On April 24, Gov. David Paterson made history by signing into law massive changes to the controversial Rockefeller drug laws. For 36 years, these laws – nicknamed for Gov. Nelson Rockefeller, who signed the original bill in 1973 – required stiff punishment for drug convictions. Judges had no discretion when sentencing even first-time offenders. Inmates’ families, civil rights activists and organizations, and celebrities have rallied for years against the laws, citing data that showed a disproportionate number of blacks and Latinos being jailed under the regulations. A 2008 analysis by the New York Civil Liberties Union showed that more than 90 percent of inmates in prison in New York for drug offenses were black or Latino.
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With a Democratic majority in place in Albany, and a governor who actively opposed the Rockefeller drug laws in his days as a state legislator, reformers saw the opportunity to make major changes to the controversial regulations. The revised framework will give judges more discretion, expand re-entry and in-prison treatment options, and allow approximately 1,500 people who have been convicted of low-level, non-violent drug offenses to apply for re-sentencing. Some critics of the old regime are pleased, while others maintain that there is more work to do.
Dr. Todd R. Clear, Distinguished Professor at John Jay College of Criminal Justice, agrees with both perspectives. The executive officer of the Program of Doctoral Studies in the Graduate Center of CUNY, Clear has provided assistance to probation and parole departments in some three dozen states and six other countries. He has been cited in reports on drugs and sentencing by NYCLU as well as the Real Cost of Prisons Project, which mentions his efforts alongside the work of Drop the Rock, perhaps the most visible anti-Rockefeller-laws organization. In a conversation with City Limits, Clear maintained that essentially ousting the Rockefeller drug laws is but one small step toward fixing what he says is a broken criminal justice system.
In your research, what are the typical demographic characteristics of people who are impacted by mass incarceration?
African-American males are less than 10 percent of the male population in this country, but about 37 percent of the prison population. The median age for first incarceration is 26 years old. In neighborhoods in big cities, in the poorest neighborhoods, between one out of four and one out of five of the men in their 20s and 30s are locked up on any given day. About half of the African-American men who have never finished high school end up in prison. What that means is that prison concentrates its effects among economically disadvantaged, parent-aged, African-American males.
How are the former and current prisoners’ communities impacted?
Impoverished African-American neighborhoods are the most impacted by the concentration of incarceration. Going to prison reduces your earning power by about 25 percent, so having a cohort of men who have been to prison over time reduces the economic activity in that neighborhood by 25 percent. Having a parent go to prison increases the chances that a child will be involved in the criminal justice system by a factor of about three. A study by James Thomas from the University of North Carolina found that neighborhoods with high incarceration rates have higher transmission rates of sexually transmitted diseases and more teenage births. He argues that if one-fourth of men are in prison on any given day, you make it almost impossible to have long-term, stable relationships. If you want to predict a neighborhood’s crime rate 15 years from now and you could only pick one variable, you would be pretty smart to pick teenage births. Incarceration has laid the groundwork for a high floor of crime rates in these impoverished neighborhoods.
Many critics have suggested that the Rockefeller drug laws are racist. Would you characterize the Rockefeller drug laws as racist, or was that an unintended consequence of a big push on the war on drugs?
I think it’s a fair debate about whether race was an intended consequence or not. I don’t believe it was the hard racism of, “Hey, we want to ruin a whole generation of black men and these laws are the way to do it.” There was the soft racism of, “It doesn’t matter the implication for a generation of black neighborhoods.” Only a small portion of the African-American men go to prison in New York state under the Rockefeller drug laws. There’s a bigger proportion than there ought to be and it’s definitely a problem, but reforming these drug laws leaves this story largely unaffected. We have a huge feeder system called the criminal justice system in the state of New York.
With the reforms to the Rockefeller drug laws, about 1,500 people may go home sooner than expected. What impact would a mass return have on communities?
