How Excessive Imprisonment Keeps The US Justice System Unjust
Brother Shakoor had served his time. Sure, he’d made mistakes in his teens, but he’d atoned and turned his life around. He had a wife. He was an upstanding member of his community.
Until, on his way to work one morning, he saw a fist fight in action. Knowing what could happen if he seemed to be involved, he kept out of it.
Nonetheless, because of that morning, he ended up sentenced to life in prison. Why? For “instigating a fist fight.”
. . .
Amin Rafiq was arrested at the age of 17 for juvenile non-violent drug offenses. Despite being a minor and non-violent, he was sentenced to 3 consecutive life sentences.
Amin was punished for crimes that posed little danger to others, committed before he turned 18.
. . .
How could this happen in a fair and just society?
When the time sentenced is much harsher than the crime being punished, it's called "excessive sentencing." And it’s a major driver of mass incarceration in the US today.
For an innocent man and a minor – both of whom became Tayba students while serving time behind bars – a combination of unjust policies and systemic biases led to their excessive prison sentences.
The big picture: sentencing in the US today
Right now, there are almost 2.3 million people being held by the US criminal justice system. That’s four times the number of people who were in jail in America in the 1970s.
In fact, there are more people serving life sentences in the US right now than there were Americans in jail in total in 1970. And, despite having just 4% of the world population, prisoners in America make up over 20% of the world’s total prisoner population.
Three big factors contributed to this shift toward long-term mass incarceration. They are: mandatory minimums, three-strike rules, and the so-called ‘war on drugs’.
These policies are intended to punish the most dangerous, hardened criminals. But, without controls in place, they usually end up punishing the most vulnerable instead.
They harshly punish non-violent drug offenders and people living with poverty or mental illness.
And that’s exactly what’s happened in the US today: Roughly 45% of all federal prisoners are incarcerated for a drug offense. And their sentences are 153% longer today than they would have been for the same crimes in the late 1980s.[1]
The US today doesn’t just imprison people at a rate higher than any other nation. It also sends people to jail for longer than most other nations.
Why don't we compare apples to apples? Let’s look at someone who has a prior drug offense being arrested on possession of drugs with an intent to sell them.
In Canada, the minimum penalty for possession for the purpose of trafficking of a Schedule I drug for someone with a prior conviction of a designated drug offense is 1 year.[2]
In the UK, someone’s third class-A drug offense comes with a minimum of 7 years.[3]
In the US, the minimum sentence for this same crime for a repeat offender is 10 years. And it's a mandatory minimum of life in prison for someone with two or more drug felony convictions.[4]
A 2011 Justice Policy Institute study found that, on average, sentences in America were longer than in the other nations studied.[5] This was true both overall and when broken down by category, with few exceptions.
“The average sentence length for all sentences in the U.S. (63 months) is higher than that in Australia (36 months) and Germany (between one and two years). Differences in sentencing for drug offenses, in particular, likely contribute to this disparity in average sentences. People convicted of drug offenses in the U.S. receive an average sentence of five years compared to just 32 months in England and Wales. While data was not available by offense type for Germany, the U.S. sentences people to prison for longer than Finland, Australia or England and Wales for robbery, assault, and fraud.” - Justice Policy Institute
And, as disturbing as all that is, it’s made worse by the fact that studies show that long prison sentences aren’t nearly as effective as one might think.
Long sentences are intended to punish crimes, act as a deterrent, and keep dangerous people locked up behind bars. But they're not particularly effective when it comes to lowering the crime rate or even preventing people from reoffending.[6]
Excessive sentencing is the norm in the US today, and it’s made us the world capital of incarceration. But how did we get here? And what can we do to help?
Mandatory minimums, the three-strike rule, the “war on drugs”
Let’s take a look at three of the primary drivers of this trend.
