An Insight into the United States’ Mass Incarceration Problem: Reform within the criminal justice system

By: Shivani Patel

Third Place

From racial disparities to economic downfall, mass incarceration has laid the foundation for arguments regarding the American criminal justice system. The role of racism had a profound impact on the issue even before the United States became the leading country. Harsher crime and drug laws like the 1971 War on Drugs initiated by former President Nixon started the surge of incarceration rates.[1] Former President Clinton’s 1994 Crime Bill was another heavy indicator of the high imprisonment rates as it gave incentives for the building of more prisons and established stricter prison sentences.[2] Although states like New York have attempted to create criminal justice reform, dozens of court cases have still been rejected without progression about the harsh laws those incarcerated face. Due to the lack of reform in the justice system, the US currently has the highest incarceration rate at around 1.2 million in state prisons in 2021.[3]

One of the most substantial problems with incarceration is its racist system. According to the National Association for Colored People, an organization focused on supporting civil rights, the incarceration rate for African Americans is six times higher than that of Caucasians for illegal drug usage even when, in 2015, the National Survey on Drug Use and Health found that around 13 million more Caucasians reported using drugs.[4] Sexuality is also another important issue that has been violated with mass incarceration. The Ashely Diamond v. Timothy Ward case filed in 2015 argued that Diamond, a transgender Black woman, was abused in a Georgia Department of Corrections men’s prison simply because she was transgender. Her case includes evidence of 14 sexual assaults in one year, with four being within the span of only three days.[5] The disproportionate number of incarcerated people of color is a direct result of racism and homophobia established within the roots of American society. The presence of racism and homophobia within the justice system has resulted in an increase in racial and sexual bias within society, further tearing America apart.

Moreover, many federal prisons have fallen short on the right of privacy and proper treatment for inmates. The 1979 Bell v. Wolfish case argued that double-bunking and routine searches were unconstitutional and violated the first, fifth, and fourteenth amendments. The court ruled in favor of Bell, which led to the decision that prisons, where inmates were held before their trial, could treat inmates restrictively if necessary.[6] This ruling has caused a decrease in the judicial inspection of cases relating to the treatment of those incarcerated, leading to worse prison conditions.

The perceived notion that mass incarceration decreases crime rates has fueled the mindset of those that believe in its establishment. The Vera Institute of Justice, an organization focused on improving justice systems, gives data to support the claim that mass incarceration has had around a zero percent influence on crime rates since 2000.[7] Instead, data taken from 2007-2017 by the Brennan Center for Justice, an organization run by New York University Law School, showed how the Northeast had a substantial decrease in incarceration, leading to a 30% decline in crime rate.[8] Thus, the proof that incarceration has an inverse effect on the “public good” needs to be instilled into the decision-making process for the US’ efforts to decrease violence.

Another downfall to the US mass incarceration is how children with incarcerated parents face problems, including increased criminal activity, mental illnesses, and financial burdens. Data taken from the US Department of Justice from 2007 showed that Hispanic and Black children are 2.3 and 7.5 times more likely to have at least one parent incarcerated.[9] The 1984 Block v. Rutherford case argued against Los Angeles County Central Jail’s ability to prohibit inmates from seeing their family members, which the court ruled in favor of Block. Although this was a step in the right direction, the court agreed that inmates should only see family members if they are in captivity for more than a month.[10] Furthermore, not seeing loved ones for a month can lead to emotional trauma if the child’s only parent is incarcerated, and the child must start a new life with a different caregiver.

Another issue within the criminal justice system is the disproportionate number of exonerations. According to the Equal Justice Initiative, a legal institution provided to those wrongfully convicted, Blacks comprise 47% of total exonerations even when they only make up 13% of the US population.[11] The highly publicized 2014 Hinton v. Alabama case highlights the social injustice economic grouping, race, and prosecutorial indifference have on a person’s right to have a fair trial. Hinton’s head Attorney, Bryan Stevenson, expressed his concerns by arguing that “The refusal of state prosecutors to re-examine this case despite persuasive and reliable evidence of innocence is disappointing and troubling.” After twelve years of reform within the justice system, the case was granted another trial, and Hinton achieved freedom after 30 years of being on death row just for the assumption that a gun his mother owned was responsible for two murders.[12]

For America to walk forwards, the issue of mass incarceration needs to be considered. Several racist, homophobic, and financial factors determine the imprisonment of those facing criminal records. Even when justice system reform has been attempted in the past, it has failed because of the racist and homophobic roots ingrained in the US’ foundations. Making way for a better nation lies on the decision of what to do about the misfunctioning criminal justice system that is threatening to pull America apart.

