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Reentry, Race, and Stigma

A young man’s life went off track early. Among other crimes, he raped and robbed a young woman in her home. The crimes cost him sixteen years in prison, which was time he certainly had earned. Released, he returned home and for three years tried to piece together a life for himself and to raise a family. At thirty-seven years of age, it might be said that the man, Lane Mikaloff, was redeeming himself and was finally doing precisely what society demanded of him.

Shortly after he returned home, however, Mikaloff learned from the sheriff’s office that as a registered sex offender, he could no longer live in the house to which he had returned. It was located too close to a school. Living there would violate a state law prohibiting convicted sex offenders from residing within one thousand feet of a school.

Society expected Mikaloff to embark on a path of personal redemption. At a minimum, this meant that Mikaloff should support himself and live as a productive member of his community. The grand promise behind the criminal justice process is that once an individual pays his or her debt to society, he or she can reintegrate into society. But, as Mikaloff learned, society erects barriers to that reintegration.

Mikaloff was a sex offender, which means that he fell into the class of criminals least likely to garner any sympathy. Yet, even those individuals who have engaged in the worst deeds can and often do genuinely renounce their criminal paths. Perhaps then they deserve an opportunity to outlive their pasts and to overcome the stigma of a criminal record.1

The last two decades of the twentieth century witnessed an unprecedented increase in the number of people incarcerated in the United States. By 2001, approximately two million men and women resided in state and federal prisons and jails.2 Although other communities of color suffered the effects of this increased incarceration (as described later in this work), this dramatic rise in incarceration had a particularly catastrophic impact on African American communities. African Americans represent roughly 13 percent of the general U.S. population. But African American men and women made up 46.3 percent of those imprisoned in state and federal jurisdictions by 2000.3 Young men and women of color were literally swept into the criminal justice system at alarming rates, a development that often deprived families and communities of the precise individuals who, under the right circumstances, would have been the more productive members of the communities.

But the numbers only reveal part of the story. To see the story in its entirety, we must examine the various threads that create the criminal justice storyline. The communications vehicle for the story involves political rhetoric and media coverage. Indeed, the combined result of political and media coverage of race and crime has been to stoke the hysteria around crime and the responses to it.4 The negative labeling and narratives that surround criminal justice involvement have created significant hurdles that make it difficult for individuals caught up in the system to repay and move past their debt to society. Stigmas that attach to criminal convictions have impaired the ability of formerly incarcerated individuals to reintegrate into society after even a successful completion of a sentence. When race is added to the mix, it becomes clear that these “collateral consequences” of conviction have had at once a disparate and a devastating impact on communities of color.

Explanations for the radically unequal incarceration rates between white offenders and people of color abound. One particularly potent argument attributes the disparities to the high concentration of law enforcement resources in communities of color generally and in the African American community in particular. In the 1980s and 1990s, the federal government waged the War on Drugs. This war created incentives for law enforcement to target open-air drug markets in low-income communities and, in the process, to turn its considerable attention to communities of color. There were a number of reasons why law enforcement concentrated its resources there. First, the federal government provided substantial amounts of funding to local law enforcement for the creation of drug task forces. These groups of officers often worked in conjunction with federal law enforcement agencies such as the Drug Enforcement Agency (DEA), Alcohol, Tobacco, and Firearms (ATF), and in some instances immigration officials. These task forces focused almost exclusively on Asian, Black, and Latino communities. Some of the focus on transportation hubs led to the use of “drug courier profiles,”5 which again tended to target people of color. Second, in addition to the increase in state and federal funding, local police also found considerable political support for their work. While politicians inside the Black community voiced concerns about protections against unreasonable searches and seizures under the Fourth Amendment, politicians outside of that community increasingly simplified their message and encouraged harsh enforcement tactics to stop the migration of crime into the suburbs. Finally, the media’s tendency to flood the airwaves in both the news and crime dramas with faces of color as the perpetrators of crime fueled the public belief that crime ran rampant in communities of color and that law enforcement’s targeting efforts were logical. The effect of these enforcement decisions was that communities of color became the focal point of attention and effort. As a consequence, the arrest rate and imprisonment of African American and Latino men soared.6

The policies of the War on Drugs focused more on supply-side enforcement against low-level dealers in inner-city areas than on those higher up in the chain, who were importing drugs and laundering money. While those involved at the top of the drug chain tended to be White, they rarely appeared in criminal courts facing drug or conspiracy charges. A significant amount of the racial disparity we see even today can trace its roots to those policies.7 In addition, the adoption and implementation of the Federal Sentencing Guidelines, which impose a 100-to-1 sentencing disparity between crack cocaine and powder cocaine, coupled with a federal law enforcement focus on crack offenses, contributed significantly to racial sentencing disparity.8 Again, since crack cocaine tended to be sold in low-income communities at a lower price point, the choice to focus enforcement on crack led to greater arrests of people of color.