The war on drugs
“You want to know what this was really all about? ... The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and Black people. You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or Black, but by getting the public to associate the hippies with marijuana and Blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.” - John Ehrlichman, domestic policy chief to Richard Nixon, in a 1994 interview with Harper’s magazine
From its start, the US justice system has been a tool for injustice against Black Americans. (You can read more on how the US prison system is inextricably linked to slavery in the US here.)
But the excessive sentencing we see today is really a phenomenon of the last 50 years.
See, in 1971, President Richard Nixon declared a ‘war on drugs,’ which meant the heavy criminalization of marijuana and heroin use. But the initiative was a smoke screen for criminalizing people of color in America.
And while some reforms have recently been made to right some of the wrongs made in the name of the US war on drugs, it's not enough. Many people – especially people of color – are still in prison and still being sent to prison because of Nixon’s racist policies.
Of the people imprisoned for drug offenses in the US today, roughly two-thirds are people of color. But white people are just as statistically likely to use drugs as people of color and are reportedly more likely to sell drugs.[7]
And the problems don’t end there.
Mandatory minimums
Mandatory minimums are probably the single biggest driver of excessive sentencing.
Mandatory minimums are rules set by policymakers (rather than judges or legal scholars) that decide the least amount of time that someone convicted of a particular crime can be sentenced to.
These laws were introduced as a way to remove unevenness in sentencing. The thought was, how a crime is punished shouldn’t depend on which judge you get. Which sounds like a pretty good idea.
Unfortunately, in practice, mandatory minimums in the US are often applied to non-violent drug offenders.
They impose harsh punishments on people who pose little danger to their communities. People who would much more likely benefit from social supports, preventative measures, or rehabilitative care.[8]
For example, in 2006, Atiba Parker, a 29-year-old man from Mississippi, began self-medicating with marijuana. See, Parker struggled with schizoaffective disorder.
To make money to buy more marijuana, he tried to sell a small amount of crack cocaine (less than three grams). He was caught, and, since he had two prior counts of misdemeanor possession of marijuana, was sentenced to 42 years in prison.
Today, he is sober but still imprisoned with insufficient access to the psychiatric medicine he needs.[9]
To prevent this problem, other nations that have mandatory minimums have strict controls to make sure they work the way they’re supposed to.
In Canada, the Supreme Court ruled that, to be constitutional, mandatory minimum penalties had to be narrow enough that they wouldn’t be applied to someone for whom the minimum punishment would be cruel relative to their crime.[10]
In the UK, mandatory minimums come with a degree of judicial discretion. That means, should a judge have objections to using the minimums based on the specifics of the case, they don't necessarily have to follow them.[11]
But, in the US, there are no such rules. We do nothing to ensure that mandatory minimums are only applied where they make sense. There are no safeguards for judges to make exceptions.
For that reason, some federal judges have been vocal about their dislike for mandatory minimums.
They especially dislike having to apply them in non-violent cases where the harsh punishment rarely fits the crime. [12][13] Yet, many, many of these laws still stand.
Three strikes and you’re out
The third factor is just as important as the others to the current trend of unjust sentencing: Three strike laws.
Three strike laws swept the nation in the early 1990s.
They were created thanks to a lobbying effort by a Californian wedding photographer named Mike Reynolds. Reynolds’ 18-year-old daughter, Kimber Reynolds, was murdered by a repeat offender who had just been released on parole.[14]
The idea behind the law was that career criminals with multiple offenses on their record wouldn’t be allowed to keep committing crimes. That is, you only get so many chances. Three strikes and you’re out.
It mandated that anyone convicted of a third offense who had two or more prior convictions fitting certain criteria would automatically get 25 years to life. The official ballot materials for the three strikes law billed it as a way to “keep murderers, rapists, and child molesters behind bars, where they belong.”
Again, a pretty good idea, when you put it that way – and one that has, at times, successfully kept dangerous people off the streets. But one that has also had unintended consequences.
Similar to mandatory minimums, the effect of these three strike laws was a mixed bag. Sure, sometimes they kept dangerous criminals behind bars. But, more often than not, they ended up being applied to non-violent criminals – and for 25 years to life.
