Mass Incarceration and the Constitution

Does the massive incarceration of American citizens reflect the broad demographics of U.S. populations? Does the term ‘mass incarceration’ effectively capture the literal consequences of American correctional policy and practice? Who are the masses held in involuntary servitude and legal re-enslavement captivity, imprisonment terms established largely by mandatory penalties that are decided by prosecutorial charges filed and deal offerings proposed? Even before a trial commences the verdict on how much prison time a defendant receives is already established – and not by a judge’s discretion.

If the reader does not already know, “mandatory minimums” are laws that can invoke sentencings for lower-level crimes that produce exceptionally exaggerated, highly inflated lengths of imprisonment that even prosecutors would not recommend. Such was the Pennsylvania case for ex-Marine LaRue Y. Smith, who, laid off from his job, robbed a series of 7-Eleven stores to feed his family. His ventures gained for him a total of $2,510. After being caught, he rejected a plea bargain to serve 25 years and went to trial in Federal Court. But since his actions “interfered with state commerce,” as 7-Eleven headquarters are located in another state and even though he had no prior convictions, automatic penalties kicked in and Smith was sentenced to “two centuries, 3 decades and 2 years” in prison. For good behavior his sentence could be reduced to 197 years. Although Smith was arrested by local police and initially charged in state courts, federal prosecutorial discretion obviated a state conviction that would have likely resulted in a 10- or 20-year sentence, says reporter Nathan Gorenstein in a 2012 article in the Philadelphia Inquirer. These federal prosecutorial actions are rooted in U.S. Code – 851: Proceedings to establish prior convictions.

Rate of law enforcement killings, per million population per year, 1999-2011. Source: Centers for Disease Control and Prevention, National Center for Health Statistics.

Rate of law enforcement killings, per million population per year, 1999-2011. Source: Centers for Disease Control and Prevention, National Center for Health Statistics.


“All the kids use drugs…except my African-American friends. They are afraid they might get arrested.” This statement just ‘fell out onto the table’ as I was having lunch one day with a student who was interviewing me concerning the types of social issues facing African-American communities. Today’s students obviously are aware that although 80% of the persons arrested for crack-related offenses are African-American, the majority users of crack cocaine are white or Hispanics. A direct quote by Senator Dick Durbin, Democrat from Illinois, makes the injustice plain: “The sentencing disparity between crack and powder cocaine has contributed to the imprisonment of African-Americans at six times the rate of whites and to the United States’ position as the world’s leader in incarcerations.”


From another perspective on incarceration epidemic, what role do legal gun dealer activities play in its unique contribution to the climb of gun violence crimes across the United States, and the growing numbers of young black male citizens caught up in long-term incarceration? Because the Gun Control Act of 1968 was enacted by Congress to provide for better control of the interstate traffic in firearms, the Act required licensed dealers to collect certain information whenever a firearm was sold. A buyer had to meet the age 21 requirement and affirm the absence of a record as a felon, a fugitive, an illegal immigrant or mental illness. Dealers were obliged to record the sale by serial number of the weapon so as to enhance the ability for police tracing of guns. However, such law enforcement ability was thwarted by the Tiahrt Amendments, provisions that have been attached to U.S. Department of Justice appropriations bills since 2003; and significantly restricting law enforcement’s ability to investigate gun crimes and prosecute unscrupulous gun dealers.

Under Tiahrt, investigators cannot reveal federal firearms tracing information that shows how often a dealer sells guns that end up seized in crimes. It also keeps the spotlight off the relationship between rogue gun dealers and the black market in firearms. “Such information had formerly been made available under the Freedom of Information Act, but under pressure from the gun lobby, such information was removed from the public record, a government database that traces guns recovered in crimes back to the dealers,” say two Washington Post staff writers in a Sunday, October 24, 2010 article. Tiahrt requires the Federal Bureau of Investigation to destroy all approved gun purchaser records within 24 hours. Further, the Amendment prohibits the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) from “releasing firearm trace data for use by cities, states, researchers, litigants and members of the public.” In short, gun dealers are allowed by law “to hide such information from public scrutiny.” In Cincinnati, a May 2015 University of Cincinnati Institute of Crime Science report shows a disturbing 162 people were victims of gun violence, the highest total in an eight-year span. What insights would firearm trace data provide concerning this ‘uptick’ in Cincinnati gun violence, were it not for the Tiahrt protections?