The enforcement double standard that the War on Drugs reflected and drove was just one example of the sort of structural inequalities that characterize the U.S. criminal justice system. Crime control today continues to concentrate primarily in the inner city.9 Aggressive policing targeting communities of color is augmented by harsh mandatory sentences that combine to have a particularly pernicious effect in these communities.10 But these enforcement policies simply flow from structural inequities embedded in the system.11 While some make the empty argument that we can remedy all of the ills in the criminal justice arena by simply eliminating explicit and intentional racism,12 the real culprit is the double standard on which the criminal justice system depends and thrives: the choice to target particular communities and to turn a blind eye toward the same crimes committed in affluent communities.13 The Sentencing Project’s first report on the status of Black men in the criminal justice system, noting the disproportionate involvement of African American men in the system, opened the country’s eyes to the dramatic disparities in the justice system.14 Some data suggests a correlation between stereotypes about young men and issues of enforcement. A more in-depth view of this very difficult problem recognizes that the research involved in addressing racial disparities in offending, arrests, and incarceration requires more study.15

Others, though, point to different reasons for racial disparities in the criminal justice system. Some argue that the racial imbalance exists because of a disproportionate involvement in the commission of crimes that breaks down along racial lines. These commentators contend that African Americans are overrepresented in the prison population because they engage in more criminal activity. This view attempts to justify any criticism of racial inequity by suggesting that the “representation of Blacks in the criminal justice system is relative to their representation among the population of criminal wrongdoers.”16 Conservative commentators have asserted that because African Americans commit more crime, they should be detained and arrested more often than Whites.17 And as a seemingly logical extension of this argument, they contend that profiles that enable police officers to identify who is likely to commit a crime ought to include race as an element. Therefore, police should be able to consider race as a factor in making the decision to stop, question, or arrest a suspect.

But such arguments conveniently ignore empirical evidence that contradicts their premise. Let’s take drugs as an example. African Americans do not use drugs any more than Whites.18 Whites, however, are incarcerated at substantially lower rates than people of color.19 If the rate of criminal activity were really the differentiating factor, then one would expect roughly equal percentages of White offenders and people of color in criminal courts for drug offenses. But that is not the case. The face of the arrestee and convicted drug user tends to be a face of color. When presented with statistics that suggest consistent drug-use rates, some amend the argument to account for this discrepancy. They suggest that Whites are simply more discreet in that they commit the crime within the confines of their homes instead of on public streets. As a corollary to this argument, others then suggest that one of the reasons why crime, such as drug usage, is committed openly in communities of color is that these communities tolerate crime, treating the commission of crimes as a rite of passage for young men of color. Despite the lack of evidence to support such claims, these views have gained surprising traction in the public debate about crime.

The media may be partly to blame for the general acceptance of this view. Media depictions historically have powerfully influenced the development of public opinion, and have provided a launching pad for public policy. Indeed, the coverage of a criminal case or a victim’s story often leads to the introduction of legislation in the name of a victim. Media coverage of crime has often led people to believe that crime rates, violent crime, or drug crime was on the increase even when the reverse was true.

In the mid-1980s, crack cocaine exploded onto the streets and into the national media.20 The media described crack as a “demon” drug that posed dangers that differentiated it from any other drug: it was highly potent, was instantly addictive, and encouraged systemic violence, they claimed, even though these claims would later prove false.21 By the end of 1986, the major daily and weekly news magazines had presented the nation with more than one thousand stories in which crack figured prominently.22 Network television coverage mirrored the print media. The intensive coverage included CBS’s “48 Hours on Crack Street,” a prime-time presentation that was one of the highestrated documentaries in television history.23 The media stories emphasized certain supposed features of the crack cocaine story: that the high addiction rate of the drug caused users to commit crimes to support their habits and that youths were being lured into the crack-selling business. Most importantly, the stories focused on the violence associated with attempts to control crack distribution networks. Finally, the stories had a significant racial edge.

