Mark Sisti, a criminal defense attorney in New Hampshire for decades, says he has been witnessing systematic racism throughout his career.
Minorities face greater arrest rates than whites and the punishments they face in court can be disproportionately heavy.
The same high incarceration rates for people of color – especially Black people – seen across the country exist here in New Hampshire.
“Whether it is a trumpet call or a whisper, the result is the same. My experience has been that it’s much more difficult in this state – when dealing with a Black or Hispanic client – to obtain bail or to obtain favorable results at sentencing,” Sisti said.
Today, the rate of incarceration for Black people in N.H. is more than four times higher than their demographic. Typically, the prison and jail demographics should match those of the state as a whole.
Advocates in the Black Lives Matter movement point to this overrepresentation of minorities as evidence of the systematic racism in the U.S. that needs to be addressed.
Sisti has watched as the government has looked to prisons as the answer to crime without ever lowering crime rates.
“In 1979, there were 283 people incarcerated at the N.H. state prison. And there are now 3,000. And the population growth in the state of N.H., it’s only been like 300,000 more. So statistically, there’s about 10 times more people at the state prison, and you only have 20% growth. It’s astronomical. So, I mean, just starting there, there’s been a problem with over-incarceration over the last few decades,” Sisti said.
Black people make up 1.7% of the N.H. population, but hold 7% of the prison and jail population. Hispanic people make up 4.0% of the population, and hold 7% of the prison and jail population. White people, on the other hand, make up 92.4% of the population, and only 84.0% percent of the prison and jail population.
Wanda Bertram, communications strategist at the Prison Policy Initiative, says that this data shows systemic and systematic racism.
“I think people too often interpret the term systemic racism to mean that every single person in the system is a racist. What actually it means it means the opposite of that – it means that regardless of what people’s individual intentions are, there are unequal outcomes in courts and in prisons and jails,” Bertram said.
Sisti said the numbers reflect what he has seen his whole career.
And although the state has made progress in the last 40 years, like rising the number of female lawyers over 30%, it often looks like it is moving backward, Sisti said.
“We’ve made progress on some fronts, but sometimes it only seems as though we’ve stalled out or going in reverse,” he said of efforts to reform the criminal justice system.
New Hampshire isn’t unique within the U.S. According to the Prison Policy Initiative, the rate of incarceration for the United States is 698 inmates per 100,000 population, the highest in the world. New Hampshire’s rate is about half that, at 373.
Bertram says the inconsistent application of the law to people of color is the result of the segregation laws of the Jim Crow era, which legitimized the unequal treatment of Black children and the poor.
“Our criminal justice system was designed during the Jim Crow era, and designed during periods of our history when we acknowledge that there was a lot of racism in Congress and state legislatures. That makes a lot of sense,” Bertram said.
Bertram emphasized that many laws play out differently than intended, but go uncorrected.
“There are a lot of laws that I’m sure people don’t intend to necessarily have a racially unequal impact, and yet they do,” Bertram said.
The Prison Project conducted a report about school zoning laws. These laws say that if someone sells drugs within a thousand feet of a school, they will go to prison for much longer than if they sold drugs inside the school.
“The problem is that, if you’re in a city with a bunch of schools, your whole city is a school,” Bertram says.
Moreover, Bertram points out that people of color are more likely, demographically speaking, to live in these higher density areas of cities. So, people of color “are automatically more likely to be penalized, even though we know that black people and white people, (and) people of all racial backgrounds sell drugs,” Bertram said.
Intentional or not, these laws are an example of why people of color – specifically Black people – have higher rates of incarceration, Bertram said.
“Black people suffer sort of a dual penalty from the criminal justice system, and that’s because they’re suffering the burden of racism from police, judges, prosecutors and correctional staff, but they’re also suffering from the justice system’s unequal treatment of poor people,” Bertram said. “We have a lot of laws in this country today that effectively make it a crime to be poor.”
These quality of life offenses – like being arrested for sleeping in public – create a Catch-22 for people of color.
Black people suffer higher rates of poverty than white people, according to the Prison Project. Bertram says that these higher rates ensure that Black people end up in the criminal justice system more often.
“People of color, particularly Black people, they have disproportionate amounts of contact with the criminal justice system, essentially from when they’re born. Especially, if you’re growing up in a poor, working-class community where there are high rates of crime. You’re more likely to interact with the police in general. And when you’re more likely to interact with the police in general, you’re just more likely to be picked up for very, very minor infractions of the law,” Bertram said.
The disproportionate contact with the judicial system means that Black youths are unequally targeted from a young age. Bertram says that this explains the shocking number of Black children in prisons and jails.
“That goes a long way in explaining why there are such high racial disparities in the juvenile justice system… Black boys are girls comprise something like 14% of all youths under 18 nationwide. But, they’re between 30 and 45% of kids in the criminal justice system,” Bertram said. Further, she said that once kids are in the system, it’s hard to get out. Their record follows them forever.
Bertram said that the structure of the U.S. criminal justice system creates a cycle of crime.
“If you’re locked up and you’re put into a punitive environment (like prison) when you’re young, that has to have a pretty traumatizing effect on someone, and goes a long way towards increasing the likelihood that they’re going to end up back in jail or prison when they’re older,” Bertram said. “Especially when a record can keep you out of school and prevent you from accessing the resources that you need to develop into someone that can get a job and could build a life for themselves.”
Bertram said she believes states should invest less in law enforcement and more in treatment. Community-based care, for Bertram, is the best thing to combat systematic racism in America.
Judge Tina Nadeau says although the state Constitution ensures fairness, systematic racism needs to be addressed at all levels of government.
Nadeau says that New Hampshire judges receive training on implicit biases periodically. However, she has received a grant to assess each of the state’s drug courts for inclusion and equity. Nadeau has also joined the National Council for Criminal Justice, which she said is a “diverse group of criminal justice and public policy leaders.”
Sisti, on the other hand, thinks it is up to law firms, universities, courts, the public defender’s office, and the attorney general’s office to “be more attractive to minorities.” For him, these organizations must increase Black representation within the criminal justice system in N.H. and the nation.
“I think the field has to open up a little bit more…(Law firms and schools should) dig deeper and expand their field a little bit,” Sisti said.
For example, Sisti – a former deputy director of the public defender’s office – saw only a small number of minority attorneys in the organization.
“That’s a lousy thing, especially for an organization that deals with indigent individuals and criminal cases. That’s where you’re going to find most of your Hispanic defendants and Black defendants” because the system is against them, Sisti said.
After 41 years as an attorney, Sisti said he is ashamed that he’s “not seeing that big of a change” in the state.
It’s not just organizations and businesses that need to change, Sisti said.
“Look within your own. You’ve got to examine yourself,” Sisti said. “It’s not hard to sort of just take a look at yourself and try to improve what you can.”