February 2013 Bar Bulletin
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February 2013 Bar Bulletin

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Mass Incarceration: The Time to Change Is Now!

By Richard Mitchell


Professor Michelle Alexander's call to action last month at the King County Bar Association's annual Rev. Dr. Martin Luther King, Jr. Luncheon left me awestruck. Over the course of a short hour, I struggled with the suggestion and eventual acceptance that something was wrong in our criminal justice system. Our nation's incarceration of people of color, and in particular young people, at an alarming rate disproportionate to the general growth of crime or crime in communities of color, needs to be addressed. Prof. Alexander succinctly argued that disproportionate contact was the reason for disproportionate incarceration, and that this phenomenon was not occurring purely by coincidence.

Certainly, as a law and justice advocate, I, like you, believe that crime is crime; it deserves appropriate punishment. Nothing could be more, well ... black and white. But something still troubled me as I listened to Prof. Alexander, glanced at the audience and pondered my own experiences.

Her argument was simple yet complex: America's Jim Crow era had been replaced by a more pernicious system of social control via mass incarceration aimed at people of color. Even she acknowledged how long it took her to accept that premise. Not once did she dispute whether crimes had been committed or whether innocent people were being wrongfully incarcerated. Instead, she argued that in too many communities, the apparatus of our criminal justice system was being intentionally enforced disproportionately against people of color. Perhaps this is why her talk struck a nerve and made me fidget in my seat.

I, like her, had refused for many years to accept an argument that seemed implausible, even though statistics and my own personal and professional experiences suggested otherwise. For many, a simple truth afforded non-acceptance of her argument. If you do not commit a crime, you do not risk incarceration, right? Yet nonetheless, I shifted uncomfortably, and averted my eyes, as the memories of difficult experiences buried deep in my mind raced around. I thought about the various pro bono cases I had channeled my energies into involving youth offenders and wondered who else in the banquet room that day had experienced disproportionate contact? I wondered.

There was the time I was driving home from college. No sooner had I crossed the Washington, D.C.-Maryland border, than I found myself pulled over at the side of the road - trunk open, luggage strewn around, dogs sniffing. To this day, I have no idea what triggered the stop. Then there was the time, while studying architecture in D.C. in the early 1990s, and taking pictures like any tourist, I was surprised by an assault that had me face down on a car hood, spread-eagled, and recovering from a pat down that left me bruised in unusual places. I asked what was going on. The officer said, "Someone reported suspicious behavior." I looked around at my colleagues who had not suffered the same indignities, and wondered.

There was the time, while on a kayaking trip in a remote part of the Northwest, I visited a small town to get supplies before running the river, and had to report a car that jumped the curb in front of me with the occupants yelling epithets. To my surprise, instead of pursuing the driver whose license plate I had memorized, the local sheriff said, "I can't guarantee your safety, so check out of your hotel and leave town." Since I refused to abort my trip, I asked the sheriff where the closest, safe place to stay was. I stayed in the sheriff's home that night and often wonder why the driver of the vehicle was not pursued.

There were just too many times. I suppressed one contact after the other, knowing nothing more would come of it and wondered ....

Before Prof. Alexander took the stage, I recall looking at her as she sat at my table, an eerie stoicism consumed her expression during the introductory hoopla. She had a message to deliver, I could tell. As she spoke, her impassioned voice coaxed out my memories that swirled simultaneously with my reflections on America's ignominious history with race relations, much of it typified by jarring intentional and oppressive acts. I again wondered how many in the room had had experiences similar to mine and, just like me, rarely shared them?

I fidgeted in my seat as I listened to Prof. Alexander gracefully outline America's adaptive transition from slavery, to Black Codes (laws enacted by southern states after the Civil War to limit the civil rights and civil liberties of blacks), Jim Crow (laws from 1876 to 1965 that mandated racial segregation) and now mass incarceration spurred in part by the War on Drugs. Perhaps like some in attendance, I waited for Prof. Alexander's evidence of intentional systemic actions to oppress people of color, knowing it never would come. Something more subconscious was happening within our society and our criminal justice system. How else could one explain why the prison population in the United States had grown at an unprecedented rate, with a disproportionately racial composition, since the 1970s?

I recalled a conversion I recently had with an African American lawyer in our state bar, who I will give the pseudonym Byron. Byron once said to me, "Richard, for me, it started when I was about 8. They would pull us up, and get us into the system as kids for loitering. It was just their way of tracking us ... back then." According to Byron, those experiences deeply shaped his resolve to make systemic change in our criminal justice system.

I thought about my college thesis advisor, Henry Louis "Skip" Gates, Jr., and his well-publicized experience in 2009 with a Cambridge, Massachusetts police officer who arrested him for disorderly conduct, as he attempted to enter his own home. The charges were eventually dropped, and both Skip and the arresting officer acknowledged the many missed opportunities to ratchet down the exchange. But the national debate that ensued was long overdue. We all were forced to ask ourselves, "How on Earth did an African American man of Professor Gates' stature get arrested as he tried to enter his own home in Cambridge?"

Undoubtedly, many who heard Prof. Alexander speak, and who reflected on their own experiences, had learned to direct such disproportionate contact toward making a change in our justice system. But despite the clear efforts of many, the reality remains stark. According to the Bureau of Justice Statistics, as of the early 2000s approximately one in six African American men had been incarcerated at least once, a trend that the bureau concludes means that one in three African American males born today can expect to spend some time in jail. The statistics were similarly alarming for Latino men, who as of the mid-2000s also had been incarcerated at a rate of one in six.

Presently, African Americans are being incarcerated in state prisons or local jails at a rate that is more than six times higher than that of Caucasians, and Latinos are being incarcerated at a rate that is 75 percent higher. Washington's statistics track the national averages, with an incarceration rate of 393 per 100,000 for Caucasians, 2,522 per 100,000 for African Americans, and 527 per 100,000 for Latinos. While there are several ways to look at these statistics, the ones that caught my attention were the national rates of incarceration in federal and state prisons, and local jails, for men age 18–29 as of June 2005. For Caucasians, it was 1,404 per 100,000; for African Americans, 9,249 per 100,000; and for Latinos, 3,278 per 100,000. Among the 2.2 million persons incarcerated nationwide on June 30, 2005, an estimated 548,300 were black males between the ages of 20 and 39, i.e., almost 25% of the total population.1

However one looks at these numbers, it is clear that since race and ethnicity are not dispositive of propensity to commit crime, something systemic is occurring that needs to be fixed. More importantly, with the current incarceration statistics, we cannot lose sight of the long-term impact on the quality of life in communities of color, reduced education and employment prospects of those incarcerated, impact to their families and children, and the loss of political influence and participation. The profound generational impacts suggested by these statistics are immense.

As Prof. Alexander took her seat, I thought, "Finally, someone said what many in the room knew needed to be said." I asked myself, "What will you, Richard, do to continue Dr. King's pursuit of justice, peace and equality? How will you address this issue of disproportionate contact and incarceration of people of color in our justice system?" And I ask the same question of every KCBA member.

It will be hard to root out this problem, as it requires first getting at the hearts and minds of those in a position to change public policy, whether it is in policing, drug sentencing and/or resource/service allocation policy. But if we accept that many statistical studies from a variety of sources conclusively show that we as a nation and as Washingtonians are selectively, if even subconsciously, enforcing our laws against people of color, we must also accept that the time to change is now.

1 Bureau of Justice Statistics, "Prison and Jail Inmates at Midyear 2005" - http://bjs.ojp.usdoj.gov/content/pub/pdf/pjim05.pdf.


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