Using the ranking of the proposed reforms from discussion and Consequences Tables for each, develop a risk profile and?decision-trees?(decision trees witho

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Professor Reshmaan N. Hussam and Holly Fetter (MBA 2020) prepared this case. Funding for the development of this case was provided by Harvard Business School. HBS cases are developed solely as the basis for class discussion. Cases are not intended to serve as endorsements, sources of primary data, or illustrations of effective or ineffective management. Copyright © 2020 President and Fellows of Harvard College. To order copies or request permission to reproduce materials, call 1-800-545-7685, write Harvard Business School Publishing, Boston, MA 02163, or go to www.hbsp.harvard.edu. This publication may not be digitized, photocopied, or otherwise reproduced, posted, or transmitted, without the permission of Harvard Business School.

R E S H M A A N N . H U S S A M

H O L L Y F E T T E R

Race and Mass Incarceration in the United States

It was 2002, and ten-year-old Alexis Jackson (HBS ’21) waited impatiently in the car for her grandmother. The two of them were taking their twice-monthly drive from Pittsburgh, Pennsylvania, to Montgomery, West Virginia, to visit her father Al Caldwell in prison. She liked to go see him; they played Scrabble together, and he made her smile. “He understood me the best, so I missed him,” Alexis recalled. Caldwell had been the first in his family to go to college, but had difficulty finding a job. “In my dad’s family, more people went to jail than to college. So in the end it was easier for him to transition from jail to society than college to society,” she reflected. While working at a gas station, he was arrested for dealing drugs and sentenced to five years in the Morgantown Federal Correction Institute. Every missed birthday, she got a card from him with $50, saved from his job inside making $2.50 per day. Her brother, father, and most of her uncles had been incarcerated. “It was normal,” she shrugged. “And I was lucky: I had a dad who was active in my life. In our neighborhood, we used to accept the idea that by the time you’re 21, as a black man, you’re either in jail or dead.”

Mass Incarceration and Calls for Reform The late 20th century saw a dramatic shift in the criminal justice system of the United States. While

incarceration rates had remained stable at approximately 100 per 100,000 U.S. residents from the 1920s through the 1960s, this rate doubled by the mid-1980s and quintupled by the 2000s [Exhibit 1]. By 2020, nearly 2.3 million individuals were locked up in U.S. prisons, jails, and detention centers.1

These numbers were exceptional relative to the rest of the world: in 2012, the U.S. incarceration rate of 707 per 100,000 population exceeded that of the next highest nation, Rwanda (492 per 100,000), by 44%. The U.S. rate was seven times the average rate of more comparable Western European democracies [Exhibit 2].2

By 2020, a wave of calls for a fundamental rethinking of the prison system in the U.S. arose from a wide range of organizations, thought leaders, and policymakers, even going so far as to call for the abolition of prisons. The criminal justice reform movement gained advocates from both sides of the political aisle, aligning the famously conservative Koch brothers with the progressive American Civil Liberties Union.3 As reported by the New York Times, mainstream Democratic candidates for the 2020 presidential election were promoting criminal justice policies that would have been seen as “radical” a few years prior, reflecting “a seismic shift in how the American public views criminal justice issues.”4

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Many of those calling for criminal justice reform stressed the ineffectiveness of incarceration in rehabilitating prisoners or deterring future crime, the cost of maintaining such an enormous public corrections system (estimated at over $80 billion annually [Exhibit 3]), and the disproportionality of long prison sentences for relatively minor crimes. While the threat of imprisonment was found to substantially improve the likelihood of paying fees and fines, harsher sentences appeared to have no deterrent effects on gun crimes or on the likelihood that juveniles would ultimately enter the adult criminal system.5 Bipartisan reform proposals pushed for reduced sentences for non-violent crimes, elimination of monetary bail, and alternatives to pre-trial incarceration such as the use of GPS ankle bracelets.

But calls for more radical reform stressed a structural, rather than instrumental, motivation: when critics looked closely at the U.S. prison system, many of them found that its failures were symptoms of a much deeper and broader problem with race in the United States.

In fact, a defining dimension of the U.S. prison system was disparities by race [Exhibit 4]. In 2011, an estimated 60% of the prison population identified as Black or Latinx, relative to 30% of the US population.6,7 By 2017, it was estimated that one in three young black men would serve time in prison at some point in his lifetime; in some cities, more than half of all young adult black men were subject to supervision by the prison system, including probation and parole.8 The lifetime likelihood of imprisonment for Latino men was one in six, and for white men one in 17 [Exhibit 5].9

Only by carefully examining the ways in which incarceration and race interacted both historically and presently in their country, reformers argued, could Americans honestly confront the scale of the challenges they faced.

