14 Points

A 2003 Human Rights Watch analysis of US Department of Justice data found that since 1980 the number of drug offenders in prison has increased by 12 times (now standing at 22% of all state and federal prisoners). Moreover, even as violent crime has generally dropped, the prison population has soared. This is due to the fact that 75% of those admitted to state prisons since 1980 have been for non-violent crimes. The most troubling aspect of this trend is its racial composition. Blacks are 12% of the US population but 44% of the prison population, and as the report states,

“African-Americans are arrested, prosecuted, and imprisoned for drug offenses at far higher rates than whites. This racial disparity bears little relationship to racial differences in drug offending. For example, although the proportion of all drug users who are black is generally in the range of 13 to 15 percent, blacks constitute 36 percent of arrests for drug possession. Blacks constitute 63 percent of all drug offenders admitted to state prisons. In at least fifteen states, black men were sent to prison on drug charges at rates ranging from twenty to fifty-seven times those of white men” (HRW, Incarcerated America)

In his article, yesterday Mr. Liptak of the NYT advanced a telling structural difference that helps explain America’s excessive incarceration rate:

“In its sentencing of juveniles, as in many other areas, the legal system in the United States goes it alone. American law is, by international standards, a series of innovations and exceptions. From the central role played by juries in civil cases to the election of judges to punitive damages to the disproportionate number of people in prison, the United States is an island in the sea of international law.”

Added to this, it must be admitted, is America’s unique history of the democratically established and supported enslavement of millions of people. This has lead to a rather unusual situation in the history of democratic countries -namely an entire group of people (“whites”) developed a culture in which they felt utterly superior to those who were enslaved, as well as the progeny of the enslaved, even a century after liberation, based entirely on skin color, the recent geographic origin of ancestry, and fallacious stereotypes. Many in that same white group, as well as new white immigrants, have openly and surreptitiously defended their cultural and economic status with violence and legislation.

And yet, it might be going too far to see the higher incarceration rates of blacks as following a neat casual chain linking racism to imprisonment. During the Tanner Lecture discussion, liberal sociologist Lawrence Bobo cited research claiming that blacks actually commit crimes (especially violent crimes due to gang related violence) at higher rates than whites and that this difference accounts for the higher incarceration rates (though this is at odds with the drug offense rate reported by HRW). For Loury and Bobo, however, the important issue is not the punishment of crime, but the uneven enforcement directed against blacks, and the sociological and structural conditions that make crime more likely in some black communities. Doug Massey and Nancy Denton, for example, discuss evidence that the neighborhood effects of concentrated poverty exacerbate crime rates (see American Apartheid, 1993).

When considering the extent to which whites have exploited the criminal justice system to advance their own status over blacks, we must address the issue of voter disenfranchisement, as Stanford Law Professor Pamela Karlan did in her Tanner lecture comments on Loury’s talk. Fourteen states in the US disenfranchise felons, even after they are released; another twenty disenfranchise those in prison or on parole, and only two (Maine and Vermont) have no voting restrictions on prisoners.

What would it mean if there was evidence that whites restricted these voting rights only or largely as a way to disenfranchise blacks? One would have to conclude that American democracy was deeply flawed. How much so? Well, Angela Behrens and Christopher Uggen (2003) analyzed these questions in depth in an article published in The American Journal of Sociology. They wrote,

“Currently, about 10% of the African-American voting-age population is under correctional supervision, compared to approximately 2% of the white voting-age population (U.S. Bureau of Census 2001; U.S. Department of Justice 2001, 2002). Felon disenfranchisement thus remains a potentially effective means to neutralize political threats from African-American voters.”

Indeed, the neutralization of political threat turns out to be the most likely explanation for variation in disenfranchisement law. Behrens and Uggen use historic Census data and find a statistically significant correlation between the passage of felon disenfranchisement laws and the percentage of the prison population that was black.

Is it too cynical to draw a line between this thinking and the incarceration of that 14 year old girl Ashley Jones, the subject of Mr. Liptak’s NYT article? How about in the Jena, Louisiana case, where a black school yard assailant, and his five young associates, in the context of threats on black lives that harkened back to KKK tactics, were charged with attempted murder, despite the fact that the white victim attended a ceremony later than night?

Any reasonable observer would conclude that America is excessively punitive, and whether or not it stems from overt racism, an unconscious fear of dark-skinned criminals grounded loosely on both reality and hysteria, or some unexplained impulse, its policies do not demonstrate principled intolerance against bad behavior, and it’s about time, politicians stop pretending otherwise. Many African-Americans have been saying this for centuries, and they are justified for doing so.

More liberal laws on narcotics possession would help matters and crime prevention programs, mandatory therapy, and drug rehabilitation should be encouraged, refined, and well funded. The causes of criminal behavior, physical and emotional childhood trauma, are not alleviated by having decent, even if troubled, parents behind bars. Nor is criminal behavior mitigated by denying both help to clinically disordered parents and alternative homes for their children, as Ashley Jones would tell you. Her mother was a drug addict and her stepfather molested her. By the time she moved in with her grandparents, it appears she had already developed a deep distaste for authority. Unfortunately, teenagers like that are easy to find in every city, but with supportive and structured group homes, they can put their lives back in order. I’ve seen it many times.

Whatever the solutions, the current effort is not in line with the urgency of the task. Historic injustices against blacks, including the systematic prohibition of blacks from full participation in middle class markets and active efforts to undermine their political influence, have predictably succeeded, in many cases, in limiting the number of blacks who ascend to the highest ranks of American influence. To this day, segregation and discrimination are inadequately combated. If this doesn’t encourage a generous spirit towards rehabilitative efforts on the part of whites, then they are continuing to aggrevate the moral wounds their predecessors inflicted on American ideals. To them, I offer this advise: judge not, lest ye be judged.