The statistics are shocking. Human Rights Watch reported in 2000 that in seven states 80 to 90 percent of those sent to prison for drug offenses were African American. ¹ In at least fifteen states African Americans were sent to prison from twenty to fifty-seven times as often as white men. In 2000 twenty-six times as many African Americans were sent to prison for drug offenses as in 1983. Likewise the number of Latinos sent to prison increased by 22 times between 1983 and 2000. While the majority of drug users and drug dealers in this country are white over three quarters of those sent to prison are African American and Latino.

In another study published in 2000 white students used cocaine seven times as often as African American students, used crack eight times as often, and used heroin seven times as often. White youth between 12 and 17 are a third more likely to have sold illegal drugs than African American youth. Yet African American Americans are more likely to be prosecuted, convicted and imprisoned.

Among youth who have never been sent to prison, African American are more than six times as likely to be sent to prison for identical crimes. African Americans account for 16 per cent of all youth, 28 per cent of juvenile arrests, 35 per cent of juveniles tried in adult court and 58 per cent of juveniles sent to adult prisons.

Approximately 90 per cent of those sent to prison for drug crimes in Illinois are African American and 55 per cent of the African American men in Chicago have felony records. Nationwide one in three young African American men are either in prison or jail or on parole or probation.

Alexander says that the mass incarceration of the last thirty years serves the same function of racial control that slavery and Jim Crow held for prior generations. While it is no longer acceptable to openly express racist ideas, But the vast difference in drug arrests, prosecutions, and convictions between Whites and minority, despite evidence that Whites violate the law at least as often as African Americans and Latinos can leave no doubt that racism plays an important role in our criminal justice system.

While the laws appear to be colorblind, Alexander points out the tremendous degree of discretion granted to police and district attorneys in deciding which cases to arrest and prosecute. Recently there have been articles in press regarding the large database of citizens in New York City who have been stopped and who have either been frisked or consented to searches, some leading to arrest. The vast majority are African American or Latino. Consent searches or incidents where officers “stop and frisk” citizens happen nationwide. Despite the tremendous invasion of privacy that occurs when officers stop an individual without probable cause and often even without a reasonable suspicion, “consent” searches occur regularly and the police have the discretion to decide who to stop, search and frisk. The vast majority of times it is a young African American male who is stopped and searched. It is this discretion on who to stop and who to search that leads to the extraordinary increase in the number of African Americans who are incarcerated as part of the War on Drugs.

The lifelong effect of these convictions, as pointed out by Alexander is overwhelming. Once convicted of a felony the person can not get public housing or governmental benefits. They are unlikely to be able to get a job or schooling. Furthermore while incarcerated they learn skills to use in future crimes. The inability to get jobs affects their families and future generations.

Generally an inmate or a person on parole or probation must use a writ of habeas corpus to challenge their confinement or conditions limiting their freedom. The rules regarding the ability to file a writ of habeas corpus in Federal Court are complicated. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) set up a number of rules limiting the ability to file writs of habeas corpus in Federal Court.

One of the rules prohibits people from filing “second or successive” petitions. In Restucci v. Bender the First Circuit Court of Appeals found that the rule does not apply to petitions alleging deprivations of liberty which could not have been challenged in earlier petitions. William Restucci was convicted of voluntary manslaughter in 1995. This is his third petition for a writ of habeas corpus. In his first writ he challenged the constitutionality of the statute under which he was convicted. The Court considered the writ on its merits and denied it. In his second writ he challenged the competence of his counsel The Court rejected the writ because it was a “Second or Successive” writ in that the issue could have been considered in the earlier writ. Now he has petitioned to be allowed to file a “Second or Successive” writ in order to challenge the denial of parole.

The First Circuit denied the petition, last week, as being unnecessary. Since the denial of parole came after the denial of his previous writs it could not have been considered in either of the previous petitions. As a result, under the AEDPA, it is not necessary for Restucci to file a petition prior to filing his writ of habeas corpus challenging the denial of parole.

The Ninth Circuit Court of Appeals ruled that Washington’s law banning felons from voting violated the Voting Rights Acts since the criminal justice system is racist and tends to search, arrest and convict African Americans in a greater number than their proportion of the state’s population.

