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Introduction

Reentry is a term few people outside the criminal justice system know. Some individuals and communities have experienced firsthand the consequences of our national failure to facilitate meaningful reintegration of recently released prisoners. Far too few individuals can either articulate or imagine the benefits of a comprehensive approach to reentry. This is due largely to the fact that this country has never devoted the time, care, or attention necessary to create such an approach. Instead, our efforts to address reentry have, at best, remained an afterthought and, at worst, have been dismissed as someone else’s concern. What has led our choice as a nation to ignore this crisis is the pervasive interplay of race, power, and politics that infuse and confuse our attitudes about crime.

So permit me to begin with a definition to ground our discussions. Reentry is the process by which individuals return to communities from prison or jail custody. The focus of this book is the way that race, power, and politics all conspire to make reintegration more difficult, if not impossible. In conversations, studies, and reports, we often discuss crime statistics, drug use, and incarceration rates. In addition, significant attention has been paid to prison conditions and to the philosophy and approach to incarceration. Whether we are talking about rehabilitation, retribution, or incapacitation, we have spent precious little time considering what happens when individuals leave custody. We rarely consider, for example, the obstacles for men and women who have been separated from family and community for significant periods of time. Alternatively, we have also failed to examine in depth the communities themselves. The cycle of poverty, incarceration, and frequent removal of large numbers of people to jail and prison generate instability in the fabric of the community. Racial and ethnic bias, the War on Drugs, and the portrayal of young men of color as predators all conspire to blur our focus on the issue.

The United States is in the midst of the largest multiyear discharge of prisoners from state and federal custody in the history of its prison system. This release is a direct consequence of the explosion in incarceration that this country experienced and endorsed over the last two decades. The repercussions of this massive release effort are only now beginning to be felt. Staggering numbers of ex-offenders, having completed their sentences, are returning to the communities from which they originally came.¹ In 2001 alone, corrections officials discharged over six hundred thousand individuals, with most returning to the core communities of their incarceration.² As a result of the War on Drugs and the almost single-minded focus in the 1980s and 1990s on targeting, denouncing, and dehumanizing those convicted of drug offenses, we banished hundreds of thousands of individuals to prisons and jails. Now we have created an explosive situation of individuals being returned to communities that, for the most part, are barely surviving. These communities, already in dire need of health care, affordable housing, drug treatment, social services, and, most of all, jobs draw even closer to the precipice when they are inundated by recent parolees who have not been prepared for reentry into society.

The importance of reentry and reintegrating formerly incarcerated individuals back into society has belatedly emerged as a major issue among criminal justice policy makers. Although prisoner reentry is not a new criminal justice matter, its importance is exacerbated by correctional policies that have resulted in the incarceration of large numbers of persons for significant periods of time, the release of prisoners who have not received treatment, and the failure to provide adequate services and surveillance in the communities after release.³ Recently, prisoner reentry has garnered bipartisan attention. Both Republican⁴ and Democratic⁵ elected officials have recognized the importance and impact of prisoner reentry. Congress is in the process of considering “The Second Chance Act,”⁶ which boasts both liberal and conservative support and offers a wide range of reentry activities. But this belated political attention may prove too little, too late.

The public debates over reentry that have emerged have begun to offer an important glimpse into the challenges of life after prison. Still, as important as these discussions are, they have too often missed the mark. These debates have frequently taken place in a race-neutral context, thereby ignoring the elephant in the room—the fact that we are talking about a problem that predominantly affects only certain populations in this country. This book aims both to rectify this oversight and to advance the public debate by situating the issue of reentry squarely in its peculiarly U.S. context: one influenced by race, power, and the media. This book examines the ways in which political leaders have successfully wielded the twin weapons of racial bias and raced-based fear to launch their political agendas and propel their careers. Elected officials have built electoral platforms on the backs of communities of color, waging wars on crime and drugs with little consideration of, or concern for, the communities that would suffer the greatest casualties. And, despite full-throated claims of objectivity and neutrality in reporting, the media has been complicit in our prison boom and the subsequent reentry crisis. By demonizing men of color and spreading misconceptions about crime and men of color, the media has played a vital role in dooming efforts at reentry. Finally, this book aims to move to the foreground considerations of the disproportionate impact of race-based policies on communities of color. The individual and collective stories of reentry and its relentless challenges can no longer be relegated to the background.