NOTES:

1. Britannica, T. Editors of Encyclopedia. "War on Drugs." Encyclopedia Britannica, July 23, 2020. https://www.britannica.com/topic/war-on-drugs.

2. Ofer, Udi. “How the 1994 Crime Bill Fed the Mass Incarceration Crisis.” American Civil Liberties Union, June 4, 2019. https://www.aclu.org/blog/smart-justice/mass-incarceration/how-1994-crime-bill-fed-mass-incarceration-crisis.

3. Nellis, Ashley. “The Color of Justice: Racial and Ethnic Disparity in State Prisons.” The Sentencing Project, October 13, 2021. https://www.sentencingproject.org/publications/color-of-justice-racial-and-ethnic-disparity-in-state-prisons/.

4. “Criminal Justice Fact Sheet.” NAACP. Accessed January 24, 2022. https://naacp.org/resources/criminal-justice-fact-sheet.

5. “Diamond v. Ward, Et Al..” Center for Constitutional Rights, November 23, 2021. https://ccrjustice.org/home/what-we-do/our-cases/diamond-v-ward-et-al.

6. Coles, F S. “Impact of Bell V. Wolfish Upon Prisoner's Rights.” Impact of Bell v. Wolfish Upon Prisoner's Rights | Office of Justice Programs, 1987. https://www.ojp.gov/ncjrs/virtual-library/abstracts/impact-bell-v-wolfish-upon-prisoners-rights. 

7. “Study Finds Increased Incarceration Has Marginal-to-Zero Impact on Crime.” Equal Justice Initiative, August 7, 2017. https://eji.org/news/study-finds-increased-incarceration-does-not-reduce-crime/.

8. Kimble, Cameron, and Ames Grawert. “Between 2007 and 2017, 34 States Reduced Crime and Incarceration in Tandem.” Brennan Center for Justice, August 6, 2019. https://www.brennancenter.org/our-work/analysis-opinion/between-2007-and-2017-34-states-reduced-crime-and-incarceration-tandem.

9. Martin, Eric. “Hidden Consequences: The Impact of Incarceration on Dependent Children.” National Institute of Justice, March 1, 2017. https://nij.ojp.gov/topics/articles/hidden-consequences-impact-incarceration-dependent-children.

10. "Block v. Rutherford." Oyez. Accessed January 23, 2022. https://www.oyez.org/cases/1983/83-317.11.

11. “Wrongful Convictions.” Equal Justice Initiative. Accessed January 24, 2022. https://eji.org/issues/wrongful-convictions/. 

12. “Anthony Ray Hinton.” Equal Justice Initiative. Accessed January 24, 2022. https://eji.org/cases/anthony-ray-hinton/.

Bibliography:

“Anthony Ray Hinton.” Equal Justice Initiative. Accessed January 24, 2022. https://eji.org/cases/anthony-ray-hinton/. 

"Block v. Rutherford." Oyez. Accessed January 23, 2022. https://www.oyez.org/cases/1983/83-317.

Britannica, T. Editors of Encyclopedia. "War on Drugs." Encyclopedia Britannica, July 23, 2020. https://www.britannica.com/topic/war-on-drugs.

Coles, F S. “Impact of Bell V. Wolfish Upon Prisoner's Rights.” Impact of Bell v. Wolfish Upon Prisoner's Rights | Office of Justice Programs, 1987. https://www.ojp.gov/ncjrs/virtual-library/abstracts/impact-bell-v-wolfish-upon-prisoners-rights. 

“Criminal Justice Fact Sheet.” NAACP. Accessed January 24, 2022. https://naacp.org/resources/criminal-justice-fact-sheet. 

“Diamond v. Ward, Et Al..” Center for Constitutional Rights, November 23, 2021. https://ccrjustice.org/home/what-we-do/our-cases/diamond-v-ward-et-al.

Kimble, Cameron, and Ames Grawert. “Between 2007 and 2017, 34 States Reduced Crime and Incarceration in Tandem.” Brennan Center for Justice, August 6, 2019. https://www.brennancenter.org/our-work/analysis-opinion/between-2007-and-2017-34-states-reduced-crime-and-incarceration-tandem.

Martin, Eric. “Hidden Consequences: The Impact of Incarceration on Dependent Children.” National Institute of Justice, March 1, 2017. https://nij.ojp.gov/topics/articles/hidden-consequences-impact-incarceration-dependent-children. 

Nellis, Ashley. “The Color of Justice: Racial and Ethnic Disparity in State Prisons.” The Sentencing Project, October 13, 2021. https://www.sentencingproject.org/publications/color-of-justice-racial-and-ethnic-disparity-in-state-prisons/.