In Farrakhan et al v. Gegroire et al that the racist nature of the state’s criminal justice system was the only possible reason for the high percentage of African Americans arrest and convicted of crimes in Washington.

The Court stated that Congress passed the Act for the “broad remedial purpose of ridding the country of racial discrimination in voting” as part of its duty to enforce Section Two of the Fifteenth Amendment. Section 2(a) of the Act as it is currently amended states:

No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a
manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color . . . .

The plaintiffs, all parolees, provided “compelling” by expert witnesses that:

the racial disparities in the state’s criminal justice system cannot be explained by “legitimate” factors, such as racial minorities’ higher level of involvement in criminal activity. . . evidence of “unwarranted” racial disparities in the rates of vehicle searches, . . . and “observable racial differences” in the processing of criminal cases (e.g., charging and bail recommendations, lengths of confinement, and alternative sentencing) . . .

Among the findings of the experts is that

African Americans in Washington State were over nine times more likely to be in prison than Whites, even though the ratio of Black to White arrest for violent offenses was only 3.72:1, suggesting that substantially more than one half of Washington State’s racial disproportionality in its criminal justice system cannot be explained by higher levels of criminal involvement as measured by violent crime arrest statistics. A
study of the Washington State Patrol shows that Native Americans were more than twice as likely to be searched as Whites; African Americans were more than 70 percent more likely to be searched than Whites; and Latinos were more than 50 percent more likely to be searched. A study of the Vancouver, Washington Police Department (“VPD”) indicated that of those stopped for traffic violations by the VPD, African Americans are nearly twice as likely to be searched as Whites, and Latino were three times more likely to be searched. This,despite the fact that searches of Whites more frequently resulted in the seizure of contraband than searches of African
Americans and Latinos.

The witnesses also proved that “blacks and Latinos are overrepresented, and whites underrepresented, among Seattle’s drug arrestees,” and that “the organizational practices that produce these disparities” — specifically, the police’s focus on crack cocaine, on outdoor drug activity, and on the downtown area — “are not explicable in race neutral terms.”

The effect of racism in the criminal justice system is that more African Americans, Latinos and American Indians are denied the right to vote and therefore the law banning felons from voting violates the Voting Rights Acts and therefore the law banning felons from voting is void.

The decision creates a split in the circuits and Washington officials have announced their intention to appeal the decision.

California Governor Arnold Schwarzenegger upheld a State Board of Parole Hearings decision releasing Deborah Peagler from prison. Peagler was serving a 25 year to life sentence for the murder of an abusive boy friend. She has lung cancer and according to doctors she has only months to live.

California rarely grants parole to inmates with life sentences. According to UC Berkeley Law Professor and associate dean of the campus’s Jurisprudence and Social Policy program Jonathan Simon there are currently approximately 30,000 “lifers” such as Peagler in California prison but on the average only five are released each year and 1000 more are sentenced to indeterminate life sentences each year.

In 1982 Peagler lured her boyfriend, Oliver Wilson, to a park where two men killed him. Wilson beat Peagler with a bull whip and forced her into prostitution. He repeatedly raped her a few days before he was murdered and he sexually abused her six year old daughter.

Peagler’s release is over the opposition of the Los Angeles District Attorney’s office which points out the Peagler’s testimony has been inconsistent in regard to the abuse and to whether or not she knew that the men were going to kill Wilson. Furthermore they point out that Peagler had other reasons for wanting to see Wilson dead. She was jealous about Wilson’s new girl friend and she was the beneficiary on Wilson’s life insurance policy.

The men who killed Wilson are still serving 25 to life sentences.

California courts have again, in In re Lazor, reminded the California Board of Parole Hearings (Board) of the requirement that it must either set a date for the release of an inmate sentenced to an indeterminate period or it must find that one of the statutory factors related to suitability provides some evidence that the inmate remains a danger to society.

In re Lazor, like many of the cases coming before the courts in recent months relates to a case that was heard before the Board prior to the California Supreme Court decisions in In re Shaputis and In re Lawrence In Lawrence and Shaputis the Court explained the “some evidence rule.” Prior to Lawrence and Shaputis all the Board had to do was show that there was some evidence that one of the factors related to release of a prisoner existed. But as Lawrence and Shaputis made clear the Board must show that some evidence of the factor exists and that it indicates that the prisoner if released will be a danger to society.