I have chosen to write this book because the subject is personal to me. The intersection of race, reentry, and politics has always shaped my perceptions of, and approach to, the criminal justice system. Pretty early in my personal life and then again later in my professional career, I noticed that people of color received quite different treatment from the criminal justice system. Before I knew to use the term “reentry,” I recognized the difficulties that individuals in my community faced as they tried to reintegrate into the neighborhoods they had been forced to leave. After law school, I chose to return home to work in the San Francisco Bay area; I settled in the east bay, in the very community where I had been reared. I spent a decade working as a public defender in that community. As a resident, I sought to be active in the social, cultural, and political fabric of the community. I saw no conflict between my community involvement and my role as a public defender, and I viewed my practice and my concern for the community as fundamentally linked. By the time I began practicing criminal law, drugs, drug cases, and drug probation and parole were the primary driving force in the criminal justice system. We knew so little about how to address drug problems that when someone tested positive for drug use, judges simply sentenced them to prison. There was little data on the process of recovery from drug addiction. Court actors considered relapse nothing more than volitional conduct on the part of probationers and parolees who were making conscious decisions to use drugs. Later, of course, we learned the error of that perception: research and experience taught us that relapse is a part of recovery and that graduated supportive sanctions rather than custody were the appropriate responses to recovering addicts.

Years after becoming a law professor, as a participant in criminal justice meetings and in conducting Socratic dialogues with judges, often I heard them say, “Oh, I have learned so much about relapse and recovery. I remember when I used to send someone to prison for one dirty test.” Strikingly, as we developed our knowledge base, we did not go back and adjust sentences or sentencing schemes to compensate for our new knowledge. Rather, the criminal justice players and policy makers simply sat back idly and let a generation of young men and women, most often persons of color, sit needlessly and uselessly behind bars. Too often, those men and women received no treatment, vocational training, or education. As the decades of the 1980s and 1990s passed, I continued my community involvement and activism. Slowly, the political discourse began to include and embrace broader notions of punishment and community corrections. But reconnecting with the community is difficult for recently released individuals. We never stopped to think that limiting access to education and vocational training would make reentry so terribly challenging.

At the same time, no one focused on the fact that employers habitually discriminated in hiring ex-offenders. Moreover, by limiting access to drug treatment both inside and outside of prison, we did not recognize that the temptation ex-offenders faced upon release was a recipe for disaster. We spent so much time trying to fend off the incredibly long and harsh prison sentences that we lost sight of how our clients were being transformed in prison. The civil rights of probationers and parolees were so limited that as the 1990s began and the politicians’ lightly camouflaged use of racial imagery became the norm, we didn’t anticipate the long-term negative consequences of the policies that were developing.

Racial imagery, mixed with police practices and racial profiling, transformed our society. The confluence of pervasive media images, popular culture, and our nation’s history has led us to an almost unconscious acceptance of racial stereotyping and a deep-seated fear of people of color. Socially, politically, and culturally we continue to remain two societies—one White and one of color. A collision course of race, and the presumptions about crime, and the tacit acceptance of police misconduct began a chain of events whose effects and implications we are only now beginning to feel.

In communities of color—the African American community in particular—there are certain social and cultural “norms” that don’t exist in the White community. My father-in-law, a world-renowned jazz pianist, jazz educator, and television personality is as prepared to be stopped and harassed by the police as my twenty-something, college-educated nephews. It is understood that law enforcement will act differently toward men—and increasingly women—of color than toward all others.

As a law professor I have observed, analyzed, and taught the cases that present an illusory world, absent race, that serves as the construct and foundation of the bulk of United States Supreme Court decisions regarding the conduct of police officers in immigrant, poor, and of-color communities. In traffic stops, pretextual justifications for race-based behavior are no longer frowned upon but instead lauded as good police work. Although superficially addressed in election years and occasionally given media attention, racially charged differences continue to be seen in discretionary decision making. Numerous studies have brought race to the surface in various aspects of the decision making that occurs throughout the criminal justice system. In arrests, charging, plea bargaining, and sentencing we see people of color treated differently than their White counterparts. The criminal justice system, although based in large part on the need for the public to believe in its even-handedness, is replete with evidence to the contrary.

In jury trials, where a cross-section of the entire community is supposed to be included, the courts have allowed for the exclusion of people of color with little more than “plausible excuses” from the prosecutors using peremptory challenges. In both state and federal court trials, it is not unusual for judges to ask potential jurors of color if they can be fair and impartial in cases where the defendants were also people of color (of the same race) without considering the atmosphere this creates in a courtroom: the question itself presumes same-race bias and plants a seed of distrust. The Supreme Court continues to demonstrate insensitivity to the courtroom racial dynamics that allow prosecutors to use virtually any excuse to dismiss same-race jurors.