Ofer, Udi. “How the 1994 Crime Bill Fed the Mass Incarceration Crisis.” American Civil Liberties Union, June 4, 2019. https://www.aclu.org/blog/smart-justice/mass-incarceration/how-1994-crime-bill-fed-mass-incarceration-crisis. 

“Study Finds Increased Incarceration Has Marginal-to-Zero Impact on Crime.” Equal Justice Initiative, August 7, 2017. https://eji.org/news/study-finds-increased-incarceration-does-not-reduce-crime/. 

“Wrongful Convictions.” Equal Justice Initiative. Accessed January 24, 2022. https://eji.org/issues/wrongful-convictions/. 

Liberty v. Profit: How Privatization Erodes Justice

By: Kira Small

First Place

Better the Public Good. CoreCivic, the private correctional company to whom that motto belongs, runs the “open dormitories” at the Stewart Detention Center in Lumpkin, Georgia.[1] At least, that’s their technical name. The asylum seekers incarcerated there, including Wilhen Barrientos, know them instead as “The Chicken Coop.” The dorms are filthy and overcrowded, patrolled by guards who withhold products like toothpaste and soap. In a class-action lawsuit filed against CoreCivic in 2018, Barrientos describes how an officer once told him to “use his fingers” after he asked for toilet paper. In order to afford hygienic necessities, as well as artificially expensive phone calls and family visits, he has to work inter alia doing prison maintenance. Refusing the jobs means facing physical punishments and solitary confinement.[2] Barrientos isn’t alone. There are well over 600,000 inmates working full-time in America,[3] where minimum wages for prisoners range from seventy-nine to zero cents an hour.[4]

That sounds like slavery because it is.[5] In 1871, Virginia’s Supreme Court declared inmates to be “slaves of the state,”[6] legitimizing a caveat in the Thirteenth Amendment that abolishes slavery “except as punishment for a crime.”[7] A century later, when War-on-Drugs crackdowns designed to dismantle Black communities[8] provoked an unsustainable influx of prisoners, states began contracting private facilities.[9] As American prisons reach 103 percent capacity, many politicians look to privatization to shoulder even more of that burden.[10]

They shouldn’t. For-profit prisons not only incur higher recidivism rates than public institutions,[11] but they also fund legislation that promotes further imprisonment. Although CoreCivic claims not to “lobby for or against criminal sentencing,”[12] the Justice Policy Institute revealed that private correctional companies spent over 21 million dollars per decade lobbying for longer prison sentences, three-strike laws, and mandatory minimums.[13] When President Obama’s Attorney General promised to reduce private prison use,[14] CoreCivic invested heavily in Donald Trump’s campaign.[15] Upon election, President Trump’s Attorney General rescinded the reform[16] and watched CoreCivic’s stocks skyrocket.[17] The government isn’t its only source of funding; 25 percent of CoreCivic’s annual revenue comes from migrant labor performed by detainees like Barrientos.[18] That profit incentive bastardizes Blackstone’s Ratio: It is better that ten guilty persons escape than that one innocent suffer—unless, of course, that one innocent could boost the bottom line. 

Many downplay the role of for-profit institutions as merely “the camera, not the engine” of mass incarceration.[19] Bell v. Wolfish certainly guaranteed that overcrowding would persist even in the absence of private prisons.[20] However, brushing off privatization’s impact means ignoring the future of mass incarceration. Since 2000, America’s overall prison population has risen 3 percent while its private prison population has increased by more than 32 percent,[21] and private prisons house 81 percent of migrant detainees.[22] Those facilities operate with minimal oversight due to cases like Minneci v. Pollard (2012), in which the Supreme Court granted immunity to employees of private prisons facing lawsuits for violating inmates’ rights.[23] This verdict particularly disadvantaged migrants, whose dual struggle for prison discharge and citizenship already impedes legal recourse.

This judicial trend makes Barrientos’ case all the more groundbreaking. In 2020, the United States Court of Appeals sided with the plaintiffs, holding that private prisons are not exempt from human trafficking laws.[24] However, Barrientos is still detained in the same prison that he testified against as he awaits trial for asylum. On January 11, 2022, the Supreme Court heard the opening arguments for Garland v. Gonzalez, which will determine whether U.S. detention centers are allowed to hold him—or any other migrant—indefinitely.[25] 