A systematic study24 of drug war coverage in the New York Times, USA Today, the Washington Post, Time, and Newsweek from the late ‘80s and early ‘90s revealed that the print media consistently identified African Americans as the “enemies” that the drug war intended to target. Network television was no different. In a study of network television news in 1990 and 1991,25 it was shown that reporters regularly stressed the theme of “us against them” in news stories, with the “us” referring to White middle-class Americans and the demonized other being typically reserved for African Americans and a few corrupted White individuals.26 In addition to the images on the covers of newspapers and leading the evening news, the War on Drugs generally and crack cocaine in particular allowed the media to link drugs with race, and African Americans with deviance.27 This focus on race and crime fed the public’s fears and helped to embed the impression that most dangerous criminals were people of color. Newsweek boldly declared the threat that White Americans secretly feared: “Crack ha[d] captured the ghetto” and was “inching its way into the suburbs.”28 The media exacerbated White concern by warning of the potential for crack to seep out of the inner city and into their neighborhoods.29 By 1986, the media had labeled crack the most dangerous drug and had decried the outbreak of a national “crack epidemic.”30

At the same time, popular culture adopted the images of people of color as drug dealers and leaders of violent criminal drug syndicates. Prime-time television featured an increasing number of police shows with drug themes and people of color in the role of kingpin or petty criminal. This attached a certain stigma to all people of color. Because of the profound segregation in housing patterns in this country, research suggests that opinions about people of color held by Whites are often based upon images on television.31 Dorothy Roberts argues that the dominant society is not appalled at the racial disparities in arrests and prison sentences because they believe that African American people are dangerous.32 The media portrays the drug problem as one that primarily exists in communities of color, and the racial disparities in the prison system are viewed, if noticed at all, as reflecting reality rather than reflecting overenforcement or discrimination. The media’s barrage of coverage and images of urban youths involved in drug dealing, coupled with high-profile events such as the death of the Boston Celtics basketball team’s number one college draft pick in 1986, Len Bias, caused politicians to enter the fray.33

Politicians came into the criminal justice debate riding the “tough on crime” bandwagon. They used images that the media had provided. They focused on urban youth, with thinly veiled racial attacks. Using terms like “super-predators,” both Democratic and Republican politicians used front-page and television evening news stories to support their political agendas. Politicians focused on a number of areas, but drug laws and drug convictions were the primary targets. According to the Sentencing Project, one in three Black men between the ages of twenty and twenty-nine is under correctional supervision or control, and approximately 14 percent of Black men have lost their right to vote due to felony convictions.34 These crusades created a range of unrelated sanctions, such as the mandatory suspension of the driver’s license of anyone convicted of a drug offense (even if no car was involved in the crime), but not of rapists, robbers, or murderers. This not only seems illogical but further exemplifies the unbalanced focus on drugs. Politicians also embraced mandatory minimum sentencing for drug offenders, adding to the incarceration explosion that took place in the late 1980s and early 1990s.

A. The Politics of Race, Crime, and Reentry

The media’s intense focus on race and crime and its interpretation of the “tough on crime” electoral messages of the 1980s and 1990s helped forge a new political direction for the country.35 This direction focused on increasingly punitive sanctions for people of color. A number of researchers have examined the mass media’s role in creating and fueling the focus on crime and the ensuing response of overincarceration,36 and a number of leading theorists, including David Garland, have grappled with the process by which this punitive approach has crept into popular and political language.37 Particularly during the Reagan/Bush administrations, crime and crime control became the political capital through which politicians assumed and maintained electoral power. When this political focus was coupled with media attention on state and local crime issues, the public became willing and vocal supporters of policies that provided some semblance of controlling the crime problem. The expansion of imprisonment became a primary vehicle to accomplish that, especially at the federal level.38

