As one might expect, the number of people disenfranchised reflects to some extent the number of people involved in criminal activity. But the proportion of the population that is disenfranchised has been exacerbated in recent years by the advent of harsh sentencing policies such as mandatory minimum
sentences,25 three strikes laws26 and truth-in-sentencing laws. Although crime rates have been relatively stable,27 these laws have increased the number of offenders sent to prison and the length of time they serve.
In California, for example, more than 40,000 offenders have been sentenced under the states three strikes law as of June 1998. As a result of the law, 89 percent of these offenders had their sentences doubled, and 11 percent received sentences of twenty-five years to life. Only one in five of these were sentenced for crimes against persons; two-thirds were sentenced for a nonviolent drug or property crime. Seventy percent of the sentenced offenders were either African American or Hispanic.
The impact of changed sentencing policies is readily apparent from Department of Justice data. For example, persons arrested for burglary had a 53 percent greater likelihood of being sentenced to prison in 1992 than in 1980, while those arrested for larceny experienced a 100 percent increase. The most dramatic change can be seen for drug offenses, where arrestees were almost five times as likely to be sent to prison in 1992 as in 1980.28 In addition, since the number of drug arrests nearly doubled during this period, the impact was magnified further.29 Over this same twelve-year period, the rate of incarceration in prisons rosefrom 139 to 332 per 100,000 U.S. residents.30 Eighty-four percent of the increase in state prison admissions during this period was due to incarceration of nonviolent offenders.31
The rate of incarceration has continued to soar. In 1997 the combined prison and jail rate reached 645 per 100,000 residents, the second-highest known rate of incarceration in the world (only Russias is known to be higher). At mid-year 1997 (the latest available figures), there were 1.7 million U.S. residents incarcerated, two-thirds of them in state or federal prisons and the remainder in jails. One in every 117 men and one in every 1,852 women were under the jurisdiction of state or federal correctional authorities. Fifty-three percent of state inmates were sentenced for nonviolent offenses.32
If these incarceration rates remain unchanged, Department of Justice data indicate that an estimated one in twenty of todays children will serve time in a prison during his or her lifetime and will be disenfranchised for at least the period of incarceration.33 The total number of disenfranchised will be substantially greater because it will also include felons on probation in the twenty-nine states that disenfranchise those on probation.
Racially Disproportionate Incarceration Rates
The strikingly disproportionate rate of disenfranchisement among African American men reflects their disproportionate rate of incarceration. The rate of imprisonment for black men in 1996 was 8.5 times that of white men: black men were confined in prison at a rate of 3,098 per 100,000 compared to a white rate of 370.34 Even more strikingly, in the past ten years the black mens rate increased ten times the white mens increase.35
If current rates of incarceration remain unchanged, 28.5 percent of black men will be confined in prison at least once during their lifetime, a figure six times greater than that for white men.36 As a result, nearly three in ten adult African American men will be temporarily or permanently deprived of the right to vote. But the total numbers of disenfranchised will be greater because, as noted above, it will include a substantial percentage of those convicted of a felony but not receiving a prison sentence (e.g., sentenced to probation). In states that disenfranchise ex-felons, we estimate that 40 percent of the next generation of black men is likely to lose permanently the right to vote.37
We have not developed estimates of the number and racial composition of disenfranchised women. The rates for black women are also likely to be quite disproportionate, though on a smaller scale than black men. This is a result both of increasing rates of criminal justice supervision of women, in general, and higher rates overall for black women, in particular. Although women represent 15 percent of all persons under correctional supervision, their numbers have been growing at faster rates than for men in recent years. Among sentenced prisoners the rate of incarceration for women grew by 182 percent in the period 1985-1995, compared to an increase of 103 percent for men.38 Since black women are incarcerated at a rate eight times that of white women, the effect of these increases is magnified for them.
The increased rate of black imprisonment is a direct and foreseeable consequence of harsher sentencing policies, particularly for violent crimes, and of the national war on drugs. Although the black proportion of arrestees for violent crimes has remained relatively stable over the past two decades, blacks nonetheless continue to constitute a disproportionately large percentage of those arrested for violent crimes (43 percent in 1996); their incarceration rate in part reflects the longer sentences imposed for those crimes.39 But drug control policies that have led to the arrest, prosecution and imprisonment of tens of thousands of African Americans represent the most dramatic change in factors contributing to their disproportionate rate of incarceration. Although drug use and selling cuts across all racial, socio-economic and geographic lines, law enforcement strategies have targeted street-level drug dealers and users from low-income, predominantly minority, urban areas. As a result, the arrest rates per 100,000 for drug offenses are six times higher for blacks than for whites.40 Although the black proportion of all drug users is generally in the range of 13 to15 percent, blacks constitute 36 percent of arrests for drug possession.41 Under harsh drug sentencing policies, convictions for drug offenses have led to predictable skyrocketing in the numbers of blacks in prison. In 1985 there were 16,600 blacks in state prisons for drug offenses; by 1995 the number had reached 134,000.42 Between 1990 and 1996, 82 percent of the increase in the number of black federal inmates was due to drug offenses.43
25 See, for example, Michael Tony, Sentencing Matters, (Oxford University Press, New York, 1995). Human Rights Watch, Cruel and Usual: Disproportionate Sentences for New York Drug Offenders, A Human Rights Watch Short Report, vol. 9, no. 2, March 1997, analyses the impact of mandatory minimum sentences for drug offenders in New York state.
