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50 Years and a Wake Up Public Education Campaign
In 2023, NACDL and advocates across the country are commemorating 50 years of America’s unjust, discriminatory, and ineffective policy of mass incarceration. Over five million people are under supervision by the criminal legal system. Nearly two million people, disproportionately Black, are living in jails and prisons instead of their communities, a 500% increase since 1973. NACDL has joined a public education campaign alongside a wide-ranging group of advocates, experts, and partners to raise awareness about the dire state of the country’s criminal legal system and devastating impact of incarceration. NACDL is proud to be a part of the “50 Years and a Wake Up: Ending the Mass Incarceration Crisis in America” campaign.
The title for this campaign, 50 Years and a Wake Up: Ending the Mass Incarceration Crisis in America, was born out of a colloquial phrase that incarcerated people sometimes use to describe the length of their sentence, plus one day (e.g. “I have 20 years and a wake up”).
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The Rise in the U.S. Prison Population
The red bars in this graph from the Sentencing Project point to the relatively low prison population in 1973, which exponentially increased until a peak in 2009, which is gradually tapering off.
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The History of Mass Incarceration and Its Racially Disparate Impact
Why does the U.S. incarcerate more people than any other country in the world? Why are a disproportionate number of incarcerated individuals Black? While the myth is that overincarceration makes America safer, there is no real public safety rationale. Imprisonment has been and continues to be used as a weapon to control communities of color, especially African Americans. The disproportionate impact of mass incarceration on Black people is not coincidental. The roots of the failed national policy of mass incarceration – and indeed, the origins of modern policing – reach back to slave patrols and other tools of racial repression. The graph above shows how America’s prison population began to swell in the early 1970s – when President Nixon promised “tough on crime” policies including a “war on drugs,” which politicians from both major parties cheered on with thinly veiled racial rhetoric. When President Reagan took office in 1980, his administration’s policies accelerated the prison population’s rise, which nearly doubled under his watch, increasing from 329,000 to 627,000. By then America had become addicted to, and imprisoned in, a racist culture of mass incarceration. Today, the legal system’s disparate treatment of low-income communities of color continues to bloat the prison population without decreasing the level of crime. NACDL challenges these racial disparities in policing, in the war on drugs, at the pretrial and sentencing phases, in the collateral consequences of convictions, in the realm of public defense, and much more.
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How NACDL Challenges Mass Incarceration
Every day NACDL’s many projects and initiatives push back against the misguided policies that have fueled mass incarceration.
- Exposing Police Misconduct. Police misconduct is a persistent and corrosive problem in the United States. It can present itself through coerced confessions, tampering with evidence, false arrests, unwarranted surveillance, searches and seizures, and policy brutality. On the rare occasion an officer is fired for misconduct, twenty percent are rehired by another agency in the same state within three years. The extent of the problem remains unknown, since departments can shield access to their data and records, making it nearly impossible to evaluate their current accountability mechanisms. NACDL’s Full Disclosure Project aims to disrupt the culture of secrecy that systematically and pervasively shields law enforcement misconduct by changing police secrecy laws and empowering the defense community to track policy misconduct.
- Safeguarding Privacy. With the rapid advancement of technology, the ability for law enforcement to track and surveil people’s actions, as well as to collect vast troves of data, has never been easier. This rapidly increases the need for protection against unwarranted surveillance and searches. Law enforcement can use tools such as predictive policing and facial recognition which have been known to disproportionately target communities of color and other marginalized communities. The surveillance state in the digital age drastically increases arrests and incarceration (and increases the rate of false arrests and incarceration). NACDL’s Fourth Amendment Center seeks to ensure that the Fourth Amendment remains a vibrant protection against encroachments on the privacy of the individual through litigation and public advocacy, offering direct assistance to defense lawyers handling cases involving new surveillance tools, technologies, and tactics.
- Fighting for the Right to Trial. Prosecutors are some of the most important players in the criminal legal system because of their role in deciding whom to charge, what to charge, recommend length of sentence, and more. Prosecutors can coerce guilty pleas from people accused of crimes by threatening mandatory minimums and other extreme punishments if they exercise their Constitutional right to take their case to trial. This type of prosecutorial discretion and overreach threatens and intimidates individuals to confess guilt rather than challenge the government’s case against them. This feeds what has been referred to as the trial penalty: the substantial difference between the sentence offered in a plea offer before trial versus the sentence an individual receives after trial. Today, more than 97 percent of criminal cases reach a resolution through a plea agreement. The proliferation of convictions secured through plea agreements, a consequence of the trial penalty, fuels mass incarceration, disproportionately impacting communities of color. For example, a study of misdemeanor cases in New York City found that the odds of receiving a plea offer that included incarceration were nearly 70 percent greater for Black people than white people. Another study in New York found that, in the plea negotiation state, Black individuals were significantly less likely than their white counterparts to receive offers of reduced charges and more likely to receive sentence offers involving prison time. NACDL is a leader in fighting the trial penalty and joined with twenty-four national organizations, impacted people, community leaders, organizers, and legal reform leaders to create the End the Trial Penalty Coalition to end the coercive elements of plea bargaining to restore fundamental constitutional rights, including the right to a jury trial.