The rush to embrace crime control as a model occurred as the public clamored for answers to the recurring crime problem and as the perception grew that nothing could be done to change the behavior of offenders. Research in the 1970s began to suggest that rehabilitation was limited in its effectiveness as a treatment for addressing criminal behavior. Although first used in relation to prison-based treatment, this research was later used to characterize probation, parole, and other aspects of the criminal justice system.39 Increasingly, sanctions focused on prison as the primary punishment for drug offenses.40 In the directional shift toward custody, we find the seeds for the current crisis in reentry. The 1980s marked the declaration of the War on Drugs and its intensification.41 In fear of being perceived as soft on crime, politicians moved to increase penalties, incarceration, and collateral sanctions with little or no research as to the long-term consequences of these policies.42

Until the 1970s, the focus of criminal justice intervention seemed to be rehabilitation. But in the ‘70s, an array of news stories, features, and research followed up on Robert Martinson’s suggestion in 1974 that “nothing works” in penal rehabilitation efforts.43 This sparked a major retreat from rehabilitation and treatment in prison settings, both in policy work and by therapists themselves. Although recent studies suggest that prison-based treatment can be effective, we have not witnessed an expansion of substance-abuse services.44 The constant barrage by the media of stories detailing—sometimes graphically—the crimes committed by ex-felons fueled the public perception that the crime problem was spiraling dangerously out of control. This intense coverage by the media and conservative public officials led to the ratcheting up of enforcement policies. Criminologist Jonathan Simon has suggested that “governing through crime,” a process by which policy makers substitute punitive crime-control rhetoric for substantive governance, accounts in large part for the fundamental shift in penal practices.45

The 1988 presidential election witnessed Republican propaganda focusing on Willie Horton to call the nation’s attention to race and parole. The Bush campaign used Willie Horton, who had committed murder and rape while on work furlough, both to characterize opponent Michael Dukakis as soft on crime and simultaneously to capitalize on the threat, allegedly posed by Black males generally, that had been steadily cemented in the public mind by a decade of media spin.46 More specifically, the campaign centered on Black parolees and work release, furloughs, and other programs aiding in the reentry of all ex-offenders.47 The political force and persuasiveness of the images, however, paralyzed those who might otherwise have taken a more principled position.48 There was no opposition to this particular issue in the campaign.

The primary political fallout from the combined media and political blitzkrieg of the 1980s was the creation of the Federal Sentencing Guidelines and an array of state mandatory minimum sentences for drug offenses. In 1986, Congress created the Federal Sentencing Guidelines, essentially a sentencing grid that maintained a dramatic sentencing differential between crack and powder cocaine. Powder cocaine was widely viewed as the drug of choice for Whites, while crack was demonized and largely associated with people of color in urban communities.49 This sentencing disparity was reinforced in 1988, as legislators on the state and federal level defended it by alleging that crack is more addictive and produces a stronger, more debilitating high than powder cocaine. Despite the vehemence of their arguments, science did not support their claims—the pharmacology of the two drugs is identical.50 The real difference in these drugs relates to relative cost and accessibility. Because crack costs significantly less than powder cocaine, it became more widely accessible; crack does allow for a faster, higher absorption than snorted powder cocaine, so it might seem like a more powerful drug even though it is not.

In the same way liberal politicians and commentators were slow to respond to the racist use of the Willie Horton imagery, they were slow to recognize the racially disparate impact of the crack/powder-cocaine sentencing scheme. Their inaction may have been partly due to fear of being portrayed as “soft on crime.”51 “Crack” became a code word for “Black drug use” and was accompanied by images of violence and lawlessness. This, in turn, became a rallying cry for many conservative politicians.

The focus on crack also refocused law enforcement policies. Because crack was sold in open-air markets or readily identifiable “crack houses” and the extremely high penalties for small amounts made convictions or guilty pleas easier, local, state, and federal law enforcement efforts almost single-mindedly focused their efforts on crack. In addition to the focus on other collateral sanctions, such as loss of housing, food stamps, or the inability to apply for a wide variety of occupations unrelated to the crime, politicians also embraced mandatory minimum sentencing for drug offenders. This added to the incarceration explosion that took place in the late 1980s and early 1990s. Although the nation experienced increases in many serious crimes, between 1985 and 1995 the number of drug offenders sent to prison increased 478 percent as compared to 119 percent for all other crimes.52 Incarceration became the primary focus of the drug war. Although much of the War on Drugs was fought at the local level, the pattern of large numbers of prosecutions followed by extensive incarceration was evident in the federal system as well. Federal drug prosecutions increased by close to 100 percent from 1982 to 1988, while prosecutions for other crimes rose only 4 percent.53

