TESTIMONY OF MARC MAUER

        ASSISTANT DIRECTOR,

       THE SENTENCING PROJECT
        Before the
        SUBCOMMITTEE ON LEGISLATION AND NATIONAL SECURITY
        and the
        SUBCOMMITTEE ON GOVERNMENT INFORMATION,
        JUSTICE AND AGRICULTURE
        of the
        HOUSE GOVERNMENT OPERATIONS COMMITTEE
        May 2, 1990
        Washington, D.C.
        918 F St., N.W.   Suite 501   Washington, D.C. 20004   (202) 628-0871   FAX (202) 628-1091

Mr. Chairman, thank you for the opportunity to speak before the Subcommittee today on these important issues.
The drug problem in our society is clearly one which is very serious and which concerns all Americans. Although substance abuse cuts across all class and racial lines, the impact of the drug problem has probably been greatest among lowincome and minority communities. In my testimony today, I would like to focus in particular on the impact of the war on drugs as it affects Black and Hispanic communities.
YOUNG BLACK MEN AND THE CRIMINAL JUSTICE SYSTEM
In February of this year, my organization released a report on race and the criminal justice system. The report, "Young Black Men and the Criminal Justice System: A Growing National Problem," received extensive attention and shocked much of the nation. The report documented that almost one out of four Black men in the age group 2029 is under the control of the criminal justice system prison, jail, probation or parole. This contrasts with one in sixteen white males and one in ten Hispanic males.
These figures for Black males, shocking as they are, actually understate the extent of the problem since our study only did a oneday count of the criminal justice system. If we were able to calculate the rates for an entire year, or tenyear period, the number of Black males under criminal justice control would be considerably higher than one in four.
There is also strong reason to believe that the figures for Hispanics represent an undercount. There has been a great deal of inconsistency in the way in which Hispanics are counted in criminal justice populations, and for many categories, there exist a large number of offenders for whom no data exist on ethnicity. Because of this, it is reasonable to conclude that the rate of criminal justice control for young Hispanic males is higher than one in ten. Also, since Hispanics are counted in the white criminal justice populations, the rate of criminal justice control for non-Hispanic whites is therefore less than the one in sixteen which we were able to document.
Our report further found that the number of young Black men in the criminal justice system 609,690 far exceeded the number of Black men of all ages enrolled in higher education 436,000. These two figures taken together paint a very disturbing picture.
As we noted in our report:
For the Black community in general, nearly onefourth of its young men are under the control of the criminal justice system at a time when their peers are beginning families, learning constructive life skills, and starting careers....Unless the criminal justice system can be used to assist more young Black males in pursuing these objectives, any potential positive contributions they can make to the community will be delayed, or lost forever.
Our report estimated that the direct costs to the criminal justice system for the control of the 609,000 Black men in their twenties was $2.5 billion. Each offender who is incarcerated in a state prison costs the taxpayers at least $16,000 a year. Corrections costs have now reached the point where they are having a serious impact on state funding for necessary social services. In Michigan, for example, state spending for corrections increased from 2.8 percent of the budget in 1984 to 7.2 percent in 1988. The National Conference of State Legislators reports that state spending on corrections increased by an average of 14.2 percent last year, contributing to "serious budget problems" that more than half the states will face in 1990.
WHY ARE SO MANY YOUNG BLACK MALES UNDER THE CONTROL
OF THE CRIMINAL JUSTICE SYSTEM?
It is important to analyze the factors which have led us to this distressing situation. The reasons behind this are complex. Many are longstanding problems; others are a result of more recent criminal justice policies. I would like to outline some of the primary causes of this problem, and then to discuss the impact which the war on drugs has had.
1. "Get Tough" Sentencing Policies
The U.S. Sentencing Commission and legislatures in almost all fifty states have adopted a variety of increasingly harsh sentencing laws in the past decade. In addition, parole release policies have become more restrictive in many states. The combined impact of these policies is that our prison and jail populations have doubled in the past decade, to the point where there are now more than one million Americans behind bars. Prisons in 41 states are under court order regarding overcrowding and conditions of confinement. Record numbers of offenders are now also straining our probation and parole systems.
Mandatory minimum drug sentencing laws have played a significant role in leading to these higher rates of criminal justice control, particularly in regard to prison populations. Two recent highly publicized cases illustrate this:
The American Lawyer reported on the case of Susana Sanchez Robles, a migrant worker and mother of five whose husband had left her, leaving the family on welfare. Ms. Sanchez Robles drove a drug laden van across the border from Mexico, and received a mandatory ten year prison term. Her five year old cries every evening. Says Ms. Sanchez Robles: "I try to feel strong, but my strength is just totally defeated when I remember my children.