Meanwhile, privatization’s hold on America’s immigration system only grows tighter. Last April, President Biden, whose promise to close private federal prisons fell through,[26] signed a 530 million dollar no-bid contract to Endeavors Inc. in exchange for housing over 18,000 migrant children.[27] The nominally “non-profit” organization devoted over half of its revenue to employee salaries in 2018,[27] including six-figure salaries for its top executives.[28] Jessica Corely, the strategic coordinator for several immigration nonprofits in El Paso, reported, “It is for money…we call them ICE 2.0.”[29] Guards have threatened to arrest journalists,[30] a level of secrecy protected by the 1972 Branzburg v. Hayes Supreme Court case, which denied constitutional reportorial privileges.[31] Justice Byron White dismissed protests that the 5-4 decision would curb journalism,[32] but fifty years later, Endeavors proves his assumptions wrong. Complacency towards prisoners’ rights poisons lower courts, too. Long after Hutto v. Finney,[33] a 1978 Supreme Court case that banned solitary confinement lasting longer than thirty days, a district court judge in Nevada ruled that CoreCivic wasn’t responsible for leaving a man in solitary confinement for almost a year.[34] His case illustrates another dangerous hallmark of carceral companies: defunding employee training at the cost of safety.[35][36] The judicial branch, America’s supposed beacon of righteousness, risks losing its authority to profiteering.

As easy as it is to blame elite institutions, they reflect public attitudes. Less than two years after the Black Lives Matter Movement, Long Island University reported that “criminal justice” didn’t crack the top ten most popular voting issues,[37] reaffirming Angela Davis’ belief that mass incarceration receives the “implicit consent of the public.”[37] Buoyed by verdicts that limit journalistic freedom, conventional wisdom preaches that if you are free, you are free not to worry about those behind bars. However, the philosophical pioneers of western law recognize that liberty cannot exist in isolation. Immanuel Kant, who promoted a universal maxim,[39] sought to protect not only individual liberties but the individual humanity upon which moral societies are predicated. Without that humanity, we are susceptible to utilitarian institutions that cement injustice into our most vulnerable communities. Upholding individual liberty means empathizing with strangers, limiting the profit motive, and replacing dollar signs with stories. That's how we reduce mass incarceration. That’s how we “Better the Public Good.”

NOTES:

1. “What CoreCivic Does and Doesn’t Do” CoreCivic, last modified 2021, Accessed January 24, 2022, https://www.corecivic.com/news/what-corecivic-does-and-doesnt-do.

2. “Wilhen Hill Barrientos, Margarito Velazquez Galicia, and Shoaib Ahmed v. CoreCivic, Inc.” United States Middle District of Georgia Columbus Division filed April 17, 2018, https://www.courthousenews.com/wp-content/uploads/2018/04/corecivic-class-action.pdf.

3. Noah Zatz, “Working at the Boundaries of Markets: Prison Labor and the Economic Dimension of Employment Relationships” Vanderbilt Law Review (Vol. 61, No. 07-35, 2008) (December 2007): (pp. 857-958) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1075842.

4. “How much do incarcerated people earn in each state?” Prison Policy Initiative Accessed January 24, 2022, https://www.prisonpolicy.org/blog/2017/04/10/wages/.

5. “How the 13th Amendment exception perpetuates prison slavery” Freedom United December 19, 2022, Accessed January 24, 2022, https://www.freedomunited.org/news/13th-amendment-prison-slavery/.

6. P. Wright “Slaves of the State” Journal of Prisoners on Prisoners (Vol. 6, No. 162920) (1995): (pp. 17-20) https://www.ojp.gov/ncjrs/virtual-library/abstracts/slaves-state.

7. “Constitution of the United States” Constitution Annotated Accessed January 24, 2022, https://constitution.congress.gov/constitution/amendment-13/.

8. “Nixon Adviser Admits War on Drugs Was Designed to Criminalize Black People.” Equal Justice Initiative. March 25, 2016, Accessed January 24, 2022, https://eji.org/news/nixon-war-on-drugs-designed-to-criminalize-black-people/.

9. Lorna Collier, “Incarceration Nation,” American Psychological Association, (Vol 45, No. 9) (October 2014): (p. 56) https://www.apa.org/monitor/2014/10/incarceration.

10. “Since you asked: Just how overcrowded were prisons before the pandemic, and at this time of social distancing, how overcrowded are they now? Prison Policy Initiative Accessed January 24, 2022, https://www.prisonpolicy.org/blog/2020/12/21/overcrowding/#capacity_appendix.

11. “How Private Prison Companies Increase Recidivism” In the Public Interest June 16, 2016, Accessed January 24, 2022, https://www.inthepublicinterest.org/how-private-prison-companies-increase-recidivism/.

12. “What CoreCivic Does and Doesn’t Do” CoreCivic.

