To Fight Inequality, Rewrite the Racial Rules of Criminal Justice

In a recent New York Times editorial, former U.S. Treasury Secretary Robert Rubin reflects on his experience visiting and speaking at the San Quentin, CA state prison. He recalls a statement from a former inmate in attendance: “I don’t understand why over the 18-year period of my incarceration over $900,000 was paid to keep me in prison. But when I was paroled, I was given $200 and told ‘good luck.’” Rubin goes on to propose a series of changes that would help former inmates transition back into society after their release from prison. But he leaves out one important piece of the puzzle: the way our social and economic rules disproportionately expose people of color to the criminal justice system in ways that affect them and their families throughout their lives.

In Rewrite the Racial Rules: Building An Inclusive American Economy, a new report released today by the Roosevelt Institute, we illustrate how the criminal justice system—in addition to other systems and institutions across a broad range of economic and social domains—are shaped by racial rules, which derive from a history of systemic racism and perpetuate contemporary racial inequities.

In recent years, grassroots movements and increased media attention have brought the racial inequities and injustices of our legal system to the fore of our public conscience. There is one aspect of that system that has a particularly detrimental impact on people of color and is garnering increased attention among policymakers, researchers, and advocates: the money bail system, which is “colorblind” in theory but in practice is anything but.

Today, 25 percent of the world’s prisoners are confined in the U.S., and of them, one in every 10 are black men in their thirties without a high school diploma, who often lack any real financial safety net. The Prison Policy Initiative notes that, “[i]n addition to the 1.6 million people incarcerated in federal and state prisons, there are 646,000” held in local jails. Close to 70 percent of this unnoticed subset are being held for extended periods without a conviction because they are too poor to make bail. That payment, often set by a judge at a minimum of $10,000, is ordinarily made by a defendant in order to secure release from police custody.

While the practice of setting a bail amount is itself race-neutral, the economic resources a defendant relies on to make bail are heavily shaped by the racial rules of wealth, income, and education. In 2011, black households earned less than 60 cents in income for every dollar white households earned. Black unemployment peaked at 16.7 percent during the Great Recession, nearly twice the 9.3 percent peak for white unemployment, and remains at 8.2 percent now. In 2014, the income gap between white and black Americans was an astounding $25,000, and 26 percent of black Americans lived in poverty, compared to 24 percent of Latinos and 10 percent of white Americans.

If we take a closer look at the incomes of individuals who are in jail, it becomes even easier to see why many black Americans simply cannot cover the minimum costs of bail. In 2015 dollars, the median yearly income of people in jail was $15,109 before their incarceration, less than half the median annual income for similarly aged people who are not incarcerated. When broken down by race and gender, pre-incarceration income for black men and women in jail fell below the Census Bureau’s poverty threshold at $11,275 and $9,083 respectively. For white men and women, pre-incarceration income was $18,283 and $12,954, respectively.

But income is just part of the picture. We must not forget the yawning gap in wealth that exists between white and black Americans. As of 2011, black households had roughly $7,113 in wealth assets on average compared to $111,740 in wealth assets owned by whites—and this is wealth accrued before the criminal justice system raids the nest egg. These figures illustrate the reality that BYP100 and other racial justice advocates have called our attention to: Prisons are warehouses for the poor. Conversations about economic inequality often focus on income disparities, but wealth is an equally important factor in individual and family financial stability. Indeed, in many ways, it takes wealth to build wealth: to invest in homes, education, new businesses, and future generations, and to provide a buffer in times of economic strife and familial hardship. The lack of such a buffer causes many black Americans to languish in jail.

All of this means that while the criminal justice system may well be race- and class-neutral in practice, it is not impervious to the external economic factors—often influenced by race—defendants brings with them to the courtroom. The bail system is just one microcosm of the ways in which the racial rules play out in everyday life. Similar patterns are repeated in our education system, our health system, and in the systems that affect one’s ability to participate in our democracy. In order to prevent the continued miscarriages of economic and social justice, our policymakers must acknowledge the racial rules and the ways in which they place individuals at unequal starting points. Only by doing so can we begin to write new inclusionary rules that will pave the way for equity and justice.