic
   marginalization and encourages the routine violation of their
   rights. Intense police surveillance of black youths becomes
   accepted practice. Their misbehavior in school is reported to the
   police and leads to juvenile court. Employers are reluctant to hire
   them. Thus, even young, low-income black men who are never arrested
   or imprisoned endure the consequences of a stigma associated with
   race. Taken together, these two forms of exclusion--making
   permanent outcasts of convicted criminals while stigmatizing other
   poor blacks as potential threats--have had devastating effects on
   low-income black communities. (31)


The combination of generational poverty, high rates of unemployment, and constant law enforcement contact became a recipe for disaster in poor inner-city communities in the late 1970s and early 1980s when a drug called crack cocaine hit the scene. (32) The systematic flood of crack cocaine into inner city communities set off a wave of harsh consequences of which poor communities are still feeling the effects to this day.

Crack cocaine was thought to be a powerful drug that produced intense highs and lows for its users. (33) People who became addicted to crack cocaine were negatively stereotyped and caricatured in the mainstream media. Although whites and blacks were found to use and sell crack cocaine at similar rates, black men were most closely identified as selling and using the drug (34):
   As the government honed in on drug users and dealers, an increased
   number of people were caught and incarcerated for their involvement
   in the drug trade. Those prosecuted for the use or sale of crack
   were predominantly non-white. Statistics indicate that from 1992 to
   1994, approximately 96.5% of all federal crack cocaine prosecutions
   targeted nonwhite individuals. However, these statistics were
   misleading because the lack of white defendants in federal court
   for such conduct was not indicative of a lack of white persons
   engaged in the conduct. During that same period of time, several
   hundred white individuals were prosecuted in California state
   courts for crack cocaine offenses. Despite these prosecutions on
   the state level, no whites were prosecuted by the United States
   Attorney's Office in Los Angeles County and six surrounding
   counties for crack--related offenses from 1988 to 1994. It is not
   clear why cases in Los Angeles involving whites were predominantly
   prosecuted at the state level, while cases involving
   African-Americans were more often prosecuted at the federal level.
   Nevertheless, this disparity is reflective of the significant
   consequences for defendants of color. (35)


Moreover, African-American men who sold crack cocaine were perceived as being hardened criminals, thugs, and gangsters who should be incapacitated for lengthy terms of imprisonment. (36) Following purported waves of violence between rival gang members over drug territories in various parts of the country, a media frenzy ensued and the public made demands on Congress to take action. (37) Additionally, pharmacological reports were released that purported to distinguish between the effects of crack cocaine and its base, powder cocaine, claiming that crack was much more dangerous than powder. These pharmacological reports have since been disputed. (38) The combination of around-the-clock media coverage on the negative effects of crack cocaine, and the public hysteria that ensued, resulted in Congress hastily enacting federal drug laws that called for lengthy prison terms for those caught engaging in drug-related crimes. (39) One particularly controversial element of the law was the disparate treatment between crack and powder cocaine. In essence, Congress decided to punish the sale of crack cocaine significantly more harshly than the sale of powder cocaine, even though one cannot make crack cocaine without powder. (40)

The differential treatment under the law between crack and powder cocaine became known as the 100:1 sentencing ratio between crack and powder cocaine. (41) Under the law, those caught with five grams of crack, which amounts to about a teaspoon, would be sentenced to a five-year mandatory minimum prison term. (42) Meanwhile, those caught with 500 grams of powder cocaine--which is about the size of a loaf of bread--would also be sentenced to a five-year mandatory minimum prison term. The disparate treatment under the law caused a massive outcry from communities of color, who argued that racial perceptions associated with the two drugs played a role in the underlying structure of the law. (43)

As a result of the crack versus powder cocaine disparity and its racially disproportionate effects, tens of thousands of African-American men wound up behind bars for lengthy periods of time. (44) In spite of protests regarding the structural inequities built into the law and its devastating impacts on the black community, the crack versus powder cocaine disparity was not reduced until August 2010, with the enactment of the Fair Sentencing Act. (45) As a result of the recent changes within the law, there is now an 18:1 ratio in sentencing between the two drugs, rather than a 100:1 ratio. (46) Although the 18:1 disparity between crack and powder cocaine provides some long-awaited and much-needed relief, (47) it arguably does not go far enough in achieving balance and racial equity, given that poor African-Americans will continue to be more susceptible to crack cocaine arrests, as nearly three decades of history indicates.

Although the initial purpose behind the draconian laws was to punish high-level drug dealers and kingpins, the reality of the situation was that lower-level and mid-level dealers suffered the greatest levels of punishment under the law. (48) This happened for at least three reasons. First, as discussed previously, discretion was shifted from federal sentencing judges through the enactment of mandatory minimums and the federal sentencing guidelines. This shift left federal judges with limited options for granting leniency in appropriate circumstances. As a result, thousands of first time, non-violent offenders were sentenced to lengthy terms of imprisonment under mandatory minimums, and in some cases, even longer sentences under the sentencing guidelines. Second, the federal drug laws that comprised the war on drugs permitted the use of conspiracy laws (49) to enable authorities to capture as many drug ring participants as possible. This aspect of the law widened the net of who could be charged with violating drug trafficking laws, which included even minor participants and peripheral players. (50) Third, greater levels of discretion were shifted to federal prosecutors. It was not until the Supreme Court's holding in United States v. Booker, (51) which made the federal sentencing guidelines advisory as opposed to presumptive, that things began to shift back towards restoring judicial discretion. In essence, prior to the Supreme Court's holding, the system operated--and some would argue it continues to operate--in a manner in which:
   Prosecutors are given the sole discretion to make charging
   decisions, such as determining which defendants meet the high
   threshold of providing "substantial assistance" in the
   investigation or prosecution of another who has committed an
   offense. The result is a prosecutor-driven plea-bargaining regime
   where ninety-five percent of federal defendants plead guilty rather
   than risk losing at trial. This regime, however, virtually
   guarantees lengthy prison terms for the most vulnerable and least
   influential persons involved in drug operations--namely, low-level
   offenders and women involved with men who sell drugs. (52)


By removing discretion from sentencing judges and placing it in the hands of prosecutors, the system became uneven and lacked the requisite transparency and sense of fairness. Sadly, poor people of color bore the brunt of these systemic inequities and entire families and communities suffered as a result. (53)

A. Children of Incarcerated Parents

When the war on drugs was initiated in the mid-1980s, lawmakers arguably gave little thought to the harmful impacts that would flow to poor children of color (54) whose parents were caught in a cycle of drug dependency, drug trafficking, and incarceration. (55) Draconian drug war policies, consisting of a combination of federal and state law intended to curb drug use and drug trafficking, arguably served to weaken and dismantle poor families of color. (56) At the height of the drug war frenzy during the 1980s, reports were published that described [poor African-American] babies being born addicted to crack cocaine, the costs to the public for providing benefits to such children, and the unsubstantiated fears that these children would grow up to become super criminals who would terrorize communities. (57) Additional reports described mothers who were addicted to crack cocaine and the impacts on the general public of having to provide welfare benefits and food stamps to these [presumably undeserving] women. (58) Judges in many parts of the country reacted by incarcerating pregnant women who used crack cocaine and in some cases detaining them until after they gave birth. In essence, these women, caught at the intersection of race and poverty, were stereotyped and denigrated in courts of law and in the court of public opinion. (59)

At the federal level, the implementation of harsh federal sentencing guidelines (60) and mandatory minimum sentences (61) caused parents who were convicted of violating drug trafficking laws to face lengthy prison terms, largely irrespective of parental status. (62) As such, women who dated drug dealers and those who may have had peripheral involvement in drug trafficking could suddenly be held accountable for all of the drugs that were sold by a particular drug ring. (63) This resulted in tens of thousands of women, many of who were mothers to children under age 18, spending decades behind bars for low-level drug involvement,. (64)

Since federal prisoners may be required to serve their time at a federal penitentiary in another part of the country, their children may be unable to visit them during their period of incarceration, which leads to a different set of challenges. (65) According to research conducted by the Vera Institute of Justice, children of incarcerated parents experience a period of grieving during parental separation, known as ambiguous loss, which is akin to experiencing the death of a parent. (66) These children are more likely to experience emotional harm, to act out in school, and may be more likely to use drugs, drop out of school, or otherwise become involved in the criminal justice system. (67) Sadly, African-American children are over-represented amongst this group, as they are nine times as likely as their white counterparts to have a parent who is incarcerated. (68)

At the state level, in addition to facing criminal penalties for drug-trafficking, poor parents who used or sold drugs risked being separated from their children for a period of years, or permanently in some cases, through the child welfare system. (69) When parents are found to have committed acts of child neglect due to substance abuse issues, their children are often forced to live with strangers in foster homes or with other displaced children in group-home settings. (70) For the remaining children, parental drug involvement means that they may be sent to live with relatives, often in poverty-stricken and marginalized communities and with limited financial resources to meet their basic needs. (71) In addition to familial displacement, poor children of drug-involved parents face a number of disturbing consequences including emotional and psychological harm, a higher probability of academic failure and substance abuse, and a greater likelihood of involvement in the juvenile justice and adult criminal justice systems. (72) Again, due to the overrepresentation of African-American parents in the criminal justice system, African-American children are over-represented amongst those who may experience disparate outcomes due to parental incarceration. (73) Unfortunately, there is little research that explores the unique and multifaceted effects of parental incarceration on African-American children.

