Disproportionate Imprisonment: How to Remedy Mass Incarceration

People of color continue to be overrepresented in prison.

Last year marked 50 years since the onset of mass incarceration. Today, the US prison population remains 500 percent larger than in 1973. The United States experienced a 25 percent decline in its prison population between 2009—when the number of incarcerated people reached its peak—and 2021. In 2022, however, the prison population grew 2 percent in a single year after a long period of decline.

People of color continue to be overrepresented in prison, accounting for seven in 10 incarcerated people. One in five Black men are still likely to experience imprisonment in their lifetimes, despite the fact that the Black prison population experienced the most decarceration between 2009 and 2021. In the recently released report, One in Five: Racial Disparities in Imprisonment—Causes and Remedies, the Sentencing Project discusses reasons behind the disproportionate incarceration of Black people and puts forth solutions to address this disparity.

Factors of Disproportionate Impact

Mandatory minimum sentences disproportionately impact Black Americans. This became particularly clear during the War on Drugs when possession of five grams of crack cocaine—prevalent in Black communities—carried the same minimum sentence as 500 grams of powder cocaine. In states across the country, there are now efforts to do away with mandatory minimums and defelonize drug offenses as a way to reduce harm. States like Alaska, California, Connecticut, Oklahoma, and Utah have all reduced prison admissions with defelonization statutes. In 2021, Measure 110 in Oregon went into effect, making it the first state in the nation to decriminalize the possession of controlled substances like cocaine and heroin.

Additionally, on both the state and federal levels, mandatory minimum sentences have been reduced or repealed, and safety valve provisions have been implemented that require a district court to ignore any mandatory minimums and instead follow sentencing guidelines if a defendant was convicted of certain nonviolent drug offenses and meets specified criteria.

Many people are detained before their trial, not because they are guilty but because they cannot afford to post bail.In addition to the sentencing disparities, another factor fueling the disproportionate incarceration of Black Americans is the bias that permeates the court system. For instance, juries have been known to show implicit bias that elevates convictions of defendants of color. People of color are underrepresented in jury pools, and peremptory strikes have historically further removed people of color from being selected to serve on juries.

To combat this, three states have addressed the role of peremptory challenges in limiting jury diversity. In 2018, Washington State’s supreme court adopted a rule that expanded the prohibition of race-based peremptory challenges to include “implicit, institutional, and unconscious bias.” Two years later, California instituted a policy requiring attorneys who remove a prospective juror to prove they were not removed because of their race or other prohibitive factors. Finally, after an Arizona Supreme Court ruling acknowledged its own role in discriminatory jury selection, in 2022 that state became the first in the country to do away with peremptory challenges.

Further, perhaps one of the most significant factors driving the disproportionate incarceration of Black people and other people of color is pretrial detention. According to the report, “Of the 636,000 individuals confined in jails at year-end 2021, nearly three-quarters were unconvicted, having been detained prior to the resolution of their case.” Many people are detained before their trial, not because they are guilty but because they cannot afford to post bail. In many cases, being unable to post bail also incentivizes people to take a less favorable plea deal.

Reforms are underway to combat this. For instance, earlier this year, Illinois became the first state in the country to eliminate its cash bail system. New Jersey also drastically overhauled its cash bail system in 2017. The state’s Criminal Justice Reform Program reduced monetary bail requirements and pretrial incarceration using updated risk assessment tools. Because of these reforms, the state’s pretrial jail population was nearly cut in half between 2015 and 2018.

Continuing the Push for Reform

The system of mass incarceration that permeates the United States was not built overnight; it is the result of decades of policies that harm—and often target—people of color.

While reducing (or removing) mandatory sentencing, addressing peremptory challenges, and changing bail requirements are proven remedies to reduce mass incarceration, progress hasn’t come without pushback from those resistant to reform.

For instance, there have been calls for the reversal of Oregon’s drug decriminalization program, and there are ongoing challenges against bail reform. The bail reform law in Illinois faced substantial legal battles before it was finally allowed to go into effect.

In 2023, the New York state legislature nearly reversed its 2020 law that eliminated cash bail for most nonviolent offenses and reduced pretrial populations by 40 percent—because of unfounded claims that bail reform led to an uptick in crime.

Troublingly, reform measures to reduce mass incarceration seem less likely to gain traction in the South—the country’s Blackest region and the epicenter of mass incarceration.

Amid the rise of remedies to address the problem, it will take intentional resources and political will to ensure that change occurs. The system of mass incarceration that permeates the United States was not built overnight; it is the result of decades of policies that harm—and often target—people of color. To break down this system, it may take just as long, but it is important to start now.