The Myth: Black Men in Prison vs College

I no longer wonder why myths about there being more black men in prison than in college got so much traction….


Despite the statistics and credible studies, people believe it. In fact, they will fight you on the point. In 2003, according to Justice Department figures, 193,000 black college-age men were in prison, while 532,000 black college-age men were attending college. Ivory Toldson disputes the myth and says prior statistics were just wrong.

Yet folks are quick to believe it. Some are quick to believe it (and will fight you on the point) because they are racist and have a need to feel superior. But more often, I think the reason most people believe it is because of unconscious bias. Even some black people have an unconscious bias towards other black people. Consider this quote from Jessie Jackson:

“There is nothing more painful to me at this stage in my life, than to walk down the street and hear footsteps and start thinking about robbery—then look around and see somebody white and feel relieved.”‖ Quoted in Chicago Sun Times, Nov 29, 1993.

I think unconscious bias is even more pronounced when someone does not have interaction with certain people groups or interacts only with a small segment of a group. For example, if a lawyer only interacts with African Americans who have been in trouble with the legal system, then that lawyer might develop some unconscious bias towards African Americans (biases that make the lawyer think African Americans have a propensity towards being involved with the legal system or that they lack intelligence). He (or she) might think that African Americans are throw-away-able (“if he/she doesn’t get popped on this case, he/she will catch some time on the next case”). Such thinking might cause him to pressure someone into entering a plea on a questionable case or might cause him not to work as hard on a case.

The problem with not interacting with a certain people group is that it limits the information we receive about that people group. Based on a lack of information, we make assumptions about that group that are unwarranted because our opinions are ill-informed.

I remember a story during a jury selection where a lawyer wanted to strike an older white woman who lived in Kingwood because he thought she wouldn’t be favorable to his minority client. But the client said, “No, I like her. She’s a house wife and probably sits around all day watching Fox News and distrusting the government.” Yeah, I know, that reasoning doesn’t really make sense, but the lawyer went with his client’s desires and left the woman on the jury. Sure enough after the jury acquitted his client that juror was one of the most vocal in favor of acquittal and told the lawyers about how she listened to hip hop music and did not trust the police. The lawyer’s assumptions about her almost caused them to get rid of a good defense juror.

Likewise, other racially based assumptions we make about people are equally problematic.

It’s time to acknowledge the bias and assumptions and work to breakthrough the misconceptions. Starting with the belief there are more black men in prison than in college.


Over-criminalization and Prison Spending

jail-429639_960_720Supporting a new era of criminal justice reform, the Washington Post reports state and local spending on prisons and jails has grown three times as much over the past three decades as spending on public education for preschool through high school, according to a new analysis of federal data by the U.S. Education Department. In their brief, researchers argued taxpayers and safety would be better served by redirecting investments from incarceration to public education:

“A variety of studies have suggested that investing more in education, particularly targeted toward at-risk communities, could achieve crime reduction without the heavy social costs that high incarceration rates impose on individuals, families, and communities.”

Expenditures for incarceration and education varied from state to state. In Texas, over the 33-year period studied (1979-2013), state and local corrections (incarceration) expenditures rose 850 percent – a staggering 668 percent greater than our increase in education spending.

It’s no wonder that we spend more on prisons and jails; we love to criminalize all problems. And since at least the 80s, penalties have been increasing, leaving people in prisons longer and longer. The combined effect is that the number of people incarcerated has quadrupled while spending had also increased by more than four times. Societal problems are addressed through more criminal statutes. Children are policed in schools; the schoolyard fight is no longer handled by the principal. Drug addicts are incarcerated rather than treated. Our jails have become the largest mental health facilities in the country. We fail to utilize legislative efforts to curb incarceration for non-violent offenders such as cite and release. Instead our local jail is one of the most violent in the nation, ranking number 3 in the nation for incidents of assault.

It’s not difficult to see the affect all this has had on our police departments. Dallas Police Chief David Brown concedes:

“We’re asking cops to do too much in this country” said Brown.

“Every societal failure, we put it off on the cops to solve” said Brown. He listed mental health, drug addiction, loose dogs, failing schools as problems the public expects ‘cops to solve.’

“Seventy percent of the African American community is being raised by single women, let’s give it to the cops to solve that as well” said Brown. “Policing was never meant to solve all those problems.”

Policing has increased because everything is treated as criminal. Rather than address societal issues, cops are called to “deal with the problem.” And officers are left with only one real solution: jail. If a parent is complaining their child is violent or aggressive, the child is removed from the home and placed in a juvenile detention center. If a homeless person, most often those who are also mentally ill, is a nuisance to a business, he is jailed for trespass.

Perhaps, as the Department of Education brief suggests, it’s time to reassess our spending. Focusing on our children is a step towards breaking the cycles of poverty and incarceration. Education is also a major key to the safety of our communities. Mass incarceration is not helping; in fact, it is hurting. And, we are no safer for it.

It’s time to stop and rethink our priorities as criminal justice reform takes center stage. It’s time to help people rather than simply house them in cages. It’s time to reinvest our resources into community programs and public safety rather than simply incarceration. The past three decades have shown us mass incarceration doesn’t work. Non-violent offenders can be helped rather than derailed by losing jobs, housing, and opportunities.


The Real Human Cost of the War on Drugs

In my criminal defense practice, I travel to four different and distinct counties in the Houston area. I get to see how first-hand how different judges, prosecutors and juries feel about the war on drugs. Those reactions are often quite varied from court to court, as well as county to county. There are certain costs associated with the prosecution, as well as defense, of those that find themselves in the criminal justice system on drug cases. These costs can be quantified. For example, in 2016, the United States spent nearly $30 billion dollars on the War on Drugs on the Federal level. Fox News estimates that nearly one trillion dollars has been spent on the War on Drugs over the past forty years.

