From: v059nmxa@ubvmsb.cc.buffalo.edu
Newsgroups: alt.drugs
Subject: ARTICLE: "The Incarceration of America"
Date: 13 Nov 92 01:40:00 GMT
Organization: University at Buffalo
News-Software: VAX/VMS VNEWS 1.41


The following appeared in the New York Law Journal 
Friday, November  6, 1992 
(reprinted without permission)


                  The Incarceration of America 

by Alan B. Fischler (a criminal defense lawyer practicing in New
York and Washington, D.C.)


   During the 1980s, our country experienced a marked growth in the
number of persons incarcerated in the state and federal facilities,
and in the rate at which people are incarcerated. 

   During that time, the U.S. saw the number of inmates double. n1
Since 1973, the number of prisoners has triples. n2 It is reported
that by 1991, 445 of every 100,000 persons in the United States
were imprisoned. n3 This rate of incarceration is by far the
highest of any country in the civilized world, indeed more than two
to three times that of our closest "competitors" such as Canada at
111 per 100,000 persons, China at 111 per 100,000 persons, and
Japan at 42 per 100,000 persons. n4 

   This growth in prison population has by no means been restricted
to the federal government.  From 1980 to 1988, the combined federal
and state inmate populations increased by 90 percent. n5 New York
State has seen its own inmate population almost triple during the
period from 1981 through 1991, rising from 21,626 inmates held in
state facilities in 1981, to 58,404 held by year's end of 1991, an
increase of 270 percent. n6 Additionally, it is estimated by
federal and state corrections officials that by 1995, prison
populations will have increased another 30 percent. n7 

   Aside from the human costs, the economics of incarceration is
staggering.  It has been estimated that the cost of incarcerating
1.1 million Americans in 1990 reached $ 20.3 billion. n8 In New
York State, the Department of Correctional Services projects a need
for eight additional state prison facilities, each costing about $
220 million to build and $ 22.5 million per year to operate. n9
Overall, the price tag of such new prison construction combined
with total operating expenses on their completion, is expected to
drain an additional $ 2.2 billion from the state's budget,
notwithstanding the current crisis faced by the state in funding
its courts and its existing criminal justice system. 

   The U.S. government currently seeks to double the existing
number of beds in the federal prison system. n10 Naturally, any
projected increases to state and federal correctional systems would
be exclusive of additional costs associated with expansion of other
sectors of our criminal justice systems -- law enforcement
agencies, courts, prosecutors, defense attorneys and related 
services. 

   What factors are responsible for the exponential growth in the
number of persons arrested, prosecuted and incarcerated throughout
the U.S. and the increased demands placed upon our criminal justice
budgets?  The largest single factor has been our nation's "war on
drugs." 

   Since 1981, the number of drug offenders placed behind bars in
our federal prisons has more than doubled, now totalling 53 percent
of the federal inmate population. n11 If current policies continue,
that number is expected to grow 69 percent by 1995. n12 

   Nationwide, state and local police reported for the period of
1980 to 1988, a doubling of the annual number of adult arrests for
drug offenses -- from 471,165 in 1980, to 1,050,576 in 1988. n13
The year 1989 saw a further increase of more than a 20 percent over
the previous year's figures, to 1,247,763, winding up the 1980s
with the annual number of state and local adult arrests of drug
offenders made nationwide having almost tripled since inception of
the decade. n14 In 1981 the federal government reported a total
drug control budget of $ 1.46 billion, by 1991, that figure had
risen to $ 10.52 billion with further increases requested for 1992.
n15 

   In 1983 New York sent 1,567 individuals to its prisons on
charges of sale or possession of drugs.  By 1989, that figure had
risen to 9,762, n16 an increase of 500 percent.  State arrest
figures for the decade indicate that whereas in 1980 a total of 8.4
percent of all arrests made were for drug offenses, n17 by the year
1989, drug offenses accounted for 23 percent of all arrests made 
statewide. n18 While convictions for drug offenses in New York
State's Supreme Courts during the year 1980 accounted for a total
of 11.6 percent of all felony convictions, by 1990 convictions for
drug offenses had grown to represent 50 percent of all felony
convictions handed down by our state courts. n19 

   Faced with these realities, Governor Cuomo has signalled what
may be considered a dramatic shift from prior policy.  In his 1992
State of the State address, he called for a revised approach to
criminal justice to better utilize the state's existing resources
to deal more effectively with "violent" criminal offenders, while
recommending more creative alternative to incarceration to deal 
with the state's "non-violent" offenders.  Included in this latter
category are drug offenders. 

   Nationwide, criminal justice figures over the past two decades
bear out that existing drug policies have become responsible for
the skyrocketing costs of criminal justice budgets throughout the
country, together with the steady increase in the number of
individuals imprisoned. 