In 1994, U.S. District Judge Clyde Cahill found the 100-to-1 disparity between sentences for crack cocaine and powder cocaine to be unconstitutional. The case was significant in that Judge Cahill openly called the guidelines “racially biased legislation.”54 He went on to identify the reason for the drafting of the legislation, writing that panic based on media reports designed to incite “racial fears” was the catalyst for generating this policy.55 The Eighth Circuit Court of Appeals reversed Judge Cahill and chastised him for questioning the racial animus of the legislation.56 In one of the most significant academic contributions to the crack-versus-powder equal-protection debate, David Sklansky points out that the rhetoric surrounding the passage of the 1986 statute, with Congress stating that “big shouldered Trinidadians … [and] bands of young Black men … peddling crack near unsuspecting White retirees,” suggested a racial animus in its intent.57 Sklansky further points out that in the Eighth Circuit reversal of Judge Cahill’s decision, the appellate court reasoned that Congress did not have “racial animus, but racial consciousness that the problem in the inner cities was about to explode into the White parts of the country.”58

As the Federal Sentencing Guidelines were implemented there were outcries from virtually every sector. Politicians, state and federal judges, lawyers, and even two United States Supreme Court justices have called for the review of the discrepancy between crack and powder cocaine. A number of those challenging the disparity have pointed to the obvious racial impact of the sentencing scheme. The challenges have taken the form of legal complaints alleging a lack of equal protection under the law, as well as challenges on policy grounds. Before his election, in response to a question about the sentencing disparity, George W. Bush stated, “[I]t ought to be addressed by making sure the powder cocaine and the crack cocaine penalties are the same. I don’t believe we ought to be discriminatory.”59 Ultimately, not only did Bush’s administration refuse to proffer legislation leveling out the penalties for crack and powder cocaine, but President Bush’s deputy attorney general also told the United States Sentencing Commission that “[t]he current federal policy and guidelines for sentencing crack cocaine offenses are appropriate” and that crack “traffickers should be subject to significantly higher penalties than traffickers of like amounts of powder [cocaine].”60 Again, despite a lack of scientific data, many continued to allege that crack is a more potent form of the drug. Others pointed to the violence associated with crack trafficking—but this is a distracting issue, because the Federal Sentencing Guidelines have existing means to address the use of firearms in the commission of criminal offenses.

But there have been more vociferous criticisms. In November 2003, United States Supreme Court Justice Anthony Kennedy gave a speech at the American Bar Association annual meeting criticizing these sentencing disparities.61 In a speech at the Harvard Kennedy School of Government, Supreme Court Justice Stephen Breyer also criticized mandatory minimum sentences.62 Notwithstanding all of the criticism and the pointing to racial disparities in creating, enacting, and enforcing the sentencing guidelines, little has been done to address the issue. And so we have continued to overincarcerate people of color for drug offenses.

Very little political support has come to communities of color subjected to overincarceration, the collateral consequences, and the accompanying policies. The nation might have looked for leadership from seemingly liberal, of-color, or other politicians elected on platforms suggesting a fairer shake for people of color, but that has not been the case.63 In fact, the impact of sweeping huge numbers of young African American, Asian, and Latino men and women into the criminal justice system was the creation of a political vacuum. Removing young people who may have been eligible to vote from a position where they could exercise that right effectively silenced their voices and neutralized any political capital that they might have had. The wide gap between the middle class and the “permanent poor” increased and the War on Drugs only helped to widen the cultural, political, and representational divide.

Throughout the decades of the 1980s and 1990s politicians of color largely remained mute in the national debate on drugs and crime. When the War on Drugs was at its rhetorical height, conservative and Republican politicians had cornered the market on tough-on-crime positions. Liberal and mainstream Democratic politicians often did not (and still do not) have adequate responses to this rhetoric. Politicians, who routinely asked for impact studies on environmental legislation, never required in-depth examinations of the impact of criminal justice legislation. Instead, the sanctions became more draconian, and collateral consequences increased unchecked for decades. In many communities, the victims of crime were people of color as often as the alleged perpetrators of crime were, further complicating things for politicians of color. Even toward the end of the 1990s, as the crime rates gradually inched downward and the crack epidemic began to subside, drug arrests and prison populations continued to rise.64 In the face of continued repression in communities of color under the guise of implementing the nation’s drug laws, political leaders remained relatively silent.65

