Washblog

There has always been disparity for black people in America in the criminal justice system.  However, the eruption in the size of the prison population over the last thirty years has elevated racial disparity to breathtaking levels.    

The enactment of new crime and drug laws simultaneously increased the supply of and demand for African American prisoners, and was met by increased capacity, as states and the federal government raced to build more and more prisons.  

America is now the world's leading incarcerator. The New Landscape of Imprisonment: Mapping America's Prison Expansion revealed that nationally, the number of state and federal prisoners jumped by more than a million in twenty-five years, rising from 218,000 in 1974 to 1,321,137 in 2000.  

During that time, politicians tripped over themselves enacting "tougher" crime measures.  Bureaucrats did the same, mandating their departments to treat suspects, defendants and offenders in increasingly severe ways.    

Washington State was slower to the "anti-crime and anti-drug" party, but we caught up quickly, as our law enforcement agencies targeted black communities to the exclusion of others and our prosecutors and judges continued charging and sentencing habits reflecting a long-standing Pacific Northwest racial bias.  

But it is not just "the system." I believe our problem is also due to a unique failure of Pacific Northwest institutions, which, in other parts of the country, would more energetically confront and fight against our racist status quo.    

The objective data is so clear and overwhelming that there is no other possible conclusion.  Squarely put, in the public business of policing and incarcerating, Washington State is one of the leading racist states in America.

This paper will deal with the manifestation of disparity.  Specifically, the difference in the institutional treatment one group gets relative to their percentage of the overall population when the behavior - in this case, committing crime - is relatively the same.

Nationally, 38 percent of those being sent to prison for drug offenses are black even though African-Americans constitute only 13% of America's population - a disparity margin of twenty-five points.    

But in Washington State, even though blacks constitute only three percent of our state's population, 51 percent of all people sent to Washington State prisons for drug offenses are black - a disparity margin of forty-eight points!   In this regard we lead 47 other states by staggering margins and unless we change course, we will run away with first place in just a few years.  We rank only behind New Hampshire and New Jersey, which have racial disparity rates of 61% and at 52%, respectively.  

By contrast, Georgia tallies in at 33%, Mississippi at 32%, Alabama at 31% and Missouri at 26%.  These are the facts.  You get the idea.  Washington State is literally lapping states with a legacy for institutional racism.  

Along with Kansas, Montana, Nebraska, New Hampshire, Oregon, Rhode Island, South Dakota, Utah, Wisconsin, and Wyoming, Washington State is part of an elite club - states where the black percentage of the prison population is more than six times greater than the black percentage of that state's population.  

To me, this suggests several things.  

First, in states where African-Americans constitute so small of a percentage of the total population that they are not deeply woven into the management fabric of the police, the judiciary and municipal, county and state legislatures and corrections systems, institutional racism runs almost uncontested.      

It also suggests that Pacific Northwest whites have largely not been forced to come to an honest ethical or moral grip with the dysfunction that racism creates within our regional culture as has the South or big cities elsewhere in the country.    

As well, it suggests that traditional African-American institutions in those states like the black church or traditional mainline black civil rights organizations have become passe and lost sight of their historic role in furthering civil rights.    

A strange variation of NIMBY (Not In My Back Yard) could also be at play.  Well educated and otherwise affluent blacks that moved out of the central city to "suburbs" (or those who move to the burbs coming from other states) suddenly no longer finding themselves in an environment where drug enforcement operations are concentrated may have lost sight of - and their fire for - fighting oppressive systemic racism in the city's core.  

For them, once "safely" ensconced in the "burbs." oppressive policing and incarceration is NIMBY - "not in 'my' back yard."  Out of sight - out of mind.  Why worry about it?    

Also, due to segregation patterns and the comparably small numbers of Washington State blacks, most Pacific Northwest whites have not grown up with African-Americans.      

Studies show that a segregated upbringing builds a visceral fear of African-Americans that causes whites to render harsher judgment when blacks stand before them in situations where whites hold all the power to judge and sanction.  

It has been said that fear is the absence of the capacity to love and experience broad human empathy.  That many Pacific Northwest whites grow up with this fear does not make them bigots or prejudiced - but it does make them prone to contribute to racist results when they grow up and begin to obtain power.  

As a result of this fear, African Americans experience racially disparate treatment very early in Pacific Northwest institutions - from schooling to policing to legislating to judging to incarcerating.  

For instance, a 2001 Seattle Public Schools study showed that African American children are twice as likely to face discipline and three times as likely to be expelled than white students for exactly the same offenses in exactly the same situations.  