Richard Winrow is a 22year old Los Angeles man who was abandoned by his father as a boy. He and his seven siblings grew up poor, and Winrow ended up dropping out of high school and working at low wage jobs. A recent conviction for possession of 5 1/2 ounces of cocaine, a relatively small amount, was his third drug offense. Under new federal drug laws, Winrow was sentenced to life without the possibility of parole.
The dramatic increases in incarceration, parole and probation rates resulting from our "get tough" policies have affected all segments of society. The increase, however, has been most significant for Blacks and other minorities, who were already disproportionately represented in the system.
The rise in criminal justice populations has occurred without any clearcut relationship to the crime rate. FBI reports for the past decade indicate that crime rates have had periods of both decline and increase during these years, but that overall there was only a 2 percent increase in crime rates between 197988. Crime rates rose again in 1989, even though the nation recorded the highest increase ever in its prison population.
2. Criminal Justice Focus on Crimes of the Poor
The criminal justice system has historically been focused much more on "crime in the streets" than "crime in the suites." Although we have seen some change in recent years in the prosecution of white collar offenses, crimes of the poor have always received greater attention from the criminal justice system. Since Blacks and Hispanics are disproportionately represented among lowincome people, this has contributed to their over-representation in the criminal justice system. This does not imply that crimes of the poor are necessarily either more or less serious than crimes of the wealthy, but rather, that we have a system that functions at least in part in a very discretionary manner.
3. Race and the Criminal Justice System
There has been a good deal of debate about the extent to which race influences criminal justice decisionmaking. A recent study by the RAND Corporation concludes that race was not a factor in sentencing decisions in California. It is important to note, though, that California has a relatively rigid determinate sentencing system, which allows for less variability in sentencing outcomes than in many other states.
Our report found evidence that the criminal justice system may be treating Black offenders differently than white offenders. The number of young white males who are incarcerated, 247,000, slightly exceeds the number of incarcerated Black males, 212,000. The number of white males receiving probation, though, 697,000, vastly exceeds the figure for Black males, 305,000. While the nature of the offense or prior criminal history may explain these figures, a close examination of this disparity should be undertaken to determine to what extent racial bias is a factor.
As the authors of the RAND study point out, as well as many others, race may play a more prominent role at the level of arrest and prosecution, where greater discretion may be exercised by police and prosecutors. This discretion may not always be racially motivated, but it may have a racial impact. To the extent that this is the case, a task for the courts is to attempt to offset any disparity that may have occurred through appropriate sentencing.
4. Declining Social and Economic Support in Black Communities
The relationship between social and economic conditions and individual crime rates is a complex one. Not all poor people or unemployed people commit crimes, nor do all wealthy or employed persons refrain from committing crimes. Personality traits, family support, community constraints, and other factors all influence individual behavior and the propensity to commit crime.
Yet, as criminologist Elliott Currie has noted, "The evidence for a strong association between inequality and crime is overwhelming ... It isn't accidental, then, that among developed countries, the United States is afflicted simultaneously with the worst rates of violent crime, the widest spread of income inequality, and the most severe public policies toward the disadvantaged."
The stresses, strains, and lack of opportunity present in so many minority communities increase the likelihood that individuals within that community will engage in criminal activities, whether as a means of obtaining money, to support a drug habit, for a challenge, or for other reasons.
Given these factors, we need to look at the deteriorating social and economic support in the Black community. Essentially, we find that on a broad range of variables, the situation of Blacks in our society has declined over the past decade. The Center on Budget and Policy Priorities reports that total appropriations for low income programs that are not entitlements fell by 54 percent from FY 81 to FY 88, when adjusted for inflation. This included support for job training, health and social services, and housing programs. Also, although the number of Americans living below the poverty line increased by 3.2 million during this period, spending for food stamps decreased by 15 percent when adjusted for inflation. Black households make up 36 percent of all households receiving food stamps. Overall, these cuts affect Blacks and other minorities disproportionately, since they are disproportionately poor.
5. Lack of Opportunity and Sense of Hopelessness
An additional factor contributing to this situation is the most difficult to quantify, yet in some ways the most significant. In many communities today, young people growing up have little hope for the future. It is one thing for a college student to work at a fast food restaurant as a summer job. It is entirely different for a young person to take on this kind of job when there is little expectation of rising above this entry level.
The numbers in our report were not as shocking to most people in the Black community. Instead, they confirmed what many have recognized for years: for Black males, the criminal justice system has become almost an inevitable aspect of growing up. This is not to say that it is a "rite of passage," or an event that is welcomed, but merely, that it is viewed as a part of the life cycle which is almost unavoidable. This is a very sad commentary on our society.