B. Impacts on Poor Black Men

From the outset of the war on drugs, young African-American men became prime targets of law enforcement policies and practices that focused on capturing and incarcerating those suspected of drug trafficking. (74) As tens of thousands of young black men were caught in the ever-widening drug net, (75) the impact of their incarceration on the mothers of their children as well as their children were arguably never considered by lawmakers. (76) Many of the men sentenced to lengthy prison terms were not necessarily high-level dealers or drug kingpins, but were more often than not, low-level street dealers seen as expendable within the larger system. (77) In fact, the vast majority of these men were low-level, non-violent drug dealers who may have chosen to sell drugs as an unsavory alternative to working low-wage jobs that offered little security in return. (78)

Unfortunately for these men and their families, their choices to sell drugs also offered little or no security, as they were in the most likely position to come into contact with law enforcement due to the prevalence of open air drug markets in inner-city communities. (79) Law enforcement policies and task forces aimed at catching low-level drug dealers in inner city communities likely contributed significantly to the involvement of poor African-American men in the criminal justice system. This is not to suggest that white men in suburban communities were not also engaged in illicit drug activity because they actually were. (80) However, law enforcement operations typically hone in on poor communities of color and tend to pay much less attention to drug dealing within middle class and upper middle class white communities. (81)

As poor African-American fathers were sent to prison in droves, the mothers of their children were left behind to provide for their families with limited access to decent employment opportunities and scant social services support. (82) Not surprisingly, the lack of financial and social support offered by the father leaves a tremendous void in the family. Without the presence of fathers in poor African-American households, poor African-American women and children fall deeper into poverty and marginalization. (83) As poor mothers struggle to survive with decreasing public benefits, the average cost of living increases and the family unit suffers considerably. (84)

Moreover, the myriad effects of historical and contemporary experiences of generational poverty, social exclusion, political disenfranchisement, unemployment, and discrimination have placed poor African-American males in a precarious position within society. Being relegated to a poor, inner city community with little hope for one's future can lead to detrimental effects associated with trauma and brain development:
   The neurological connections (synapses) within the brain are also
   effected by traumatic experiences. It is widely accepted that "the
   brain develops and modifies itself in response to experience.
   Neurons and neuronal connections change in an activity dependent
   fashion." Chronic stress and fear associated with trauma may lead
   the individual to be in a persistent state of fear and
   hypervigilent at all times. Abuse and violence activate a set of
   threat responses within the child's brain. The brain invokes all
   necessary survival systems. In many cases such systems are required
   to be constantly active due to the chronic nature of such abuse.
   These systems and connections become overdeveloped in a use
   dependent manner to the neglect of other areas of the brain. Over
   time these responses may literally 'wear out' other parts of the
   brain which deal with memory, cognition and modulation of emotions
   and create memories to the extent that the fear response becomes
   automatic. Hence the brain adapts to the environment and learns the
   mechanisms necessary for survival. (85)


Thus, it is not a surprise that the fallout from the war on drugs has continued to negatively and disproportionately impact African-American men. (86) According to the Pew Center on the States, one in nine African-American men between ages 20 and 34 were incarcerated in 2008. (87) Further, one in fifteen African-American men ages 18 or older was spending time behind bars and presumably away from their loved ones as of 2007. (88) Even young African-American boys are not immune from the long reach of the criminal justice system, as a 2009 report by the Children's Defense Fund indicates that a black male born in 2001 has a one in three chance of going to prison in his lifetime. (89) Given the harsh stereotypes and media images that persistently portray African-American men as criminals, it is easy to understand how the American public could be led to believe that these disturbing statistics indicate a propensity for black men to commit crimes as a result of their race. (90) However, in order to ascertain the truth, it is important to dig beneath the surface and examine historical and societal issues that could shed light on the root causes of African--American men's disproportionate involvement in the criminal and juvenile justice systems. (91) One major issue that is often overlooked in regard to the mental and emotional health of poor African-American men is the impact that stress has on their overall quality of life and decision-making:
   Michael Marmot, who has written extensively about the social
   determinants of health, argues that while material deprivation due
   to poverty may in itself predispose one to disease (e.g., through
   lack of access to healthy foods or exposure to toxic environmental
   elements), a major way that poverty exerts its effect is through
   chronic stress (Marmot 2004). Marmot and others have studied the
   effect not only of poverty but also of social position and
   inequality. His work would suggest that men of color, because of
   their position at the margins of U.S. society, suffer the
   most damaging effects. Men of color are lower on the social
   hierarchy than any other group. This, in turn, limits their ability
   to have a sense of empowerment and control over their lives.
   Constant bombardment with racism, discrimination, and lack of
   opportunity further this disempowerment. Marmot and others would
   argue that it is this adverse social position that creates
   conditions of chronic stress in the body. Chronic stress is
   characterized by ongoing activation of the "fight or flight" system
   that is normally activated only under acute self-protective stress.
   Over time, this hyperactivation can lead to a range of chronic
   physical disease and behavioral maladaptations. Marmot's work has
   shown that even among employed workers, occupying a lower position
   in the social hierarchy is related to higher rates of death from
   cardiovascular disease (Marmot 2004). Marmot's work also showed
   that social engagement--the ability to participate as a full member
   of society and the self-esteem that goes with that--is also
   critical to positive health outcomes. This has particular relevance
   for the health of boys and men of color. As we begin to consider
   the effects of stress on these men, we come to the conclusion that
   simply addressing poverty and education (for example) in the short
   run is not enough. Ultimately, through trauma-informed approaches,
   we can address the adverse effects of chronic stress that come from
   the social position of this population. Critical to any
   intervention that addresses the health of men of color is to
   improve the systems that serve them and with which they interact.
   (92)


It is not difficult to imagine that experiencing higher rates of generational poverty, chronic unemployment, marginalization, and being in a perpetual state of stress, could play a role in a young man's decision to commit survival crimes, such as low-level drug trafficking; as opposed to having a genetic predisposition to commit crimes, as some may believe. (93) Additionally, structural issues and institutional racism imbedded within laws and policies may also provide clues regarding this conundrum.

C. The Connection between the Thirteenth Amendment and the Criminal Justice System

As devastating as the war on drugs has been on the African-American community, it is not the first time in American history that the law was used as a tool of enslavement and incarceration of African-Americans. (94) Beginning with the Constitution of the United States, African-Americans were legally declared to be property tantamount to three-fifths of a person. (95) After enduring over three hundred years of slavery, on January 1, 1863, African-Americans were declared free through the enactment of the Emancipation Proclamation by President Abraham Lincoln. (96) Then, in December of 1865, (97) after years of intense debate, drama, and political maneuvering, Congress' enactment of the Thirteenth Amendment to the Constitution brought a legal end to slavery and indentured servitude--except in cases involving the criminal justice system. (98) The language of the Thirteenth Amendment reads:

Sec.1. Neither slavery nor involuntary servitude, except as punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Sec. 2. Congress shall have power to enforce this article by appropriate legislation. (99)

This language closed a chapter in a long saga of legalized slavery and oppression for African-Americans. Unfortunately, the language of the Thirteenth Amendment also opened the door to a new form of slavery and involuntary servitude, under the auspices of the criminal justice system. (100) As a result of the carefully selected language of the Thirteenth Amendment, Congress may have intentionally or unintentionally used its power to galvanize a new system of slavery in the south under the guise of punishing those guilty of criminal behavior by forcing them into indentured servitude during periods of confinement.

In reviewing the Congressional records from the debates regarding the Thirteenth Amendment, which lasted from March 1864 to January 1865, Senator Charles Sumner of Massachusetts argued that the language of the Thirteenth Amendment ought to recognize complete equality and freedom for African-Americans, as opposed to just abolishing slavery. (101) He also argued that including language in the Amendment that sanctioned slavery or indentured servitude for convicts was unnecessary:
   But Slavery in our day is something distinct, perfectly well
   known, requiring no words of distinction outside of itself. Why,
   therefore, add the words, 'nor involuntary servitude, except as a
   punishment for crime whereof the party shall have been duly
   convicted'? To my mind they are entirely surplusage. They do
   no good there, but absolutely introduce a doubt. (102)


Based upon the statements and other inferences contained in the Congressional record, one wonders whether this language was intentionally included to reinstitute a form of slavery through the criminal justice system. In that event, arguably northerners would receive the benefit of abolishing slavery, while southerners would retain the possibility of enslaving African-Americans through the criminal justice system. (103) For example, during the 2nd Session of the 38th Congress's debates on the Thirteenth Amendment in Jan. 1865, Representative William Darrah Kelley, a Republican from Pennsylvania, stated that he had witnessed a speech by Judge Humphrey at a union meeting in Huntsville, Alabama regarding the union's push to abolish slavery following the civil war. (104) During that speech, Judge Humphrey said, "I believe, in case of a return to the union, we would have political cooperation, so as to secure the management of that labor [slave labor] by those who were slaves. There is really no difference, in my opinion, whether we hold them as absolute slaves, or obtain their labor by some other method. Of course, we prefer the old method. But that question is not before us." (105) According to Kelley, Humphrey's words expressed the sentiments of a large proportion of old masters in the valley of the Mississippi, who would agree to loyalty to the union in exchange for some semblance of a return to the institution of slavery for Afrincan-Americans. (106) Notably, Kelley also cited to Brig. General James S. Wadsworth, who had toured the valley of the Mississippi following the civil war to observe conditions of the south. He stated, "There is one thing that must be taken into account, and that is, that there will exist a very strong disposition among the masters to control these people and keep them as a subordinate and subjected class. Undoubtedly, they intend to do that. I think the tendency to establish a system of serfdom is a grant danger to be guarded against." (107)

In the years and decades that followed the enactment of the Thirteenth Amendment, ostensibly Kelley's concerns were shown to hold merit. The criminal justice system in many ways became the new arbiter of slavery in the post-Civil War south. Whereas prior to the Civil War, mostly poor and working class whites were incarcerated in state penitentiaries, after the Civil War, there was a dramatic shift in the demographic composition of inmates. (108) Harsh slave codes, which had been rewritten and labeled "the Black Codes" among other things, made it a criminal offense for African-Americans to hang out in the streets (loitering), be unemployed (idleness), use profanity, commit adultery, talk too loud, be in debt, or fail to pay fines, etc. (109) In essence, the laws were rewritten or altered to regulate what whites deemed to be bad behavior on the part of poor African-Americans. (110) The inclusion and enforcement of violations of vagrancy laws needlessly swept countless African-American men into the criminal justice system. For black men who were charged with crimes like assault, gambling or petty larceny, they would be sentenced to serve substantially longer sentences than Whites who committed similar crimes. (111)

It is evident that the effect of Congress' decision to include language in the Thirteenth Amendment that allows slavery and indentured servitude for commission of a crime is still being felt today, especially amongst poor African-Americans. (112) The draconian laws that comprised the war on drugs and the resulting increase in poor African-American men entering the criminal justice system are reminiscent of the Black Codes. Rather than ameliorate the historic inequities and discrimination that poor African-Americans have experienced, such laws tend to exacerbate the conditions that African-American men face and make it difficult to disengage from the system. (113) Sadly, although African Americans comprise roughly 13% of the U.S. population, they comprise about 40% of inmates in state prisons, with African-American men comprising the bulk of those incarcerated. (114)

III. RACE, POVERTY & INCARCERATION IN DETROIT

In light of the disproportionate rates of incarceration that African-American men experience, one could surmise that racial injustice and oppression are still in existence, and play a tremendous role in determining whether a person is on a path to college or a path to prison. (115) In major metropolitan areas across the country, a familiar story is told: African-American men experience high rates of poverty, marginalization, unemployment, and incarceration. The systemic issues facing African-American men may only be resolved when society critically examines the roles of unemployment, under-employment, racial exclusion and marginalization in helping to produce sustained disparate outcomes for African-American men. One need look no further than Detroit, Michigan to begin to understand how systemic poverty and unemployment keep African-American men out of the labor market and locked in a perpetual cycle of poverty and incarceration.

