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If one objective of the judicial system is to rehabilitate criminals and help them successfully reenter society, it is failing Black men at a greater rate than any other group.
Black men who enter the United States prison system are more likely than any other demographic group to return to the system once they have served their initial sentence. This racial pattern of recidivism has been documented by multiple studies and holds true across all age groups, ensuring that Black Americans remain disproportionately incarcerated.
The higher rate of recidivism for Black men is one aspect of the disproportionate imprisonment rates for people of color in general and Black people in particular. Clearly, this trend in recidivism is related to the overall higher rate of arrests of Black Americans, who are arrested and convicted of crimes disproportionately compared to their population size.
The literature on disproportionate Black imprisonment rates links it to higher mortality rates among Black children, lower per capita income for Black Americans (compared to other races) and fewer Black people obtaining college degrees and owning their own homes. There is little question that higher imprisonment rates have been devastating for Black communities throughout the country.
Critics argue the high recidivism rates serve as an indictment of the justice system and the nation, which has failed to create paths back to society for the formerly incarcerated. If one objective of the judicial system is to rehabilitate criminals and help them successfully reenter society, it is failing Black men at a greater rate than any other group.
Recidivism rates by the numbers
In 2018, nearly 2.1 million people were incarcerated in the US, making it by far the largest prison population of any country in the world. The next closest country was China, with 1.7 million prisoners, but that’s a country of 1.4 billion people compared to the roughly 330 million in the US. These numbers come despite a decade-long decline in the overall US prison population.
Though Black people represent less than 13% of the US population, in 2018, they accounted for 33% of all prisoners within state or federal correctional facilities, as well as in local jails (generally city or county facilities). Overall, there are more white people than Black people in US prisons, but the gap is narrow and white people are 60% of the total national population.
Leonard Sipes, a retired senior public affairs specialist for the federal government and the creator of CrimeinAmerica.net, regularly updates his website with the most recent available data on rates of recidivism in the US. Of those who are incarcerated, roughly 50% will end up back in prison after they complete their sentence.
“The topic of recidivism is confusing with endless variables to consider,” Sipes explains, “which is why it’s important to place all major recidivism studies in one place. Recidivism is based on those released from prison who are arrested, convicted or incarcerated once again.”
Sipes points to a 2017 report by the United States Sentencing Commission, “The Effects of Aging on Recidivism Among Federal Offenders.” While the report focused on the age of reoffenders, finding that “older offenders are substantially less likely to recidivate following release compared to younger cohorts,” it also highlighted the racial differences in recidivism rates.
“White offenders had the lowest rearrest rate overall, starting with 59.1 percent for the youngest age group … Black offenders had the highest rearrest rate overall, starting with 72.7 percent in the youngest age cohort, which is the highest recidivism rate among all age categories. The other racial category, which includes American Indians, Alaskan Natives and Asians, had the second highest overall rearrest rate, starting with a 65.1 percent rearrest rate in the youngest age cohort before declining.”
Though recidivism rates declined across the board for each successive age group, Black people had the highest rates for all ages. A 2018 study by the Bureau of Justice Statistics found a similar trend in a year-by-year review: “During the 9-year follow-up period, 87% of black prisoners and 81% of white and Hispanic prisoners were arrested.”
Understanding higher recidivism rates
A 2018 study published in Justice Quarterly found, “The interaction of race and gender was a potent predictor of time to reincarceration, even when controlling for a range of identified risk factors.”
One of the co-authors of the study, Stephanie C. Kennedy, explained, “the most potent predictor of recidivism was being a Black male, even though Black men had less contact with the criminal justice system and few of the risk factors traditionally associated with recidivism.” Among the risk factors were prior convictions, financial status, recent employment history and history of drug addiction.
Certainly, the higher recidivism rate for Black offenders can at least partially be explained by the overall higher arrest rates for Black people. The same factors that would make a first arrest more likely will still be at play for any subsequent arrests.
Brian Dunn, the managing partner of the Cochran Firm California, the Los Angeles-based office of founder Johnnie Cochran, Jr., told TMS that he sees the higher arrest rates of Black people as one legacy of slavery. As Dunn explained, beginning with the arrival of the first slaves in 1619, Black people in the US have only enjoyed full civil rights for one-eighth of their time on this continent.
