Criminal Justice Overview: Law

Last Updated Jun 13, 2022

This guide is intended to help donors gain a deeper understanding of the U.S. criminal justice system and outlines opportunities to address the root causes of inequitable outcomes. See the entire series. By Kelly Macías, Ph.D.

Did you know?

What is Criminal Justice Reform?

The United States incarcerates more people than any other country in the world.

Family Members in Prison

Many people are incarcerated, and remain so, simply because they do not have the financial resources needed to obtain help, to investigate claims made against them, or to post bail. Our criminal justice system is also filled with disparities that lead to higher arrest and conviction rates for Black and Brown people, even though they are not any more likely to commit crimes than white people.

Criminal convictions have a devastating impact on the health, well-being, and income of individuals, their families and society. Having a criminal record can prevent a person from being able to access housing, education, and in many states can permanently bar them from employment. The ripple effect that results from rights and opportunities being stripped away through our criminal justice system devastates families and communities and can last for generations. Sending so many people to jail and prison also damages the economy, resulting in a loss of $87 billion in GDP each year due to high unemployment rates which lead to higher government assistance rates, loss of tax revenue, and decreased economic mobility.

Criminal Justice Effects on Earnings and GDP

Incarceration isn’t the only way to reduce crime, especially when offenders have mental health or substance abuse issues that are better addressed through rehabilitation or when there are community-based solutions. In many states, lawmakers have shifted resources from policing into social support programs. For example, with additional funding from the Minneapolis City Council, the city’s Office of Violence Prevention hired street outreach workers as “violence interrupters,” to detect and de-escalate conflict before it turns violent. And in Albuquerque, a Community Safety Department was created to train civilian responders to provide alternatives to 911 calls related to non-violent issues.

Another aspect of addressing inequities in our criminal justice system is the elimination of private prisons. Since the 1980s, the for-profit private prison sector has grown into a billion dollar a year industry. They keep costs low and it should come as no surprise that these prisons have significantly higher issues with safety than public prisons.

Private Prison Cost Strategy

In January 2021, the Biden administration signed an Executive Order to phase out contracts with federal private prisons in the hopes of making prisons safer and more humane.

Why Donors Should Care About Criminal Justice and Law

Reducing the amount of people in jails and prisons is both important and necessary to ensure that everyone living in the United States is treated with respect and dignity. Our country cannot live up to its promise of opportunity for all when so many are denied equal treatment under the law. The reality is that mass incarceration does not keep anyone safer, nor does it reduce violent crime. Studies show that higher incarceration rates are linked to increased convictions for non-violent crimes like drug offenses and low-level property offenses. Our system of incarceration also hurts children. Children whose parents are incarcerated are more likely to live in poverty and are at greater risk for depression, behavioral problems, dropping out of school and more likely to experience anxiety, post-traumatic stress disorder, and homelessness. This is particularly significant for Black children who are six times more likely to have an incarcerated parent than white children.

There is also a significant financial burden that comes along with incarcerating so many people.

Cost of Criminal Justice System

A study shows that the total societal cost of our criminal justice system is nearly $1.2 trillion, which includes the consequences of incarceration such as lost wages, adverse health effects (such as poor mental health or infant mortality), and the overall detrimental impact experienced by the children of incarcerated parents. The costs related to moving, eviction, homelessness, and reduced property values in the areas where formerly incarcerated people and their families live is estimated at $14.8 billion.

In many states, the average cost per prisoner is much higher than what is spent per student. New York City spends approximately $28,000 per pupil but over $65,000 per prisoner. This is because of how prison spending works. Generally, prisons employ as many staff as they have prisoners. In comparison, school districts tend to have only one teacher for every 22 students.

Donors have an important role to play in reforming our current legal and criminal justice systems. By supporting organizations that work for the election of neutral judges and prosecutors who believe the courts should not work in favor of the wealthy, funding decarceration reform, and mobilizing the families of incarcerated people, donors can be at the forefront of transforming the current systems which marginalize and harm vulnerable people, children, and families into ones that are more humane and just.

Who Is Missing Out?

Black people with no criminal record earn less money than socioeconomically similar white people with a criminal record.

Average Annual Earnings

In 2010, the number of American Indian/Alaskan Natives held in adult correctional facilities was 1,291 per 100,000 people, nearly double that of the incarceration rate of white Americans (510 per 100,000). In states with large Native American populations, the incarceration rate can be up to 7 times that of whites.

Gay, lesbian, and bisexual adults are three times more likely to be incarcerated than the general population. Nearly 40% of incarcerated women are lesbian or bisexual.

Cash bail systems have only served to increase the number of people in jail.

Jail Admission and Stays

Black men are six times as likely to be incarcerated than white men, while Latino men are 2.5 times as likely. About 1 in 12 Black men in their thirties is in jail or prison on a given day.

Drugs are the leading cause of arrest in the United States, with 1 in 5 people who are currently incarcerated serving time for drug offenses. Every 58 seconds someone is arrested for a marijuana offense.

According to a study in the Quarterly Journal of Economics, the cash bail system has a long-term impact on employment and recidivism. Three to four years after trial, people who have been detained until trial are less likely to be employed and more likely to commit crimes after their release.

Children who have had at least one parent incarcerated during their childhood are six times more likely to be involved in the justice system during their youth, especially if their mother has been incarcerated.

What Is Causing These Disparities?