A 2010 report by Algernon Austin of the Economic Policy Institute shows that the Detroit metropolitan area has the highest rate of unemployment amongst African-Americans in the country. (116) Some estimate that unemployment rates amongst African-American men are as high as 50 percent. (117) When African-American men experience sustained levels of unemployment, a ripple effect ensues that engulfs African-American children and families as well as the entire community. Limited opportunities for gainful employment result in diminished ability to care for one's family as well as a higher probability of dependence upon government and other community-based programs for survival. (118) Lower levels of employment could also open the door to involvement in illicit activities such as drug-related crimes and property crimes. Involvement in such crimes impacts the quality of life of community residents and affects the livability of poor communities. (119) Indeed, according to the Pew Center on the States, 1 in 25 persons in Detroit are currently involved in the criminal justice system. (120)

Some attribute the political and economic turmoil that Detroit is currently experiencing to corruption and alleged mismanagement of government resources. (121) Although these issues explain in part some of the challenges that the Detroit metropolitan area is facing, it does not tell the whole story. Many of the woes that Detroit is experiencing have their roots in the Detroit uprising that occurred in 1967 and the underlying causes of the uprisings, such as growing discontentment from African-Americans who were relegated to "slum" areas within the city (122):
   Detroit, like other cities, was deindustrializing and black
   workers, who had less seniority and lower job grades than white
   workers "felt the brunt" of this change. Young black men were
   particularly hard hit by the combination of deindustrialization
   and historical job discrimination in the automobile industry.
   According to historian Thomas Sugrue, young workers,
   especially those who had no post-secondary education, found
   that entry-level operative jobs that had been open to their fathers
   or older siblings in the 1940s and early 1950s were gone. "By
   the end of the 1950s, more and more black job seekers, reported
   by the Urban League, were demoralized, 'developing patterns of
   boredom and hopelessness with the present state of affairs' The
   anger and despair that prevailed among the young, at a time of
   national promise and prosperity, would explode on Detroit's
   streets in the 1960s. (Sugrue 1996:147) Yet black Detroiters had
   higher incomes, lower unemployment rates and higher levels of
   education relative to their peers in other cities. Nonetheless
   these measures paled in comparison with the gaps in income,
   employment, and education in Detroit among whites and blacks.
   According to one long-time community activist, blacks in Detroit
   did not compare themselves to blacks in other cities. Rather, they
   compared themselves to whites in Detroit. Relative deprivation
   helped give rise to black militancy in Detroit. (123)


Although African-Americans had a flourishing middle class during that time, due to the burgeoning auto industry, the masses of African-Americans had limited job prospects in contrast to their white counterparts. (124) The poor African-Americans who were resigned to the slum areas of the city felt frustrated at the unequal levels of treatment and discrimination that they experienced, which included police brutality and harassment. These frustrations came to the surface in 1967 when law enforcement raided an after-hours hangout in the poor black section of town. (125) By all accounts, the uprisings resulted in millions of dollars in losses to local businesses, several deaths, and mob violence. In the aftermath of the uprisings, white began to flee the city of Detroit in droves and they moved to the suburbs. Middle class African-Americans soon followed. (126) In the ensuing decades, the overwhelmingly majority of residents who were left behind were poor African-Americans. With limited access to upward economic mobility and political power, this group began to experience the effects of social isolation, segregation, and marginalization to an even greater degree than before the uprisings. (127) At the height of Detroit's success, an estimated two million people resided within the city, but current estimates indicate that the population of Detroit is continuing on a downward spiral with roughly 700,000 people residing in a city that was built for two or three times as many residents. (128)

One can hardly read a report or watch a media segment regarding the current state of Detroit without learning of an infrastructure that appears to be eroding, diminished government resources, and chronic unemployment. In order to "save" Detroit, large parcels of land have been sold to developers with the purpose of redeveloping various aspects of the city. (129) Although new development is taking place in the city and a comeback is on the horizon, one of the challenges that exists is the notion that very little of the new development efforts include opportunities for the poor and the working poor to become upwardly mobile. One consequence of failing to include the poorest residents of the city in redevelopment efforts is that these residents will continue to be left behind and will be at greater risk of criminal justice involvement as a consequence of their need to survive. (130)

In order for the city of Detroit to reach its full potential as a city full of opportunity and prosperity, it will need to increase access to high quality education for Detroit residents in general and youth in particular. According to the Schott Foundation, the high school graduation rate for young African-American men in 2009/10 was an abysmal 20 percent. (131) Without an educated workforce, it will be difficult, if not impossible, for Detroit to have sustained economic growth and development. Native Detroit residents, which are overwhelmingly poor and African-American, should be provided access to jobs that pay living wages in order to bridge the gap between the haves and the have-nots and a restore a sense of hope to the city.

Further, the large volume of resources that Detroit--and Michigan by extension (132)--is currently spending to maintain its criminal justice system is likely unsustainable. Detroit, like many other American cities, will not be able to incarcerate its way out of its current troubles, so a smarter approach to crime control is in order.

IV. COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTIONS

Given the wide array of challenges that poor African-American men face prior to incarceration, it is not surprising that these men find it particularly difficult to successfully reenter society upon release from prison. Recent reports indicate that roughly 90 percent of employers conduct criminal background checks on prospective employees. (133) In many cases, even an arrest record that does not include a conviction could prevent a person from being hired. These policies disproportionately impact poor African-American men and ultimately have the effect of increasing the likelihood that they will re-enter the revolving doors of the criminal justice system:
   Twenty years ago, misdemeanor arrest and conviction records were
   papers kept in court storerooms and warehouses, often impossible to
   locate. Ten years ago they were computerized. Now they are
   instantly searchable on the Internet for $20 to $40 through
   commercial criminal-record database services. Employers, landlords,
   credit agencies, licensing boards for nurses and beauticians,
   schools, and bank snow routinely search these databases for
   background checks on applicants. The stigma of criminal records can
   create barriers to employment and education for anyone, including
   whites and middle class people. Criminal drug arrest and conviction
   records can severely limit the life chances of the poor, the young,
   and especially young African Americans and Latinos. (134)


In addition to the discrimination that occurs when people with criminal histories attempt to become gainfully employed, there are often statutory barriers that prevent those with criminal histories from working in certain industries and obtaining certain types of professional licenses. (135) These barriers to successful reentry are generally known as collateral consequences. Beyond barriers to employment, collateral consequences consist of bars to public and private housing, public benefits, and federal financial aid, to name a few.

Estimates indicate that more than 700,000 individuals are released from prisons each year, with approximately 95 percent of prisoners set to return from prison at some point in their lives. (136) In many cases, a return from prison is short-lived, as studies show that roughly 70 percent of prisoners return to prison within three years of being released. (137) Many of those who are re-incarcerated are not necessarily re-imprisoned for commission of a new crime. However, in many instances, they are re-incarcerated for technical parole violations such as being unable to find suitable employment and housing within an allotted time period. (138)

For poor African-American men, the stakes continue to be high when they return from prison, as these men are more likely to be released into environments that almost certainly guarantee their return to the criminal justice system, namely because of a scarcity of jobs that pay a living wage and a lack of affordable housing in poor communities of color. (139) Even in neighborhoods in which public housing is available, individuals who have committed a drug-related crime may be ineligible to reside in public housing. (140) These types of restrictions severely limit the options for those seeking to gain a new lease on life following a period of incarceration. This leads to a seemingly never-ending cycle of incarceration followed by a brief period of release, to the detriment of the individual as well as his or her family and community. Tax payers also bear the brunt of this cycle, as it costs around $226,000 per year to incarcerate an individual. (141)

V. PROPOSED SOLUTIONS

In order to break the devastating cycles of poverty, unemployment, and incarceration that African-American men are facing, it is imperative that harsh, draconian sentences for low-level, non-violent offenders be repealed and replaced with sensible alternatives. Mandatory minimums, in particular, need to be repealed and the federal crack vs. powder cocaine sentencing disparity should be eliminated in its entirety as a matter of equity and justice.

There is a need for targeted job creation to ensure that redevelopment efforts, such as in Detroit, specifically include plans to hire poor people of color who are invariably marginalized and excluded from such efforts. Excluding the poor from opportunities to become gainfully employed will have a negative impact on public safety and will likely drain government resources due to increased spending on criminal justice efforts and public benefits. Beyond that, participation in the workforce may lead to decreased involvement in gang-related and other illicit activities that are symptomatic of experiencing extreme poverty, social isolation, and marginalization. (142)

For those who are exiting the criminal justice system, it is important to provide comprehensive reentry programs to assist individuals with criminal records in obtaining gainful employment and access to safe, affordable housing. This will have a net positive impact on public safety and will be more cost-effective than continuing to target ad incarcerate low-level offenders. Additionally, there is a need to increase the awareness of employers of the negative impacts of refusing to hire persons with criminal histories.

Since high dropout rates lead to an unprepared workforce and a six times greater likelihood of criminal justice involvement for African-American men, it is imperative to ensure that drastic efforts are taken to curb premature withdrawal from high school and to create pathways to college and adequate preparation for those who are interested in attending.

Another plausible solution to close the gap in unemployment that African-American men are facing is to increase access, training, technical support, and capital to those who are interested in starting small business and micro-businesses. Seizing upon the entrepreneurial spirit within the African-American community will have positive impacts on families, communities, and individuals and may restore a sense of hope and pride in local communities that are feeling the devastating impacts of poverty and marginalization. It is equally important to ensure that youth are provided with opportunities to develop businesses and to learn about entrepreneurship.

VI. CONCLUSION

Poor African-Americans, in general, and African-American men, in particular, face tremendous challenges related to the unyielding effects of unemployment, poverty, and criminal justice impacts. Our nation's failed drug war policies have led to over one million African-Americans being incarcerated in federal and state prisons; and the rate is continuing to climb. It is imperative that we strive to understand the root causes of these devastating cycles and work with a sense of urgency to reverse course, as many of these challenges are rooted in history, laws and policies that work against the poor and the working poor. If we are to break the devastating cycles that exist, we must be proactive about taking new approaches to addressing challenges within our criminal justice system and creating opportunities that benefit those who are being left behind in our society, namely, African-American men.

NEKIMA LEVY-POUNDS (1)

(1.) Associate Professor of Law & Director of the Community Justice Project, University of St. Thomas School of Law (Minnesota). I would like to thank my research assistants, Tisidra Jones, Jessie Larson, & Celestial Roman. I am also grateful to my daughter, Jayda Pounds, for her research support on this article. Special thanks to my UST Law colleague, Virgil Wiebe, for his feedback and guidance throughout this process. Thanks also to my loving family for their support and ongoing encouragement. Finally, I would like to thank Avery Rose, Victoria Suber, and the wonderful staff of the Journal of Law in Society at Wayne State University Law School for their hard work and excellent assistance in finalizing this article.