13. “Gaming the System: How the Political Strategies of Private Prison Companies Promote Ineffective Incarceration Policies” Justice Policy Institute October 2011, Accessed January 24, 2022, https://justicepolicy.org/research/gaming-the-system-how-the-political-strategies-of-private-prison-companies-promote-ineffective-incarceration-policies/.

14. Sally Yates, “Memorandum for the Acting Director Federal Bureau of Prisons” U.S. Department of Justice August 18, 2016, Accessed January 24, 2022, https://www.justice.gov/archives/opa/file/886311/download.

15. Jasmine Gomez and Pamela Cataldo, “Private Prisons and Political Contributions: How Big Money Shackles Immigration Policy” Free Speech for People (No. 2016-03) (December 2016): (pp. 1-3) https://freespeechforpeople.org/wp-content/uploads/2016/12/Immigration-and-Money-in-Politics-Issue-Report-EN.pdf.pdf.

16. Jefferson B. Sessions, “Memorandum for the Acting Director Federal Bureau of Prisons” U.S. Department of Justice February 21, 2017, Accessed January 24, 2022, https://www.bop.gov/resources/news/pdfs/20170224_doj_memo.pdf.

17. Jeff Sommer, “Trump Immigration Crackdown Is Great for Private Prison Stocks” The New York Times March 10, 2017, Accessed January 24, 2022, https://www.nytimes.com/2017/03/10/your-money/immigrants-prison-stocks.html.

18. Jacqueline Stevens, “One Dollar Par Day: The Slaving Wages of Immigration Jail, From 1943 to Present.” Georgetown Law Review (Vol. 29, Issue 3) (May 2016): (pp. 391-500) https://deportationresearchclinic.org/Stevens-Dollar-Per-Day-GeoILJMay-2016.pdf.

19. Jonathon Booth, “How Private Prisons Profit from Forced Labor” Current Affairs October 26, 2020, Accessed January 24, 2022,  https://www.currentaffairs.org/2020/10/how-private-prisons-profit-from-forced-labor.

20. J. E. Call, “Lower Court Treatment of Jail and Prison Overcrowding Cases: A Second Look” Federal Probation (Vol. 25, Issue 2) (June 1988): (pp. 34-41) https://www.ojp.gov/ncjrs/virtual-library/abstracts/lower-court-treatment-jail-and-prison-overcrowding-cases-second.

21. “Private Prisons in the United States” The Sentencing Project March 3, 2021, Accessed January 24, 2022, https://www.sentencingproject.org/publications/private-prisons-united-states/.

22. “More of the Same: Private Prison Corporations and Immigration Detention Under the Biden Administration” American Civil Liberties Union October 5, 2021, Accessed January 24, 2022, https://www.aclu.org/news/immigrants-rights/more-of-the-same-private-prison-corporations-and-immigration-detention-under-the-biden-administration.

23. “Minecci v. Pollard” Legal Information Institute January 10, 2012, Accessed January 24, 2022, https://www.law.cornell.edu/supremecourt/text/10-1104.

24. “Judgment in Barrientos, Velasquez-Galicia, Ahmed v. CoreCivic Inc.” Business & Human Right Resource Centre February 28, 2020, Accessed January 24, 2022, https://www.business-humanrights.org/en/latest-news/judgment-in-barrientos-velasquez-galicia-ahmed-v-corecivic-inc/.

25. “Garland v. Gonzalez” Legal Information Institute opened January 11, 2022, Accessed January 24, 2022, https://www.law.cornell.edu/supct/cert/20-322.

26. Casey Tolan, “Biden vowed to close federal private prisons, but prison companies are finding loopholes to keep them open” CNN November 12, 2021, Accessed January 24, 2022, https://www.cnn.com/2021/11/12/politics/biden-private-prisons-immigration-detention-centers-invs/index.html.

27. Lachlan Markay, Stef Kight, “Exclusive: Texas nonprofit got massive border contract after hiring Biden official” Axios April 14, 2021, Accessed January 24, 2022, https://www.axios.com/texas-nonprofit-border-contract-biden-official-23a493f4-6779-44f0-a5d4-db8690f11aec.html.

28. Anna Giaritelli, “HHS awarded group with Biden ties $530M no-bid contract to house migrant children” MSN April 13, 2021, Accessed January 24, 2022, https://www.msn.com/en-us/news/us/hhs-awarded-group-with-biden-ties-dollar530m-no-bid-contract-to-house-migrant-children/ar-BB1fCynx.

29. Reyes Mata III, “Nonprofits replaced by single service provider” Albuquerque Journal July 5, 2021, Accessed January 24, 2022, https://www.abqjournal.com/2406657/nonprofits-replaced-by-single-service-provider.html?paperboy=loggedin630am.