Lack of Police Accountability

Reducing police violence has long been part of discussions about criminal justice reform. About 1,000 people are killed each year by police. We also know that people of color, particularly Black people, are more likely to be killed by police than white people — even when they do not have a weapon. Black teenagers are 21 times more likely to be killed by police than white teenagers and Black people overall are 3.5 times more likely to be killed by police than white people. A significant issue is that many police departments do not collect data on the incidents involving use of force. There are currently no laws country-wide that require police departments to collect this information. Without this information, police officers cannot be held accountable for their actions when they use violence or excessive force. Likewise, there are protections in place which allow many law enforcement agencies to investigate themselves without oversight from the public, meaning they have been able to cover up histories of abuse and patterns of illegal behavior. Advocates for reform are fighting for ways that communities can have transparency into police practices (such as the use of body cameras) as well as for community-based solutions which utilize human and social services to curtail violence as an alternative to incarceration.

Courts and Judge Appointments

Reforming America’s criminal justice system requires addressing complex issues at the local, state and federal level courts. Though justice is supposed to be blind, we know that ideological preferences have an impact on judicial decision-making. For the last few decades, many politicians have worked hard to appoint judges who will help them realize their political objectives. At the same time, we also know that bias (racial, ethnic, gender, and sexual orientation) has also shown up in the way judges hand down sentences and uphold or strike down certain laws.

Though white, non-Hispanic people make up about 60% of the U.S. population, they represent 83% of state trial court judges and 80% of state appellate court judges. This is significant because while people of color are overrepresented in the criminal justice system, they are vastly underrepresented in the judiciary at all levels. Even when they are represented, they face increased scrutiny. It is estimated that the rulings of Black federal judges are 10 percentage points more likely to be reversed on appeal compared to their white counterparts.

The nation’s highest court, The Supreme Court, is notorious for its lack of diversity and judges who are out of touch with the experiences of most Americans. This is disturbing when you consider that The Supreme Court decides on cases related to abortion and contraception, racial discrimination, voting rights, LGBTQ+ rights and more. On average, Supreme Court justices tend to be older than the average American, with ages ranging from 64 to 86 years old. They also skew heavily white, male, and elite. The median net worth of Supreme Court justices in 2017 was $1.9 million compared to $97,300 for all U.S. families.

Laws, Fines, and Bail Systems

Unfortunately, racism is deeply embedded into all aspects of our criminal justice system. This includes policing, arrests, corrections, and schools.

Incarceration Rates - Black and Native Americans

Incarceration Rates - Black and Latinx

Nearly half of the people in the United States who are serving life-sentences in prison are Black.

Our legal system allows for defendants to be held prior to trial. In many jurisdictions, they can secure their release, only if they are able to afford the bail which has been set by a judge. According to the Prison Policy Initiative, nearly 7 in 10 detainees in local jails awaiting trial are people of color, with Black and Hispanic people being overrepresented in comparison to their share of the U.S. population. In urban areas, Black felony defendants are more than 25% more likely than whites to be held pretrial, even when charged for similar crimes.

A study of bail in five large counties in the U.S. found that Blacks received $7,000 higher bail than whites for violent crimes and $13,000 higher bail for drug crimes.

Average Bail

But the bail itself is not the only problem. Millions of people borrow cash, known as bail bonds, from for-profit entities to secure freedom for themselves or their loved ones, only to end up owing more due to high interest and fees. This traps them in a continuous cycle of poverty and debt. Discriminatory bail practices serve to exacerbate the disparities in wealth that exist by race. The net worth of a typical white family is $171,000 compared to that of $17,150 for Black families.

The War on Drugs and Decriminalization of Drugs

In June 1971, President Nixon declared the war on drugs. As a result, the size and presence of federal drug agencies increased, and harsh policies emerged, such as mandatory minimum sentences and warrants that allow law enforcement officials to enter a property without prior notification to its residents.

It is important to note that this war, along with America’s drug laws, was deeply rooted in racism and racial stereotypes. A series of anti-drug laws dating back to the 1800s have been aimed at communities of color. In 1870, the first anti-opium laws were directed at Chinese immigrants. The first anti-cocaine laws in the early 1900s were aimed at Black men. And the first anti-marijuana laws in the 1910s and 1920s were aimed at Mexican immigrants and Mexican Americans. The disproportionate impact of these laws can be felt today as nearly 80% of people in federal prison and 60% of people in state prison for drug offenses are Black or Latino.

Decriminalizing drug possession would go a long way toward reducing these disparities. In every state, Black people are arrested at higher rates for marijuana possession than whites, even though they use at similar rates. However, in states where marijuana has been legalized or decriminalized, marijuana arrest rates have gone down. Of course, it is not enough to simply decriminalize drugs. It is also important to get people drug treatment when appropriate and necessary. An estimated 20% to 30% of LGBTQ+ people use drugs to cope with trauma, experiences of aggression and violence, and other stress associated with being a part of a marginalized group. According to the National Institute on Drug Abuse, research shows that an estimated 65% of the prison population has a substance abuse disorder while 20% were under the influence of drugs and/or alcohol at the time of their crime. This means that we need more mental health resources, treatment, and community wellness support available rather than defaulting to incarcerating those with substance abuse issues.

Get Involved

  • Essie Justice Group seeks to harness the collective power of women with incarcerated loved ones to end mass incarceration’s harm to women and communities.
  • Alliance for Safety and Justice is a multi-state organization that aims to replace over-incarceration with public safety solutions rooted in crime prevention, community health, rehabilitation, and support for crime victims.
  • The Center for Court Innovation creates operating programs to test new ideas and solve problems, performs original research to determine what works (and doesn’t), and provides expert assistance to criminal justice reformers around the world.
  • Join REFORM Alliance as it aims to transform probation and parole by changing laws, systems, and culture to create real pathways to work and wellbeing.
  • Use your voice to fight with the Alliance for Justice which works for a fair and independent justice system, preserving access to the courts and empowering people to advocate on behalf of the issues they believe in.
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