As Jen Carnig of the New York Civil Liberties Union has written before on this blog, NYPD officers have made a practice of arresting people for carrying small amounts of marijuana in their pockets or bags by ordering, tricking or forcing them into exposing it and then arresting them for having the marijuana in open sight.

It’s an unlawful practice that disproportionately targets young men of color: 86 percent of people arrested for marijuana possession in New York City are black or Latino, even though these groups make up only a quarter of the city’s population, and even though government surveys consistently show that young whites use marijuana more often than young blacks and Latinos. The arrests can result in permanent criminal records; loss of student financial aid, child custody or and public housing; deportation; and other consequences.

While such unlawful arrests dropped 13 percent following a recent directive by Police Chief Raymond Kelley to end the practice, an increase in arrests in the first part of the year was more than enough to offset the decline. In Carnig’s words, “It’s too early to judge whether the 13 percent drop will be sustained, or if it is just a blip before the numbers surge again. But the marijuana arrest habit is so deeply ingrained, that it’s unlikely that a single policy directive, without additional training or changes in supervision, will force long-term change.”

Let’s hope 2012 proves fairer than 2011.

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The video features Keys and two other North Carolinians who say they were wrongfully struck from juries in capital cases because of their race. According to a recent Michigan State University study, state prosecutors are significantly more likely to eliminate potential African-American jurors than other potential jurors.

The video comes during the first hearing under the historic North Carolina Racial Justice Act (RJA), which allows death row prisoners to present statistics and other evidence showing racial bias in the death penalty and ask that their death sentence be commuted to life in prison without the possibility of parole. The ACLU’s Cassandra Stubbs is part of a team of lawyers representing Marcus Robinson, a black defendant convicted in the death of a white person and who received a far harsher judgment than white defendants who committed comparable crimes from a jury that may have been tainted by a racially biased jury selection process. Potential African-American jurors were struck from Robinson’s jury at a rate 3.5 times higher than other potential jurors.

Carolina has the nation’s sixth-largest death row population, well over half of which is comprised of black people. Thirty-one people on North Carolina’s death row were sentenced by all-white juries.

Says Denny LeBoeuf, Director of the ACLU Capital Punishment Project: “The stories presented in this video make clear that the death penalty system in North Carolina and across the nation is plagued by discrimination. The Racial Justice Act is a crucial means of ensuring that no one is wrongfully executed because of racial bias.”

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As Gopnik explains:

More than half of all black men without a high-school diploma go to prison at some point in their lives. Mass incarceration on a scale almost unexampled in human history is a fundamental fact of our country today — perhaps the fundamental fact, as slavery was the fundamental fact of 1850. In truth, there are more black men in the grip of the criminal justice system — in prison, on probation, or on parole — than were in slavery then. Over all, there are now more people under ‘correctional supervision’ in America — more than six million — than were in the Gulag Archipelago under Stalin at its height.

That’s right: If all the people under “correctional supervision” were a city, it would be the second largest city in the U.S.

As more people find themselves locked up, more people face the culture of violence and inhumanity that persists in many of America’s prisons. Many prisoners are kept in solitary confinement — “at least fifty thousand men — a full house at Yankee Stadium,” says Gopnik — where they are confined to a bathroom-sized cell for 23 hours a day with little or no human contact. It is literally enough to make the sane go crazy. In our own work to end the overuse of solitary, we argue that the practice is not only a waste of taxpayer dollars, but threatens public safety and is fundamentally inhumane. A U.N. expert has called solitary confinement torture. The Washington Post has called for its use only as a last resort.

Those not in solitary endure brutal conditions as well, including the constant threat of guard brutality and rape.

How did we get here? Gopnik’s piece explores two theories. Those who subscribe to the “Northern” theory point to the American justice system’s emphasis on process and procedure over principles, arguing that we tend to accept brutal conditions when we think of them as regular and systematic, imposed after a measure of due process has landed someone in prison. In other words, “The more professionalized and procedural a system is, the more insulated we become from its real effects on real people.” The “Southern” theory holds that prisons are a modern-day extension of plantations; that, as legal scholar Michelle Alexander has argued, mass imprisonment is the “new Jim Crow.” Blacks face police harassment as youths, are incarcerated at a far greater rate than whites, and are released often stripped of their right to vote — a cycle of legal discrimination and disempowerment.

These schools of thought converge to conclude, most basically, that there are too many people in prison and for all the wrong reasons. Overcrowded prisons, in turn, only worsen the conditions of confinement, as we have seen in California where the Supreme Court recently ordered a reduction in prisoner population.