26 California Department of Corrections, Count of Prisoners Sentenced for Third and Second Strike Cases, June 30, 1998.
27 Between 1972 to 1996, crime rates fluctuated but the incarceration rate quadrupled. Overall, the rate of violent crime was 60 percent higher in 1996 than in 1971(in large part due to changes in reporting of aggravated assaults, according to some experts), and property crimes were only 18 percent higher. Tonry Crime and Punishment in America, 1971-1996, Overcrowded Times, vol. 9, no. 2, April 1998. See also DOJ/BJS, Sourcebook of Criminal Justice Statistics, (Washington, D.C.: USGPO, 1997), Table 3.106, p.306.
28 U.S. Department of Justice, Office of Justice Programs (DOJ/OJP), Prisoners in 1994, Bulletin NCJ-151654, (Washington, D.C.: DOJ, August 1995).
29 U.S. Department of Justice, Federal Bureau of Investigation (DOJ/FBI), Uniform Crime Reports, (Washington, D.C.: USGPO, various years). See statistics from the reports published annually for 1980 through 1992.
30 DOJ/BJS, Sourcebook of Criminal Justice Statistics 1996, Table 6.21, p. 518.
31 Marc Mauer, Americans Behind Bars: The International Use of Incarceration, 1992-1993, The Sentencing Project, September 1994.
32 U.S. Department of Justice, Office of Justice Programs, Prisoners in 1997, Bureau of Justice Statistics Bulletin NCJ 170014, August 1998. The prison incarceration rates of some states were considerably higher than the national average: e.g., Texas has a rate of sentenced prisoners per 100,000 state residents of 717, Louisiana has a rate of 672, Oklahoma has a rate of 617. Ibid., Table 5, p.5.
33 U.S. Department of Justice, Office of Justice Programs (DOJ/OJP), Lifetime Likelihood of Going to State or Federal Prison, Special Report NCJ-160092, March 1997. The number of disenfranchised would not, however, include those incarcerated in the four states that permit inmates to vote.
34 DOJ/OJP, "Prisoners in 1997," Table 14, p.11. These rates may differs lightly from previous reports due to the estimation and classification of Hispanic inmates. Twelve states and the District of Columbia incarcerate blacks at a rate more than ten times that of whites. Marc Mauer, Intended and Unintended Consequences. If persons held in local jails are included, the rate of incarceration jumps: 6,926 black men per 100,000 are held in prison or jail compared to 919 white men. DOJ/OJP, Sourcebook of Criminal Justice Statistics, Table 6.12.
35 Michael Tonry, Crime and Punishment in America, 1971-1996, Overcrowded Times, April 1998, Volume 9, No. 2, p.15 (citing data from DOJ/OJP, Sourcebook of Criminal Justice Statistics 1996, Table 6.12, p. 510).
36 DOJ/OJP, Lifetime Likelihood of Going to State or Federal Prison.
37 As of 1994, more than half (55 percent) of persons convicted of a felony were sentenced to jail or probation, but not to prison. Some of these offenders have been imprisoned in the past or will be imprisoned in the future, but if we assume that a relatively modest proportion will not be imprisoned, the number of these offenders added to those imprisoned at some point are likely to be in the range of 40 percent. DOJ/OJP, Felony Sentences in State Courts 1994, Table 2, p. 2.
38 Bureau of Justice Statistics, Correctional Populations in the United States 1995, U.S. Department of Justice, NCJ-163916, May 1997.
39 See Tonry, Crime and Punishment in America, Fig. 5.
40 See, Alfred Blumstein, Racial Disproportionality of U.S. Prison Populations Revisited, 64 U. Colo. L. Rev. 743-60; Michael Tonry, Malign NeglectRace, Crime, and Punishment in America (New York: Oxford University Press, 1995). See also Human Rights Watch, Race and Drug Law Enforcement in the State of Georgia, A Human Rights Watch Short Report, vol. 8, no. 4, July 1996 which provides a case study of racially disparate arrest andimprisonment rates for drug offenses.
41 DOJ/FBI, Uniform Crime Reports 1996, (Washington, D.C.: USGPO, 1997).
42 DOJ/OJP, Prisoners in 1996, Table 13.
43 DOJ/OJP, Prisoners in 1997."