“People have been sentenced to life in prison for shoplifting a pair of socks or stealing bread. Under Alabama’s habitual felony offender law, hundreds of people have been sentenced to life imprisonment without parole for petty, nonviolent crimes like stealing a bicycle.”- The Equal Justice Initiative
California’s three strikes law is how Brother Shakoor ended up in prison for life for allegedly instigating a fist fight in which he had no part. He had committed two felonies in his youth, in a prior life as part of a gang.
And that was enough to put him away for life.
All together, these rules are why individuals convicted of nonviolent crimes make up over two-thirds of all people serving life or virtual life sentences in the US today.
But the story doesn’t end there.
What’s unique about the two Tayba students we told you about at the beginning of this article – Brother Shakoor and Amin Rafiq – is that they were both able to fight back.
They are, today, free men.
In his time in prison, Brother Shakoor finished his GED. He earned two AAs, a Bachelor’s degree, and facilitated many groups – including a Lifer’s Support Group. That is, a group for prisoners with life sentences to come together and support one another.
That group ended up connecting with a donor who was deciding whether to support a California bill to end the three strike rule. The donor and his fiancée were so moved by the men’s stories that they committed to significant financial support of the bill.
The bill got on the ballot and California voters voted to change the law. Thousands of people in California gained their freedom.
But that change in the law was not what freed Brother Shakoor. A judge looking over his case eventually found that Shakoor had been wronged.
The judge let him out – no parole, no probation required. The system admitted its mistake and set him free without condition after a grueling 17 years behind bars.
Amin too was able to get help to fight his excessive sentence and is today a free man, but many prisoners are not so lucky.
You can help change the game
There is hope for a better system. There is hope for change. But action is needed and, in the meantime, there are many prisoners behind bars who need your help.
Tayba Foundation is a US non-profit organization that serves incarcerated Muslims in the US. We provide them access to Islamic education, life skills training, and re-entry assistance, one of the very few organizations serving this population.
A number of our students have gone on to become leaders in their Muslim communities. Others received undergraduate and graduate degrees. Some have even joined Tayba as faculty and staff.
There are roughly 2.3 million people in prisons and jails in the United States today, including over 150,000 serving life sentences – at least 100,000 of those for non-violent crimes.
We believe it’s time to start repealing mandatory minimums and eliminating excessive sentencing. And we’re working to help Muslims affected by these unjust laws in the US today.
To learn more about our work, visit taybafoundation.org.
To receive updates when we publish more articles on the US prison system and how Muslims are affected by it, sign up at the link here.
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[1] https://eji.org/issues/excessive-punishment/
[2] https://www.ppsc-sppc.gc.ca/eng/pub/fpsd-sfpg/fps-sfp/tpd/p6/ch02.html
[3] https://www.defence-barrister.co.uk/mandatory-minimum-term-sentences
[4] https://www.everycrsreport.com/reports/R45074.html#_Toc504660938
[5] http://www.justicepolicy.org/uploads/justicepolicy/documents/sentencing.pdf
[6] https://www.bbc.com/future/article/20180514-do-long-prison-sentences-deter-crime
[7] https://eji.org/news/nixon-war-on-drugs-designed-to-criminalize-Black-people/
[8] https://www.bbc.com/future/article/20180514-do-long-prison-sentences-deter-crime
[9] https://famm.org/stories/atiba-parker
[10] https://www150.statcan.gc.ca/n1/pub/85-002-x/2017001/article/54844-eng.htm
[11] https://www.justice.gc.ca/eng/rp-pr/csj-sjc/ccs-ajc/rr05_10/p3.html
[12]https://www.brennancenter.org/our-work/analysis-opinion/sentencing-laws-and-how-they-contribute-mass-incarceration
[13]https://www.npr.org/2017/06/01/531004316/a-federal-judge-says-mandatory-minimum-sentences-often-dont-fit-the-crime
[14] https://www.wnycstudios.org/podcasts/takeaway/segments/retro-report-looks-back-legacy-three-strikes