The New Jim Crow: The Impact of Mass Incarceration on the Courts

Article by Nancy Fahey Smith, Field Trainer at the Superior Court of Arizona in Pima County

With just 5% of the world’s population, the United States has 25% of the world’s prisoners (NOTE 1).

Incarceration rates have risen 500% in the last 40 years.

The United States currently incarcerates 2.3 million people, 40% of whom are African-American males. African-Americans make up just 13.2% of the U.S. population (NOTE 2).

Presenter Nicole Austin-Hillery made these statements and many more to an audience of several hundred judges and judicial educators in her session titled The New Jim Crow: The Impact of Mass Incarceration on the Courts at the 2015 Annual NASJE Conference in Seattle, held in conjunction with the American Judges Association conference. Austin-Hillery, who works at the Brennan Center for Justice at New York University School of Law, spoke passionately about the effect of mass incarceration on the African-American population, but also about the cost to society as a whole in terms of lost productivity, cultural bias, and dollars and cents. For example, according to Ms. Austin-Hillery, governments in the United States spend $80 billion a year to run jails and prisons (NOTE 3).

People who have been incarcerated have difficulty finding jobs and housing due to their conviction, which limits their productivity for the economy as a whole as well as for them and their families. Incarcerating people increases the chances of recidivism, which in turn increases costs. Often, convicted felons lose the right to vote.

While the African-American community is the most adversely affected, every American is negatively impacted by mass incarceration.

In addition, while incarceration has increased exponentially, crime rates, including for violent crime, are down.

Ms. Austin-Hillery did not hesitate to encourage audience members to stop being part of the problem, and instead to be part of the solution. She noted the increase in the 1970’s of statutes which promoted increased jail terms, both in number and length. The Federal sentencing guidelines enacted by Congress in 1984 and Bill Clinton’s crime bill of 1994 have exacerbated the problem.  Ms. Austin-Hillery believes that judges have become accustomed to harsher sentences and don’t question often enough the disparate impact they have on African-Americans.

But, progress has begun in this area.  According to Austin-Hillery, in 2015 members of Congress introduced bills that propose changes in the scope for drug sentences and that reduce mandatory minimums while giving judges more discretion in sentencing. Both houses of Congress agree in principle that something needs to be done. But, according to Ms. Austin-Hillery, much can be done in the meantime by judges to begin to alleviate the problem. Ms. Austin-Hillery suggested several tactics judges can take to reduce mass incarceration. They include:

  • Speaking up and speaking out against unjust and unnecessary laws;
  • Providing ideas for changing the system;
  • Being honest about racial disparity and implicit bias in the system and in their courtrooms;
  • And exercising what discretion they have at their disposal, i.e. in bail and sentencing to reduce the impact of laws and of implicit bias (NOTE 4).

You can find the book The New Jim Crow: Mass Incarceration in the Age of Colorblindness by Michelle Alexander at many major outlets and at your public library. Also of great use to educators is the website for the Brennan Center for Justice.


1. Chettia, Inimai and Michael Waldman, editors, Solutions. American Leaders Speak Out on Criminal Justice, Brennan Center for Justice, 2015.

2. United States Census Bureau Quick Facts.

3. Chettia, Inimai and Michael Waldman, editors, Solutions.

4. Eaglin, Jessica and Danyelle Solomon, Reducing Racial and Ethnic Disparities in Jails: Recommendations for Local Practice, Brennan Center for Justice, 2015.