(2.) See The Pew Center on the States, One in 100: Behind Bars in America 2008 5 (2008) [hereafter One in 100], available at http://pewstates.org/uploadedFiles/ PCS_Assets/2008/one%20in%20in%20100pdf (having the highest adult incarceration rate in the world, the United States also boasts the largest adult prison population in the world); see also Bureau of Justice Assistance, Juveniles in Adult Prisons and Jails: A National Assessment 4 (2000), available at www.ncjrs.gov/pdffilesl/bja/182503.pdf ("Approximately 107,000 [juveniles] are incarcerated on any given day.").

(3.) See One IN 100, supra note 1.

(4.) Id.; see also Alan Bean, "Only a Movement Built on Love": Michelle Alexander at Riverside Church, FRIENDS OF JUSTICE (May 23, 2011), available at http://friendsofjustice.wordpress.com/2011/05/23/ only-a-movement-built-on-love-can-end-mass-incarceration-michelle-alexander-at-riverside-church/; Adam Gopnik, The Caging of America: Why do we Lock Up So Many People?, The New Yorker (Jan. 30, 2012), available at http://www.newyorker.com/arts/critics/atlarge/2012/01/30/12013 Ocrat_atlarge_gopnik ("The inhumanity of American prisons was as much a theme for Dickens, visiting America in 1842, as the cynicism of American lawyers. His shock when he saw the Eastern State Penitentiary, in Philadelphia--a "model" prison, at the time the most expensive public building ever constructed in the country, where every prisoner was kept in silent, separate confinement--still resonates: I believe that very few men are capable of estimating the immense amount of torture and agony which this dreadful punishment, prolonged for years, inflicts upon the sufferers.... Mass incarceration on a scale almost unexampled in human history is a fundamental fact of our country today--perhaps the fundamental fact, as slavery was the fundamental fact of 1850."). I don't think this long quote is necessary. I think it would serve better if summarized in a sentence or two.

(5.) Barbara Vincent & Paul Hofer, The Consequences of Mandatory Minimum Prison Terms: A Summary of Recent, Federal Judicial Center 2, 4 (1994), available at http://www.fjc.gov/public/pdf.nsf/lookup/conmanmin.pdf/SFile/conmanmin.pdf; see Paige Harrison & Allen Beck, U.S. Dep't of Justice, Bureau of Justice Statistics Bulletin: Prisoners in 2002, 8 (2003), available at http://bjs.ojp.usdoj.gov/content/ pub/pdf/p02.pdf; see also Nekima Levy-Pounds, Can these Bones Lives: A Look at the Impacts of the War on Drugs on Poor African American Children and Families, 7 Hastings Race & Poverty L.J. 353 (2010) [hereafter Levy-Pounds, Bones],

(6.) See Nekima Levy-Pounds, From the Frying Pan into the Fire: How Poor Women of Color and Children Are Affected by Sentencing Guidelines and Mandatory Minimums, 47 Santa Clara L. Rev. 285, 303-5 (2007) [hereafter Levy-Pounds, Frying Pan]; see also Jamie Fellner, Race, Drugs, and Law Enforcement in the United States, 20 Stan. L. & Pol'y Rev. 257, 262 (2009); Richard C. McCorkle & Terance D. Miethe, The Political And Organizational Response To Gangs: An Examination Of A "Moral Panic" In Nevada, 15 Justice Quarterly 41-42 ("Some observers have gone further, asserting that the gang crisis, in certain jurisdictions, was manufactured by social control agencies to obtain resources and expand their authority (Zatz 1987). Public support for state expansion is generated, these critics argue, by creating and promoting images which suggest that the community is under attack from warring tribes of drug-dealing sociopaths"). Id. at 42.

(7.) See Levy-Pounds, Frying Pan, supra note 5; see also Fellner, supra note 5 ("The costs and benefits of this national "war on drugs" remain fiercely debated. What is not debatable, however, is that this ostensibly race-neutral effort has been waged primarily against black Americans. Relative to their numbers in the general population and among drug offenders, black Americans are disproportionately arrested, convicted, and incarcerated on drug charges.") Fellner, supra note 5, at 257.

(8.) See Fellner, supra note 5, at 262-63; see also Marc Mauer, Race To Incarcerate 51-52 (The Sentencing Project, 2nd ed. 1999).

(9.) See Levy-Pounds, Frying Pan, supra note 5, at 286-89; Levy-Pounds, Bones, supra note 4.

(10.) Nekima Levy-Pounds, Justice for All? How the Fallout From the War on Drugs Has Led to the Highest Incarceration Rate in the World, The Covenant Companion 14 (July 2012), available at http://www.covchurch.org/resources/files/2012/01/07. 2012.Justice-for-All.pdf [hereinafter Levy-Pounds, Justice]; Levy-Pounds, Frying Pan, supra note 5 at 310-12.

(11.) Christopher Mascharka, Mandatory Minimum Sentences: Exemplifying The Law Of Unintended Consequences, 28 Fla. St. U.L. Rev. 935, 936 (2001).

(12.) Levy-Pounds, Frying Pan, supra note 5.

(13.) See Anti-Drug Abuse Act of 1986, 21 U.S.C. [section] 801 (1986); Anti-Drug Abuse Act of 1988, 21 U.S.C. [section] 1501 (1988) (established mandatory minimum penalties for crimes involving drugs and firearms); see also Alexander Smith & Harriet Pollack, Curtailing the Sentencing Power of Trial Judges: The Unintended Consequences, 36 Ct. Rev. 4, 5 (Summer 1999); Justice Calls Mandatory Sentences 'Bad Policy,' Associated press, Sept. 22, 2003, available at http://november.org/dissentingopinions/Breyer.html (quoting Supreme Court Justice Breyer regarding the lack of fairness mandatory minimums create); John Caher, Federal Judge Blasts Mandatory Minimum Sentences, New York Law Journal, Jan. 20, 2006, available at http://november.org/dissentingopinions/ Hurd.html; Levy-Pounds, Bones, supra note 4, at 360-62 (discussing the impact of U.S. v. Booker, 543 U.S. 220 (2005), and its impact on federal judicial sentencing discretion and the Supreme Court's holding in Kimbrough v. U.S, 552 U.S. 85 (2007), which gave federal judges the authority to consider sentencing disparities between crack and powder cocaine).

(14.) See generally Levy-Pounds, Frying Pan, supra note 5, at 311-13.

(15.) Shimica Gaskins, "Women of Circumstance"--The Effects of Mandatory Minimum Sentencing on Women Minimally Involved in Drug Crimes, 41 Am. Crim. L. Rev. 1533, 1533-38 (2004).

(16.) See Bruce Western & Christopher Wildeman, The Black Family and Mass Incarceration, 621 Annals Am. Acad. Pol. & Soc. Sci. 221, 222 (2009); see also Levy-Pounds, Frying Pan, supra note 5 (analyzing the major shift from judicial discretion to prosecutorial discretion in federal drug cases); Office of National Drug Control Policy, ONDCP Drug Policy Information Clearing House Fact Sheet; Drug Data Summary 4 (2003), available at http://www.dvusd.org/docs/prevention/drug datasum.pdf; The Sentencing Project, Crack Cocaine Sentencing Policy: Unjustified and Unreasonable (2001), available at http://www.prisonpolicy.org/ scans/sp/1003.pdf (showing that in 1994, 84.5% of defendants convicted of crack cocaine possession were African-American).

(17.) See Gaskins, supra note 14, at 1533-35.

(18.) See Levy-Pounds, Justice, supra note 9 ("As a child growing up in the inner city of Los Angeles in the early 1980s, I saw firsthand the gripping and debilitating effects of poverty, crime, and joblessness on poor familiar of color. Much to the dismay of parents and community members, many of the young men in my community cycled in and out of the criminal justice system or wound up dying prematurely due to gang violence and other types of conflict."). Id. at 13; see also generally Levy-Pounds, Bones, supra note 4; See also Marc Mauer, Sentencing Project, Race To Incarcerate (1999); see also Alexis Garret Stodghill, African American Unemployment Connected to Low High School Graduation Rates?, available at http://thegrio.eom/2012/01/10/ african-american-unemployment-connected-to-low-high-school-graduation-rates/.

(19.) See Mauer, supra note 17; see generally Levy-Pounds, Bones, supra note 4; see also Levy-Pounds, Justice, supra note 9.

(20.) Fellner, supra note 5, at 261-62 (quoting Katherine Beckett, Kris Nyrop & Lori Pfingst, Race, Drugs, and Policing: Understanding Disparities in Drug Delivery Arrests, 44 Criminology 1, 105 (2006) ("The racial dynamics reflected in Seattle's current drug law enforcement priorities are long-standing and can be found across the country. Indeed, they provided the impetus for the "war on drugs" that began in the mid-1980s. Spearheaded by federal drug policy initiatives that significantly increased federal penalties for drug offenses and markedly increased federal funds for state anti-drug efforts, the drug war reflected the popularity of "tough on crime" policies emphasizing harsh punishments as the key to curbing drugs and restoring law and order in America."). Fellner, supra note 5, at 261-62.

(21.) See Mark V. Levine, Race and Male Employment in the Wake of the Great Recession: Black Male Employment Rates in Milwaukee And the Nation's Largest Metro Areas 2010, Center for Economic Development 10, available at http://www4.uwm.edu/ced/publications/black-employment_2012.pdf (showing high rates of Black male unemployment in metro areas across the country, specifically showing Detroit with a more than 50% Black male unemployment rate); see also Detroit's Unemployment Rate Is Nearly 50%", According to the Detroit News, Huff Post [hereafter Detroit News], available at http://www.huffingtonpost.com/2009/12/16/ detroits-unemployment-rat_n_394559.html.

(22.) Id.

(23.) When African-American men are absent from the home, women become the sole source of support for their children. Given the fact that the majority of African-American women, who serve as a single head of household are poor, these women and their children are at risk of falling deeper into poverty and desperation. For many such women, a sense of desperation and limited economic resources has resulted in low-level involvement in drug-related crimes. When this happens and mothers are incarcerated, the children of these women are doubly vulnerable and risk becoming involved in the foster care system or being sent to live with relatives, who are also experiencing poverty. Children in the foster care system may be likely to experience physical and sexual abuse, as well as emotional effects from maternal separation. About 2.7 million children have an incarcerated parent. African-American children are nine times as likely to have an incarcerated parent.

