Alexandra Carey

Eng-123 e1
Cal Baptist University
Evaluation
Through my research into mass incarceration I heard many voices. I also heard many
opinions as to why this happened, how it got so bad, whos fault it is and who the victims are. No
one seems to agree 100% with anyone else on any part of this, except for that fact that this is an
issue, it is out of control and it needs to be solved! During the research phase of this project it
became clear that there is a specific, though not exclusive, group of people who tend to suffer
more than others, at the hands of the legal system, African American men. This is one thing that
Michelle Alexander and James Forman Jr. do agree on. Both of these authors lend them selves to
be exceptional sources due to the extensive research each has done into mass incarceration.
While they do agree on the victim group their opinions as to why do differ. Adding to the
research and looking at mass incarceration in a broader way with out the focus on the specific
racial implications, Chase Madar provides many shocking statistics as well as a unique
perspective through an embedded interview with Mark Earley, whos resume includes such
things as: a member of Virginias state senate for over 10 years, Attorney General of Virginia
from 1998 to 2001 and President of Prison Fellowship (a Christian ministry). Earley currently
practices criminal defense law. The unique perspective from the interview with Mark Earley
gives and inside look at a politician who helped form policies that were, at the time, considered
hard on crime, and his personal reflection on past decisions.
We are five percent of the worlds population, yet we lock up twenty-five percent of the
worlds incarcerated. (Madar, 2015). This quote was one that caught me most off guard early in

my research. Another astonishing statistic, that Texas (a single state) locks up prisoners at a
higher rate than gulag-era Soviet Union (Madar, 2015). These statistics may be well known to
politicians and the well informed constituents, but I know they are not amongst the general
public. Inmates tend to take on an out of sight, out of mind to those of us unaffected by the
locked up. Also, I believe that the general public would like to think that those who are
incarcerated deserve to be there. We want to have faith in the system. Alexander argues that
those most affected by our ignorance is the African American community. She gets even more
specific by saying Nothing has contributed more to systematic mass incarceration of people of
color in the United States than the War on Drugs. (2011, 60). Adversely, Foreman (2011) says
An exclusive focus on the drug war misses the larger point about sentencing choices (125).
The war on drugs is a common theme in many books and articles that I read. I believe it is in part
because the timing of Regans anti drug campaign corresponds with the timing of the beginning
of the rise in incarceration. That is not to say that the war on drugs is not a contributing factor. It
absolutely is. Another issue raised by Forman (2011), Blacks and whites use drugs at roughly
the same rates, but African Americans are significantly more likely to be arrested and imprisoned
for drug crimes. (124). The information I have gathered from these three sources confirm the
undeniable fact that mass incarceration is a serious issue in America with several contributing
factors.
Forman and Alexander, though they do not share all beliefs, do both agree that there are
many disparities within sentencing. They feel that the statistics prove that African American
people are sentenced more often as well as more harshly than white people arrested for the same
crime. One way that these inconsistencies are attempted to me alleviated is through mandatory
minimum sentencing. Mandatory Minimum sentencing occurs when a judges discretion in

sentencing is limited by law, and certain crimes must be met with a mandatory minimum amount
of time in jail. These standards were first introduced in 1986 in response to the dramatic rise in
drug related crimes and the sudden importation of Crack. In the Journal for Public Law Alan
Dahl writes The crack epidemic and the shocking death of Len Bias led to the expedited
passage of the Anti-Drug Abuse Act of 1986. The Act established the basic framework of
mandatory minimum penalties applicable to federal drug offenses. (277). Mandatory minimum
sentencing helps to keep disparity at bay because it only takes into account aspects of the crime
as well as past criminal history of the perpetrator rather than any aspects of persons race or any
distinguishing personal characteristics. These mandatory minimum sentences set very specific
sentencing guidelines for judges to use. For example, a mandatory minimum sentence of five
years would be imposed for someone caught with 5-9 grams of crack with intent to sell. (dahl,
273). The elements would have to be proven by a prosecutor, in order for the mandatory
minimum to become relevant, but these mandatory minimums greatly reduce the opportunity for
disparity in sentencing.
Similar to judges, police officers have had similar boundaries placed on them with antiprofiling legislation. The American Civil Liberties Union (ACLU) defines racial profiling as the
discriminatory practice by law enforcement officials of targeting individuals for suspicion of
crime based on the individuals race, ethnicity, religion or national origin. (2015). Examples of
racial profiling occur when police decide who to pull someone over based on the ethnicity of the
driver, sometimes referred to as driving while black, or brown. Deciding which pedestrians to
stop and search based on race is another common claim of use of racial profiling. Police are
required to have probable cause; they are no longer allowed to pull over or search anyone who is
not under arrest or who have not given specific permission to do so. Though police officers are

still given a generous amount of discretion to use, the law does not protect them should they
make poor decisions or abuse the law. The 4th amendment protects all Americans from grouse
abuse of power on behalf of law enforcement. A case in San Diego led to two young black men
being awarded $450,000 after they alleged they were wrongly arrested and that the arresting
officer used excessive force, thus violating the mens constitutional rights.
Other than police and judges there is a third link that falls between the police arresting a
suspect and a judge sentencing a criminal. That third link is the prosecutor. Unlike judges who
have mandatory minimums to help keep them from inconsistencies in sentencing; and police
who have law and the constitution to keep them from using biases to arrest people, prosecutors
have very little regulations to protect them from causing disparities within the system. In her
book Arbitrary Justice: The Power of the American Prosecutor, Angela Davis (a public defender
for the District of Columbia for twelve years), writes Prosecutors are the most powerful officials
in the criminal justice system. Their routine, everyday decisions control the direction and
outcome of criminal cases and have greater impact and more serious consequences than those of
any other criminal justice official. (2007, 5). Since prosecutors have the most power in the
judicial process we would then assume they also would be held most accountable. That would be
a false assumption. In the 1983 Supreme Court case, Imbler vs Patchman created a broad rule of
total immunity for civil cases. (Williams). Imbler vs Patchman was a case where a man was
convicted of murder. Eventually there was new evidence discovered as well as the fact that the
prosecutor used false testimony and purposefully suppressed evidence at the original trial. The
defendant (Paul Imbler) eventually used this new information to obtain his release. Imbler then
attempted to bring a suit against the prosecutor for loss of liberty caused by unlawful

prosecution. The District Court held that the prosecutor was immune from liability, and the court
of appeals upheld this decision. This is now the principal that protects prosecutors.
Although I saw no evidence of intentional discrimination based on race or class, the
consideration of class- and race- neutral factors in the prosecutorial process often produced
disparate results along class and race lines. (Davis, 5). It most likely that like in the case with
Judges and police that prosecutors usually only find their way to their position by being good
people who exercise their personal discretion to the best of their ability, but they are still human.
We humans are all an assimilation of or experiences. We can not be 100% consistent 100% of the
time. This is also true for the people who are prosecutors. Prosecutors decide who to charge and
how, based on their own judgment. This often leads to different people who have committed the
same crime, being charged differently. The absence of meaningful standards and effective
methods of accountability has resulted in widely accepted prosecutorial practices that play a
significant role in producing many of the injustices in the criminal justice system. (Davis, 16).
Though Michelle Alexander and James Forman Jr. argue that the criminal justice system is
especially disparate when it comes to African American men, I would say that there is no way
that it is not disparate when it comes to all cases prosecuted anywhere, against anyone. I believe
there should be similar standards placed on prosecutors for bringing charges as are used with
judges in sentencing. This would alleviate much of the issue of disparity and would remove the
threat of any personal deep-seated unconscious biases (davis).