Thus the Superior Courts and the Courts of Appeal are reviewing many of the Board’s decisions made prior to Lawrence and Shaputis on writs of habeas corpus and sending them back for rehearings in cases where the Board did not relate the suitability factors to a claim of current dangerousness to society.

In In re Lazor, decided by the Board on February 23, 2006, it merely pointed out several suitability factors related to release without stated whether it was relying upon the factors to determine that Lazor remained a danger to society. Perhaps, chief among these was the nature of the crime. The Superior Court in deciding the original writ of habeas corpus reviewed the trial transcript and found that as murders go, Lazor’s may have had an imperfect self defense claim that was not sufficient to justify his acts but which was not particularly horrendous. The appellate court rejected the Superior Court’s claim since the courts must give deference to the findings of the Board. But nevertheless the Appellate Court returned the case to the Board, ordering a new hearing, on the ground that the Board did not make a finding that Lazor is currently a danger to society.

Recently California Courts have taken some steps towards correcting a situation in which parolees with indeterminate sentences were rarely if ever released from prison. Prior to the California Supreme Court’s August 2008 decision in In re Lawrence the Board of Parole Hearings and the governors had a free hand in dealing with parolees. Rarely did the courts set standards governing the release of parolees. As a result the chances of a prisoner with an indeterminate sentences getting parole was practically nil.

In 1977 California adopted a sentencing scheme in which most prisoners were sentenced to determinate terms. Most prisoners upon sentencing knew when they would be released. But some prisoners, usually those with more severe sentences would receive an in determinate sentence where they might be sentenced, for example, to fifteen or twenty-five years to life.

The Board of Parole Hearings could deny parole by merely saying that the original crime, often occurring 20 years before the parole hearing, was heinous. The governor would then agree that it was heinous and the courts would not touch the decision. This would be repeated at annual parole hearing and the defendant would die in prison. In 2006, for example, according to an article in the Yale law and Policy Review the Board of Prison Hearings rejected 99.5 per cent of the applicants for parole. During the four years that former Governor Gray Davis was governor only five inmates sentenced to indeterminate sentences were paroled. It has improved somewhat under the current governor, Arnold Schwarzenegger. Forty paroles were granted in his first five years. But the number is still minuscule, with approximately 34,000 inmates sentenced to indeterminate terms in California.

In In re Lawrence the California Supreme Court held that the primary factor in deciding whether to release an eligible lifer on parole is the danger that the inmate presents to society. It is no longer possible to say that an inmate committed a heinous crime twenty years ago and throw away the key. The courts are beginning to recognize that the norm must be that the Board of Parole Hearings should set dates for the release of parolees unless their is a reason to believe that they will be a danger to society upon release. The sole reason for denying parole cannot be the egregious nature of the committing offense. Each factor used in denying parole must be considered in light of its effect upon the dangerousness to the public of the inmate if he/she is released.

Within the past week writs of habeas corpus citing Lawence have been decided in the Court of Appeal. In In re Palermo the Third Appellate District granted the inmate’s writ of habeas corpus and ordered a new hearing for him. Palermo had been convicted of the 1987 murder of his ex girlfriend. He shot her with what he thought was an unloaded gun through an open bathroom door. He was sentenced to fifteen years to life. At his third parole hearing in 2006 the Board of Prison hearings denied his parole. The hearing officers gave three reasons: 1) the nature of the committing offense, 2) his disciplinary history, and 3) a lack of insight. The San Joaquin superior Court denied his writ of habeas corpus but the Court of Appeal granted the writ. It found that the Board wrongly considered the committing offense to be the major reason to deny parole. As to his disciplinary history, he had only three disciplinary actions in nearly 20 years of incarceration and they were for non-violent acts. As to the degree of insight it is true that he feels that he committed manslaughter and not second degree murder but the facts are arguable and he has consistently showed signs of remorse.

