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Creating Equality in America’s Judicial System

This proposal suggests ways in which our country could promote equality within the U.S. judicial system.


Big Picture:

America’s judicial system was built upon the promise to administer justice and promote equality. With disparities in sentencing among different races, limited opportunities to rise out of poverty and legislation that works against the freedoms and potentials of countless citizens, the system has clearly failed to deliver this promise.


Operative Definitions:

  1. Recidivism: The rate at which formerly incarcerated individuals commit another crime after the completion of their original sentence.

  2. War on Drugs: A campaign led by the U.S. federal government to reduce the drug trade in the United States.

  3. Civil forfeiture: The process by which law enforcement officials are allowed to take one’s property based on mere suspicion of criminal activity. 

  4. “Just Say No” movement: Launched by President Reagan's wife, Nancy Reagan, in the early 1980s, this campaign encouraged children to reject drugs by simply saying “no.”


Important Facts and Statistics:

  1. One in nine men is likely to serve prison time, but certain races are widely represented in that statistic. The racial breakdown of that ratio is one in 17 white men, one in six Latino men and one in three black men. There is also a major racial disparity between female prisoners: while one in 56 women is likely to serve prison time, one in 111 white women, one in 45 Latina women, and one in 18 Black women serve prison time.

  2. According to The Sentencing Project (based on data from a 2003 Bureau of Justice Statistics Special Report by Thomas Bonczar), people of color account for 67% of the prison population, despite making up only 37% of the U.S. population.

  3. Black men consistently receive harsher sentences for low-level crimes than their white counterparts. According to a U.S. Sentencing Commission report, Black men receive federal sentences that are 20% longer than those that white men receive for the same crimes. Black men are also 75% more likely than white men to face a charge that features a mandatory minimum.


Four-Point Plan:

(1) Stop the abuse of civil forfeiture. A criminal conviction is not required for a person to face forfeiture. While the practice of civil forfeiture was originally implemented to divert resources from large-scale criminal enterprises, it is now notorious for stripping often innocent people of their property. According to previous Supreme Court rulings, it is only constitutionally acceptable to proceed with civil asset forfeiture as a result of the deprivation of money with a clear demonstration of persuasive evidence, as well as undergoing the proper due process. 80% of people facing civil forfeiture have not been charged with a crime. Regaining this property is often an expensive and lengthy process, making justice difficult to achieve. Governments must be barred from seizing the property of those suspected of committing crimes.  By limiting this unjust aspect of the policing sector, the nation can create a more just society.

(2) Create opportunities for ex-convicts. Most often, the biggest obstacle faced by those who finish serving their sentences is reentry into society. Ex-offenders are not taught skills that can be used vocationally upon their release from prison, and as a result, often face the choice between living on the streets or re-entering a life of crime. Governments must encourage businesses to consider ex-offenders for open positions and implement restrictions based on criminal history discrimination. Additionally, training programs and trade school workshops must be readily available at accessible prices for convicts to better prepare them for the workforce, such as through the implementation of on-site job training programs and schooling options.

(3) Reform legislation created during the “War on Drugs” era. The legislation created under Presidents on both sides of the late 1900s political spectrum, from Ronald Reagan to Bill Clinton, disproportionately punished people of color. For example, crack cocaine users, who were usually Black, were often charged with a minimum five-year sentence. However, their white counterparts who typically used the same drug in powder form were hardly punished. White individuals are more likely to deal drugs than Black individuals, but Black individuals are 3.6 times more likely to be arrested for selling drugs. Additionally, Black men are 75% more likely to be charged with federal offenses that carry harsher mandatory minimums than their white counterparts. Such inconsistencies in drug charges demonstrate the need for criminal justice reform that ensures consistent sentencing for citizens, disregarding their racial group. Congress should pass legislation to legalize the purchase and use of marijuana and abolish remaining mandatory minimum sentences for drug offenses. This reform would not only combat the discriminatory effects of the War on Drugs but also decrease government spending on prisons.