“If you look at a clock, we’ve been free for that last 7 minutes,” Dunn says. “It’s either been slavery, Reconstruction [the period immediately following the Civil War], or the aftermath of state-sanctioned apartheid.” By apartheid, Dunn means Jim Crow laws, the various laws that limited what Black American were permitted to do and often led to them being arrested and imprisoned for minor offenses.
Inequality in America
Dunn isn’t alone in connecting inequitable legal outcomes with the nation’s history of slavery. Though the Civil Rights Movement of the 1960s ostensibly resulted in legally enforced racial equality, a 2019 Pew Research Poll found the majority of Americans (including 84% of Black people) believe the legacy of slavery still affects Black people’s status in society.
Additionally, 56% of Americans believe “being black hurts people’s ability to get ahead at least a little.”
In addition to higher arrest rates and higher recidivism rates, a 2014 study published in the Journal of Political Economy found “Black male federal arrestees ultimately face longer prison terms than whites arrested for the same offense with the same prior records.”
This disparity, the study found, could mostly be explained “by differences in legally permitted characteristics, in particular, the arrest offense and the defendant’s criminal history. Black arrestees are also disproportionately concentrated in federal districts that have higher sentences in general.”
The study highlights the policy of mandatory minimums, which has long been criticized for its disproportionate effect on Black people. In the 1980s, possession of crack cocaine (more common among Black users) automatically led to the imposition of harsher and longer sentences than possession of cocaine (more common among white users).
That research aligns with similar findings by Brian D. Joslyn, a criminal defense attorney with the Joslyn Law Firm in Cincinnati, Ohio, who told TMS that he sees racial disparity in sentencing all the time. His firm’s analysis of marijuana possession arrests determined, “Across the 50 states, on average, black people are 3.6 times more likely to be arrested on marijuana charges.”
Critics of the justice system say the higher arrest and recidivism rates are a result of bias and systemic racism. This has led to many police departments having their officers go through “implicit bias” training, a method with mixed results. The training raises awareness among officers about the concept of bias but doesn’t necessarily change behavior.
Reverend Dr. Kelly Brown Douglas, the Canon Theologian at the Washington National Cathedral and the Dean of Episcopal Divinity School at Union Theological Seminary, believes addressing racial disparity in recidivism requires a broader approach than just acknowledging bias.
“Community leaders have to work to provide post-incarcerated Black men with life-enhancing choices,” Douglas tells TMS. “It is no wonder that the recidivism rates are high when we are returning people to the very circumstances of limited opportunities and choices that contributed to their incarceration in the first place.
“Not only must community leaders provide support, but [they must] work to help the post-incarcerated to develop skills that lead to jobs that allow not simply for hand-to-mouth survival, but to a quality life.”
Community members and social workers can build a “life-fostering safety net,” as she calls it, by creating opportunities for learning and skill development, as well as providing access to legal services and resources.
Douglas doesn’t let the justice system completely off the hook, though. “[The system] must focus not on retributive justice but restorative justice. It must work to restore persons to the fullness of their humanity. This means instead of seeing itself as a mediator of punishment, it needs to see itself as a mediator of opportunity.”
This is achieved, Douglas believes, by “making jails and prisons centers of opportunities for rehabilitative counseling, educational opportunities, life and employment skill development, etc. It also means not sending some individuals (e.g., first time, non-violent offenders) to jails or prisons in the first place, but requiring other restorative justice measures that do not condemn them to a lack of opportunities.”
Sipes, who has previously worked with the Department of Justice, says the main way to reduce the prison population, regardless of race, is by reducing crime.
“The justice system has severe limitations that can only be solved by society and our willingness to condemn anti-social behavior,” Sipes states. “There have been reductions in DWI, spouse abuse and drug use and violence against women based on society and communities declaring an intolerance for these and other actions detrimental to community stability and safety.”
Still, he acknowledges changing aspects of the legal system could be beneficial. “There needs to be a local/state/national discussion where everything is on the table, including the legalization/decriminalization of marijuana, making the possession of all drugs a civil penalty, and community control.”
Sipes also thinks mental health-related calls shouldn’t be handled by police, but rather by social workers and paramedics. It’s a perspective shared by former President Barack Obama and progressive Senator Bernie Sanders, as well as Rev. Douglas and many others in the Black community.
If the decade-plus decline in the US prison population continues and politicians and law enforcement officials work together for justice system reforms, restoration could come to those Black communities that have been devastated by high incarceration rates. But achieving that goal will require building trust between Black Americans and law enforcement, a tall order in and of itself.
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