THE "WAR ON DRUGS" AND THE CRIMINAL JUSTICE SYSTEM
A final factor contributing to increased involvement in the criminal justice system, particularly among Black Americans, is the war on drugs, and the means by which this war is being waged. This has been the result of two factors.
First, the drug problem has been defined basically as a law enforcement problem, and not a social problem. In terms of our political rhetoric, our funding priorities, and our policy discussions, we have primarily chosen an approach which emphasizes police and prisons over prevention and treatment. This is not a new approach, or one which Mr. Bennett's office has initiated unilaterally. Most states and localities have taken this approach for many years, with unfortunately, little impact on either drug use, availability, or drug related crime.
Second, although drug use and abuse occurs among all groups in society, drug law enforcement is disproportionately weighted toward inner city, low income drug use, again primarily affecting Blacks and Hispanics. A few statistics illustrate this problem. FBI data indicate that Blacks make up an increasing percentage of drug arrests, having increased from 30 to 38 percent of the total between 1984 and 1988. According to the National Institute on Drug Abuse, Blacks make up only 12 percent of those who use illegal drugs.
In Florida, Blacks now make up 73.3 percent of all prison admissions for drug offenses, compared to 53.6 percent for all other offenses.
If the war on drugs continues in its present fashion, our prisons will become increasingly filled with Black youth. The plight of young Black men and the Black community which we described in our report will only worsen.
POLICY RECOMMENDATIONS
I do not believe that the large number of Black males within the criminal justice system necessarily represents an intended consequence of our crime control policies. Unfortunately, however, as an unintended consequence of scores of individual sentencing laws, use of discretion in the criminal justice system, and funding priorities, we have created a true crisis for the Black community, for the criminal justice system, and for a nation that hopes to provide freedom and opportunity for all citizens. A continuation of the war on drugs in the manner in which it has been fought, no matter how well intended, will only exacerbate this situation.
If we wish to address this problem in a serious manner, policymakers and criminal justice leaders need to respond in a comprehensive manner. Elements of such a strategy include:
1. Increase Diversion from the Criminal Justice System
Many young and minor offenders are only stigmatized by their contact with the criminal justice system, without necessarily receiving either appropriate supervision or support. Opportunities exist to divert many of these offenders to organizations and individuals who can better focus on the problems of Black, Hispanic, and poor youth.
As a result of our report, for example, Black community leaders in Memphis have formed a chapter of the 100 Black Men Incorporated. The group's goal is to reduce the number of Black men going into the criminal justice system. Its activities will include establishing mentor programs, developing mechanisms for keeping Black youth in school, and working with young offenders in the juvenile justice system.
Policymakers can encourage development of programs such as these, and court officials can divert more defendants into them, thereby beginning to reduce the extent of criminal justice control in many communities.
2. Sentencing to Ameliorate Racial Disparities
Judges, prosecutors, defense attorneys, and probation officers all have a unique and important opportunity to lessen the drastic impact which the justice system has had on Blacks and Hispanics. That opportunity comes at the time of sentencing. The courtroom sentencing process should include a full examination of the circumstances of both victim and offender, and an analysis of community support and supervision mechanisms which may be able to contribute to appropriate sentencing options. The goals of this process should be several: to assess public safety concerns; to restore victims to the extent possible; to order appropriate and constructive sanctions in the community; and, to reduce the chances that offenders will return to the system. As an organization familiar with sentencing programs and sentencing reform efforts throughout the country, our staff knows that these are attainable goals.
Court officials should also establish mechanisms to monitor whether minority offenders are appropriately represented in non-incarcerative sentencing alternatives, such as community corrections programs, house arrest, and electronic monitoring. If disparities exist, an analysis of the reasons for this should be undertaken. In the juvenile justice area, The National Council of Juvenile and Family Court Judges is currently developing policy recommendations to respond to the disproportionate incarceration of minority youth. These may serve as a model which could be adopted for the criminal justice system.
3. Restore Appropriate Judicial Discretion
White collar offenders such as Ivan Boesky and Oliver North receive a full consideration of appropriate sentencing options. For many of the indigent defendants filling up our nation's prisons, mandatory and guideline sentencing virtually prohibit any consideration of alternative sentencing options. Abuse of judicial discretion needs to be carefully monitored, but use of judicial discretion to respond to individual and community needs at sentencing should be encouraged.
4. Encourage Courts to Make Greater Use of Alternatives to Incarceration
Incarceration is by far the most costly component of the criminal justice system. It has also not proved to be very productive as a means of reducing crime. A variety of community based sanctions exist which have been demonstrated to be appropriate punishments for a wide range of offenders. These include restitution to victims, community service work, intensive probation supervision, and provisions for treatment programs, education, and employment.