For a more thorough analysis of the myriad impacts of the war on drugs on women of color and children, see Levy-Pounds, Frying Pan, supra note 5, at 287-291; see also Levy-Pounds, Bones, supra note 4; see, e.g., Denise Johnson & Katherine Gabel, Incarcerated Parents, Children Of Incarcerated Parents 3, 18 (Katherine Gabel & Denise Johnston eds., 1995); see also Gaskins, supra note 14, at 1550; Susan Phillips & Barbara Bloom, In Whose Best Interest? The Impact of Changing Public Policy on Relatives Caring for Children with Incarcerated Parents', Kathleen Block & Margaret J. Potthast Children With Parents In Prison: Child Welfare Policy, Program, And Practice Issues 63, 64 (Cynthia Seymour & Creasie Finney Hairston eds., 2001), Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1987 (1984) (codified as amended in scattered sections of 18 U.S.C. & 28 U.S.C.); U.S. GAO Rep. to the Chairman, H.R. Subcomm. on Crime and Crim. Just., of the Jud. Comm., Mandatory Minimum Sentences: Are They Being Imposed and Who Is Receiving Them?, at 2-3 (November 1993) [hereafter GAO Report]; Justin Brooks & Kimberly Bahna, "It's a Family Affair"--The Incarceration of the American Family: Confronting Legal and Social Issues, 28 U.S.F. L. Rev. 271, 280-81 (1994); Stanley A. Weigel, The Sentencing Reform Act of 1984: A Practical Appraisal, 36 UCLA L. Rev. 83, 104-05 (1988) (showing the rationale behind the legislation as discussed in Sentencing Guidelines for United States Courts, 52 Fed. Reg. 18,045, 18,047-48 (1987)).

(24.) See Craig Reinarman & Harry G. Levine, Crack, in Context: America's Latest Demon Drug, in Crack in America: Demon Drugs and Social Justice 1 (Craig Reinerman & Harry G Levine eds. 1997); see generally Michael Coyle, Race and Class Penalties in Crack Cocaine Sentencing (2003), available at http://www.sentencingproject.org/pdfs/5077.pdf; see also Dorothy Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty, Chapter 4 (1997) (discussing the complicated racial, social, and political dynamics that surround crack cocaine); Human Rights Watch, Punishment and Prejudice: Racial Disparities in the War on Drugs (2000), available at http://www.hrw.org/reports/2000/usa/Rcedrg0005.htm#P323_67487.

(25.) See Michael Pinard, Collateral Consequences of Criminal Convictions: Confronting Issues of Race and Dignity, 85 N.Y.L. Rev. 457 (2010) ("[The] consequences [of a criminal conviction] include ineligibility for public and government-assisted housing, public benefits and various forms of employment, as well as civic exclusions such as ineligibility for jury service and felon disenfranchisement.") Id. at 457; see also Levy-Pounds, Bones, supra note 4; Pew Quantifies the Collateral Costs of Incarceration on the Economic Mobility of Former Inmates, Their Families, and Their Children, The Pew Charitable Trusts (Sept. 28, 2010), available at http://www.pewstates.org/news-room/press-releases/ pew-quantifies-the-collateral-costs-of-incarceration-on-the-economic-mobility-of-former-inmates-their-families-and- their-children-85899371878 ; See also Devah Pager, Marked: Race, Crime, And Finding Work in an Era of Mass Incarceration (2007).

(26.) See Pew Collateral Costs, supra note 24; see also Michael Pinard, Reflections and Perspectives on Reentry and Collateral Consequences, 100 J. Crim L. & Criminology 1213 (2010) (sets forth recommendations on how to create a more reentry-friendly system for the more than 7 million individuals exiting jails and prisons in the U.S. annually as a means of reducing recidivism and providing more humane treatment to those who are reentering society).

(27.) See Levy-Pounds, Bones, supra note 4; see also Michelle Alexander, The New Jim Crow: Mass Incarceration In The Age Of Colorblindness (2010).

(28.) See Levy-Pounds, Bones, supra note 4.

(29.) See generally, Dorothy E. Roberts, The Social and Moral Cost of Mass Incarceration in African-American Communities, 56 Stan. L. Rev. 1271, 1274 (2004); see also Prison Policy Initiative, available at http://www.prisonpolicy.org/graphs/raceinc.html.

(30.) See Levy-Pounds, Bones, supra note 4; see also Michael O'Hear, The 'New Jim Crow' Revisited, Life Sentence Blog, available at http://www.lifesentenceblog.com/?p=5017 ("African-Americans have borne the brunt of the 'war on crime' that was launched in this country in the late 1960's and dramatically escalated in the 1980's--a time period that also happened to coincide with major political backlashes against school desegregation, affirmative action, and other civil-rights initiatives that were intended to dismantle Jim Crow. Indeed, leaders of the same political party led the charge on both fronts, and, as illustrated by the infamous Willie Horton ad, were hardly above playing on racial fears in advancing their 'tough-on-crime' positions. It is understandable that critics might see the mass incarceration of blacks, the related mass disenfranchisement of blacks, disproportionately high stop-and frisk rates for black males, and so forth as something other than merely the incidental byproducts of a crackdown on crime."); see also generally James Forman, Jr., Children, Cops, and Citizenship: Why Conservatives Should Oppose Racial Profiling in Invisible Punishment: The Collateral Consequences Of Mass Imprisonment (Marc Mauer & Meda Chesney-Lind eds., 2002).

(31.) James Forman, Jr., Racial Critiques Of Mass Incarceration: Beyond The New Jim Crow, N.Y.U. L. Rev. 21,31-2 (2012).

(32.) See Craig Reinarman & Harry G. Levine, Crack in Context: America's Latest Demon Drug, in Crack in America: Demon Drugs and Social Justice (U. Cal. Press 1st ed. 1997); see also Dorothy Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty, Chapter 4 (1998); Fellner, supra note 5 ("The drug of principal concern was crack cocaine, erroneously believed to be a drug used primarily by black Americans. The use of cocaine, primarily powder cocaine, had increased in the late 1970s and early 1980s, particularly among whites, but powder cocaine use did not provoke the "orgy of media and political attention" that occurred in the mid-1980s when a cheaper, smokable cocaine in the form of crack appeared."); Human Rights Watch, Punishmsnet and Prejudice: Racial Disparities In The War on Drugs (2000), available at http://www.hrw.org/reports/2000/usa/Rcedrg0005.htm#P323 67487; see generally Levy-Pounds, Frying Pan, supra note 5.

(33.) See generally Reinarman & Levine, supra note 31.

(34.) Id.; see also Leadership Conference On Civil Rights, Justice On Trial: Racial Disparities In Criminal Justice System 13 (arguing that whites used crack cocaine at a higher rate than blacks), available at http://www.civilrights.org/publications/reports/cj/justice.pdf; Editorial, Abiding by the Fair Sentencing Act, N.Y. Times (Apr. 17, 2010), available at http://www.nytimes.eom/2012/04/18/opinion/abiding-by-the-fair-sentencing-act.html?_r=0 ("The majority of crack users are white and Hispanic, but, as the sentencing commission reported, in 2010 blacks made up more than three-fourths of those sentenced under federal crack cocaine laws. Most were low-level offenders. The high number of black defendants and the disparity in treatment of crack versus powdered cocaine led federal sentences for blacks to jump to almost 50 percent higher than for whites in 1990.") [hereafter Abiding by the Fair Sentencing Act],

(35.) See Levy-Pounds, Frying Pan, supra note 5, at 305-06.

(36.) Id.

(37.) See Fellner, supra note 5.

(38.) See Levy-Pounds, Frying Pan, supra note 5.

(39.) See William W. Wilkins Jr. et al., Competing Sentencing Policies in a "War on Drugs" Era, 28 Wake Forest L. Rev. 305, 315 (1993).

(40.) See Levy-Pounds, Frying Pan, supra note 5 (providing an analysis of crack vs. powder cocaine sentencing disparities); see also Sentencing Project, Crack Cocaine Sentencing Policy: Unjustified and Unreasonable 1, available at http://www. sentencingproject.org/Admin/Documents/publications/dpccsentencingpolicy.pdf., see generally Mauer, supra note 17.

(41.) See Levy-Pounds, Frying Pan, supra note 5, at 304 ("The United States Sentencing Commission attempted to remedy this remarkable inconsistency by recommending that Congress make the sentencing terms for crack cocaine and powder cocaine possession more consistent. Despite evidence supporting such revisions, Congress ignored the Commission's recommendation and has failed to close the sentencing gap.").

(42.) Id.; see also Levy-Pounds, Bones, supra note 4.

(43.) Id. at 28 (citing 21 U.S.C. [section] 844 (2000)); see Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207 (1986); see also Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 102 Stat. 4181 (1988) (establishing mandatory minimum penalties for crimes involving drugs and firearms); Am. Bar Ass'n, Justice Kennedy Comm'n, Reports with Recommendations to the ABA House of Delegates (2004), available at http://www.abanet.org/crimjust/kennedy/JusticeKennedyCommissionReportsFinal.pdf (The report revealed that the Anti-Drug Abuse Act made crack cocaine the only drug for which one may face a mandatory minimum sentence for possession); Carrie Johnson, Bill Targets Sentencing Rules for Crack and Powder Cocaine, WASHINGTON POST, Oct. 16, 2009, available at http://artides.washingtonpost.eom/2009-10-16/politics/36838606_1_ powdered-cocaine-crack-cocaine-families-against-mandatory-minimums (Majority Whip Richard J. Durbin commented, "The sentencing disparity between crack and powder cocaine has contributed to the imprisonment of African Americans at six times the rate of whites and to the United States' position as the world's leader in incarcerations. [...] It's time for us to act. [...] Today's sentencing ratio has been in place since 1986, a time when crack cocaine was ravaging inner-city neighborhoods. Academic research has since cast doubt on the assertion that rock cocaine is more addictive and dangerous than the powder."); Drug Policy Alliance Network, Mandatory Minimum Sentences, available at http://www.drugpolicy.org/drugwar/mandatorymin/ ("More than 80 percent of the increase in the federal population from 1985 to 1995 is due to drug convictions ... In 1986, the year Congress enacted federal mandatory drug sentences; the average federal drug sentence for African Americans was 11 percent higher than for whites. Four years later, the average federal drug sentence for African Americans was 49 percent higher."); Human Rights Watch, Racially Disproportionate Drug Arrests (2000), available at http://www.hrw.Org/reports/2000/usa/Rcedrg00-05.htm#P323_67487.

(44.) See Levy-Pounds, Bones, supra note 4.