(4) Provide fair wages to all. The likelihood of Americans falling into a cycle of crime becomes higher when they are not employed or are living in poverty. Predominantly Black and brown communities, especially those individuals with a criminal background, experience high rates of homelessness. A key factor in the perpetuation of mass incarceration and re-incarceration is the poor health and social instability that comes with a lack of housing. The implementation of an increased minimum wage and mandatory overtime pay for all workers would help ensure a stable food and water supply, safe shelter and increased motivation to work for low-income individuals and would further promote effective community reintegration for ex-offenders.  


Why This Initiative is Important:

Since its inception, the U.S. has been a melting pot of races, religions and cultures. The country has prided itself in its allegiance to the values of liberty, equality and justice. However, as it stands, the American criminal justice system is not a model of these values. By decreasing racial disparities in sentences, the U.S. will ensure that all citizens receive equal opportunities for justice. The U.S. must reduce the prison population and increase funds for community services such as education, rehabilitation programs and treatment centers for those with mental illnesses and substance use disorders.  For those who are incarcerated, the U.S. must increase re-entry opportunities that reduce recidivism rates. By implementing these initiatives, the U.S. will increase public faith in the justice system.


Economic Impact (from our student economist team):

Allowing ex-convicts to reenter the workforce more easily will lead to more economic growth & prosperity. Fair wages will provide more welfare for ex-convicts & without causing unnecessary inflation.


Acknowledgments: 

The opinions expressed in this piece are those of the individual authors, whose information can be found below. The following student(s) worked on this nonpartisan proposal: Anna Engel, Indiana University Bloomington; Shreya Shesadri, Elizabeth Haub School of Law at Pace University; William Duffy, University of Massachusetts Amherst; Anna Birman, College of William and Mary; Paul Samberg, University of Kansas; Katelyn Owens, The Open University; Diego Andrades, University of Southern California; Corina Rueles, University of La Verne. 

The following individuals worked with our student interns and contributed expertise, wisdom and moral support in the development of this proposal: 

  1. Andrea Kupfer Schneider, J.D.: Professor of Law, Marquette University.  Milwaukee, WI.

  2. Benjamin Barton, J.D.: Professor of Law, University of Tennessee. Knoxville, TN.

  3. Pat Nolan, J.D.: Director, American Conservative Union Foundation’s Center for Criminal Justice Reform. Leesburg, VA.

  4. Brian Churchill: Officer-In-Command, LAPD. Los Angeles, CA.

  5. Thomas Datro: Police Sergeant, LAPD; Doctoral Candidate, University of Southern California. Los Angeles, CA.

  6. John Frederick Schuck: Attorney at Law. San Francisco, CA. 

Note: Not all participants agree with every aspect of this proposal. To arrive at a proposal that takes multiple views into account requires compromise and difficult decisions. For individual commentary on this proposal and more details, go to JoinONC.com. We invite you to add your comments as well.


Sources:

Bonczar, Thomas P. “Prevalence of Imprisonment in the U.S. Population, 1974-2001.” Bureau of Justice Statistics (BJS), U.S. Department of Justice, 17 Aug. 2003, www.bjs.gov/index.cfm?ty=pbdetail&iid=836

Crawford, Charles, Ted Chiricos, and Gary Kleck. “Race, Racial Threat, and Sentencing of Habitual Offenders.” Criminology, Vol. 36, 1998: 481-511.

Ingraham, Christopher. “Black men sentenced to more time for committing the exact same crime as a white person, study finds.” The Washington Post, November 16, 2017. https://www.washingtonpost.com/news/wonk/wp/2017/11/16/black-men-sentenced-to-more-time-for-committing-the-exact-same-crime-as-a-white-person-study-finds/

Moss, Stephen. 2019. CLEAR and CONVINCING CIVILITY: APPLYING the CIVIL COMMITMENT STANDARD of PROOF to CIVIL ASSET FORFEITURE.

Skiera, AJ. “Removing Roadblocks to Redemption: How 10 

Steffensmeier, Darrell, Jeffrey Ulmer, and John Kramer. “The Interaction of Race, Gender, and Age in Criminal Sentencing: The Punishment Cost of Being Young, Black, and Male.” Criminology, Vol. 36, 1998: 763-797.

The Sentencing Project. (2023). The Sentencing Project. Retrieved February 23, 2023, from https://www.sentencingproject.org/ 

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