These get-tough policies in the 1980s and early 1990s reflected the racial demographic changes that occurred in America’s cities between the 1960s and the 1980s—the emergence of a Black underclass living in concentrated poverty. Previously, the effects of inner-city life created a narrative that enabled sociologists and the popular media to describe the environment within low-income communities as encouraging a “culture of poverty” or a deviant subculture in which poor people sought out, enjoyed, and perpetuated destructive lifestyles.66 This narrative suggested that African Americans were primed to populate this permanent underclass. About 40 percent of African Americans exist at or below the margin of regular employment, minimal income, and personal security.67 Contact by affluent Whites with people of different races or those in low-income communities comes through personally experiencing crime, passing through blighted communities, or having limited contact with people working in the service economy—cleaning people, delivery persons, security guards. Occasionally, the contact is a direct experience of crime. But more often interracial experiences come through stories related by friends or family or on a more regular basis through the daily news reports of crime, drugs, and violence that appear in the newspapers or on the nightly televised news.

The majority of Americans have had their views of this underclass shaped by a lack of personal interaction with individuals of a different race and by the fear of crime leaving the urban ghettoes and invading the suburbs. Andrew Hacker, in his book Two Nations, points out that “few White Americans feel any obligation to make any sacrifices on behalf of the nation’s principal minority.”68 Many in this country call for a tougher stand toward what is seen as the misbehavior of many Blacks.69 The lack of contact70 between Whites and most persons of color has made it virtually impossible to break down the large and diverse racial stereotypes promulgated in the media and in politics.71 Consequently, much of the political and policy debate describes poor and of-color communities as undeserving and responsible for their conditions.72

The permanence of this underclass has been reinforced by a lack of “economic optimism” even in times of great financial prosperity for the balance of the country. The economic boom years of the 1990s largely passed unnoticed in communities of color. Job growth generally has occurred in the suburbs and in sectors of the economy that require levels of education beyond that possessed by many urban minority workers, because of the economic and racial changes in the population of urban areas in the last few decades.73 This has led to the existence of an environment of concentrated poverty and racial, social, cultural, and political isolation.74 This concentration of poverty results in negative policy decisions.75 When we consider the already monumental obstacles associated with race, along with the profound burdens that society then adds to the status of the formerly incarcerated, what results is a permanent stigma that affixes itself to an entire generation of people of color. The net effect has been that communities of color in many areas of this country have been sentenced to generational poverty and can expect continued isolation for the foreseeable future.

In the wake of the terrorist attacks of September 11, 2001, a new national focus on terrorism, paired with very little political dissent, encouraged a justice policy that virtually endorsed the unrelenting assault on civil liberties, especially in communities of color. In a society already struggling with stereotypes involving race and crime,76 attaching this incredible stigma to a large portion of the population by way of collateral consequences of felony conviction may push us toward the brink of developing a “permanent underclass.”77

The next section takes a closer look at how we form stereotypes and allow them to govern our perceptions and choices. The impact of stereotypes is palpable in our approach to reentry.

B. Stigma

A criminal conviction by itself creates significant obstacles to finding legal employment by interrupting employment, limiting the development of job skills, and discouraging potential employers from hiring those with a criminal history.78 It also undermines the social connections necessary to maintain stable job opportunities.79 When ex-offenders return from prison they often lack the education and skills needed to compete in the labor market, and the stigma of criminal conviction makes employers extra wary of hiring them. Where an occupational license is required, ex-offenders are often legally barred from obtaining jobs.

Where the particular job that an ex-offender seeks is not one that requires a license, the ex-offender frequently finds that employers will not interview, let alone hire, someone who has been convicted of a crime. Many employers fear those convicted of crimes or believe that ex-offenders will not be reliable employees. Other employers are concerned about hiring applicants with a known criminal past because of the risk of negligent hiring liability for insurers and other employees. The labels attached to ex-offender status as well as the negative connotations often result in a self-fulfilling prophecy that ex-offenders cannot successfully reintegrate into society.80