   What have we gained?  For many experts and observers, it is
apparent that insofar as stemming the tide of drug use, we have
gained little.  After two decades, studies show no notable decrease
in drug use throughout our nation. For instance, a 1991 household
survey of the National Institute on Drug Abuse reported a continued
increase in cocaine use throughout America; reporting an 18 percent
increase in those who used cocaine "once per month," with a 29
percent increase in the number of weekly cocaine users.  Although
a small decline in cocaine use was reported among young people,
general increases were reported among blacks and other inner-city
drug users, those most heavily subjected to criminal justice
sanctions. n20 

   No discussion of the alarming rates at which Americans are being
incarcerated can fail to mention the discriminatory impact of
current drug enforcement policies on minority communities.  It has
been reported that black males make up only 12 percent of our
nation's drug users, n21 and that whites sell most of the nation's
cocaine and account for 80 percent of its customers.  Nevertheless,
a 1991 study by the U.S. Sentencing Commission conducted at the
request of Congress, revealed that since enactment of the federal
sentencing guidelines in 1984, which established mandatory minimum
prison sentences for various offenses, 91 percent of those
sentenced to such mandatory minimum terms of imprisonment were drug
offenders, of which numbers 63 percent were black or Hispanic. n22 

   In New York State, a 1990 report issued jointly by The
Correctional Association of New York and the New York State
Coalition for Criminal Justice, entitled Imprisoned Generation,
attributed the state's rise in the number of persons incarcerated
annually from the years 1983 to 1989, largely to heightened
enforcement and prosecution of drug offenders. n23 Of the 9,762
criminal defendants committed to New York prisons in 1989, 90
percent were either black or Hispanic. n24 

   By 1990 more than 23 percent of New York's young black men,
almost one in four, were at some time during the year within the
custody of the state's criminal justice system -- either in jail,
on parole or on probation. n25 It has been observed that a young
black man in New York State has 23 times the chance of being
incarcerated on any given day than does a white male of similar
age. n26 

   Many contend that this "over-incarceration" of Americans is not
only ineffectual, but is unconscionable.  They suggest that drug
use should be considered and treated more as a social if not
medical problem, rather than dealt with by the punishing arms of
our nation's drug policies, the billions of tax dollars expended
and projected to the expended in the future, may pale by 
comparison to the human and social costs to be paid by society in
the long run should current policies continue unabated. 

   For while the discriminatory nature of current enforcement
efforts may suggest, on the one hand, a broadening of the net
beyond the minority communities of those to be arrested, prosecuted
and incarcerated as drug offenders, perhaps it begs that larger,
more fundamental questions be asked. 

   Will yet additional reliance on law enforcement efforts, the
court and prisons -- with the resulting incarceration of Americans
at even greater rates and in ever increasing numbers -- solve those
problems supposedly being attacked by such efforts?  And further,
if the basic premise propelling our nation's "war on drugs" is to
help Americans lead better more productive lives, what have we    
gained by the arrest and incarceration of those that current
national policy purportedly seeks to help?  Are we not, as some
have suggested, utilizing prisons as but "the last step along a
continuum of injustice for [minority] youths, that literally starts
before birth: no pre-natal care, poor health care, substandard
housing, dirty streets, failing schools, drugs, joblessness, 
discriminatory deployment of police and prisons?" n27 

   Aside from the enormous costs associated with the government's
ineffective and arguably harmful policy, we must consider what may
be the harsh reality concerning a society's over-reliance on use of
its penal institutions to solve what may be primarily social
problems.  Again quoting from Imprisoned Generation: "Prisons are
the dumping ground for social and economic problems like
unemployment, dysfunctional families and drug and alcohol abuse,
that could be handled more effectively, more compassionately and
less expensively through well-run community-based programs." If
there is any truth to this proposition, considering decades of
failure of our nation's drug policy, characterized by our 
attempts to "build our way" out of social problems by additional
prison construction, perhaps we can now agree that it is more than
time for a change in our state and national policy in this area. 


Notes:

   n1 Americans Behind Bars: One Year Later, Marc Mauer, The
Sentencing Project, 1992. 
   n2 Id. 
   n3 Id. 
   n4 Id. 
   n5 Id. 
   n6 As reported by Richard M. Girgenti, N.Y.S. Director of
Criminal Justice, Feb. 18, 1992. 
   n7 Americans Behind Bars: One Year Later, The Sentencing
Project, 1992. 
   n8 Id. 
   n9 Reported Statistics of the New York State Department of
Corrections Services. 
   n10 "Information Sharing: A Plus for Corrections Construction,"
Charles B. DeWitt, Dir., National Institute of Justice, National
Institute of Justice Reports, Jan/Feb 1991, as reported by
Americans Behind Bars: One Year Later, The Sentencing Project,
1992. 
   n11 "Number of Imprisoned Drug Offenders Up Sharply," Michael
Isicoff, Washington Post, 4-25-91, as reported by Americans Behind
Bars: One Year Later, The Sentencing Project, 1992. 
   n12 Id. 
   n13 Drugs and Crime Facts, 1990, Sourcebook of Criminal Justice
Statistics, 1990, U.S. Dept. of Justice, Bureau of Justice
Statistics, "Number of Adult Arrests for Drug Violations Reported
by State and Local Police, 1980-1989." 
   n14 Id. 
   n15 Sourcebook of Criminal Justice Statistics, 1990: "Total
Federal Drug Control Budget Authority," Source: "National Drug
Control Strategy: Budget Summary," (Exec. Office of the President,
1991). 
   n16 Imprisoned Generation, 1990, ("Young Men Under Criminal
Justice Custody in New York State"), A Report by the Correctional
Association of New York and the New York Coalition for Criminal
Justice, September 1990. 
   n17 State of New York, Division of Criminal Justice Services
Statistics, 1980-1990. 
   n18 Id. 
   n19 Id. 
   n20 Americans Behind Bars: One Year Later, The Sentencing
Project, 1992. 
   n21 Id. 
   n22 Id. 
   n23 Imprisoned Generation, 1990, "Young Men Under Criminal
Justice Custody in New York State", September 1990. 
   n24 Id. 
   n25 Id. 
   n26 Id. 
   n27 Id. 
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