Subjective factors, where the bias of fear intrudes, such as disruptive conduct (29%), disobedience (17%) and rule breaking (7%) made up over half of the disciplinary proceedings.

Objective research from the 2005 Sentencing Guidelines Commission report entitled Disproportionality and Disparity in Juvenile Sentencing shows corresponding disparate treatment of African-American youth in our Juvenile Justice systems, stating, "African American youth are 3.89% of Washington's juvenile population but they received 13.1% of all juvenile dispositions."

Our state juvenile systems send African American children off to be tried as adults at a rate that is 645% of their respective percentage of the population, while sending white children to be tried as adults at 79% of their proportion of the population.    

Our juvenile justice system and drug penalties are designed, as a juvenile justice authority manager told me, "to put young African-American men in jail."              

When Northwest African-Americans encounter police, the criminal justice system and the corrections system, Richard Pryor's dark ironic humor said it best.  

"Go in there looking for justice," Pryor joked, "and that's all you'll find - just 'us' (blacks)."

Research suggests that Washington State blacks do not consume drugs or commit drug-related violent crimes out of proportion to their percentage of the population.  

A 2002 Brandeis University published in the March 2002 issue of The American Journal of Public Health showed that disadvantaged neighborhoods do not have a higher rate of addiction problems than other areas.  

The 2001 National Household Survey on Drug Abuse survey showed that blacks and whites use illicit drugs in nearly identical percentages, with 6.8 percent of whites using illegal drugs in the last month versus 6.9 percent of blacks.  

In fact, specific to Washington State, a 2002 survey by the Washington State Department of Social and Health Services (Alcohol, Tobacco and Other Drug Abuse Trends in Washington State) showed that blacks run consistently behind whites with respect to abusing alcohol, marijuana or hard drugs.      

And let's deal directly with the "crack question."  By last measure, ninety percent of federal crack cocaine defendants were black.  However, the U.S. Sentencing Commission also estimated that 65 percent of crack users are white.  

Further, the Brandeis study, based on a survey of 42,000 people in 2,100 neighborhoods, also states "most of the addiction-related harm in poor areas originates with drug users who come in from other areas."            

So, the argument that blacks consume more drugs or commit drug-related crime in proportion to documented disparities in arrests and incarceration is a comfort inducing myth - an ongoing individual and institutional cognitive dissonance that allows us to escape our complicity in maintaining our state's kinetic immorality.

The Brandeis study also revealed that visible drug sales are 6.3 times higher in the "most disadvantaged" neighborhoods than in the "least disadvantaged" communities and that drug control initiatives, including law enforcement, usually target "poor areas" despite the fact that illicit drug use extends into all communities.      

This is racist, but it is rational.  After all, when given the charge to wage a "war", where should police enjoin the "battle?"  

In affluent suburbs where regardless of race, people comfortably smoke their crack, snort their powdered cocaine, ingest their methamphetamines, ecstasy and marijuana safely cloistered inside their houses and condominiums?  

Or should they target the "poor" areas cited in the Brandeis University survey, where transactions are frequently done out in the open?  It is much easier to arrest people, especially with "buy and bust" techniques, if you can do so out in the open.    

Obviously, this selective law enforcement breeds corrupt law enforcement behavior.  As recent news has shown, Seattle police officers fabricate evidence in order to make their drug cases stick.  

Class and race based law enforcement is inherently unethical and immoral.  It stands to reason that it would create unethical and immoral behavior from those who enforce it.  

In 2001, in the City of Seattle, 2181 blacks (51.9% of total drug arrests for that year) were arrested and prosecuted for drug offenses although African-Americans are only 8.4% of Seattle's population.  Contrast that with 1,798 arrests of whites (42.7% of the total drug arrests for the year) that constitute 73% of Seattle's population.

Specific to the judicial system, the 2001 report titled "Equity and Representation in Washington State: An Assessment of Disproportionality and Disparity in Felony Sentencing" prepared by the Washington State Sentencing Guidelines Commission, revealed that in King County, African-American males were sentenced to prison for drugs at a rate almost twenty-five times higher than white males.  Same crime - more time.

African-American women fared a bit better - they received drug related prison sentences at a rate twenty times higher than that for white women.  Same crime - more time.  

The report also revealed that of all sentences received by King County African-American men and women, respectively, 45.4% and 46.5% of the sentences were for drugs.  

In fact, drug-related prison sentences have actually made a significant dent in the overall African-American population of King County.  We imprison 237 of every 10,000 King County African-Americans over drug charges versus just under ten of every 10,000 King County whites.  

As a result, well over ten percent of King County African-Americans are serving drug-related prison sentences versus one half of one percent of whites.  