Ex-offenders of color carry a particularly strong stigma as they attempt to become contributing members of their communities. Some researchers have suggested that the damage of ex-offender stigma permanently impairs the earning capacity of people of color.81 The stigma begins early, and teenagers who are incarcerated have very little chance of obtaining a steady employment pattern in life.82 The stigma of exconvict status also significantly affects families of ex-offenders.83 In addition to the damage a criminal conviction inflicts on the individual and the family,84 researchers have also concluded that removing large numbers of residents who engage in both legal work and crime constitutes a significant loss to local economies.85 When we pause to consider this country’s economic boom in the 1980s and ‘90s, we rarely notice the number of young men of color who dropped out of the economy and into prison or onto the unemployment rolls.86

Most would concede that addressing issues of stigma is essential to planning for prisoner reentry. However, the extent to which the stigma of a criminal conviction, race, and bias interact makes this a particularly onerous task. A recent study sent matched pairs of young Black and White men to apply for entry-level job openings; a criminal record had a greater adverse impact on Black applicants than White applicants. Even more disturbing and quite telling of the problem’s intractability, White applicants with criminal records were more likely to receive callbacks from employers than Blacks with no criminal history.87

The stigma of race and its relationship to crime may provide us with significant insights into how we should think about reentry. In my own work I have described the ways in which race and suspicion intersect, particularly in the context of Fourth Amendment protections against police searches and detentions of suspects.88

Social scientists and cognitive psychologists have studied the manner in which people make sense of themselves and others. This process of categorization enables us to organize and make decisions about information with less time and effort than we would require confronting behavior and events anew each time. It is the process of grouping of information into smaller, more manageable bits of information that achieves the efficiency of human cognitive organization.89 Categories become a set of characteristics treated as if they were, for the purposes at hand, similar or capable of being substituted for each other.

Clustering information into categories leads inevitably to some prejudgment based upon our perceptions of those groupings. Stereotypes have been defined as the “general inclination to place a person in categories according to some easily and quickly identifiable characteristic such as age, sex, ethnic membership, nationality, or occupation, and then to attribute to him qualities believed to be typical of members of that category.”90 Schemas are best described as the preconceptions that define category members.91 A schema is a piece of knowledge that represents an “averaging” of specific items or events.92

The research of cognitive psychologists suggests that negative stereotypes about other races and ethnicities can develop early in our lives and become deeply rooted in our minds.93 The interrelationship among self-identity, social identity, and racial beliefs is so complex that a person’s beliefs about different races, once developed, are highly resistant to change. Of course, stereotypes about groups tend not be any more accurate than any other type of generalization94 because they represent oversimplification of complexities.95 But we tend to rely on them and, at times, to be prejudiced by them in making complex discretionary decisions.

Not all categories lead to intractable stereotypes. Some categories are held tentatively and the individual remains open to information that is inconsistent with the stereotypical category. Nonetheless, in most instances, categories stubbornly resist change.96 Moreover, in the case of racial and ethnic stereotyping, “people tend to hold to prejudgments even in the face of much contradictory evidence.”97 Cognitive psychologists further explain that learning processes are facilitated by the development of schemas—mental constructs that facilitate the processing of new, unfamiliar stimuli by comparing them to familiar ones and drawing conclusions about the new based on what the person knows about the familiar.98 All of this creates certain strong perceptions about race and behavior.

Individuals tend to make judgments about people using their learned categories as contexts for making such judgments. These judgments are often interpreted to coincide with the prevailing schema.99 When a criminal conviction is added, the tendency to stereotype becomes overwhelming. Given the images in the media, the news, and popular culture—which often portray people of color as dangerous criminals—it is not hard to imagine why an individual would make presumptions about someone applying for a job or seeking housing. Because prejudice based on race is a difficult issue to parse, legislative and administrative protections that limit the types of permissible background inquiries tend to be less than effective.

Assumptions about the criminality of African Americans are widespread.100 The number of race-related judgments that a particular individual will make is determined by intrapersonal factors, including social identity,101 myths about “legitimate racial differences,”102 and self-esteem maintenance.103 Jody Armour cites a 1990 study suggesting that over 56 percent of Americans perceive Blacks as prone to violence.104 Moreover, while other ethnic minorities are also stereotyped as crime prone, the stereotype of African American criminality tends to be bolstered by the media. Consumer discrimination research vividly describes the extent to which African Americans are targeted by the commercial retail industry for surveillance on the assumption that they are more likely to be engaged in criminality.105

These same beliefs about criminality and dangerousness do not exist with white-collar criminals—who are predominantly not people of color. The term “white-collar crime” was coined by Edwin H. Sutherland, and the definition has as much to do with class as it does with crime because of the particular forms economic inequality have taken in the United States.106 Sutherland himself suggested that the stigma associated with a white-collar criminal is much diminished as compared to that associated with other criminal conduct.107 Although a wide range of conduct seems to fall into the white-collar category,108 and a range of harms is included, the criminal stigma does not attach as quickly and white-collar offenders are often well assisted in their reentry into society.