30. Reyes Mata III, “Nonprofits replaced by single service provider.”

31. Rodney A. Smolla, “The First Amendment, Journalists, and Sources: A Curious Study in ‘Reverse Federalism’” Washington & Lee University School of Law Scholarly Commons (Vol. 29:4) (March 2008): https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=1443&context=wlufac.

32. Rodney A. Smolla, “The First Amendment, Journalists, and Sources.”

33. “Terrell Don HUTTO et al., Petitioners, v. Robert FINNEY et al.” Legal Information Institute decided June 23, 1978, Accessed January 24, 2022, https://www.law.cornell.edu/supremecourt/text/437/678.

34. Ken Ritter, “US court revives lawsuit against private prison in Nevada” Associated Press May 28, 2021, Accessed January 24, 2022, https://apnews.com/article/nevada-courts-lawsuits-business-government-and-politics-55555c6e282a43c26ed8883b904e60c8.

35. Curtis R. Blakely, “Private and Public Sector Prisons—A Comparison of Select Characteristics” Federal Probation (Vol. 68, No. 1) (June 2004): https://www.uscourts.gov/federal-probation-journal/2004/06/private-and-public-sector-prisons-comparison-select.

36. “Review of the Federal Bureau of Prisons’ Monitoring of Contract Prisons” Office of the Inspector General August 2016, Accessed January 24, 2022,  https://oig.justice.gov/reports/2016/e1606.pdf.

37. “What Issues Matter Most To Voters in 2022 U.S. Mid-Term Elections: Long Island University Hornstein Center National Poll” Long Island University September 16, 2021, Accessed January 24, 2022, http://headlines.liu.edu/wp-content/uploads/2021/09/Long-Island-University-Hornstein-Center-National-Poll-Topline-Press-Release-9-16-2021-WHAT-MATTERS-MOST-TO-VOTERS-IN-MIDTERM-ELECTIONS-POLL1.pdf.

38. Angela Y. Davis Are Prisons Obsolete? (New York, Open Media, 2003) (p. 14) https://collectiveliberation.org/wp-content/uploads/2013/01/Are_Prisons_Obsolete_Angela_Davis.pdf.

39. “Kant’s Moral Philosophy” Stanford Encyclopedia of Philosophy January 21, 2022, Accessed January 24, 2022, https://plato.stanford.edu/entries/kant-moral/.

BIBLIOGRAPHY:

Angela Y. Davis Are Prisons Obsolete? (New York, Open Media, 2003) (p. 14) https://collectiveliberation.org/wp-content/uploads/2013/01/Are_Prisons_Obsolete_Angela_Davis.pdf.

Anna Giaritelli, “HHS awarded group with Biden ties $530M no-bid contract to house migrant children” MSN April 13, 2021, Accessed January 24, 2022, https://www.msn.com/en-us/news/us/hhs-awarded-group-with-biden-ties-dollar530m-no-bid-contract-to-house-migrant-children/ar-BB1fCynx.

Casey Tolan, “Biden vowed to close federal private prisons, but prison companies are finding loopholes to keep them open” CNN November 12, 2021, Accessed January 24, 2022, https://www.cnn.com/2021/11/12/politics/biden-private-prisons-immigration-detention-centers-invs/index.html.

“Constitution of the United States” Constitution Annotated Accessed January 24, 2022, https://constitution.congress.gov/constitution/amendment-13/.

Curtis R. Blakely, “Private and Public Sector Prisons—A Comparison of Select Characteristics” Federal Probation (Vol. 68, No. 1) (June 2004): https://www.uscourts.gov/federal-probation-journal/2004/06/private-and-public-sector-prisons-comparison-select.

“Gaming the System: How the Political Strategies of Private Prison Companies Promote Ineffective Incarceration Policies” Justice Policy Institute October 2011, Accessed January 24, 2022, https://justicepolicy.org/research/gaming-the-system-how-the-political-strategies-of-private-prison-companies-promote-ineffective-incarceration-policies/.

“Garland v. Gonzalez” Legal Information Institute opened January 11, 2022, Accessed January 24, 2022, https://www.law.cornell.edu/supct/cert/20-322.

“How much do incarcerated people earn in each state?” Prison Policy Initiative, Accessed January 24, 2022, https://www.prisonpolicy.org/blog/2017/04/10/wages/.

“How Private Prison Companies Increase Recidivism” In the Public Interest June 16, 2016, Accessed January 24, 2022, https://www.inthepublicinterest.org/how-private-prison-companies-increase-recidivism/.

