Bonita Gooch, The Community Voice
By now, most of us know America has a problem with mass incarceration, but what will it take to really do something about it?
It’s a stark fact that the United States has less than 5% of the world’s population, yet we have almost 25% of the world’s total prison population. Increasingly harsh criminal justice policies over the last four decades, driven largely by the war on drugs and an obsession with incarceration, have resulted in a system that thrives on over-criminalization, mass incarceration, and racial injustice.
Thanks in part to Michelle Alexander’s 2012 book, “The New Jim Crow: Mass Incarceration in the Age of Colorblindness,” we know more about how the criminal justice system disproportionately impacts communities of color. The book was a wake-up call for the country’s African-American community.
While Benjamin Jealous, former president and CEO of the NAACP, labeled the book a “call to action,” there’s still been little substantive action to reverse or even slow the explosion of growth in America’s prison.
The NAACP, the Urban League, numerous religious groups, Black politicians, Black media, and even surprisingly supportive individuals like Wichita businessman Charles Koch, have called for an end to mass incarceration, beyond loosening of marijuana laws in a few states, there has been on a limited amount of changes in policies requiring a reduction in the sentencing structure for non-violent crimes.
On a Federal level, after years of trying, the U.S. House of Representatives finally approved the First Step Act, but the Senate has yet to pass any kind of reform measure. Even if it passes, the First Step Act isn’t the bill most sentencing reform advocates have been asking for.
In fact, the First Step Bill does not reform or reduce how long people are sentenced to prison. Instead, the bill focuses on rehabilitating people once they’re already in prison by incentivizing them, with the possibility of earlier release, to partake in rehabilitation programs.
The passage of a sentencing reform bill on the Federal level might be just the impetus needed to get the states moving on sentencing reform, since state and local sentencing reform have the greatest potential for decreasing America’s incarceration rate.
While more than 2 million people are behind bars in the United States, only about 10% are in federal prisons. Approximately 90% of the people incarcerated in the United States are held in local jails and in state prisons.
“Mass incarceration is a nationwide problem, but one that is rooted in the states and must be fixed by the states,” said Udi Ofer, director of the ACLU Campaign for Smart Justice.
That’s why much of the ACLU’s efforts on sentencing reform have focused on working for smart justice reform in state capitals across the country.
In Kansas, since 2016, the ACLU lead Kansas for Smart Justice Coalition have advocated for a seven item platform of justice reforms. However most recently, and as a result of a multi-year partnership with the Urban Institute, the ACLU is compiling a plan of actionable policy options that if passed should reduce that state’s prison population by 50% by 2025. Each state plan is designed to capture the nuances of the state and local sentencing practices for each state.
The statistics, facts, and statements in the balance of this article are taken from The ACLU’s recent report, “Blueprint for Smart Justice Kansas.”
What is Driving People Into Prison?
As of 2017, Kansas incarcerates 9.803 people, that’s nearly quadruple the 1980 prison population.
In 2015, the most common offense was drug possession (17%), followed by burglary, (12%), drug trafficking (11%), theft (10%), and assault (10%).
In 2017, probation and parole condition violations accounted for 56% of all admissions to Kansas prisons, and new court commitments accounted for about 1 in 3 admissions.
Roughly 70% of people sent to prison in 2015 were imprisoned for an offense that did not include violence.
Due in part to harsh sentencing requirements, drug offenses contributed to nearly one-third of all admissions to Kansas prisons in 2015.
As of 2015, the average length of imprisonment in Kansas was 4.7 years. In 2017, nearly 1 in 3 people (30%) had been in prison for more than five years,
Kansas incarcerates an estimated 5,964 people in county jails (2015 data) approximately 65% of whom are awaiting trial and have not been convicted of any crime. The remaining 35% have been convicted of a crime and sentenced to serve time in jail, which in Kansas means they are serving a sentence of fewer than 12 months.
THE PATH FORWARD
Addressing the population of Kansas prisons can only happen in two ways: reducing admissions and reducing time served.
Reducing Admissions
Alternatives to Incarceration: Kansas prosecutors should consider increasing felony diversions, which give adults charged with crimes the opportunity to complete an alternative to incarceration like treatment or community service. Right now, Kansas has a felony diversion rate of just 5% — half the national average.
Many reasons have been cited for the low usage of diversion — including lack of resources, little knowledge of diversion programs, enormous fines and fees, and prosecutors deciding not to use it.
Sentencing reform: Any meaningful effort to reach a 50% reduction in incarceration will need to include a fundamental shift in in drug policy
Reducing harsh sentencing requirements for drug possession
Reforming the Kansas sentencing rule that requires mandatory sentences for some offenses.
Increasing investment in substance treatment programs: Money saved from reduced incarceration could be reinvested in substance treatment programs and locally funded alternatives.
Reducing Time Served
Reducing time served, even by just a few months, can lead to thousands fewer people in Kansas’ prisons.
Sentencing reform: Designating low-level offenses as misdemeanors instead of felonies is a clear path forward for some offenses.
Kansas has a sentencing grid that includes mandatory sentences for some crimes. Removing the mandatory minimums or expanding the suggested ranges can increase judicial discretion and prevent people from receiving excessive prison time.
Release policy reform: Kansas currently offers good time credits if incarcerated people demonstrate good work and behavior. These credits, however, are offered at varying rates depending on whether the person is sentenced under the determinate or indeterminate sentencing structure.
People serving sentences.
Under the indeterminate structure prisoners earn credits at 50% (one day earned for one day served), and those under the determinate structure earn credits at 15% or 20%, depending on when the crime was committed.
Increasing the availability of good time credits could ensure that reduced time is a possibility for more incarcerated people.
REducing Racial Disparity
Ending mass incarceration is critical to eliminating racial disparities but is insufficient without companion efforts that take aim at other drivers of racial inequities outside of the criminal justice system.
Some examples include:
•Ending over policing in communities of color
•Evaluating prosecutors’ charging and plea bargaining practices to identify and eliminate bias
•Investing in diversion/alternatives to detention in communities of color
• Reducing the use of pretrial detention and eliminating wealth-based incarceration
•Ending sentencing enhancements based on location (drug-free school zones)
•Reducing exposure to re-incarceration due to revocations from supervision
•Requiring racial impact statements before any new criminal law or regulation is passed and requiring legislation proactively rectify any potential disparities that may result with new laws or rules
•Fighting discriminatory gang sentencing enhancements that disproportionately target people of color
• Shifting funding from law enforcement and corrections to community organizations, job creation, schools, drug and mental health treatment, and other social service providers.