Commentators rarely question whether white-collar offenders should immediately return to their communities, even when their conduct may have done far more harm than so-called street crime. Defendants of color from inner-city communities are most often presumed to be prison bound even before conviction; their eventual reentry is more often impeded by all of the players in the criminal justice system. From the prosecutor who charges, plea bargains, and recommends prison to the probation officer who compiles the probation report, the entire process is stacked against the person of color’s rehabilition and reentry. In addition to the criminal justice participants, the defendant charged with a street crime must also overcome immense obstacles, such as employment bans, education-grant ineligibility, and denial of housing and social welfare benefits.

Non-White defendants sentenced by judges of a different race and/or ethnicity are frequently used as opportunities for exemplification. Judges in these circumstances objectify the defendant and focus more on the crime in making the sentencing decision than on the circumstances that led to the crime. The exact opposite happens when the defendant is a white-collar defendant, and even more often when the defendant is of the same race as the judge. In those instances, the court is willing to examine a wider range of factors in making sentencing decisions. White-collar criminals have often been described by judges as some of the most difficult offenders to sentence.109 Judges describe the need to “look past the crime,” to look at the defendant’s “whole life and his place in society.”110 This becomes easier when race is not an issue, as is often the case in white-collar sentencing. In those settings race does not carry the negative impact that it does in other (nonviolent) sentencing. Arguably, this wider range of factors and alternatives should be considered in all cases. This is instructive as we contemplate the issues surrounding reentry.

In the white-collar scenario a number of alternative punishments have been explored. Some suggest shaming is enough of a punishment for white-collar criminals. Judges are willing to impose the least punitive sentence because judges are willing to believe that less drastic steps will have a significant impact on white-collar offenders. The negative impact of a loss of social status, when the defendant is upper middle class, is given great weight in the sentencing process. The notion that incarceration is “too far a fall from grace” to be fair is presumed before sentencing.

Defendants of color are not generally given the same benefits of social status as White defendants, even if they have never been incarcerated or committed a violent offense. In the instance of a first-time offender of color in a drug case, we rarely hear that shaming would be appropriate. Some argue that white-collar crimes involve situations where victims are hard to identify and harm is difficult to quantify. In addition, the “rationing of corrections space” also becomes a factor when white-collar criminals are to be sentenced. In cases involving nonviolent offenders that are of a different class, race, or ethnicity than the sentencing judge, officials seem more apt to suggest building more prisons than to suggest rationing existing beds.

Judges and prosecutors are more willing to take into account the circumstances of white-collar defendants’ lives than those of defendants who have had access to far fewer opportunities, perhaps because they can see themselves in the face of the offender. One need only look to the treasurer of Enron, Lea Fastow. In a case involving six felony counts, prosecutors sought to enforce a plea bargain wherein Ms. Fastow could serve a sentence of five months in custody and five months at home caring for her children.111 This would allow her to stagger her sentence with her husband’s sentence.112 The judge hearing the case refused to be bound by the deal, given the severity of the charges. The judge indicated that he would probably impose a sentence of ten to sixteen months.113 Prosecutors seeking to placate Ms. Fastow dismissed all six felony counts and allowed her to plead to a misdemeanor, prompting one commentator to describe the deal as “indicting someone for bank robbery and knocking it down to spitting on the sidewalk.”114

Prosecutor assistance in the Fastow case is the type of assistance that defendants need in order to prepare for release and formal reintegration into their communities. Cases involving defendants of color in nonviolent criminal conduct rarely see this type of cooperation, which raises some fundamental questions about how the court system treats white-collar defendants as opposed to indigent defendants. There is a not-so-subtle, implied notion that white-collar defendants have “more to lose” and therefore should be treated differently.

Releasing Prisoners, Redeeming Communities

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