“How the 13th Amendment exception perpetuates prison slavery” Freedom United December 19, 2022. Accessed January 24, 2022, https://www.freedomunited.org/news/13th-amendment-prison-slavery/.

Jacqueline Stevens, “One Dollar Par Day: The Slaving Wages of Immigration Jail, From 1943 to Present.” Georgetown Law Review (Vol. 29, Issue 3) (May 2016): (pp. 391-500) https://deportationresearchclinic.org/Stevens-Dollar-Per-Day-GeoILJMay-2016.pdf.

Jasmine Gomez and Pamela Cataldo, “Private Prisons and Political Contributions: How Big Money Shackles Immigration Policy” Free Speech for People (No. 2016-03) (December 2016): (pp. 1-3) https://freespeechforpeople.org/wp-content/uploads/2016/12/Immigration-and-Money-in-Politics-Issue-Report-EN.pdf.pdf.

J. E. Call, “Lower Court Treatment of Jail and Prison Overcrowding Cases: A Second Look” Federal Probation (Vol. 25, Issue 2) (June 1988): (pp. 34-41) https://www.ojp.gov/ncjrs/virtual-library/abstracts/lower-court-treatment-jail-and-prison-overcrowding-cases-second.

Jefferson B. Sessions, “Memorandum for the Acting Director Federal Bureau of Prisons” U.S. Department of Justice February 21, 2017, Accessed January 24, 2022, https://www.bop.gov/resources/news/pdfs/20170224_doj_memo.pdf.

Jeff Sommer, “Trump Immigration Crackdown Is Great for Private Prison Stocks” The New York Times March 10, 2017, Accessed January 24, 2022, https://www.nytimes.com/2017/03/10/your-money/immigrants-prison-stocks.html.

Jonathon Booth, “How Private Prisons Profit from Forced Labor” Current Affairs October 26, 2020, Accessed January 24, 2022,  https://www.currentaffairs.org/2020/10/how-private-prisons-profit-from-forced-labor.

“Judgment in Barrientos, Velasquez-Galicia, Ahmed v. CoreCivic Inc.” Business & Human Right Resource Centre February 28, 2020, Accessed January 24, 2022, https://www.business-humanrights.org/en/latest-news/judgment-in-barrientos-velasquez-galicia-ahmed-v-corecivic-inc/.

Lachlan Markay, Stef Kight, “Exclusive: Texas nonprofit got massive border contract after hiring Biden official” Axios April 14, 2021, Accessed January 24, 2022, https://www.axios.com/texas-nonprofit-border-contract-biden-official-23a493f4-6779-44f0-a5d4-db8690f11aec.html.

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Why Predictive Policing Empowers Mass Incarceration in the 21st Century

By: Nadia Chung

2nd place

In a legal system predicated on due process of law and presumption of innocence, choosing expediency over justice inherently threatens individual liberties. This has been the case since the onset of the War on Drugs in the 1970s. It was irrefutably easier to advance a crusade against Black communities than face America’s racially prejudiced underpinnings. Thus, mass incarceration rose swiftly with the creation of policies such as the 1984 Comprehensive Crime Control and Safe Streets Act and the Anti-Drug Abuse Act. [1] The history of mass incarceration spans injustices from the subjugation of minority communities to oppressive laws created to worsen sentencing and prison conditions. Yet perhaps most troubling to citizens’ civil liberties and civil rights is an issue that has surfaced with the 21st century: the incipient use of AI technology to even further expedite an already exploitative system. 

In using algorithms to analyze data of prior crimes as a means to identify targets for police intervention, predictive policing aims to prevent crime by establishing when, where, and by whom future crimes might occur. Police departments use this data and its indication of “hotspots” to determine where to send officers, and often, who the algorithm expects will commit crimes.

Though predictive policing algorithms are frequently defended on the grounds that computers are less prejudiced than humans–and can therefore mitigate some element of bias in determining which areas to police–the reality is that the algorithms amplify systemic biases under a guise of objectivity. Such software relies upon gender, race, socioeconomic status, and location to determine which people or areas meet “the profile of a criminal”. This methodology creates feedback loops that reinforce themselves over time.[2] When police are constantly sent to the same neighborhoods, those will be the neighborhoods where police see crime the most simply because they happen to be present. Thus, the algorithm learns to send more police to those specific neighborhoods. Under-policed regions, in comparison, will not have been policed enough for the algorithm to self-correct or recognize similarities in crime rates. [3] In United States v. Curry, 965 F.3d 313, this disparity was found to both encroach upon Fourth Amendment rights of those who live in hotspots and to further racial bias and profiling in the criminal justice system.” [4] When predictive policing algorithms target marginalized communities in this manner, using this software means encroaching upon both The Equal Protection Clause and the Due Process Clause of the 14th amendment. 

