Solutions for the Over-Incarceration of Drug Crimes: A Constitutional Challenge
- Peyton K Yourch
- Aug 5, 2020
- 9 min read
PART V. Solutions for the Over-Incarceration of Drug Crimes: A Constitutional Challenge for How Private Prisons Do Not Equally Protect United State’s Inmates
NOTE FROM THE AUTHOR: This is part five of a dossier that I wrote with five other people on the history of private prisons and how they disparately harm people of color with unfair labor procedure and the lack or rehabilitation. This part, that I wrote and researched, focuses on creating a solution by attacking the way private prisons are funded.
1. Introduction
Problems are not solved with only one end all change nor one swap of policy. Most times when a single solution perspective is used to address systemic issues, the external costs of the solutions are not considered and become too heavy of a burden or the solutions have trade-offs which generate additional problems. Racial disparities and drug sentencing have increased the number of people of color in the United States prison system, a point consistently made throughout this paper. Proposed in the solution is a solution of constitutionally challenging the United States Government via an as-applied challenge. This would be for funding private prisons as it violates the equal protection clause, disparately impacting people of color found guilty of nonviolent drug crimes. What incentivizes the increased sentencing, what barriers can be in place, and what actions can occur, are considered here. The lack of prison availability would force rehabilitation techniques to be more creative and open a door for more solutions to evolve from the one I have proposed because this one would establish precedent.
2. The Existing Precedent
Funding private prisons is legal by federal law that is accounting for budgeting year by year. Federal funding for the Federal Prison System allows placement of people into privately owned prisons, which is not a wrong doing on its own. At face value, this law is applied equally to all people who commit crimes. In the case proposed, it is argued that as-applied, the “Placement of Certain Persons in Privately Operated Prisons” (18 USC § 4001 Public Law 106-553), allocates funds to an industry that aids in unequal treatment of prisoners based on the disparate impacts on minority inmates. The allocation of funds to private prisons resulting in disparate impacts is why this solution applies a constitutional challenge. A constitutional challenge is when a party files a motion that brings into question the constitutionality of a law (Kreit, 2010). The law has not been applied equally, making the law inevitably unconstitutional under the equal protection clause of the Fourteenth Amendment.
When proving a challenge the plaintiff, or petitioner, can use a facial challenge or an as-applied challenge. A facial challenge requires proving that there’s no instance in which a law could be applied and be constitutional. This is argument is rarely held when brought to the Supreme Court, as when most lawmakers write a piece of legislation there is an application in mind that renders constitutional. In the U.S. v. Salerno the plaintiff argued the Bail Reform Act was unconstitutional at face value, meaning that there was no possible way for the government to imprison someone prior to their trial even if they posed a serious threat to society (Dorf, 1994). This argument was not held because there are ways that the act is constitutional. The Bail Reform Act requires extensive and specific criteria in order for a judge to rule that a defendant should be held without bail. An as-applied challenge is used inversely and states when a law is applied in a way that violates protected groups’s constitutional rights in anyway, it can be declared unconstitutional. The equal protection clause of the Fourteenth Amendment is often cited for as-applied challenges when the constitution is violated due to laws that perpetuate disparate effects that people of minority groups face (U.S. Constitutional Amendments, n.d).
An adversary party would argue in pre-trial motions that the disparate impact is irrelevant here and for the case to be dismissed due to the Thirteenth Amendment. The Thirteenth Amendment states that slavery is illegal “except as a punishment for crime whereof the party shall have been duly convicted” (U.S. Constitutional Amendments, n.d). The dismissal of this case would result from the lack of understanding the separation between the disparate impact of inmates and the fact that they are inmates. Unequal sentencing to private establishments and treatment of inmates in private prisons show the disparities that violate the Fourteenth Amendment. The equal protection clause explicitly protects the rights of all people by providing the same consideration.