The Purpose and Structure of Incarceration in the United States Although imprisonment was no modern phenomenon, it had historically served as a prelude to

punishment: a convict would sit in prison awaiting his or her fate, whether it be lashes or death. It was with the development of the penitentiary (introduced in the 18th century in Europe and the 19th century in the United States and implemented by colonial administrations across much of the Asian and African continents) that imprisonment itself was envisioned as a site of punishment and rehabilitation. It was conceived of as a place “for reflecting on their crimes and, through penitence, reshaping their habits and even their souls.”10 Regarded as a progressive and humanist reform of the Enlightenment, the penitentiary was linked to a larger campaign in service of the rights of citizens. As such, the prison sentence rose in parallel with the Age of Reason, an era in which time was endowed with particular value through its opportunity cost in labor.11

In modern American jurisprudence, incarceration was understood as serving three purposes: (1) rehabilitation, (2) retribution, or the deprivation of liberty as a form of punishment, and (3) prevention, either through individual incapacitation or by cultivating fear of further punishment in both individuals and society at large.12 The normative legitimacy of incarceration was likewise an evolving construct, with four broad principles guiding the carceral system in theory: proportionality, parsimony, citizenship, and social justice [Exhibit 6].

In the United States, incarceration could occur in a variety of facilities, the three most common being state prisons (57%), federal prisons (10%), and local jails (27%) [Exhibit 7]. Broadly speaking, state prisons were run by state department of corrections and typically held sentenced inmates convicted of felonies. Federal prisons were run by the U.S. Government and held prisoners convicted of federal crimes as well as pretrial detainees. Local jails, overseen by county or municipal jurisdictions, held

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pretrial detainees and those serving sentences less than one year.13 In 2018, among those detained in jail, over 75% were not convicted of any crime.14 They awaited trial in jail as they could not afford to pay bail, or the judge-determined cost of pre-trial release. Other formal sites of imprisonment included juvenile detention centers (2%) and immigration detention facilities (2%).

The U.S. adult correctional system encompassed not only those in prisons and jails but also those on parole and probation. Probation allowed individuals to live in their homes under supervisory conditions in place of incarceration, whereas parole functioned similarly for those who had already served some of their sentence in prison. Probation and parole could be revoked for a new offense or for “technical violations” of supervisory conditions, such as missing meetings with a parole officer, losing a job, or failing to pay fines, child support, or service fees for probation or parole.15 The total U.S. population on probation and parole rose from approximately one million in the mid-1970s to seven million by 2010 [Exhibit 8]. Both forms of supervision were considered feeders into the prison system, as violations could lead to revocation and reincarceration. Returning parolees made up about 20% of all state prison admissions in the 1980s, rising to 40% in the 2000s.16 A large and growing proportion of these returnees were imprisoned for technical violations rather than new convictions or sentences.17

The Racial History of Incarceration in the United States

The Era of Slavery

From early colonial settlements until the passage of the Thirteenth Amendment in 1865, colonial America and the United States engaged in the practice of chattel slavery; that is, slavery in which people were legally considered personal property.18 The owners of chattel slaves had a legal right to slaves’ lives. From 1620 until the trans-Atlantic slave trade was outlawed in 1808, an estimated 400,000 people were brought to the shores of the United States as chattel; more than half of those who were captured in Africa died in transport.19 Because the children of chattel slaves were also considered chattel, the slave population grew to 13% of the U.S. population, or four million people, by 1860.20 Chattel slaves were dependent on their legal “owners” for food and shelter, isolated from broader society, and forced to labor without recompense. They followed daily routines determined by their superiors, and brutal physical, emotional, and sexual abuse was pervasive. Punishment – intended not only to enforce rules but also to reinforce slaveowners’ authority – was often capricious. As described by one slave overseer, “Some Negroes are determined never to let a white man whip them and will resist you when you attempt it; of course you must kill them in that case.”21 When possible, however, preserving the value of labor was important, so mutilation (such as castration, removing teeth, or amputating ears) was common.22 Pregnant women were not spared, as described by Marie Hervey, a slave: “They used to take pregnant women and dig a hole in the ground and jut their stomachs in it and whip them. They tried to do my grandma that way.”23

In the Southern United States, the earliest examples of police forces were the slave patrols that captured runaway slaves and thwarted revolts.24 Black people were imagined and portrayed as docile and submissive during the era of slavery. As David Pilgrim, sociologist and founder of the Jim Crow Museum, wrote,