- Taking a Second Look at Sentencing. One of the key underlying causes of mass incarceration in the United States is the dramatic increase in the length of prison terms over the past several decades, despite the fact that research continues to find that lengthy sentences have no impact on recidivism rates. Mandatory minimum sentencing laws force judges to hand down unnecessarily long prison terms, without regard for the specific offense or the individual. Such sentencing laws disproportionately impact communities of color and have contributed greatly to the explosive increase in the U.S. prison population during the past three decades. With growing bipartisan consensus of the detrimental consequences of lengthy and harsh sentences, NACDL supports measures to repeal such policies. One way NACDL has supported this is through creating model “Second Look” Sentencing legislation. The NACDL model legislation provides a vehicle that legislatures can use to safely reduce the number of individuals serving excessive, counter-productive sentences by permitting individuals to petition for resentencing after serving a specified period of time in prison. This type of legislation creates opportunities for judges to reevaluate the proportionality of an individual’s sentence compared to other similarly situated individuals and to assess whether the sentence is still appropriate given changed laws and norms. It also allows individuals to demonstrate that they have changed and can safely return to their communities and provide for their families.
- Returning to Freedom through Clemency and Pardons. NACDL has long advocated for relief for individuals serving overly harsh sentences. Bipartisan efforts to alleviate lengthy sentences have resulted in the adoption of sentencing reforms around the country; however, unfortunately most of these reforms are often not applied retroactively, thus leaving behind individuals already serving substantial sentences. NACDL’s Return to Freedom Project (R2F) helps those languishing in prison by partnering with different organizations to recruit, train, and support pro bono attorneys as they assist in providing back-end relief, such as clemency, compassionate release, and expungement. The R2F Project includes initiatives targeting cannabis, compassionate release, excessive sentences, and the trial penalty.
- Battling Overcriminalization. Overcriminalization is the concept that criminalization has become excessive - an exorbitant number of laws and regulations deeming conduct illegal have a detrimental effect on society, particularly with respect to victimless crimes and actions which make conduct illegal without criminal intent on the part of the individual. Although the harm caused by overcriminalization is frequently amplified by the executive and judicial branches, it generally originates in the legislative process. With over 4,450 (as of 2008) crimes scattered throughout the federal criminal code, and countless more at the state and local levels, the nation's addiction to criminalization backlogs the judiciary and overflows prisons. This inefficient and ineffective system is, of course, a tremendous taxpayer burden and has led to the rampant problem of mass incarceration. In recent years, there has been a rise in the criminalization of everyday human actions such as homelessness, substance use, voting, pregnancy and other reproductive health choices, and more. Overcriminalization is a dangerous trend that NACDL battles daily through projects such as the Task Force on the Criminalization of Pregnancy and Reproductive Health; authoring or co-authoring reports on the issue of overcriminalization; organizing trainings and facilitating advocacy geared toward drug overdose homicide laws and prosecutions, and other avenues for effectively combatting the War on Drugs; misdemeanor reform; and more.
- Defending Public Defense and the Right to Counsel. The right to counsel, guaranteed by the Sixth Amendment, promises every person, regardless of their charges or resources, a skilled, zealous advocate by their side when they stand accused of a crime. A strong and well-resourced public defense system helps protect against unnecessary pretrial detention; wrongful convictions; lowers the likelihood of incarceration; and often results in better overall case outcomes for individuals accused of a crime. An effective defender can shine a light on government overreach and abuse of power. NACDL has been committed to supporting the development of effective public defense systems.
- Restoring Rights. The era of mass incarceration and the vast expansion of the nation's criminal legal system over the past 50 years has produced a corresponding increase in the number of people with a criminal record. An estimated 77.7 million individuals – nearly one out of every three American adults – has a criminal record. At the same time, the collateral consequences of conviction have become more severe, more public, and more permanent. These consequences affect virtually every aspect of human endeavor, including employment and licensing, housing, education, public benefits, credit and loans, immigration status, parental rights, interstate travel, and even volunteer opportunities. NACDL’s Restoration of Rights is proud to have several projects aimed at examining and alleviating the collateral consequences of a conviction, including expanding expungement eligibility and promoting “clean slate” reforms that automate the expungement process; partnering with community organizations to host expungement clinics; promoting reforms to restore the right to serve on a jury and voting rights; fighting the rise of voter prosecutions; and promoting other second chance opportunities at the state and federal level.
- Recognizing and Redressing Racial Disparities. Racial disparity pervades America’s criminal legal system, and its effects can be seen in all the above issue areas. Racial discrimination touches every facet from policing to the likelihood of incarceration, to length of sentence, opportunities for release or diversion, and reentry. After the Civil War, Southern states embraced criminal justice as a means to reimpose racial control over African Americans. This included the passing of “Black Codes” and later Jim Crow laws. The 13th Amendment to the Constitution abolished slavery and involuntary servitude, except as punishment for a crime. It is this loophole in the 13th Amendment that Southern states exploited in passing “Black Codes” and in setting up new economic and labor systems that relied on the arrest and imprisonment of African Americans. The same criminal legal system that was developed after the Civil War to reimpose control over African Americans exists today. Imprisonment has been and continues to be used as a weapon to control communities of color in ways that aren’t used in other communities. This in evident in the crack-cocaine sentencing disparity, the overpolicing of black communities, excessive criminal fines and fees, and a bail system that relies on payment to secure one’s freedom. NACDL has been and remains committed to examining and elevating the issue of race in the criminal legal system through programming and trainings; reports; and other ongoing projects.
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