(45.) Although the Fair Sentencing Act was signed into law by President Obama in 2010, the law was updated in 2012 to apply retroactively to those who committed crimes before the change in the law, but who were sentenced after the law went into effect. See United States Sentencing Commission, Data on Retroactive Application of the Fair Sentencing Act Amendment, available at http://www.ussc.gov/Research and_ Statistics/Federal Sentencing Statistics/FSA Amendment/index.cfm; see also Abiding by the Fair Sentencing Act, supra note 33.

(46.) Id.

(47.) Another aspect of the Fair Sentencing Act that provided a sense

of relief to federal crack cocaine defendants was the Supreme Court's decision to apply the act retroactively to defendants who were not sentenced prior to the enactment of the Act. In Dorsey v. United States, the Supreme Court weighed the intent of Congress in remedying past racial inequity and competing legal authorities in determining whether to apply the Act retroactively to defendants who committed their crimes prior to the Act, but who had not been sentenced at the time if the Act's enactment. In that case, the Supreme Court's 5 to 4 decision to apply the Act retroactively is considered to be a major victory for the untold defendants awaiting sentencing and criminal justice reform advocates. Dorsey v. United States, 132 S. Ct. 2321 (2012),

See generally Brad R. Schlesinger, Criminal Defendants and Sentencing Reform Win Big in Supreme Court Crack Pipeline Case (June 25, 2012), available at http://ivn.us/2012/06/25/criminal-defendants-sentencing-reform-win-big-supreme-courtcrack-pipeline-case- %e2%80%a8%e2%80%a8/; see also Kara Gotsch, The Sentencing Project, Breakthrough in U.S. Drug Sentencing Reform: The Fair Sentencing Act and the Unfinished Reform Agenda 2-5 (2011), available at http://www.sentencingproject.org/doc/dp_WOLA Article.pdf.

(48.) See Levy-Pounds, Frying Pan, supra note 5.

(49.) Under 18 U.SC. [section] 371, conspiracy is defined as: "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both. If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor."

(50.) See Levy-Pounds, Frying Pan, supra note 5; see also Levy-Pounds, Justice, supra note 9.

(51.) See United States v. Booker, 543 U.S. 220 (2005).

(52.) See Levy-Pounds, Frying Pan, supra note 5, at 307-08.

(53.) Id.

(54.) See Dorothy E. Roberts, Criminal Justice and Black Families: The Collateral Damage of Over Enforcement, U.C. Davis L. Rev. 1005, 1017-18 (2001); see also American Civil Liberties Union Et Al., Caught In The Net: The Impact Of Drug Policies On Women And Families, at Exec. Summary (2004), available at http://www.aclu.org/image/asset upload file393_23513.pdf.

(55.) See Mauer, supra note 17; see also Jane L. Froyd, Safety Valve Failure: Low-Level Drug Offenders and the Federal Sentencing Guidelines, 94 Nw. U. L. Rev. 1471, 1490-92 (2000); Susan Phillips & Barbara Bloom, In Whose Best Interest? The Impact of Changing Public Policy on Relatives Caring for Children with Incarcerated Parents in Children With Parents In Prison: Child Welfare Policy, Program, And Practice Issues 63, 64 (Cynthia Seymour & Creasie Finney Hairston eds., 2001).

(56.) See Roberts, supra note 53, at 1017.

(57.) Dorothy E. Roberts, Punishing Drug Addicts who Have Babies: Women of Color, Equality, and the Right of Privacy, 104 Harv. L. Rev. 1419, 1428-32 (1991).

(58.) Id

(59.) Id. at 1431.

(60.) The Sentencing Reform Act of 1984 was established under the Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, 98 Stat. 1976 (1984) (codified as amended in scattered sections of 18 U.S.C. (2000)). The Act authorized the development of the U.S. Sentencing Commission, which then instituted federal sentencing guidelines.

(61.) The Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207, and the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 102 Stat. 4181, established mandatory minimums.

(62.) See Meda Chesney-Lind, Imprisoning Women: The Unintended Victims of Mass Imprisonment in Invisible Punishment: The Collateral Consequences of Mass Imprisonment 79, 80 (Marc Mauer & Meda Chesney-Lind, eds., New Press 2002); see also Levy-Pounds, Frying Pan, supra note 5, at 302-03.

(63.) See Lawrence A. Greenfeld & Tracy L. Snell, U.S. Dep't Of Justice, Special Report: Women Offenders 7-8 (1999), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/wo.pdf; see also Gaskins, supra note 14, at 1533-38.

(64.) See Johnson & Gabel, supra note 22, at 18; see Julie A. Norman, Children of Prisoners in Foster Care in Children Of Incarcerated Parents, at 124; see generally Velma LaPoint, Prison's Effect on the African-American Community, 34 How. L.J. 537, (1991); see also Phyllis Goldfarb, Counting the Drug War's Female Casualties, 6 J. Gender Race & Just. 277, 284-85 (2002); Michelle S. Jacobs, Piercing the Prison Uniform of Invisibility for Black Female Inmates, 94 J. Crim. L. & Criminology 795, 809 (2004).

(65.) Id

(66.) Marcy Viboch, Childhood Loss and Behavioral Problems: Loosening the Links, Vera Institute of Justice, at 3 (2005), available at http:///www.vera.org/ publication_pdf/324_598.pdf.

(67.) Id.

(68.) Id. at 5.

(69.) See Levy-Pounds, Frying Pan, supra note 5; see also Johnson & Gabel, supra note 22; Adoption and Safe Families Act of 1997, 42 U.S.C. [section] 675 (2004) (Under ASFA, states have the right to terminate parental rights if children have been in foster care for 15 of the last 22 months); Ann Farmer, Mothers in Prison Losing All Parental Rights, Women's Enews (June 21, 2002), available at http://www.womensenews.org/ article.cfm/dyn/aid/947.

(70.) See Elizabeth Johnson & Jane Wladfogel, Children of Incarcerated Parents: Cumulative risk and children's living arrangements (July 17, 2002) [hereafter Johnson & Wladfogel]; see also Johnson & Gabel, supra note 22.

(71.) Id.; see also Levy-Pounds, Frying Pan, supra note 5.

(72.) See Clare Huntington, Rights Myopia in Child Welfare, 53 UCLA L. Rev. 637, 661 (2006); see also Sandra Bass, Margie Shields, and Richard Behrman, Children, Families and Foster Care: Analysis and Recommendations, 14 Future of Child 4, 14-15; Viboch, supra note 62 ; Substance Abuse & Mental Health Services Admin., Blending Perspectives and Building Common Ground, A Report to Congress on Substance Abuse and Child Protection 31, 79 (U.S. Dept, of Health & Human Services 1999), available at http://aspe.hhs.gov/HSP/subabuse99/subabuse.htm.

(73.) See Levy-Pounds, Bones, supra note 4; see also Levy-Pounds, Frying Pan, supra note 5.

(74.) See generally Floyd D. Weatherspoon, The Mass Incarceration of African American Males: A Return to Institutionalized Slavery, Oppression, and Disenfranchisement of Constitutional Rights, 13 Tex. Wesleyan L. Rev. 599 (2007); see also Mauer, supra note 17; Rukmalie Jayakody et al., Family Support to Single and Married African American Mothers: The Provision of Financial, Emotional, and Child Care Assistance, 55 J. Marriage & Fam. 261(1993).

(75.) See Mauer, supra note 17.

(76.) See Levy-Pounds, Bones, supra note 4; see also Myrna Raeder, The Forgotten Offender: The Effect of Sentencing Guidelines and Mandatory Minimums on Women and Their Children, 8 Fed. Sent. Rep. 157 (1995).

(77.) See Levy-Pounds, Bones, supra note 4.

(78.) Id.

(79.) See Mauer, supra note 17.

(80.) See, e.g., Liz Rocca, Black Drug Dealers More Likely To Be Arrested, Komonews (Dec. 1, 2003), available at http://www.komonews.com/news/archive/ 4111531.html (showing that the majority of drug users and dealers in Seattle are white, however African-Americans comprise nearly two-thirds of those arrested for dealing drugs); Leadership Conference on Civil Rights, Justice on Trial: Racial Disparities in Criminal Justice System 13-14 (2000), available at http://www. civilrights.org/publications/reports/cj/justice.pdf [hereafter Justice on Trial],

(81.) See Justice on Trial, supra note 79.

(82.) See Beth E. Ritchie, The Social Impact of Mass Incarceration on Women, in Invisible Punishment: The Collateral Consequences Of Mass Imprisonment (Marc Mauer & Meda Chesney-Lind, eds., New Press 2002); see also generally Marc Mauer, et al., Gender and Justice: Women, Drugs, and Sentencing Policy (The Sentencing Project 1999).

(83.) Id.; see Levy-Pounds, Frying Pan, supra note 5.

(84.) See Levy-Pounds, Frying Pan, supra note 5.

(85.) See The International Justice Project The Impact And Implications Of Trauma And Abuse, available at http://www.internationaljusticeproject.org/pdfs/trauma.pdf.

(86.) See Levy-Pounds, Justice, supra note 9.

(87.) See One in 100, supra note 1.

(88.) Id.; See William J. Sabol and Heather Coulture, Prison Inmates at Midyear 2007, Bureau of Justice Statistics Bulletin (2007), available at http://www.ojp.usdoj. gov/bjs/pub/pdf/pim07.pdf.; see also Paul Guerino, Paige M. Harrison, and William J. Sabol, Prisoners in 2010, Bureau of Justice Statistics, available at bjs.ojp.usdoj.gov/content/pub/pdf/p10.pdf.

(89.) Children's Defense Fund, Cradle to Prison Pipeline (Feb. 19, 2009), available at http://www.childrensdefense.org/child-research-data publications/data/cradle-prison-pipeline-summary-report.pdf ("Black children are more than three times as likely as White children to be born into poverty and to be poor, and are four times as likely to live in extreme poverty. One in 3 Latino babies and 3 in 7 Black babies are born into poverty. More than 1 in 4 Latino children and 1 in 3 Black children are poor. Between 2000 and 2007, the number of poor Latino children increased by 960,000 (to 4.5 million) and the number of poor Black children increased by 323,000 (to 3.9 million)."). Id.

(90.) See National Public Radio, Interview with Tom Burrell, author of Brainwashed (March 2010), available at http://www.npr.org/templates/story/story.php?storyId= 124828546 (discussing how negative images of African-Americans lead to brainwashing) ("Longtime adman Tom Burrell argues that the longest-running, most successful propaganda campaign of all time is for black inferiority, from posters that advertised slaves for sale to the New Yorker's radical Obamas cover, unrelenting, powerfully persuasive efforts to promote what he calls the brand of black inferiority."). Id.

