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.

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.

The Sixth Appellate District of California’s District Court of Appeal found that a probation condition in People v. Murrillo requiring the defendant to take all prescribed medication was vague and that it may have been overbroad.

Angela Murillo, age 21, was charged with having sex with a minor, her sixteen year old boyfriend. She was quite remorseful during her probation interview. She told the probation officer that she had taken drugs since she was ten years old and that she was an alcoholic. Furthermore she said that she used a inhaler for asthma and that she had been diagnosed with ADHD and bipolar disorder but that she did not take any medication for mental disorders.

At sentencing Murillo’s counsel objected to three of the probation officer’s recommendations: 1) chemical testing, 2) possession or consumption of drugs or alcohol or being any place that either of them were being used or sold, and 3) entering a rehabilitation program. the court accepted the probation officer’s recommendation and added two more conditions: that Murillo obtain psychological counseling as directed by probation and that she take all medications prescribed by her doctor. The trial Court asked Murillo whether she accepted the conditions and she agreed to them.

On appeal she objected to the condition that she refrain from use of alcohol and that she take all prescribed medications on the grounds that they were not related to her criminal behavior. The Appellate Court found that the alcohol condition related to her criminal behavior in that she had a long term history of alcohol abuse and that alcohol reduced inhibitions and could lead to future criminal conduct.

As to the requirement that take all prescribed medication the court found the condition vague since under the facts of the case it is not clear whether the judge meant that she had to take all prescribed medications or just psychiatric medications. There is no evidence that she failed to take any medication for physical problems. Therefore, there is no relationship between taking physical medications and criminal behavior. As a result the condition is an abuse of discretion.

But the question remained whether by failing to object to the conditions at sentencing, Murillo waived the right to object on appeal. The court found that there was no logical reason for her not to have objected at trial and therefore the failure to object was incompetence of counsel. The court found, citing In Re Sheena K., Murillo did not waive the right by failing to object at sentencing. Under the Sheena K. test waiver occurs if proof of the illegal condition needs the fact finding ability of the trial court. In this case only the trial court can determine whether the condition is unconstitutional and therefore the failure to object result in waiver. But because the appellate court found incompetence of counsel without needing a factual input from the trial court waiver is not an issue.

Before remanding the case to the trial court for a determination of the necessity of requiring the defendant to take psychiatric medications the appellate court put forth several issues for the trial court’s consideration. First, since the medication issue infringes Murillo’s right of privacy any condition must be closely tailored to an important state right. Second, Murillo has a Fourteenth Amendment liberty interest protecting her from the forced taking of psychotropic medication and any probation condition enforceable by jail or prison is a coerced. Citing Sell v. United States the Court found that the Court should consider the following conditions before order the taking of psychotropic medications: 1) that an important governmental interest is at stake, 2) that the involuntary taking of medication will insure a timely prosecution and a fair trial (its hard to see how this is appropriate in a post conviction probation sentencing) 3) that the involuntary use of medication will significantly further the state interest, and 4) that the taking of medication is medically necessary.