Article by Peter Wagner argues that criminal justice reforms must be include a plan to address pernicious and systemic racial disparities in the prison population.

by Peter Wagner, October 7, 2001

Written for Upstate Prison Response, October 7, 2001

The national rise in incarceration appears to have slowed, and in New York the prison population has already dropped 3% since the peak of about 72,000 at the turn of the millennium. Governor Pataki’s “right-sizing” plan includes a 9% drop in the total prison population, and the shifting of prison resources to shorten the sentences of non-violent offenders and lengthen those of “violent” offenders. Excluded from the plan to shift resources within the criminal justice is any serious attempt to examine whether high incarceration serves any valid social purpose at all.

No credible evidence has been introduced that raising the New York State prison population from 12,579 in 1970 to 71,466 in 2000 has made a change in the rate that crime occurs. Despite having more police per capita than another other state, and despite spending $1 billion a year to operate prisons, New York faces approximately the same degree of crime it has faced since the start of crime statistics in the 1930s.

What New York has done in recent decades is incarcerate an increasing number of its Black, Latino and Indigenous citizens. Minorities account for 87.6% of the growth in New York’s prison population since 1970. Within the shorter period of 1985 – 1997, the figure was 90%, higher than any other state. Whites make up 16% of New York prisons, Blacks 51% and Latinos 31%.

Since 1930, the odds of being sent to prison in New York State for a white person in a given year has actually fallen slightly, but the odds of a Black person being sent to prison in a given year has risen more than 250%. In 1930, the Black-white disparity in prison commitment rates was offensive at 4.1 times higher for Blacks. In 2000, that disparity has risen to the level of a democratic calamity with Blacks being 11.1 times more likely to be sent to prison in a given year than whites.

When you take into account the difference based on different sentence lengths between the numbers of people sent to prison and those who are actually in prison at in given time, you see an even greater racial disparity. By comparing the raw numbers of prisoners to their respective populations we can determine the rate by which people of a given racial group are in prison. Ninety seven out of every 100,000 white New Yorkers is currently in prison. For Latinos, it’s 776, and for Blacks the figure is 1,295 per 100,000. That’s a Black-White disparity of 13.4 times.

A variety of factors drive the increase in incarceration. According to one regression analysis, half of the prison growth has been as a result of an increased likelihood of a prison sentence after arrest, and one-third is from an increase in the length of prison sentences. According to that study, only a ninth of increased incarceration could be explained by higher rates of criminal behavior.

In order to break this insidious system of discrimination, all changes to the criminal law should be analyzed with an eye towards reducing this racial disparity. Both future proposals to criminalize new behaviors that were not previously criminal and all proposals to change the sentencing structure should start with the premise that society wishes to do away with racial discrimination. Currently, the magnitude and persistence of racial discrimination in the justice system gives a clear hint that it is in fact intentional. Where actual differences between behaviors by race can be identified, they should be addressed on the basis of a social problem and not as individual defects. But before any discussion can take place on that front, the more blatant discriminatory biases should be removed.

In one 1994 study of court biases, it found that more than a quarter of the imprisonment of Blacks in New York could not be explained by the numbers of Blacks arrested. This study assumed that police and policy makers did not target Black communities for increased “attention” and expected to find a constant rate of convictions for people arrested regardless of race. (If anything, impartial courtrooms would respond to unwarranted police intervention in Black communities with a lower rate of Black convictions and prison sentences.) But reality provided a different answer. Courtroom bias — the decisions made by prosecutors, juries and sentencing judges — accounted for 27.5% of the number of Blacks imprisoned in New York State.

While incarceration has devastated Black and Latino New York City residents, it has led to a tremendous boon for white rural areas. In New York State, 38 new prisons have been built since 1982, all upstate. The decline of manufacturing jobs and the difficulties faced by small farmers has led to a new rural industry: the warehousing of urban residents.

The new Five Points Supermax in Romulus is typical with 640 full-time staff and an annual operating budget of $25 million. Prisons are the main employer in many parts of upstate New York, and countless other residents work in businesses reliant on the prisons. Admittedly, land is cheaper upstate than in the city, but jobs are needed in the city as well. Readers may remember that one of the demands at the Attica prison rebellion was for the hiring of more Black and Latino guards — something that will never happen in the rural prisons which draw their workers from the local communities.

As of January 2000, there were 46,798 New York City residents in state prisons, with 95% of them (44,326) housed outside of the city. Presumably, almost all of the crimes they were convicted of were either “victimless crimes” or crimes that directly affected other New York City residents.

Two of the biggest opponents to reforming the Rockefeller Drug Laws are upstate Republican Senators Nozzolio (Chairman of the Crime Victims, Crime and Corrections Committee) and Volker (Chairman of the Codes Committee). Nozzolio’s district contains 6 prisons and Volker’s district contains 8.

The motivations of Nozzolio and Volker to fight crime and protect victims comes into question when you consider that so few of the people they label “criminal” ever came anywhere near their districts without being put in chains first.


State of New York Department of Correctional Services, The Hub System: Profile of Inmates Undercustody on January 1, 2000

State of New York Department of Correctional Services, Characteristics of New Commitments, 1999

State of New York Department of Correctional Services Statistical Report for 1970.

City Project, Following the Dollars: Where New York State Spends Its Prison Moneys, March 2000

National Center of Institutions and Alternatives, Masking the Divide: How Officially Reported Prison Statistics Distort the Racial and Ethnic Realities of Prison Growth, May 2001.

Calvin L. Beale, Rural Prisons: An Update, Rural Development Perspectives, vol 11, no 2.

Nils Christie, Crime Control as Industry. 2000.

Bureau of Justice Statistics, Race of Prisoners Admitted to State and Federal Institutions, 1926-86.

Pataki’s rightsizing press release.
Five Point facility press release.

Crutchfield et. Al. Analytical and Aggregation Biases in Analyses of Imprisonment: Reconciling Discrepancies in Studies of Racial Disparity, 31 Journal of Research in Crime and Delinquency 2 at 178 (1994).

Jerome Miller, Search and Destroy: African American Males and the Criminal Justice System, 1996.

Marc Mauer, Race to Incarcerate, 1999. Chapter 2.

New York Times August 23, 2001, p. A18.

New York State Senate Webpage.

Bureau of the Census, 2000 and 1930.

Statistical Abstract, 2000.

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