I also get to see the effect the war on drugs has on those accused of drug related crimes. That human cost is not as easily quantified and is, often, impossible.

In one smaller county near Houston, I represented a woman we will call Tonya. She had been charged and convicted in the 1990’s with low-level felony drug cases and was charged again with state jail felony possession case. Tonya was charged with possession of less than a gram of a controlled substance in late 2015. For comparison’s sake, a gram weighs roughly the same as an average paper clip. Before she was arrested, Tonya was working in the service industry and earning an honest wage. She lived with multiple members of her extended family.

Due to Tonya’s prior felony history, her penalty range was enhanced from six to twenty four months in the state jail division to two to twenty years in prison. Her bond was set in accordance with the local bond schedule but was still beyond her financial ability. I spoke to multiple members of her family, including her daughter, and they consistently told me that they just couldn’t afford the bond. Her bond was eventually reduced, yet, sadly, was still beyond their reach. Tonya sat in jail waiting for the Department of Public Safety’s Drug Lab to share the results of the drug analysis for more than six months. During that time, while she sat in jail on a less than a gram possession case, her daughter and her family were forced to leave their home. They were barely scraping by with Tonya’s help, but with the matriarch of the family in jail, things crumbled.

I tried, as did Tonya, to keep in touch with the family, but soon, the phone calls were not returned and eventually the phones were “no longer accepting incoming calls.” The lab report came back after nearly seven months and showed that Tonya was in possession of one-tenth of one gram of a controlled substance. For such a tiny amount, a nearly unquantifiable amount of drugs, Tonya lost touch with her daughter and family, lost her home, lost her job and almost seven months of her life.

In another county near Houston, I represented an older man we will call Jimmy who was charged with possession of one to four grams of a controlled substance, a third degree felony. Unfortunately, there was more to the story as he also had several prior felony convictions. Jimmy was enhanced to a potential range of punishment of twenty-five years to life in prison. I met with Jimmy in the county jail shortly after he was arrested and he told me that he was in the wrong place at the wrong time. I thought to myself that I had heard that same song and dance about some other dude’s pants, or car, or hotel room so many times. But I still dug into his case. I discovered that he really was at the wrong place at the wrong time and that there was virtually nothing tying Jimmy to the drugs found at the scene. Other than, of course, his mere presence.

It took more than four months for Jimmy’s case to get to court the first time. Jimmy, like Tonya, could not afford to bond out, and was brought to a cattle-call docket along with nearly sixty other citizens accused of crimes. His family could afford to bond Jimmy out, but chose not to. Whether it was frustration or tough love I don’t know, but Jimmy stayed in jail throughout this process. Despite a timely request months earlier, not all the discovery was ready at the first docket call. Jimmy’ s case was reset for several months. The judge did grant Jimmy a personal recognizance, or PR, bond due to the lack of discovery.

Jimmy made bond and got back to work. While he was in jail, he worked for the local county Sheriff’s Office doing skilled maintenance work. After his release, he picked up work at a local mechanic shop. After a few months, Jimmy’s case was dismissed by the District Attorney’s Office. He got back in the good graces of his family. Everything seemed like it was trending upwards. We kept in touch for a few weeks. Then one day, Jimmy stopped answering my calls. His phone went to the all too familiar “not taking incoming calls” refrain I hear entirely too often.

I feared he was back in jail, and I was right. This time, there was no happy ending. Jimmy was pulled over for speeding and the police found a sizeable amount of a controlled substance in his lap. This time, Jimmy was back in jail and began the months long process all over again. Eventually, the lab report was positive and Jimmy accepted a plea offer for several years in prison. He lost his job. His father, a local religious leader, was ashamed and eventually quit returning my calls.

I represented a third man that we can call Esteban in a larger county. Esteban had been in and out of trouble for years. He’d been convicted of felony offenses since I was in grade school. He appeared to be, and later confirmed, a drug addict. He had been convicted of possession cases. He had been convicted of theft cases that he said were the fuel to his addiction. He had been on probation, he had been to jail, and he had been to prison. His sister, Elena, was at her wit’s end. She had bonded him out of jail countless times. She had left him in jail a myriad of times. She had hired several lawyers and sent her older brother to rehab twice. She didn’t know what to do and was distraught.

The judge in Esteban’s court offered him only a few months in jail, which, considering his criminal history, was a fair resolution of his case. She also told him that if he was serious about getting clean, she would consider putting him on probation and sending him to an intense rehab facility for a minimum of six months. Esteban, to his sister’s surprise, chose rehab. He’s still in rehab but his sister keeps in touch with me. She told me a few weeks ago that he’s an entirely different person even after only a few months in rehab.

What’s the Answer?

Is it a viable solution to continue imprisoning addicts for low level drug offenses? Does it make sense? Is it justice? More than 143,000 Texans are currently in prison. This figure does not include those in county jail awaiting trial or serving sentences, those on probation, or those in the Federal system. Of that figure, more than 20% are there for possession of less than one gram of a controlled substance such as cocaine or heroin. Is imprisoning so many of our citizens the best use of Texas’ finite financial resources?

So, what’s the point you may be asking yourself? Ask yourself how much of the money spent on the war on drugs is spent on education? Less than $70 million dollars. A mere drop in the bucket of the $30 billion. Shouldn’t much more money be spent on education? If we change or reduce demand, won’t there be a change in supply? I would also propose a long-term study on recidivism rates after intense rehab programs as compared to the status quo of locking people away for such minor transgressions?

Are we winning the war on drugs? Or are we losing the war on drugs?