There are more than 2,000,000 people incarcerated in the United States right now. According to numbers from the Bureau of Justice Statistics, this is a 500 percent increase over the last 40 years. How we got here is a bigger subject than we’re prepared to tackle. But Congress made an attempt to undo some of the problems with prison overcrowding, and the problems people have escaping the revolving door of the justice system, back in 2018 with the First Steps Act.
The law, which enjoyed broad bipartisan support, allows inmates to participate in programs aimed at reintegrating them into society to earn early release. It was a promising program, but watchdogs warned early on that Congress, and the Justice Department, would need to be careful to make sure the program was applied equitably.
As people begin to leave prisons based on participation in the program, however, it’s apparent that the method the Justice Department has been using is not equitable. The algorithm used to determine eligibility for the program – Pattern – seems to overpredict the risk of recidivism for Black, Hispanic, and Asian inmates. It also seems to underpredict some risks of future violence.
While the intent may have been noble, the end result was flawed, just as critics predicted it would be. Justice has attempted to tweak the algorithm several times since rushing it out at Congress’ behest, but the algorithm apparently can’t overcome the inherent bias of the inputs.
While it’s not an exact analogy, we’re reminded of an episode of the television show Better Off Ted. The show is a fantastic piece of corporate satire all around. The episode in question, however, included a segment where a new system designed to increase efficiency with automated doors had an issue with the cameras controlling the doors not recognizing any employees of color. Instead of giving up on the precious fractions of a second they saved by not opening doors, however, they chose to hire a white employee to accompany every black employee so the doors would open for them. But this led to an issue with their quotas, so they started hiring an employee of color for every white employee that was hired to accompany every employee of color. This continued until a new efficiency expert suggested they just open the doors with their hands.
There is a simple solution to the problems created by the Pattern algorithm as well. Just go ahead and release all nonviolent low-level drug offenders within certain classes, starting with marijuana offenses.
An article in Forbes last year cited sources that estimated around 40,000 Americans were currently incarcerated for marijuana offenses, and these offenses disproportionately impact African-Americans and other communities of color. These people are incarcerated at the same time that legal marijuana and hemp industries are thriving – according to Fortune magazine legal cannabis sales amounted to $17 billion in 2020, the last year accurate figures are available for – with white men the biggest winners in the new markets created by decriminalization and legalization efforts across the country.
It isn’t just urban communities of color. Poor, rural whites are heavily impacted by these laws too.
Before legalization efforts took root across the country, with those legal state growers feeding the legitimate and black markets, a large amount of illicit weed came out of the state of Kentucky, particularly eastern Kentucky. A lot of those farmers, and folks transporting weed to eastern markets, are still in prison for their crimes too.
None of them deserve to be there in a world where others are legally profiting for the same activities they engaged in.
It was a business then too, and the money was just as big. Because of that, some of the people involved were cutthroat – literally. But folks who have violent crimes on their record could, and should, continue to be held on those charges. Everyone else should be released, and all marijuana related charges should be expunged from their records.
Our prisons are overcrowded. We spend millions on incarceration related costs every year. We can solve those problem, and free up tax funds for other programs, by releasing these folks now.
In states where marijuana is legal, police have more time and resources for focusing on other crimes, and more dangerous drugs. The gateway drug connection is severed when marijuana users no longer have to associate with criminals to purchase their products.
The sky has not fallen, and the evidence indicates that legalization efforts will continue to spread. Eventually the federal government will have to recognize that and change their drug control policies.
Even if Kentucky never legalizes marijuana, or chooses to go with something akin to their patchwork “wet” laws for alcohol (a more likely possibility), the state and the federal government should both take the initiative to start addressing this issue with inmates under their care.
They can’t undo the damage caused by years of incarceration, or give back the lost time. But they can start the process of giving these folks their lives back.
It’s going to have to happen eventually. The pendulum is already swinging in that direction and there is no stopping the momentum. Kentucky would be better served to get out ahead of it than to get dragged behind.