Proponents of slavery created and promoted images of blacks that justified slavery and soothed white consciences. If slaves were childlike, for example, then a paternalistic institution where masters acted as quasi-parents to their slaves was humane, even morally right. More importantly, slaves were rarely depicted as brutes because that portrayal might have become a self-fulfilling prophecy.25

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“Black Codes” and Convict Leasing

The end of slavery in 1865 was followed by a series of new legal systems for maintaining the old racist order, motivated by fears of uprising and designed to preserve the slave-based economy of the American South.26 Black people temporarily gained a semblance of economic and political power in the Reconstruction Era immediately following the abolition of slavery, but this relative freedom was accompanied by “a shift from Black people being viewed as compliant and submissive servants to savages and brute monsters” drawn towards crime.27 Slave codes, the laws that established the rights of owners over chattel slaves, evolved into the “Black Codes” of 1865 and 1866, sets of laws that turned freedmen and freedwomen into criminals through restrictions on, among other things, “vagrancy.”28 Vagrancy laws, enacted in nine Southern states, criminalized people lacking employment or housing. The Mississippi code prohibited Black and mixed-race people from “unlawfully assembling themselves together either in the day- or nighttime,” as well as white people associating with Black or mixed-race people.29 Other violations included “mischief” or “insulting gestures”30 and could result in arrest, fines, or, in eight states, convict leasing, in which incarcerated people – overwhelmingly Black – were “hired out” to plantations and other private enterprises for payment of criminal fines. While white prisoners were routinely sentenced to the penitentiary, Black convicts were leased; as historian David Oshinsky wrote, “[A] generation of black prisoners would suffer and die under conditions far worse than anything they had ever experienced as slaves.”31 An 1887 report from Mississippi recorded that six months after 204 convicts were leased to a man named McDonald, 20 were dead and 23 returned to the penitentiary near death; the convicts’ bodies bore “marks of the most inhuman and brutal treatment” and were “so poor and emaciated that their bones almost come through the skin.”32 Drawing from the 13th Amendment, which emancipated slaves with the exception of those convicted of a crime,33 the Virginia Supreme Court clarified that an incarcerated convict was “for the time being a slave of the State.”34 Convict leasing continued until 1928,35 and some vagrancy laws remained in place until 1972.36

Jim Crow and Lynching

You could pose with the body. You could carve up the bodies and take pieces home as souvenirs. This was a point of pride. And this was happening in communities with well-functioning court systems. These were social norms.

— Bryan Stevenson, Equal Justice Initiative, HLS ‘85

In 1877, Reconstruction-era federal troops withdrew from the South. Jim Crow laws began requiring “separate but equal” racial segregation in transportation, schools, churches, restrooms, and water fountains.37 Segregation was enforced in part by lynching, or extrajudicial mob murder, usually by hanging. From 1877 to 1950, over 4,000 Black Americans were lynched in 12 Southern states.38 Lynchings of Blacks were recorded in over 37 states, the last in 1968, and an estimated 75% of all lynching victims across the country were Black.39 Lynchings were attended by crowds of families including children [Exhibit 9 shows an image and description of a lynching]. Photographers snapped pictures that became postcards,40 while other keepsakes included clothing fragments, bone shards, and sex organs.41 Alleged offenders were often lynched without a trial, and were primarily accused of murder or rape, particularly of white women.42,43 Research by the Equal Justice Initiative suggested that many of these accusations were fabricated or exaggerated in an effort to reinforce social prohibitions against interracial sex and legalized hierarchies of race.44 The events were advertised in daily papers: “Troublesome Negro Settled,” described one; “Enmet Divers, the Callaway Rapist, Meets a Just Fate … He was being taken from St. Louis to Fulton for a preliminary trial when hanged,” reported another [Exhibit 10].