Disparate impacts are difficult to prove in a court because the data needed and arguments created need to be airtight. For this reason the path used to prove disparate impacts is clearly laid out in Title VI of the Civil Rights Act of 1964, Section VII “Proving Discrimination – Disparate Impact”. This section states that a protected class must be identified, utilizing statistical evidence, comparator population, and establishing the significance of the disparity (Section VII- Proving Discrimination- Disparate Impact, 2017). Title VI is used to establish a disparity and then apply the Fourteenth amendment to rationalize why Pub. L. 106–553 is unconstitutional and that private prisons need to be eradicated.
3. Brief of the Facts
In this case the constitutional challenge is against the United States government, making the United States the defendant. Since this case is against the federal government, it would take place in the federal court system, specifically a U.S. District Court. In any case where an entity is the defendant there needs to be a party representative, who would most likely be the United States Attorney General who runs the Department of Justice. A party representative is someone in a case who represents the entire group and gets the benefits accompanied with defendant or plaintiff status, such as exemption from “hearsay”. The fact that the defendant would be the Attorney General is intimidating based on the power they wield but as the case works its way through appellate courts the arguments of the case would become more powerful. Cases such as these will not go into effect until they are appealed to the Supreme Court for its final ruling. These cases are designed to counter-laws and to be appealed where as cases that arises due to chance such as most criminal cases don’t have the perfect plaintiff or case.
The plaintiff in cases such as these are usually scouted and chosen depending on how the working attorney sees fit, which is how perfect plaintiffs come to be. There would either be a group of plaintiffs with a single party representative or a single plaintiff as the party representative. In an as-applied cases, like most cases, the burden of proof lies on the plaintiff of the case. When the case is appealed, depending on what the verdict was, the burden of proof shifts to the party who appeals the case. The burden of proof is how much the judge or jury believes the plaintiff’s counsel has to prove. The highest burden of proof is in a criminal court case, “Beyond a reasonable doubt”. In this specific case, the burden of proof is to prove disparate impact of a law when it is applied. The plaintiff must prove disparate impact through all the four aforementioned tools of Title VI.
The protected class being identified would be Black Americans. This group is specific enough and has a number of cases as precedent where Black Americans are considered a protected class and has a lot of statistical data to back the legal issue at hand. This protected class doesn’t include the plights of other minorities because when there’s an aggregate including Latinx and Asian Americans, the protected class can come into question more. In Rich v. Martin Marietta protected classes are combined, specifically “blacks, women and Chicanos and [Asians] and American Indians”, but the decision was not held because the statistics did not similarly affect each subsect in the same manner (Section VII- Proving Discrimination- Disparate Impact, 2017).
In addition to identifying a protected class, the plaintiff needs to prove the need for statistics and then use the statistics once the need is established. It is also important that during the course of the trial that those statistics are interpreted by some of the researchers who found them because crime and race statistics can be misinterpreted as further instating biology as a reason for minorities committing crimes (Austin, 2001). The statistician who explain the statistics are also tasked with demonstrating the statistical significance. With other experts such as social workers, prison advocates, and non-expert witnesses such as the plaintiffs or affiliates of plaintiffs who were or are inmates explaining the experience they have had that differentiate from peers and how those continue to adversely impact their lives. In addition to the statistics of those facing disparate impacts the same statistics against a comparable population that is benefiting or not adversely affected in the way that the protected group is. The statistics that are relevant for this case are cited in Section 4 by Palacio Sierra.
The importance of the disparities also has to be illustrated as significant. Drug sentencing specifically targets people of color with different precedents placed on laws such as crack vs. cocaine mandatory sentencing. Racial disparities in sentencing can be drastically reduced if the availability of prisons are reduced. The federal government would put more emphasis on keeping violent offenders in prisons as they are more “threatening” as when overcrowding has happened before nonviolent criminals were given parole earlier than nonviolent offenders (Muradyan, 2008). The burden of imprisonment falls heavily on the government and cost cutting services will offer more rehabilitative and restorative justice. If this form of justice doesn’t occur it would at the very least create universal standards of regulations for prisons providing equal sentencing and treatment of prisoners.