My organization, The Sentencing Project, has helped develop many programs that offer courts alternatives to prison in a range of cases, and we have seen courts accept these alternatives in well over half the cases presented. We know that judges can and will make more use of alternatives, if given the opportunity to do so at sentencing.
5. Reduce Lengthy and Inefficient Prison Terms
Mandatory sentencing laws and lengthier prison terms have resulted in high costs, with only relatively modest gains in crime control. Prisoners are prevented from committing crimes in the community while they are locked up, but this represents only a small fraction of all crimes. A 1978 report by the National Academy of Sciences concluded that to achieve a 10 percent reduction in crime, New York would have had to increase its prison population by 263 percent and Massachusetts by 310 percent.
The massive increase in incarceration and lengthening of prison terms provides almost no long term benefits in reduction of recidivism. The most recent Justice Department study of this issue shows that recidivism rates, while very high, are virtually identical for prisoners who serve anywhere from one to five years. Therefore, "getting tough" results in high corrections costs, but leaves us with offenders who are no less likely to commit future crimes.
Reducing lengthy prison terms by itself is not the answer to crime. What it would accomplish though, is to relieve the burden on an overcrowded system, to reduce the impact of the system on minorities, and to free up tax dollars to be used for prevention, a more effective means of crime control.
6. Require Racial/Ethnic Impact Statements from the Office of National Drug Control Policy
Given the serious impact of drugs and the drug war on minority communities, I would suggest that the Office of National Drug Control Policy be required to submit an annual report on the impact of its policies and funding priorities on racial and ethnic communities. Such a report might include the degree to which funding is made available to minority communities and organizations, the impact of prosecution and incarceration on these communities, and the number of persons receiving drug treatment services. This type of analysis would help to provide a focus for policy considerations regarding minority communities.
7. Develop More Accurate Reporting Methods for Hispanics
As noted above, there is reason to believe that Hispanics are undercounted in the criminal justice system due to inconsistencies in reporting methods and lack of data. It is important to develop policies and procedures that are consistent nationwide in order to assess the impact of criminal justice policies on Hispanic communities, and to enable the criminal justice system to respond more appropriately to its varied populations.
8. Restore a Balanced Perspective on the Relative Role of Criminal Justice Sanctions and Social and Economic Supports
The criminal justice system does not necessarily provide the best forum for reducing crime. As the American Bar Association Criminal Justice Section's Special Committee on Criminal Justice in a Free Society reported, of approximately 34 million serious crimes committed against persons or property in 1988, 31 million never resulted in arrest and only several hundred thousand resulted in felony convictions and imprisonment. Simply put, law enforcement and court officials could, under the best of conditions, effectively prosecute and punish only a small portion of overall criminal activity.
Our continued excessive emphasis on a law enforcement strategy to fight drugs fails to address the root causes of the drug problem. Our emphasis on punitive criminal justice remedies distracts us from more fundamental and potentially far-reaching questions: why is it that citizens of one of the wealthiest nations and of all social classes use illegal substances to the extent that Americans do today?
For inner city and low income communities, these root causes are certainly more closely tied to poverty, lack of opportunity, poor education and health care, and lack of hope for the future, than to any lack of jail and prison cells.
At the same time we have been waging a law enforcement war, with its own negative effects upon young Black males, conditions for Black communities have worsened on other fronts as well. A new study by the National Center for Children in Poverty of Columbia University documents that half of Black children and 40 percent of Hispanic children under the age of six now live in poverty. It should be clear to those of us within the criminal justice system as well as others, that unless we effectively address issues of poverty immediately, we are likely to see the next generation of Black males enter the criminal justice system at a rate even higher than one in four.
We have a choice. We can spend money on prisons, and on policies that are guaranteed to fill them with people who don't need to be in them, including many young Black men, or we can spend more time, energy, creativity and money to keep more people out of the system entirely. Funding for poverty-fighting, crime-preventing programs should be viewed from the long-term perspective, as a preventive measure which will reduce criminal justice costs in the future.

CONCLUSION
Of the scores of editorials which appeared in response to our report (see Appendix) almost all uniformly endorsed the range of policy recommendations I have suggested here. This reaction shows that the public may be much more ready for change than many policymakers have led us to believe.
The funding and policy decisions we make today regarding our approach to the drug problem will have a direct impact on the next generation of Black men. As an editorial in the Charleston (S.C.) Post/Courier noted, "If the festering cycle of poverty, violence and hate is not broken, more black men will be doomed to lives of crime and years behind bars."