One of the things we know is that the number of people returning to a neighborhood is a direct predictor of the crime rate in that neighborhood, so we would expect the crime rate to increase. This is the great irony. Everyone’s worried about people returning to neighborhoods from prison. We now have 720,000 people nationally returning from prison this year. If you don’t like so many people returning from prison, then don’t put so many people there. These communities will suffer from increases in crime because the wraparound supports won’t be there. That’s not fair, but we’ve shown we’re capable of being entirely unfair, especially when the communities are people of color who have no resources and very little political clout.
What can you do to stabilize a community in that situation?
We know that there are three kinds of broad strategies that work. Support for family unification, strong employment contacts, and youth programs like summer activities and mentor relationships are all key to stabilizing communities. But what will we actually do in these communities? We will invest a lot of money in these neighborhoods, but it will mostly be to watch these men more closely and catch them doing something as soon as we can to send them back to prison. Another thing you could do is create a justice reinvestment program. In New York City the best example is the NYC Justice Corps. These are businesses that employ people who are involved with the criminal justice system standing next to those who are not and they do community improvement projects that raise the floor of the quality of life in those communities.
If it were up to me, I would create entrepreneurial work groups inside of these organizations in the neighborhoods and pay one-third of the salary of any former inmate the organizations employ and there would also be a grant to provide wraparound supports, which would be paid as long as that person is crime-free. The people doing the work would to be the people who we used to lock up. In New York state, the prison economic policy is this: A bunch of people who live on Park Avenue give a bunch of money to a bunch of people who live in Auburn, New York to watch a bunch of people in Brooklyn for three years and send them back worse. The situation is much more complicated than that and there are a lot of nuances, but that’s basically the current policy. We are willing to spend a lot of money on Brooklyn, but we’re not willing to spend any of it in Brooklyn.
Why do you think was action taken on Rockefeller right now? After all these years of protests, rallies, letter writing campaigns and documentaries, why now?
It’s a series of things all coming together. We’ve had dropping crime rates and that has opened the door for a lot of criminal justice reform. Now with budgets strapped, legislators are looking for places to get some money. There’s a lot of attention being given to the collateral consequences of a large incarceration rate. That is creating a conversation among liberals and conservatives alike about this. There’s an enormous agenda in front of us and the Rockefeller drug laws reform is an indication that it can be taken on, but they are not taking it on yet.
Given all of that, where would you start in order to make changes to the criminal justice system?
There are multiple places a person could start and maybe the drug laws are just as good a place as any to start, but in a way, the Rockefeller drug laws were just low-hanging fruit. We should start by determining the size of the prison population we are willing to have. The story of the quintupling of the size of the prison population from 1972 to 2009 is not a story about crime, it is a story about policies to deal with crime. The reason we have a big, growing prison population while crime rates are dropping is because we’re putting more people in prison and making them stay longer. We have to establish the range of the size of the prison population we want. Stop returning people for breaking rules instead of new crimes and reduce the length of stay going in. In Nevada they cut the length of probation/parole terms by half and without doing anything else they reduced their prison population significantly.
As far as determining the size of the new prison population, would this strictly be a budgetary measure?
That’s where I would start. The amount of money spent on the prison system is so disconnected from the crime rate. This strategy would have almost no impact on public safety. The second thing I would do is a completely different approach. I would make everybody who is in prison, fungible as investments. If someone is sentenced to three years in prison for burglary, that person becomes a $100,000 fungible investment. If someone else [like a nonprofit or community group] wants to get that money by dealing with that person in a way that’s not the same as prison, they can make a proposal and present that to a board of people who would review the proposal and determine if it’s a better way to deal with the person. It rewards innovation in the community. We are looking for people who are currently locked up who we can bring into the community safely and make them productive members of the community. All the other debates are useful, but as I think about this they are all some version of a dead end. Right now, we don’t have any competition for the prison system for spending those dollars. They get to say how much budget they want. School budgets haven’t been able to grow the way corrections budgets have grown. Repairing roads, healthcare, none of these things have grown in the same way that corrections has, simply by saying: “We need this money to do the job you told us to do.”