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The Death Penalty

The mid to late 20th century saw a rise in legal executions with a continued racial disparity – two in three Southern executions were of Black men in the 1930s.45 Legal challenges to the death penalty began in the 1940s46 and culminated in a 1972 Supreme Court ruling against death penalties, calling them “cruel and unusual” and noting, “[I]f any basis can be discerned for the selection of these few [out of those with similar crimes] to be sentenced to death, it is the constitutionally impermissible basis of race.”47 However, a Supreme Court ruling four years later effectively reversed the moratorium on capital punishment.48 In 2017, 42% of prisoners on death row were Black, as were 34% of all those executed under death penalties since 1976.49

The Era of Mass Incarceration The era of Jim Crow was also the era of the “Great Migration.” Between 1916 and the 1970s, an

estimated six million Black Americans moved from rural Southern states to urban centers in the North and Midwest of the United States, fleeing the violence of lynchings and institutionalized suppression of economic and political opportunities.50 This massive migration was accompanied by significant shifts in the macroeconomic environment. Violent crime began increasing in the 1960s (a trend paralleled in many Western countries),51 and continued growing through the 1970s as technological changes and international competition brought a wave of industrial closings and mass layoffs to working-class and disproportionately Black communities.52 The shock of deindustrialization was followed by the introduction of crack cocaine, a cheap and highly addictive form of the drug that swept through cities including New York, Philadelphia, and Washington, D.C, in the 1980s. These factors all contributed to the sharp rise in incarceration that started in the 1970s – yet continued long after violent crime and crack use began to fall [see Exhibit 1].

Longer-lasting social and political changes were afoot in the late 20th-century as well. In 1964, Democratic President Lyndon B. Johnson signed into law the Civil Rights Act, which outlawed racial segregation in public spaces and discrimination on the basis of race, religion, sex, or ethnicity. In 1965, he added the Voting Rights Act, the Housing and Urban Development Act, and the Law Enforcement Assistance Act (LEEA). As documented by Harvard University professor Elizabeth Hinton, the LEEA represented Johnson’s “War on Crime” and accompanied a rise in the surveillance of the new Black urban neighborhoods that had arisen from the Great Migration. The LEEA marked the first time in U.S. history that the federal government played a direct role in local police, courts, and prisons.53

By 1968, the idea of “law and order” took center stage in Republican Richard Nixon’s winning presidential campaign. This focus was part of what came to be known as the “Southern Strategy,” an attempt to garner favor among white Southern Democrats and the Catholic blue-collar vote in big cities through a coded appeal to racial fears. As described by H.R. Haldeman, one of Nixon’s main policy advisors: “He [President Nixon] emphasized that you have to face the fact that the whole problem is really the blacks. The key is to devise a system that recognizes this while not appearing to.”54 John Ehrlichman, special counsel to President Nixon, articulated Nixon’s 1968 campaign strategy: “[the] subliminal appeal to the anti-black voter was always present in Nixon’s statements and speeches.”55 The strategy was successful: a 1968 Gallup Poll reported that 81% of respondents agreed with the statement that “law and order has broken down in this country.” The majority blamed “Negroes who start riots” and “Communists.”56

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The War on Drugs

In 1982, President Ronald Reagan officially launched a brainchild program of his predecessor, the “War on Drugs;” drug abuse had been declared by Nixon as “public enemy number one.” 57 At the time, less than two percent of the American public viewed drugs as the most pressing challenge of the nation.58 The War on Drugs was accompanied by the use of coded terms like “welfare queens” and criminal “predators,” coming to associate poverty and Blackness with poor character and crime.59 The Reagan administration oversaw a similar steep rise in funding for crime and drug control law enforcement and fall in funding for welfare programs [Exhibit 11].60 This trend continued into the 1990s under both the [Republican] Bush and [Democratic] Clinton administrations, the latter of which further cut welfare programs.61

In 1995, political scientist and then-Princeton professor John DiIulio, Jr. warned, “America is now home to thickening ranks of juvenile ‘super-predators’—radically impulsive, brutally remorseless youngsters, including ever more preteen boys who murder, assault, rape, rob, burglarize, deal deadly drugs, join gun-toting gangs and create serious communal disorders.”62 In an article titled “The Coming of the Super-Predators,” he claimed, “Especially in urban America, white fears of black crime – like black fears of black crime – are rational far more than reactionary or racist.”63 Though DiIulio later recanted these views, his work circulated widely through top policy circles over the decade.64

Black fears of Black-perpetrated crime also played an important role in shifting carceral policy. During the period of rising crime in the 1970s and the crack epidemic of the 1980s, majority-Black communities in Washington, D.C. actively petitioned for increased funding for drug control and harsher sentencing for violent crimes and substance abuse and dealing. D.C. Council Ward Member John Wilson, formerly a member of the Student Nonviolent Coordinating Committee (SNCC, pronounced “snick”), described the challenge: “We have so many [guns] that we are killing, injuring and robbing ourselves to the brink of chaos.”65 Indeed, the Black homicide rate (the fraction of Black people killed by homicide) was seven to 11 times higher nationally than the white homicide rate.66 Wilson went so far as to state, “ ‘Respect for law’ can no longer be considered code words for bigotry.”67 The Black community, however, was not a monolith; class divisions were predictive of support, with middle-class Blacks actively supporting harsher carceral policy, while lower-income members of the community and the longstanding National Association for the Advancement of Colored People (NAACP, pronounced “N double-A C P”) protested that such policies did not attack the root causes of violence.68