4. Capacity Gaps of Eliminating all Private Prisons
The abolishment of private prisons would require creative thinking when it comes to matters surrounding private prisons. Many people are dependent on private prisons for their employment but there can definitely be a transition of careers if there is preparedness prior to. In rural areas where a lot of prisons are located, there's the prevention of exodus by keeping economic prosperity in these small towns (Schlosser, 1998). Private prisons don’t make up a large percent of prisons in the industrial prison complex, therefore the jobs lost would not be in large quantities. In addition, the loss of employment could be counteracted with more rehabilitative and restorative efforts in these towns which could create a transition to working with inmates to reintegration of former inmates into society. Being paid to help find NGOs, find jobs, find housing, and so much more. Not to mention, Palacio Sierra in Section 4 of this dossier mentions the likelihood for employees of private prisons to be underpaid, so there is the potential for an increase of compensation. There are many other options available for former corrections officers in terms of transition to solely public prison system, that the risk of losing some economic prosperity in rural areas does not warrant the this case obsolete.
In addition to the preparedness of the community for economic changes, the federal government has to prepare for the realities of what less prisons would look like, in the short-term and the long-term. Overcrowding would be the first concern of removing prisons but overcrowding can force a turn of legislation. In California 2007, overcrowding led to the introduction of Chapter 7 which increased rehabilitation efforts, increased opportunities for parole, and made efforts reduced sentencing under Republican Governor, Arnold Schwarzenagger (Muradyan, 2008). While the efforts of California in 2007 were not perfect, they set a precedent for plans that could occur. There’s also alternative efforts in place just lesser utilized such as Adult Drug Courts in Alabama which offer lesser or no sentencing in exchange for rehabilitation and education (Spencer, 2012). If these alternative policies were utilized more it could ease overcrowding. This also ensures parole and probation readiness and while simultaneously calling for a remodeling of it which could be based on either California, Alabama, both, or any other precedent that has been created. The transition policies from private public prison hybrid to public prisons ensure that all prisons are being held to one standard.
5. Conclusion
Private prisons increase the number of prisons a state or federal government can hold and when that number decreases less violent offenders are more welcomed into society and allow a greater chance of reintegration. While private prisons are not necessarily abundant in the United States, they make a perfect target for this case outside of a superficial understanding of private prisons. The small number of people either relocated or parole would free some from the effects of disparate treatment of the judicial system and prisons but is not enough that it would severely overwhelm the prison system. Even if there are uncertainties in the systems, the lack of justice and equality that currently exist is present and solutions such as these allow for an evolution.
WORKS CITED
18 USC § 4001 Public Law 106-553 “Placement of Certain Persons in Privately Operated
Prisons”
Austin, R. (2001). Crime statistics, disparate impact analysis, and the economic
disenfranchisement of minority ex-offenders. Race and Society, 4(2), 177–193. doi:
10.1016/s1090-9524(03)00008-1
Dorf, M. C. (1994). Facial Challenges to State and Federal Statutes. Stanford Law Review,
46(2), 235. doi: 10.2307/1229185
Kreit, A. (2010). Making Sense of Facial and As-Applied Challenges. William and Mary Bill of
Rights Journal, 8(3), 657–685. Retrieved from
Muradyan, D. (2008). California's Response to Its Prison Overcrowding Crisis. McGeorge
Law Review, 39(2), 482–502. Retrieved from
Schlosser, E. (1998, December 1). The Prison-Industrial Complex. Retrieved from
Section VII- Proving Discrimination- Disparate Impact. (2017, February 10). Retrieved from
Spencer, L. E. (2012). A State of Emergency in Alabama. SAGE Open, 2(3),
215824401246069. doi: 10.1177/2158244012460695
U.S. Constitutional Amendments. (n.d.). Retrieved from
https://constitution.findlaw.com/amendments.html.
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