This is a national trend, not an aberration.    

Thirteen counties in America's 10 most populous states (Texas, Florida, California, New York, Michigan, Georgia, Illinois, Ohio, Colorado, and Missouri) have incarcerated 20 percent or more of the resident population as of 2000.  Each of these states had least five counties where 5 percent or more of the population was imprisoned.

In these times of shrinking government resources and the looming budget cuts they certainly presage, both rural and urban African Americans, as well as anyone interested in moral public policy, should be particular alarmed at these incarceration-driven population shifts, especially since the prison construction boom has been in non-metro areas.  

According to the U.S. General Accounting Office (2003), the federal government distributes over $140 billion in grant money to state and local governments through formula-based grants.

Formula grant money is in part allocated on census data, covering programs such as Medicaid, Foster Care, Adoption Assistance, and Social Services Block Grant (U.S. General Accounting Office 2003).

The census population count drives state allocations for all community health services, road construction and repair, public housing, local law enforcement, and public libraries.    

As public money is allocated to a "prison community," it cannot then go to benefit the home county of the prisoners populating the prison, counties that frequently contain America's most disadvantaged urban areas.  

According to the Landscape study, "Cook County, Illinois will lose nearly $88 million in federal benefits over the next decade because residents were counted in the 2000 Census in their county of incarceration rather than their county of origin (Duggan 2000).

Losing funds from the "relocation" of prisoners is also an issue for New York City, as two-thirds of state prisoners are from New York City, while 91 percent of its' prisoners are incarcerated in upstate counties (Wagner 2002a).

Federal resources will surely contract over the upcoming years, and as they do, perversely, "incarcerator counties" will receive a larger share of the dwindling federal resources and the metro counties where the offenders come from will receive less - all due to shifting population by shifting prisoners around.

Sending prisoners far away from where they used to live has also become a method for increasing the impact of incarceration.  

In a growing number of states, corrections departments, at the behest of politicians and courts, actively promote the fact that offenders will serve their time far away so as to cut off visits from family and friends simply due to distance and the expense of traveling.

In addition to the expense, the additional psychological stress of trying to maintain a semblance of family structure over vast distances once again disproportionately impacts poor people and people of color, especially the children of the incarcerated.

The only time African-Americans fall behind in Washington State as far as drug offenses go is in provisions that show some measure of grace to those convicted of drug offenses - most notably, the First Time Offender Waiver (FTOW) provision.    

This FTOW provides for county jail time of up to 90 days and community custody of up to two years as opposed to more serious incarceration in state prison.  

According to the report, "Caucasian men and women receive sentences under the FTOW at the highest rates."  Of every 1,000 eligible whites, 303 (30.3%) receive this more lenient sentence versus 233 (23.3%) of every 1,000 eligible African-Americans.

In Washington State, virtually every aspect of the criminal justice system delivers stratospheric severity and miserly doses of mercy and grace for its black citizens.

The Washington State Sentencing Guidelines Commission study I cite above also states, "Reviews of studies published since 1975, as well as more recently published sentencing studies, indicate that there is a racial disadvantage for young African American and Hispanic males in decisions regarding incarceration."  

Washington State African Americans are sentenced to life in prison at a rate more than six times higher than for white offenders who commit the same crimes.  Same crime - more time.

According to the Washington State study, "Young African American males receive the most severe sentences of any other category of offenders (Spohn and Holleran, 2000; Petersilia and Turner, 1985), they are more likely to be sentenced to prison (Miethe and Moore, 1985) and they are more likely to be sentenced and incarcerated for drug offenses (Mauer and Huling, 1995; Tonry, 1994)."

Alongside drug sentences, "Three Strikes" offenses are perhaps the most objective example of notorious racial disparity in Washington State.

Under "Three-Strikes," African Americans are sentenced to life in prison with no possibility of parole at a rate nearly 19 times higher than for white offenders.  Same crime - more time.

The most frequently used "third strike" is robbery 2 - an offense that does not involve injuries to innocent bystanders or brandishing a weapon, but nevertheless triggers an automatic life sentence with no possibility of parole for those convicted with two prior felony convictions.

Shoplift an eight-dollar sweatshirt, bump into a security guard on your way out of the store or shout out a threat of any sort and you are guilty of robbery 2 or perhaps assault 2. A judge has no option but to sentence you to life in prison with no possibility of parole under the Three Strikes provisions.

While the average range of sentencing for a robbery 2 or assault 2 is three to seven years, Three Strikes commits robbery or assault 2 defendants to jail until they die - far past their crime prone years and into advanced age, where they are far more expensive to warehouse due to illnesses.