(91.) See John Rich, et. al., Healing the Hurt: Trauma-Informed Approaches to the Health of Boys and Young Men of Color 4-5 (Oct. 2009), available at http://pas.fpg.unc.edu/sites/pas.fpg.unc.edu/files/resources/Drexel_HealingtheHurt_Full-R eport.pdf ("Trauma has sometimes been defined solely in reference to circumstances that are outside normal human experience. This definition does not fully encompass the experiences of the young boys and men of color who are the focus of this project. For them, traumatic experiences may become an almost routine part of everyday existence. Besides violence, assault, and other traumatic events, African American and Latino males often experience more subtle and insidious forms of trauma. Their exposure to discrimination, racism, oppression, and poverty is pervasive. When experienced chronically, these events have a cumulative impact that can be fundamentally life-altering. Such traumas are directly related to chronic fear and anxiety, with serious long-term effects on health and other life outcomes for males of color. Yet to be fully developed is an understanding of the multiple ways in which repetitive and multigenerational exposure to violence, oppression, neglect, discrimination, criminalization and poverty can impact individuals and entire communities."). Id.

(92.) Id. at 14-15; See also Erwin Parson, Inner City Children Of Trauma: Urban Violence Traumatic Stress Response Syndrome U-VTS and Therapists' Responses (J.P. Wilson & J.D. Lindy ed., 1994); Erwin Parson, Countertransference in the Treatment of PTSD 13 (1994) ("The concept of PTSD is inadequate to capture and describe the comprehensive nature of violence trauma in inner city children. U-VTS is a new term, which identifies a spectrum of violence-related responses in inner city children. Like PTSD, it occurs as a consequence of threats to a child's life and physical integrity, or of witnessing a person who was seriously harmed or in the process of being seriously injured. Unlike some forms of PTSD, U-VTS is totally "human-engineered.' Violence trauma is injury to the self-structure of the child. Its consequences are often profound and severe.").

(93.) See Christy La Pierre, Mass Media in the White Man's World(1999), available at http://www.stanford.edu/class/e297c/poverty_prejudice/mediarace/mass.htm ("Blacks are still looked upon as inferior, lazy, dumb, and dishonest; either clowns or crooks; professional quacks and thieves without adequate skill and ethics."); see also generally Kimberly K. Barlow, How Media Portray African-American Males, University Times (Nov. 2011), available at http://www.utimes.pitt.edu/?p= 18764; see also Portrayal and Perception: Two Audits of News Media Reporting on African American Men and Boys, available at www.heinz.org/UserFiles/Library/AAMB-MediaReport.pdf (showing that much of the media coverage surrounding African American males is focused on crime).

(94.) See Jacobus tenBroek, Thirteenth Amendment to the Constitution of the United States: Consummation to Abolition and Key to the Fourteenth Amendment, 39 Cal. L. Rev. 171 (1951); see also Alan Bean, "Only a Movement Built on Love": Michelle Alexander at Riverside Church, Friends of Justice (May 23, 2011), available at http://friendso5ustice.wordpress.com/2011/05/23/only-a-movement-built-on-love-canend-mass-incarceration-michelle- alexander-at-riverside-church/; Adam Gopnik, The Caging of America: Why do we Lock Up So Many People?, The New Yorker, Jan. 30, 2012, available at http://www.newyorker.com/arts/critics/atlarge/2012/01/30/120130 cratatlarge gopnik ("The inhumanity of American prisons was as much a theme for Dickens, visiting America in 1842, as the cynicism of American lawyers. His shock when he saw the Eastern State Penitentiary, in Philadelphia--a "model" prison, at the time the most expensive public building ever constructed in the country, where every prisoner was kept in silent, separate confinement--still resonates: I believe that very few men are capable of estimating the immense amount of torture and agony which this dreadful punishment, prolonged for years, inflicts upon the sufferers.... I hold this slow and daily tampering with the mysteries of the brain, to be immeasurably worse than any torture of the body: and because its ghastly signs and tokens are not so palpable to the eye and sense of touch as scars upon the flesh; because its wounds are not upon the surface, and it extorts few cries that human ears can hear; therefore I the more denounce it, as a secret punishment which slumbering humanity is not roused up to stay.... Mass incarceration on a scale almost unexampled in human history is a fundamental fact of our country today--perhaps the fundamental fact, as slavery was the fundamental fact of 1850.").

(95.) See Doug Linder, The Thirteenth Amendment: The Abolition of Slavery, University of Missouri-Kansas City School of Law (2012) available at http://law2.umkc.edu/faculty/projects/ftrials/conlaw/thirteenthamendment.html.

(96.) Id.

(97.) See 13th Amendment to the U.S. constitution: Abolition of Slavery, Our Documents (1865), available at http://www.ourdocuments.gov/doc.php?flash= true&doc=40.

(98.) Id.

(99.) Id.

(100.) See Carissa Byrne Hessick, Race and Gender as Explicit Sentencing Factors, 14 J. Gender Race & Just. 127, 138 (2010) ("Members of Congress, presumably unintentionally, engaged negative racial stereotypes in considering the threat posed by crack cocaine and in determining what steps would be necessary to respond to it.... Although systemic discrimination against blacks was visible in colonial America and the pre-Civil War South, the Civil Rights Act of 1866 eventually prohibited legislation that specified different criminal punishments based on race. This federal statute kept the states from enacting laws that explicitly punished blacks more severely than whites; however, racial discrimination persisted in the administration of criminal laws in the nineteenth and early twentieth century's. Southern states enacted facially race-neutral criminal laws but used them to keep blacks from voting. Disturbing racist comments from this era can be found in criminal trial transcripts and judicial opinions. This trend continued into the twentieth century. Although judges eventually ceased to make comments that would suggest racial bias at sentencing, a number of studies appeared to confirm that black defendants received harsher sentences than whites. Concern over racial inequality helped prompt sentencing reform of the 1970s and 1980s, which gave rise to sentencing guidelines in many jurisdictions. By reducing or eliminating judicial discretion, sentencing guidelines prevent judges from considering a defendant's race when setting a sentence. And modern cases clearly establish that, to the extent a reasonable person might conclude that the defendant's race or national origin influenced the judge's sentencing, that sentence must be vacated and a new sentence (usually by a different judge) must be imposed."); see also Bob Allen, Baptist Minister/Judge Says Incarceration a Moral Issue, Ethics Daily (April 2008, 2008), available at http://www.ethicsdaily.com/baptistminister-judge-says- incarceration-a-moral-issue-cms-12573 (Judge Wendell Griffen, an ordained Baptist minister, has stated that "Baptists should reject 'the wicked notion' that the tendency to commit crimes is linked to race and oppose all forms of racial profiling.").

When examining proportionality issues related to high rates of black male incarceration, this author finds it interesting that the discussion typically centers on whether poverty or racial predisposition to criminality contribute to this phenomenon. Unfortunately, this timeless debate often fails to acknowledge the hidden legacy of the criminal justice system as a means of enslaving, emasculating, and torturing black men and boys.

(101.) See Charles Summer, Charles Sumner: His Complete Works 181 (Boston, Lee & Shephard, 1811-1874), available at http://www.archive.org/stream/charlessumnerhis 11 sumn/charlessumnerhis11sumn_djvu.txt.

(102.) Id. at 182 ("Mr. Sumner withdrew his proposition, which he called a 'suggestion' only, and also 'a sincere effort to contribute as much as he could to improve the proposition in form', but could not resist the appeal of his friend, the Chairman of the Committee. He forbore to press any amendment. Mr. Sumner often regretted that he had not insisted upon a vote on striking out the clause giving implied sanction to slavery or involuntary servitude as 'a punishment for crime'.").

(103.) See generally Douglass Blackmon, Slavery by Another Name: The Re-Enslavement of Black Americans from the Civil War to World War II (2009).

(104.) See 38th Congress 2nd Session Cong. Globe 189 (1865) [hereafter 38th Congress],

(105.) See Scott J. Hammond, Kevin R. Hardwick, and Howard Leslie Lubert, Classics of American Political and Constitutional Thought: Origins Through the Civil War 1122 (2007); see also 38th Congress, supra note 103.

(106.) See 38th Congress, supra note 103.

(107.) See D. Appleton, The American Annual Cyclopaedia and Register of Important Events of the Year 1865, Volume 5, Volume 1865 (1870)(Google eBook) 298, available at books.google.com/books?id=hqEoAAAAYAAJ.

(108.) See Blackmon, supra note 102.

(109.) Id.

(110.) Id.

(111.) Id. ("During slavery, slave owners to some degree tried to protect their slaves from excessive harm or death because of the property interests they held. In the criminal justice system, not only were these prisoners just seen as a number, but they were seen as being inhuman. No one knows for certain how many prisoners died while incarcerated under this brutal and degrading system. In a sense, not many people cared about what happened to inmates, likely because of an underlying assumption that the inmates deserved the plight they were experiencing. Additionally, Black men who were incarcerated were seen as expendable, as there were hundreds of thousands of newly freed slaves to choose from once a prisoner died. In a sense, blacks went from "one hell on earth" to another, largely supported by U.S. laws and upheld by those in control of the criminal justice system."). Id.

(112.) See Phyllis Goldfarb, Counting the Drug War's Female Casualties, 6 J. Gender Race & Just. 277, 284-85 (2002); See also Michelle S. Jacobs, Piercing the Prison Uniform of Invisibility for Black Female Inmates, 94 J. Crim. L. & Criminology 795, 807-11 (2004); Roberts, supra note 28, at 1276 ("Research in several cities reveals that the exit and reentry of inmates is geographically concentrated in the poorest, minority neighborhoods") (citing Todd R. Clear, Dina R. Rose, Elin Waring & Kristen Scully, Coercive Mobility and Crime: A Preliminary Examination of Concentrated Incarceration and Social Disorganization, 20 Just. Q. 33 (2003)); see generally Velma LaPoint, Prison's Effect on the African-American Community, 34 How. L.J. 537 (1991) (discussing the many negative effects borne by those communities which suffer high incarceration rates).

(113.) See Levy-Pounds, Bones, supra note 4.

(114.) See William J. Sabol & Heather Coulture, Prison Inmates at Midyear 2007, Bureau of Justice Statistics Bulletin (2007), available at http://www.ojp.usdoj.gov/ bjs/pub/pdf/pim07.pdf (showing that African-Americans are over-represented amongst the prison population); see also Greg Foresta, Quotas in the Drug War, Pol'y Rev. (May 1, 1996), available at http://www.hoover.org/publications/policyrcvicw/3582966.html; see generally Children's Defense Fund , Cradle to the Prison Pipeline (2007), available at http://www.childrensdefense.org/child-research-data-publications/data/ cradle-prison-pipeline-report-2007-full-lowres.pdf (According to a 2008 Children's Defense Fund Report, entitled Cradle to Prison Pipeline, an African-American boy born in 2001 has a 1 in 3 chance of going to prison during his lifetime. It is both shocking and disturbing to think that a little black boy, before he has had the chance to make decisions about his life and future, has a higher, pre-determined likelihood of entering prison rather than college. Although some may buy into the false notion of African- Americans having a greater propensity to become engaged in criminal activity, the truth of the matter is that a disproportionate rate of African-Americans lives in poverty, compared to their white counterparts in the United States.).