Fears of crime drove public opinion and policymakers on both sides of the aisle. A rush of state laws enacted in the 1990s began subjecting juveniles to adult sentences and prisons. In 1994, the sweeping Violent Crime Control and Law Enforcement Act called for higher rates of imprisonment following conviction, longer sentences, and a greater proportion of time served on sentences, and further tied federal funding for state prison construction to these conditions.69 Democratic Senator Joe Biden authored the Clinton-era bill, and then-First Lady Hillary Clinton later employed the term “superpredator” in touting the administration’s policies on crime.70

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Sentencing Policies

The 1994 crime law was part of a series of legislative acts, enacted from the mid-1980s through the mid-1990s, that made sentences for drug and violent crimes lengthier and less flexible through three notable changes:

• Mandatory minimum sentences required minimum prison terms for people convicted of particular crimes, primarily drug offenses and violent crimes. A conviction for possessing five grams of crack cocaine required a minimum sentence of five years. Notably, the same minimum five-year sentence was imposed for powder cocaine possession only at or above 500 grams.71 Although chemically identical, crack was cheaper and more likely to be used in inner cities and among people of color.72

• Three strikes laws mandated life sentences for individuals convicted of a third offense, usually a “serious violent felony” after two prior serious offenses.73 California’s especially harsh three strikes law mandated a life sentence for even minor convictions after two prior serious offenses.74

• Truth-in-sentencing laws required that prisoners serve a minimum portion of their sentences, often 85%,75 reducing opportunities for time off for good behavior.76

The Violent Crime Control and Law Enforcement Act Three tied $8 billion in federal grants for state corrections to three strikes and truth-in-sentencing laws.

Racial Disparities in Criminalization and Incarceration in the Era of Mass Incarceration

Statistics and Rationale

From the early 1970s through 2020, Blacks were more likely than whites to be arrested, jailed pending trial, incarcerated, and given longer sentences.77 While true across all crime types, disparities for drug crimes were especially stark: by 1989, Blacks were arrested at four times the rate of whites. However, the Black population was less than one-fifth that of the white population (at 13% versus 72% of the US population), and rates of drug use among Blacks were consistently lower than whites, as were rates of drug selling [Exhibit 12].78 By 2010, one in every three Black men could expect to be incarcerated in his lifetime [Exhibit 5]. Among those without a high school degree, the probability rose to 68% [Exhibit 13].

The statistics on race and violent crime (rape and sexual assault, robbery, assault, and murder) were more challenging to ascertain. The 2018 National Crime Victimization Survey, in which race of the offender was relayed (if recalled) by the reporting victim, estimated that 21.7% of violent incidents were reportedly perpetrated by Blacks (an offender-to-population ratio of 1.8) and 50.2% by whites (ratio of 0.8).79 In arrest statistics for the same year, Blacks accounted for 37% of adult violent crime arrests, while whites accounted for 59%.80 Considering all crime types, according to the United States Sentencing Commission, Black males received a 19% longer sentence, on average, than white males, after controlling for type of crime and criminal history.81

Why were Black people more likely to be incarcerated, and for longer sentences? Some 19th-century scholars proposed a biological link between criminality and race, asserting that people with certain facial features, including “the projection of the lower face and jaws … found in negroes,” were more likely to commit crimes.82 Mid-20th century scholars from the “Chicago School” propagated a “subcultural theory,” which theorized that certain cultures nurtured values and attitudes more

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conducive to crime and violence.83 This framework was popularized in 1965 by Assistant Secretary of Labor to President Johnson, Daniel Moynihan, who published The Negro Family: The Case for National Action (widely known as the Moynihan Report) in which he considered how a black “subculture” informed by poverty and the deterioration of the nuclear family may lead to a “tangle of pathology…capable of perpetuating itself without assistance from the white world.”84 85 While intended to raise awareness around the economic disadvantages endemic to many Black communities, the report was blamed for racializing the nature of urban poverty through an ahistorical and primarily cultural lens.86

Other contemporary scholars pointed to a range of causes: economic disadvantage; disparities and bias in policing and the judicial system; and structural, institutionalized racism.a

Economic