The Ohio Revised Code 3301-51-03 (C) on Disproportionality governs the Ohio Department of Education and each school district’s obligation to collect and examine the incidence, duration, and type of disciplinary actions data, “including suspensions and expulsions,” to determine if significant disproportionality based on race and ethnicity is occurring in the state and the school districts of the state.

In May 2013, the U.S. Department of Education National Center for Education Statistics published reports revealing the ‘repressive’ characteristics of many of the nation’s school environments wherein “young people are suspended, expelled or even arrested over minor misbehaviors – like talking back or disrupting class – that would once have been handled by the principal…” Arrests are the norm. Generally referred to as the School-to-Prison Pipeline policies, the implementation patterns and practices of such policy have “damaged the lives of many children,” causing drop out and entanglement in criminal justice systems early in life.” Pre-schoolers as young as 3 years old have been reportedly handcuffed by school resource officers, aka policemen. And according to a New York Times Editorial Board report concerning the findings of ‘The School-to-Prison Pipeline’ report developed by a New York City School-Justice Partnership Task Force of May 29, 2013:

Of the 882 arrests during the school year studied, one in every six was for “resisting arrest” or “obstructing governmental administration,” – charges for which there is often no underlying criminal behavior.

The authorities also issued more than 1,600 summonses – tickets that require the student to appear in criminal court and that can lead to arrest for those who fail to appear.

Moreover, says the report, “Black and Hispanic children are shipped off to court more frequently than white students who commit similar infractions.”


Two Pennsylvania judges sentencing over 5,000 children received more than $26 million in private prison industry kickbacks, which brings us to a discussion on the economics of enslavement incarceration. By 2010, US adult incarceration had risen to 2.2 million, with states’ count at 1.3 million. And according to University of Michigan researchers, prosecutors’ initial charging decisions account for 80% of the disparities in black-white sentence length: blacks receive nearly 10% longer sentences than whites arrested for similar offenses and having committed the same crimes. One-half of the gaps can be explained by initial charging choices carrying mandatory minimum sentences. But, beginning at the beginning, the authorizing legal source of incarceration oppression originates in the exception language of the Thirteenth Amendment to the Constitution: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States…” This loophole language authorizes the continuation of slavery beyond Thirteenth Amendment enactment.

The fight for its inclusion began with the dispute among the framers of the Amendment, between factions wanting a complete ending of the ‘peculiar’ institution and those seeking newer avenues to free labor, i.e., Jim Crow, and now modern incarceration. “There is no adequate or substantial debate on mass incarceration that fails to begin with this understanding of the law,” says scholar Jalil Muntaqim. “In essence, the U.S. Constitution sanctifies the very vestige and foundation of the inhumane treatment of U.S. prisoners. A conference, debate or meeting that does not begin with a clear understanding of the historic, legal determinant leading to the present reality of mass incarceration, misses the basis in which any discussion of abolition must begin.” Ohio government contractual agreements with private-prison companies give 100% full-bed guaranty. And, reportedly, the stocks of gun makers are greatly esteemed among investors.

Thus, in agreement with the Lawyers’ Committee on Civil Rights Under Law and its commitment to work to combat mass incarceration in the legal arena, the Organization on Procedural Justice (OPJ) and other advocacy organizations must join in partnership with the Lawyers’ Committee to provide the significant funding needed to achieve ‘end incarceration’ shared mission goal. Moral Voice religious organizations must lend their leadership to vociferous advocacy at every level, exhaustively using every genre of their spiritual and other influences to work toward permanent ending of free labor enslavement whereof scores of humans are obliged to render lifetime servitude to other humans without recompense, Charles Sumner’s “…All persons are equal before the law, so that no person can hold another as slave.”

At the 78th General Convention, the Blue Book resolutions assigned to Legislative Committee 08, Social Justice & US Policy, contained A011, a call for reaffirmation of the Church’s commitment to the evaluation and reform of the federal, state, and local criminal and juvenile justice systems in the United States and declaring opposition to mass incarceration and other unjust structures; and C019, Establish Response to Systemic Racial Injustice, that urges Executive Council to advocate for change in national policies, legal systems and law enforcement; and distribute this resolution to the Congress.* What is the theology of for-profit mass incarceration: Who ought be entitled to the benefits of unpaid labor?

*A summary of actions of the 78th General Convention can be found here

Dr. Merelyn B. Bates-Mims

Dr. Merelyn B. Bates-Mims

Merelyn B. Bates-Mims, PhD serves as general co-chair of the Organization on Procedural Justice (OPJ), commissioned by the bishop of the Diocese of Southern Ohio and the dean of Christ Church Cathedral.