(115.) NAACP Legal Defense and Educational Fund, Inc., Dismantling the School-to-Prison Pipeline, (Oct. 10, 2005), available at http://www.naacpldf.org/ files/case_issue/Dismantling_the_School_to_Prison_Pipeline.pdf ("Historical inequities, such as segregated education, concentrated poverty, and racial disparities in law enforcement, all feed the [school-to-prison] pipeline.").

(116.) See Algernon Austin, Uneven Pain-Unemployment by Metropolitan Area and Race, Economic Policy Institute (June 8, 2010), available at http://www.epi.org/ publication/ib278/.

(117.) See The Parable of Detroit: So Cheap, There's Hope, The Economist (Oct. 22, 2011) , available at www.economist.com/node/21533407 (showing a 50% rate of unemployment amongst working age African-American men).

(118.) See Christine MacDonald, Poll: Crime drives Detroiters out; 40% expect to leave within 5 years, The Detroit News (Oct. 9, 2012), available at http://www.detroitnews.com/article/20121009/METRO01/210090369 ("The survey's author said crime is the biggest obstacle to stemming an exodus that has seen Detroit's population drop to about 700,000. The city lost a quarter of its residents from 2000 to 2010, an average of one every 22 minutes. 'Crime is the pre-eminent challenge facing the residents of Detroit,' said pollster Richard Czuba, Glengariff s president. 'That was a defining element of the survey. It's absolutely the driving factor.' [...] Nearly 58 percent of respondents said crime is their 'biggest daily challenge'. That far surpassed unemployment and the economy at 12.8 percent. The survey suggests that many residents who remain would like to leave but are stuck: More than half, 50.9 percent, say they would live in another city if they could, while 39.9 percent plan to move in the next five years."); see also David Fisher, Detroit Tops the 2012 List Of America's Most Dangerous Cities, Forbes, available at http://www.forbes.com/sites/danielfisher/2012/10/18/detroittops-the-2012-list-of-americas- most-dangerous-cities/("The Motor City tops the list of America's Most Dangerous Cities for the fourth straight year thanks to a stubborn problem mostly with gang-related violence. Violent crimes--murder, rape, robbery and assault--fell 10% last year but are still running five times the national average."). Id.

(119.) See Levy-Pounds, Bones, supra note 4; see also Chris Christoff & Hasan Dudar, Detroit's Core Thrives as Criminals Prey on Neighborhoods, Bloomberg.com (Jul. 18, 2012), available at http://www.bloomberg.com/news/2012-07-18/detroit-s-core-thrivesas-criminals-prey-on- neighborhoods.html ("In 2011, Detroit ranked sixth in property crime among U.S. cities with 300,000 or more residents, according to FBI data-6,144 per 100,000 people. Detroit's 184 homicides as of July 15 compare with 189 at the same time in 2011, according to the city's police department.... Police and neighborhood-watch groups say empty homes are havens for drug trafficking and other crimes. Detroit in 2009 had 125,015 vacant residential lots or vacant houses--about one-quarter of all residential parcels, according to Data Driven Detroit, a nonprofit regional data-analysis firm.") Id.; Press release, Eastern District of Michigan, U.S. Attorney's Office, Fifteen Individuals Indicted in Large-Scale Drug Conspiracy Case, available at http://www.fbi.gov/detroit/press-releases/2012/fifteen-individuals-indicted-in-large-scaledrug-conspiracy-case.

(120.) Pew Center on the States 1 in 31: The Long Reach of American Corrections (March 2009), available at http://www.pewstates.org/uploadedFiles/ PCS_Assets/2009/PSPP_1in31_report_FINAL_WEB_3-26-09.pdf ("1 in 25 adults in Detroit is under correctional control, at an annual cost of nearly 400 million. Further, Detroit accounts for over 75% of the county's correctional population, despite housing 44% of adult residents. The total correctional population in Detroit is about 25,000 individuals, over 10,000 of whom are currently incarcerated. The remainder are on some form of probation or parole.") Id.

(121.) Larry Gabriel, How Corrupt is Detroit?: City has image as one of the most crooked. Numbers tell different story, MetroTimes (March 2010), available at http://metrotimes.com/columns/how-corrupt-is-detroit-1.1285299.

(122.) See The Detroit Riots of 1967, 1967 Riots, available at http://www.67riots.rutgers.edu/d_index.htm (discussing the cause of the five day Detroit uprising that left 43 people dead, 1189 injured, and more than 7,000 individuals arrested) ("The origins of urban unrest in Detroit were rooted in a multitude of political, economic, and social factors including police abuse, lack of affordable housing, urban renewal projects, economic inequality, black militancy, and rapid demographic change."). Id.

(123.) Id.; see also Causes of the 1967 Detroit Riot, National American History Examiner (Aug. 2010), available at http://www.examiner.com/article/causes-of-the-1967-detroit-riot [hereafter Detroit Riot]; Eyes on the Prize: Riots in Detroit, PBS, available at www.pbs.org/wgbh/amex/eyesontheprize/story/13_detroit.html.

(124.) See Detroit Riot, supra note 122.

(125.) Id.

(126.) Id.

(127.) Id.

(128.) See U.S. Census Bureau, State and Country Quick facts (2013), available at http://quickfacts.census.gov/qfd/states/26/2622000.html (showing the population in Detroit to be 706,585 as of 2011).

(129.) See John D. Stoll, Detroit Mayor's New Plan: Sell City Lots for $200, Reuters (March 8, 2012), available at http://www.reuters.com/article/2012/03/08/detroit-mayor-idUSL2E8E80BX20120308; See also David Sands, Hantz Farms Deal, Controversial Land Sale, To Go Before Detroit City Council, Huffington Post, Nov. 19, 2012, available at http://www.huffmgtonpost.eom/2012/11/19/hantz-farms-deal-land-detroitcouncil_n_2159863.html.

(130.) See Leah Platt Bouston, Racial Residential Segregation in American Cities in Oxford Handbook of Urban Economics and Planning, 318,318-339 (Nancy Brooks and Gerrit-Jan Knaap ed., 2011), available at http://www.econ.ucla.edu/lboustan/ research_pdfs/research13_handbook.pdf

(131.) See The Schott Foundation for Public Education, The Urgency of Now: The Schott 50 State Report On Public Education And Black Males 17 (2012), available at www.blackboysreport.org/urgency-of-now.pdf.

(132.) See The PEW Charitable Trusts, State and Consumer Initiatives, Public Safety in Michigan (2013), available at http://www.pewstates/org/research/state-factsheets/public-safety-in-michigan- 85899432646 (referencing PEW 1 in 100 report that shows that Michigan is one of four states that spends more on prisons than on higher education.).

(133.) See Trymaine Lee, Criminal Background Checks Policy Update Forces Employers To Give Fair Shot To Ex-Offenders, Huffington Post, Apr.27, 2012, available at http://www.huffingtonpost.com/2012/04/27/updated-eeoc-policyoffer_n_1459508.html (showing that over 90 percent of employers conduct background checks); see generally Sarah Shannon et al., Growth In The U.S. Ex-Felon And Ex-Prisoner Population, 1948 To 2010 (2011), available at http://paa2011.princeton.edu/papers/111687.

(134.) See Levine, Harry G., et al., Drug Policy Alliance, Targeting Blacks for Marijuana: Possession arrests of African Americans in California, (2010), available at http://www.drugpolicy.org//resource/targeting-blacks-marijuana-possessionarrests-african-americans- california-2004-08 [hereafter Levine Report].

(135.) See Shawn D. Bushway, The Stigma of a Criminal History Record in the Labor Market in Building Violence: How America's Rush to Incarcerate Creates More Violence 142, 144 (John P. May ed., 2000).

(136.) See generally Legal Action Center, After Prison Roadblocks to Reentry: A Report on State Legal Barriers Facing People with Criminal Records, available at http://www.lac.org/roadblocks-to-reentry/main.php?view=state; see also The Pew Center on the States, State of Recidivism: The Revolving Door of America's Prisons, available at http://www.pewtrusts.org/uploadedFiles/wwwpewtrustsorg/ Reports/sentencing_and_corrections/State_Recidivism_Revolving_Door_America_Priso ns%20.pdf (showing that more than four in ten state prisoners recidivate within three years of release).

(137.) Id.; see also Kamela Mallik-Kane & Christy Visher, Health & Prisoner Reentry: How Physical, Mental & Substance abuse Conditions Shape The Process of Reintegration 7 (2008), available at http://www.urban.org/UploadedPDF/ 411617_health_prisoner_reentry.pdf.

(138.) See generally Ryken Grattet et al., Parole Violations and Revocations in California (2008), available at www.ncjrs.gov/pdffilesl/nij/grants/224521.pdf; see also David Fialkoff, Standardizing Parole Violation Sanctions, 273 Nat'l Inst, of Just. 18, 18-24 (2009), available at http://www.nij.gov/journals/263/parole-violation.htm.

(139.) Jordan Segall, Mass Incarceration, Ex-Felon Discrimination, & Black Labor Market Disadvantage, 14 U. Pa. J.L. & Soc. Change 159, 174-175 (2011).

(140.) See NAACP Legal Defense Fund, An Open Letter to Congress: Suspend Federal Bans on Public Assistance (Oct. 26, 2005), available at http://www.drugpolicy.org/docUploads/Katrina_SignOn_102605.pdf; see also Paul Stinson, Restoring Justice: How Congress Can Amend the One-Strike Laws in Federally-Subsidized Public Housing to Ensure Due Process, Avoid Inequity and Combat Crime, 11 Geo. J. Pov. L. & Policy 435,437 (2004).

(141.) See generally James J. Stephan, Bureau of Justice Statistics, State Prison Expenditures, available at http://bjs.ojp.usdoj.gov/content/pub/ascii/spe01.txt.

(142.) See Ronald S. Everett & Deborah Periman, The Governor's Court of Last Resort: An Introduction to Executive Clemency in Alaska, 28 Alaska L. Rev. 57, 95 (2011) (showing the importance of employment in reducing recidivism).
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Author:Levy-Pounds, Nekima
Publication:Journal of Law in Society
Date:Dec 22, 2013
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