Inflated prison populations have also fueled the for-profit prison industry. As a recent ACLU report shows, mass incarceration provides a gigantic windfall for this special interest group, which includes businesses like the Corrections Corporation of America (CCA) — even as current incarceration levels harm the country as a whole. Says Gopnik, “the interest of private prisons lies not in the obvious social good of having the minimum necessary number of inmates but in having as many as possible, housed as cheaply as possible.” By CCA’s own admission, anything that would decrease the prison population would be bad for business. In a 2005 annual report, the company wrote:

Our growth is generally dependent upon our ability to obtain new contracts to develop and manage new correctional and detention facilities… The demand for our facilities and services could be adversely affected by the relocation of enforcement efforts, leniency in conviction and sentencing practices or through the decriminalization of certain activities that are currently proscribed by our criminal laws. For instance, any changes with respect to drugs and controlled substances or illegal immigration could affect the number of persons arrested, convicted, and sentenced, thereby potentially reducing demand for correctional facilities to house them.

Private prison corporations, then, have a self-preservation motive to push for an increase in incarceration. And there are others, too, who argue for the continued detention of more and more Americans, pointing to a decline in crime over the same period that incarceration skyrocketed. But there is little proof of a direct causation, and we must not simply accept that overincarceration cured crime. In fact, Gopnik’s piece argues and we agree, this culture of mass incarceration has actually had little effect on crime levels. A better explanation might be that there is no one reason for the decline but rather several smaller pieces of the puzzle that have slowly chipped away at the problem; that there are more effective policies that are also more fair and cost less. As we wrote in another recent report, many states have already begun to show that smart reform is possible, introducing policies that reduce their dependence on incarceration while protecting communities.

And if that’s true — if, indeed, mass incarceration plays a small role in reducing crime — then, Gopnik concludes, “very few people, rich or poor, should be in prison for nonviolent crime.”

Like Gopnik, we believe it’s time for a change. It’s time to improve our criminal justice system, by reducing the number of people who needlessly enter prison in the first place, by shrinking the existing prison population by allowing prisoners who have proven they are ready to re-enter society the opportunity to transition out of confinement, and by investing in alternative solutions that are more effective than lengthy sentences.

We can and must be both safe and fair.

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Billy McCarthy is the singer and songwriter for the band We Are Augustines. Many of the songs on the band’s critically acclaimed album Rise Ye Sunken Ships were inspired by McCarthy’s brother James, who suffered from mental illness and took his own life after spending five years in solitary confinement in a California prison.

In this new podcast, McCarthy talks about what it’s like to have a family member confined to solitary and the tragic outcome.

Throughout the year, we’ll bring you more stories of people who have been affected by solitary confinement. To learn more about our work to stop the overuse of solitary and to sign our pledge to take a stand, go here.

Subscribe to our podcast feed in iTunes, or subscribe via RSS.

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The three visited Virginia’s Red Onion State Prison over the summer and were moved to write an opinion piece in the Washington Post calling for reform of the system. They describe witnessing prisoners “confined in an 80-square-foot cell 23 hours a day, seven days a week.” As the legislators go on to explain, many of the 1800 prisoners kept in such conditions “have been diagnosed with serious mental illnesses.” Often they are isolated for years on end, including one prisoner the legislators spoke with who had been in solitary for more than 12 years.

As the Post wrote in an editorial last week, “prolonged solitary confinement can lead to devastating consequences, including psychosis, reduced brain function, debilitating depression and increased rates of suicide.” And as we’ve written before, the overuse of solitary to isolate people, especially the mentally ill, for years at a time actually makes us all less safe. Many prisoners are released directly from solitary confinement into the community when their prison sentences are up, completely unprepared for the outside world. Unsurprisingly, these folks return to prison at incredibly high rates, leading many to question these costly policy choices that create more harm than good.

The movement to reform solitary confinement is gaining steam, in Virginia and across the nation. States as diverse as Mississippi, Maine and Colorado have dramatically reduced their solitary populations in recent years, saving those states money and ultimately making them safer by ensuring that prisoners who re-enter society are better equipped to do so.

Now, Ebbin, Herring and Hope have introduced a bill to study the feasibility of limiting the widespread use of segregation for long periods of time in Virginia. We hope the state will follow in the footsteps of other states that have moved in the right direction and begun to reduce their reliance on solitary.

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