The disproportionate incarceration rate of minorities in general, and blacks in particular, is one of the most pressing civil rights issues of our time. A new EPI report argues that the United States has a dual criminal justice system that has helped maintain the economic and social hierarchy predicated on race. In Where Do We Go from Here? Mass Incarceration and the Struggle for Civil Rights, Robynn J.A. Cox, assistant professor at Spelman College and RCMAR Scholar at the USC Leonard D. Schaeffer Center for Health Policy and Economics, explains that the mass incarceration of minorities was not an accidental occurrence but the result of America’s legacy of racism. She examines how public policy, criminal justice officials, and the media have contributed to the hyperincarceration of minorities, especially black men.

“As we prepare to celebrate Martin Luther King Jr’s legacy, it’s essential that we acknowledge how a biased criminal justice system and the subsequent mass incarceration of African Americans is wreaking havoc on the black community and preventing us from reaching King’s dream,” said Cox. “For example, although the right for blacks to vote has been enforced since the Voting Rights Act of 1965, mass incarceration policies have effectively taken this entitlement away from numerous African Americans. It is painfully obvious that the dream for civil rights has yet to be fully realized and cemented.”

Over the past 40 years, U.S. incarceration has grown at an extraordinary rate, and most of this growth can be accounted for by society’s choice for tough-on-crime policies (e.g., determinate sentencing, truth-in-sentencing laws, limiting discretionary parole boards, etc.) resulting in more individuals (committing less serious offenses) being sentenced to serve time, and longer prison sentences. For instance, from 1979 to 2009, there was a decrease in the share of individuals sentenced to state facilities for violent crimes and property crimes, but large increases in the proportion of individuals serving time for less serious crimes such as drug crimes and other crimes. This shift in focus occured after the federal government increased federal funding and resources to state and local law enforcement to support the war on drugs.  In order to obtain economic gains from the resulting prison boom, impoverished rural communities—and the private sector—began using prison construction as part of their economic development strategies, with hopes that prisons would be a recession-proof industry that would help to stimulate their economy through job creation and regional multiplier effects.

Though blacks have historically experienced incarceration rates above their proportion in society, it has worsened over time: By 1993 the proportion of black prison admissions was roughly 4 times their proportion in the population (a 91 percent increase from 1926). Moreover, racial disparities in incarceration persist over time at all education levels.  This hyperincarceration has led to disproportionate effects on black employment outcomes and earnings, families, and citizenship status. In fact, although low-skilled white male employment is hurt by an incarceration, research has found that previously incarcerated low-skilled white males are still ranked in the economic hierarchy at the same level or higher as low-skilled Hispanic and black men without criminal records. Finally, imprisonment leads to the loss of an individual’s ability to participate in the democratic process, and ultimately one’s citizenship, through felon disenfranchisement laws. Taken together, there is ample evidence that the criminal justice system has played an integral part in maintaining social and economic stratification along racial lines.

Discriminatory enforcement practices, such as racial profiling and differential treatment by prosecutors, have played a significant role in the mass incarceration of minorities. Evidence of unequal enforcement of the law can be seen by comparing drug use to drug arrest rates by race. Though black senior high school students indicate using cocaine and marijuana at lower rates in 1980, 1993, and 2009 than their white counterparts, blacks are arrested at much higher rates for possession and distribution of drugs.  Moreover, while the share of individuals serving time in state prisons for drug offenses that are black increased by almost 50 percent from 1986-2009, the share of whites decreased by 62 percent over this same time period.

“Systemic racial bias has led to the development of a dual criminal justice system, which is at the root of our mass incarceration epidemic,” said Cox. “Without racial bias, it is unlikely that the United States would have seen such unprecedented growth in incarceration. Therefore, to begin to address it and achieve the social and economic equality Martin Luther King Jr. dreamed of over 51 years ago, we must follow King’s advice and become reeducated about race in America, and we have to wholeheartedly invest in the black community through education, job training, and employment programs.  Failure to address the legacy of racism passed down by our forefathers and its ties to economic oppression will only result in the continued reinvention of Jim Crow.”

This paper continues the Economic Policy Institute project The Unfinished March, which reviews America’s civil rights successes as well as the significant amount of civil rights work that remains to be done. Each report addresses a specific civil rights goal, the progress that has or has not been made, and, if necessary, the policy measures needed to fully realize the goal.