According to Washington State's Sentencing Guidelines Commission 2007 report, King County African Americans received 23 percent of all Three Strikes life sentences even though they are only three percent of the population.

King County African Americans received 56 percent of Robbery 2 and Assault 2 three strikes convictions and 75% of the Third Strike convictions for Burglary 1.

"Three Strikes" was brought into law as a citizen's initiative under cover of a massive advertising campaign funded from out of state interests. The campaign promised to protect Washington State residents from the "worst of the worst" violent offenders.

Instead, the largest percentage of offenders who have "struck out" did so through committing crimes in the least serious quartile of offenses - nearly all of their crimes brought on by drug addiction.

This is because the original backers of Initiative 593 hid the fact that the initiative contained minor offenses (robbery 2 and assault 2) from the very beginning, focusing their television and radio messaging exclusively on the violent strike offenses.

As a result, shoplifters, drug users and beer guzzlers caught in a garden variety bar fight are serving the same sentence as Washington's notorious Green River killer, who slaughtered untold numbers of people for pleasure.

Where is the "proportionality" of crime to punishment, which is required by Washington State law, in that

In throwing out Three Strikes, offenders do not escape punishment altogether, they would merely have a prospect of release depending on their crime.  

The racial and class disparity inherent in Three Strikes is exceptionally expensive for Washington taxpayers.  For example, keeping Robbery 2 and Assault 2 as applicable "strikes" has committed $27 million to the cost of incarceration in Washington State.

Put another way, over the life on the Three Strikes provision, had we instead allowed judges to sentence defendants to sentences already on the books for Robbery 2 and Assault 2, we would have another $27 million in our treasury and that is just retroactive savings, exclusive of the costs for these prisoners as they age and begin to suffer from age-related chronic diseases.

Back to the total perspective on incarceration, the average cost of imprisonment in Washington is $29,055 per annum for each prisoner and ranges as high as $49,000 at one prison and between $34,000 and $36,000 at Washington's two largest prisons (MCC and WSP).

Over the time it takes for your kids to enter and graduate high school, we will spend over two billion dollars to incarcerate the current population of Washington's prisons, assuming no growth.      

In terms of reentry and transition, over 42,000 people are on some form of probation under the DOC's Community Corrections Division.  

Absent proven re-entry models, over 66% of them will recidivate and return to prison and each time that happens, we begin spending another $29,000 per year per inmate.  

The Washington Caseload Forecast Council estimates that our incarceration rate will increase 23 percent by 2019, just eleven years from now.  Unless we change course, we will need at least two more state prisons by then and a third by 2030.  In today's dollars, these would cost $750 million to build and $135 million per year to operate.  

This means Washington State citizens will continue to pay more for a problem that is becoming less severe.  In 1980, Washington taxpayers spent $590 per household on the criminal justice system.  Now, we spend $1130 per household, a 92% increase.  Over that same period of time, violent and property crimes are down 26%.  

Our wars abroad are arguably fiscal and moral disasters and so too, are our wars of incarceration on our own citizens, particularly the collateral damage inflicted on our state's African Americans and people of minimal education and income.

With Washington State firmly in the grip of an economic slowdown and state revenues drying up, we should not kid ourselves.  The recession, with the attendant cuts in state and local human resource spending, certainly spur more robbery 2 offenses.

As people on the margins become more desperate and hopeless, drug abuse will certainly increase. If there was ever a time to turn the cycle of imprisonment towards a cycle of healing and common sense, that time is now.

Our prison space is a finite and expensive resource so we should use lengthy incarceration to protect us from the truly violent and incorrigible - not to nurse our irrational fears, insecurities and desire for revenge by scooping up as many poor people as we can.

The wider Pacific Northwest social justice community must become more engaged, including more African-American institutions and individuals.

Most citizens of Washington State, given a clear choice, would not opt for our current racist system of selective policing and hyper-incarceration of our state's African-American citizens.

However, county and state legislators and executives virtually all seem to be too afraid of being perceived as "soft on crime" to repeal or reform laws that exacerbate the racial bias inherent in our addiction to hyper incarceration.

However, state and local governments derive their moral legitimacy and power from all of the people and function with our permission as citizens.

The fear that paralyzes them - and the terrible social result this fear causes - is inescapably our collective responsibility. I call on you to act to end this dreadful systematic racist oppression. If you don't, far be it from me to say that you are racist. But based on our principles of citizenship, if you do not act for change, it certainly makes you a knowing participant - and apparently a willing one - in our state's fundamentally racist system.