Beyond even their discriminatory impacts, the use of predictive policing threatens to exacerbate mass incarceration because of its inaccuracy. Using the risk scores assigned to 7,000 Floridians, an evaluation of Broward County’s predictive policing algorithm found that “Only 20 percent of the people predicted to commit violent crimes actually went on to do so.”[5] Further, in regards to the tool as a predictor of recidivism, “the algorithm was somewhat more accurate than a coin flip”.[6] Despite the algorithm being statistically wrong approximately as often as it is correct, the tool continues to be used to implicate individuals for crimes and target innocent individuals for arrest. 

In 2011, a Santa Cruz Police Department crime analyst claimed, “The worst-case scenario is that it doesn’t work and we’re no worse off.” [6] Now, however, that sentiment could not be less true. After years of biased algorithms informing police to unjustly target Black and Hispanic communities, predictive policing has effectively normalized the act of racially motivated over-policing. As such, the weaponization of AI has provided an entirely new means of perpetuating mass incarceration. 

If the criminal justice system continues to use predictive policing technology as a crutch to avoid the inconveniences of properly employing resources, prioritizing efficiency over justice, America will find itself once again repeating the tragedies of mass incarceration in the late 20th century. However, a technology powerful enough to oppress, must also have the capacity to mobilize. In Brennan Center for Justice v. NYPD, a Freedom of Information Law request resulted in the NYPD disclosing documents revealing the “mechanics of predictive policing”. [7] Increasing transparency of these algorithms offers a legitimate path to potentially repurposing the software into algorithms that provide insight towards where to allocate rehabilitation and community-based initiatives. Ultimately, it is not the technology itself which impedes individual liberties and threatens a perpetuation of mass incarceration; rather, it is the weaponization of algorithms which undermines the sanctity of the justice system. 

NOTES:

1. Cohen, Andrew, Kim Taylor-Thompson, and Rahsaan “New York” Thomas. “Race, Mass Incarceration, and the Disastrous War on Drugs.” Brennan Center for Justice, May 17, 2021. https://www.brennancenter.org/our-work/analysis-opinion/race-mass-incarceration-and-disastrous-war-drugs. 

2. O'Donnell, Renata M. CHALLENGING RACIST PREDICTIVE POLICING ALGORITHMS UNDER THE EQUAL PROTECTION CLAUSE, n.d. https://www.nyulawreview.org/wp-content/uploads/2019/06/NYULawReview-94-3-ODonnell.pdf. 

3. Ibid.

4. United States v. Curry, 965 F.3d 313 (4th Cir. 2020)(en banc)(8-6 decision)

5. Julia Angwin, Jeff Larson. “Machine Bias.” ProPublica, May 23, 2016. https://www.propublica.org/article/machine-bias-risk-assessments-in-criminal-sentencing. 

6. Goode, Erica. “Sending the Police before There's a Crime.” The New York Times. The New York Times, August 16, 2011. https://www.nytimes.com/2011/08/16/us/16police.html. 

7. “Brennan Center for Justice v. New York Police Department.” Brennan Center for Justice, October 4, 2019. https://www.brennancenter.org/our-work/court-cases/brennan-center-justice-v-new-york-police-department. 

BIBLIOGRAPHY:

“Brennan Center for Justice v. New York Police Department.” Brennan Center for Justice, October 4, 2019. https://www.brennancenter.org/our-work/court-cases/brennan-center-justice-v-new-york-police-department. 

Cohen, Andrew, Kim Taylor-Thompson, and Rahsaan “New York” Thomas. “Race, Mass Incarceration, and the Disastrous War on Drugs.” Brennan Center for Justice, May 17, 2021. https://www.brennancenter.org/our-work/analysis-opinion/race-mass-incarceration-and-disastrous-war-drugs. 

Goode, Erica. “Sending the Police before There's a Crime.” The New York Times. The New York Times, August 16, 2011. https://www.nytimes.com/2011/08/16/us/16police.html. 

Julia Angwin, Jeff Larson. “Machine Bias.” ProPublica, May 23, 2016. https://www.propublica.org/article/machine-bias-risk-assessments-in-criminal-sentencing. 

O'Donnell, Renata M. CHALLENGING RACIST PREDICTIVE POLICING ALGORITHMS UNDER THE EQUAL PROTECTION CLAUSE, n.d. https://www.nyulawreview.org/wp-content/uploads/2019/06/NYULawReview-94-3-ODonnell.pdf. 

United States v. Curry, 965 F.3d 313 (4th Cir. 2020)(en banc)(8-6 decision)