On the other hand the First District Court of Appeal denied a writ of habeas corpus in In re Gregory Dwayne Reed. The Court denied the writ of habeas corpus finding the inmate to be a danger to society. Reed was sentenced to twenty=-six years to life for the 1984 felony-murder of a john during a robbery. Reed and his brother observed a prostitute flag down a john. While the couple were having sex in the john’s car, Reed’s brother opened up the door, pointed a gun at the victim and ordered him to give him money. When the victim claimed he did not have any money the prostitute offered Reed the twenty dollars she had received from the victim. He was unable to grab it and his brother shot the victim in the heart, killing him. While in prison he received 11 form CDC 115 disciplinary reports, the most recent in 1995. Form 115 reports are for events that are believed to be violation of law or in any case are not minor. He also received 19 form CDC 128-A reports for minor misconduct. At his first parole hearing in 2001 the Board found him unsuitable for parole and gave him a three year denial. At the second hearing in 2005 the Board gave him a one year denial and he was told by one of the hearing officers to “remain disciplinary free, not even a 128.” But in April 2005 he received a 128-A for leaving work early. At his June 2006 hearing he admitted he should have gotten approval from his supervisor before leaving work early.He was again found unsuitable and the current writ followed. The Court noted that he was no longer that he had a favorable psychological review and that he had completed a number of classes while incarcerated. But the appellate court found that Reed’s inability to remain discipline free, after he had been warned, reflected poorly on his ability to comply with the terms of parole and the law if he was released and therefore it denied his writ.

While there has been a change in the way the courts look at parole hearings in the past six months, it is unclear what the future holds. What is clear is that important decisions affecting the future of parole are being made in the Court of Appeals and that these decisions will affect the release of many people in the future as well as the crowded conditions in the prisons.

The Pew Center on the States issued a new report, One in 31: The Long Reach of American Corrections. According to the report one out of every 31 people in this country are under supervision of the criminal justice system. This includes 1,512,576 in prison, 780,581 in jail, 4,293,163 on probation and 824,365 on parole. The total number who are either incarcerated or on supervision is 7,328,200. That is 3.2 per cent of the adult population. The figures, however vary widely by state and location from 1 in 13 in Georgia to 1 in 88 in New Hampshire.

The report points out that the more people we imprison the less we benefit from the incarceration. There are certainly individuals who’s incarceration protects lives and property. But the more people we incarcerate the less the value to society of the additional incarcerations. Thus many prisoners can be released with relatively little harm to society.

To make matters worse the system is quite racist. Over nine percent of African Americans and 3.7 per cent of Hispanic Americans are either incarcerated or under supervision. This can be compared to only 2.2 per cent of White, non-Hispanic, Americans.

The Pew report concentrates on the cost of maintaining a huge number of people in prison and jails. The 50 states spend approximately 52 billion dollars on corrections, a 300 per cent increase over the last 20 years. When we consider all levels of government the cost has increased by 330 per cent since 1986. This can be compared to a 205 per cent increase in education, an 82 per cent increase in transportation, a 125 per cent increase in higher education and a 9 per cent increase in public assistance. Only Medicaid costs have grown faster than the cost of corrections. While they could only find statistics for 34 states the cost of keeping a person in prison or jail was $79 per day. The cost of supervising a parolee is $7.47 and a probationer is $3.42.

The report recommends a six step program that will reduce crime and at the same time reduce the cost of corrections. First, it suggests that we sort offenders by the risk they pose to public safety. According to report there are a number of risk assessment tools that take into consideration factors such as age at the time of their first arrest and current drugs use that while not being perfect help to predict danger to society.

Second, community treatment modalities must be based on current scientific models. Individualized evidence based plans can reduce crime by 10 to 20 percent and in some cases recidivism can be reduced by 30 per cent.

Third, the use to technological innovations such as electronic monitoring, GPS, and substance testing can be used to inform probation officers of the whereabouts of individuals and their alcohol or drug use.

Fourth, research has found that the use of swift, certain, and proportionate sanctions for criminal activity and supervision violations are more important than the lengthy incarceration.

Fifth, incentives for success are necessary. It is not only necessary to provide benefits for successful defendants but it is also necessary to reward successful agencies and to have means to measure results.

Finally, It is necessary to measure progress It is necessary to determine tje results by measuring recidivism and by increasing the amount money available to use on budget items other than corrections.

A relatively reasonable reduction in prison populations can result in major savings to the state, a decrease in crime, increased money for other budgetary needs and a significant increase in community treatment for offenders.