We continue to allow wide disparities in sentencing, and we now are beginning to see the result of decisions made in the past two decades. Reentry, the reintegration of ex-offenders back into their communities, has been the concern of parole agents, parole boards, those concerned with corrections policy, and, of course, ex-offenders, their families, and the communities to which they return. In its latest incarnation reentry became the concern of Attorney General Janet Reno and her then–National Institute of Justice director (and now the president of John Jay College in New York City), Jeremy Travis. They, along with some forward-looking researchers and some concerned community activists at the time, were the proverbial “canary in the coal mine” or, in more modern terminology, an “early warning system.” Reno and Travis focused the lens of government and think tanks on the provocative question, What happens to individuals as they leave custody? They began to direct the resources and energy of government toward the question of reentry. Foundations, states, nonprofits, and local communities all began to identify the successful reintegration of large numbers of individuals from prison and jail as central to the survival of many neighborhoods.

In recognition of the bold steps that Attorney General Reno and Jeremy Travis took to reignite the discussion of reentry, I now add my voice to the debate. Reentry, race, and politics are intimately intertwined and will remain so unless those of us who have seen the impact of our inaction speak of its devastating consequences. In this book I begin each chapter with an anecdote as an attempt to illustrate the individual and personal consequences of our reentry policy. The first chapter is an overview of the effects of race and stigma. Even without using the lens of the criminal justice system, it is easy to see that we in this country have not resolved some of the fundamental conflicts in our notions of equality and the ways in which use of discretion continues to be corrupted by stereotyping and racial bias. In chapter 2, I try to identify the central ways in which the media and politics have contributed to and exacerbated the problem.

In addition to the increased media coverage of race, crime, and parolees in the 1990s was the simplification of the description of the problem. The notion that crime fighting is simple was articulated by a number of commentators proffering that “[t]here’s no secret to fighting crime,” suggesting that the only things needing to be done were to “hire more police, build more prisons, abolish parole, stop winking at juvenile criminals, severely enforce public-nuisance laws, permit self-defense for the law-abiding and put deliberate murderers to death.”⁷ Simplistic notions highlighted by the media only led to simplistic policy decisions on the part of legislators. The effects of these longer, harsher sentences were to reduce programming in prisons and create additional obstacles to reentry.

In the third chapter of the book, I look at how women have become the new fodder for the mass incarceration effort. Although some of the most important criminal justice research completed in the last two decades has brought our attention to the disproportionate representation of men of color in prison, it has largely ignored the fact that women of color are being arrested, charged, and incarcerated at alarming rates. Part of this chapter also examines the consequences to children and other aspects of community cohesion that are affected by this phenomenon.

The next three chapters of the book sketch out some of the fundamental needs of ex-offenders upon release: housing, health care, and employment. These chapters also focus on the ways in which segregation, policy decisions, and bias conspire to make reentry particularly difficult for people of color given the current socioeconomic and political realities in this country. Those chapters attempt to paint a picture of what an offender must overcome to attempt to reintegrate into his or her community.

In the final three substantive chapters I look at governmental responses to reentry. After an unfair, political, and media-driven attack on the entire parole profession, in response to which the industry has tried to reinvent itself, parole officers have moved from having once been the primary source for referrals to employment and social services to fulfilling a more surveillance-oriented law enforcement adjunct role. However, in recent years we are beginning to see some retreat from this enforcement focus as more officers rediscover the importance of corrections and parole participating in community justice efforts.

These chapters also explore the complicated and ill-conceived “tough on crime” politics that have created a web of collateral consequences to incarceration that further hinder the reentry of ex-offenders. Individuals who have been arrested and incarcerated have become the pariahs who continue to be denied many of the fundamental rights of citizenship despite having paid their debt to society. Seemingly no consequence is too harsh for consideration as an obstacle to reentry.

Finally, in these chapters on government’s response to reentry, I analyze the use of courts in the reintegration of ex-felons into their communities. Building on the well-researched and well-documented success of drug courts, new specialized “treatment courts” have emerged as the most recent cure-all for criminal justice problems. Notwithstanding the fact that there is little research to validate the claims that courts can correct the range of ills they purport to address, politicians and policy makers have promoted the use of courts principally because courts provide them with a degree of political cover. By providing services under the supervision of the courts, they gain a means of coercion, a way to force individual compliance. So, reentry courts have begun to appear. For communities of color, where social services have been cut over the last two decades, we are seeing a reemergence of these services, though provided in coordination with and at the added expense of the criminal justice system.

I do not want this book to be reduced to a simple racial critique of criminal justice policy mistakes that are made in the name of being “tough on crime.” Rather, it is my hope to underscore the way race and bad policy have constructed seemingly insurmountable reentry barriers. In the concluding chapter I challenge the notion that the so-called crime problem must be cast as a race problem. As a nation we have the will to make the necessary course correction, to provide an opportunity for people who have paid their debt to society and only seek an equal chance to become full citizens again.