English: Convict workers at Parchman
Convicts at Parchman, 1911. African Americans in Mississippi are still 3.5 times more likely to serve time than whites. (Photo credit: Wikipedia)

This is the first article in Jennifer Kirby-McLemore’s series examining the procedures and effects of legislation that seek to reduce racial disparities in incarceration rates.?

As any Mississippian can tell you, the United States has made great strides toward racial equality since the passage of the Civil Rights Act of 1964. ?But in one critical area ? incarceration rates ? our nation?s racial inequities are growing. If current trends continue, the U.S. Department of Justice projects one out of every three black males born today and one out of every six Latino males will be imprisoned during his lifetime.[1] Only one in eleven white males faces a similar fate.[2]

While Mississippi has the nation?s third-lowest lockup disparity, the figures are still disconcerting.[3] The Magnolia State incarcerates blacks at 3.5 times the rate of whites.[4] African Americans account for 37 percent of the state?s population, but 61.4 percent of its prisoners.[5]

This is an opportune time to start a conversation about racial disparities in our correctional system. Gov. Phil Bryant has promised to place criminal justice reform at the top of the 2014 legislative agenda. The distortional effects of so-called ?race neutral? sentencing policies should be at the center of that debate.

For example, statistics show that black Mississippians are three times more likely to serve time for drug crimes than white Mississippians — despite the fact that both groups use drugs at virtually identical rates.[6] Once convicted, nonviolent drug offenders in Mississippi serve nearly twice as long as the average sentence served by inmates convicted for similar crimes in other states.[7] The sale of drugs in Mississippi carries an average sentence of 10.4 years, while possession is punished with 7.2 years.[8] The national average for sale and possession are 5.7 and 4.5 years, respectively.[9]

Since black Mississippians are more likely to be incarcerated for drug-related felonies, they are also more vulnerable to the state?s “three strikes” law. The statute requires that ?habitual criminals,? those who have served at least one year for two previous felonies, must receive the maximum term of imprisonment prescribed for their third conviction with no eligibility for parole.[10]

Neither Mississippi?s drug sentences nor its three strikes law make mention of race, yet they result in vast racial inequities. A movement has spread around the country?s statehouses to adopt legislation that addresses the potential racial impact of sentencing, parole, or probation laws prior to enactment.[11] This legislation would require that states develop ?racial impact statements? to elucidate potential disparities and allow consideration of alternative policies.[12]

The idea arose from a 2007 report from The Sentencing Project, a national non-profit engaged in research and advocacy on criminal justice policy.[13] The report enlightened ? and probably embarrassed ? many states by publishing a state-by-state study of incarceration rates by race.

Using data from the U.S. Bureau of Justice Statistics, the study revealed that blacks are incarcerated nearly six times as often as whites and Latinos are incarcerated nearly double the rate of whites.[14] As a follow-up to the statistical analysis, Marc Mauer, director of The Sentencing Project, published an article chronicling the rise in minority (particularly African American) incarceration rates.[15] Mauer attributed the racial disparity to?racial biases in court decisions as well as race-neutral policies, such as those in Mississippi, that increase sentencing for drug-related offenses and prior criminal histories. [17]

Following Mauer?s publication, states that found themselves with the highest rates of racial disparity in prison populations have made swift effort to mandate racial impact statements. To date, Iowa, Connecticut, and Oregon have all adopted legislation similar to that proposed by Mauer.[18] Almost 30 other states have begun to consider policies that would result in more transparency and greater equity in the criminal justice system.[19]

Mississippi is among them. Representative Reecy Dickson, a Democrat from Macon, introduced legislation in 2013 that would have created a criminal justice commission that would have been responsible for ?review[ing] the state?s criminal justice system?to make recommendations for reducing the population of incarcerated? people.[20] In January of this year, the House referred this bill to a Corrections and Accountability/Efficiency/Transparency Committee, where it subsequently died.[21]

In future articles, I will examine enacted and proposed racial impact statements in an effort to develop a practical and effective plan for reducing racial disparity in incarceration rates in Mississippi and other states.


[1] Thomas P. Bonczar & Allen J. Beck, Lifetime Likelihood of Going to State or Federal Prison. U.S. Department of Justice 2-3 (March 1997); see also Racial Disparities in the Criminal Justice System: Hearing Before the Subcomm. On Crime, Terrorism, and Homeland Security of the H. Comm. on the Judiciary, 111th Cong. 59 (2009) [hereinafter Hearing] (statement of Marc Mauer, Executive Director, The Sentencing Project), available at http://judiciary.house.gov/hearings/printers/111th/111-78_53093.PDF.

[2] Id. at 2.

[3] Marc Mauer & Ryan S. King, Uneven Justice: State Rates of Incarceration By Race and Ethnicity, The Sentencing Project 11 (July 2007) [hereinafter ?Uneven Justice?].

[4] Id.

[5] The Sentencing Project Interactive Map, The Sentencing Project, available at http://www.sentencingproject.org/map/map.cfm#map

[6] Eric Dolan, ACLU: Mississippi? drug enforcement tactics amount to a ?reign of terror,? The Raw Story (March 28, 2011 at 10:14pm) available at http://www.rawstory.com/rs/2011/03/28/aclu-mississippi-drug-enforcement-amounts-to-reign-of-terror/

[7] Id.

[8] Id.

[9] Id.

[10] Miss. Code. Ann. ? 99-19-81 (1977).

[11] Catherine London, Racial Impact Statements: A Proactive Approach to Addressing Racial Disparities in Prison Populations, 29 Law & Ineq. 211, 212 (2011).

[12] Marc Mauer, Racial Impact Statements as a Means of Reducing Unwarranted Sentencing Disparities, 5 Ohio St. J. Crim. L. 19 (2007).

[13] Uneven Justice, supra note 3.

[14] Id.

[15] Marc Mauer, Racial Impact Statements as a Means of Reducing Unwarranted Sentencing Disparities, 5 Ohio St. J. Crim. L. 19 (2007).

[16]Mauer supra note 12 at 23-25.

[17] Id.

[18] Maggie Clark, Should more states require racial impact statements for new laws?, USATODAY, http://www.usatoday.com/story/news/nation/2013/07/31/racial-impact-statements-laws/2602563/ (July 31, 2013, 10:26am).

[19] Id.

[20] Representative Reecy Dickson, House Bill No. 1564, Mississippi Legislature 2013 Regular Session. available at http://billstatus.ls.state.ms.us/documents/2013/pdf/HB/1500-1599/HB1564IN.pdf

[21] House Bill No. 1564, Mississippi Legislature 2013 Regular Session. available at http://billstatus.ls.state.ms.us/2013/pdf/history/HB/HB1564.xml

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