‘In our criminal-justice system, African Americans and whites, for the same crime . . . are arrested at very different rates, are convicted at very different rates, receive very different sentences.” That supposed fact has spread far and wide — in a 2012 Washington Post/ABC News poll, 84 percent of blacks said that the system treats whites and minorities differently — and has even filtered to the highest ranks: The words quoted above were Barack Obama’s, spoken while he was running for president in 2008 — that is, long before the deaths of Michael Brown in Missouri and Trayvon Martin in Florida made the “fact” of racism in the criminal-justice system common knowledge.
This belief might seem reasonable in the light of a cursory examination of incarceration data. According to the Bureau of Justice Statistics, blacks made up 36 percent of the 1.54 million prisoners in state and federal correctional facilities at the end of 2010, though they made up just 13 percent of the general population. As critics point out ad nauseam, there is a disparity. But why?
Michelle Alexander, a law professor at Ohio State University, blames “the new Jim Crow.” Her book by that title, published in 2010, argues that the “basic structure of our society” has not changed since the days of segregated water fountains, merely “the language we use to justify it.” Because “today it is perfectly legal to discriminate against criminals in nearly all the ways that it was once legal to discriminate against African Americans,” our criminal-justice system has simply labeled “people of color” “criminals” and perpetuated America’s “racial caste.”
Invoking Jim Crow — it seems to be part of Al Sharpton’s daily routine — is an evocative but problematic comparison, not least because Jim Crow laws were blanket restrictions on innocent Americans, while incarceration is a punishment meted out to criminals because they have committed a crime. Accusations of institutional racism upend debate by presuming the criminal-justice system guilty. One can understand why black Americans distrusted the system in the years immediately following the Civil Rights Act, which sought to end an era when blacks were harassed without cause, convicted of exaggerated charges, and condemned to overlong prison terms, and when whites who victimized them were frequently let off, sometimes scot-free. But half a century on? Is there still reason to presume prejudice?
Start with the cops.
In his speech to the NAACP national convention in July 2013, Attorney General Eric Holder said that circumstances required his father to explain to him “how, as a young black man, I should interact with the police,” and that he recently had the same conversation with his own son. The day before, on MSNBC’s Martin Bashir, New York congressman Charles Rangel (D.) declared that “if the police had got a black [George] Zimmerman, the question would be whether they would have beat him to death.” Accusations of racial profiling have motivated resistance to New York City’s “stop and frisk” measure; more broadly, many blacks claim to be subject to their very own moving violation, “DWB”: driving while black.
Anecdotal evidence is cited often, but the data offered as proof of racial profiling are not convincing. In a 2012 paper published in the Loyola Journal of Public Interest Law, William Quigley offered a typical example of the poor reasoning in this debate by comparing arrest rates among blacks with their portion of the general population. The ACLU had accused Philadelphia cops of racism 15 years before based on a study with the same flaw. The problem with such racial-profiling statistics, Hoover Institution scholar Thomas Sowell has observed, is that they are “based on blacks as a percentage of the population, rather than blacks as a percentage of the people who do the kinds of things that cause police to stop people and question them.” By Quigley’s logic, women should account for half of arrests.
Furthermore, as Heather Mac Donald pointed out in a 2008 essay for City Journal, studies of a wide range of crimes have found that victims’ descriptions of their assailants line up with arrests, suggesting that people generally are not arrested for crimes committed by people of other races. If cops were racist, a racial imbalance in arrest rates would be more likely to appear in property crimes, where the victim is less likely to be able to give a description. In fact, FBI statistics show a smaller racial disparity in arrest rates for property crime than for violent crime.
New York City’s stop-and-frisk program is a good example of racial-profiling alarmism. As New York City police commissioner Ray Kelly has observed, blacks make up just over half of persons stopped, but victims describe black assailants in seven out of ten violent crimes — suggesting that blacks are actually under-stopped. Moreover, the program is much more vigorously applied in high-crime areas, which tend to have higher minority populations. Police go where the crime is.
Robert L. Werling and Patricia A. Cardner presented another relevant finding in a 2013 paper in the International Journal of Criminology and Sociology: Minorities are disproportionately likely to call the police, just as they are to use social services generally. This alone would tend to bring police disproportionately to minority areas, but its effect is augmented by the police practice of allocating more resources to areas with more calls for service.
What about at trial? Do prosecutors overcharge minority defendants? And do judges oversentence them?
In 1997 Robert Sampson and Janet Lauritsen published an influential study on this topic in the journal Crime and Justice. Reviewing the abundant literature on charging and sentencing available at the time, they found “little evidence that racial disparities result from systematic, overt bias.” Yet liberal outfits such as the Sentencing Project and the Center for Constitutional Rights continue to flaunt racial disparities in sentencing as evidence of just such bias. Isolating the influence of race is very difficult given the number of factors that contribute to charging and sentencing decisions. Still, the numbers are worth considering.
A report published in 2012 by the U.S. Commission on Sentencing found that prison sentences for black men were, on average, almost 20 percent longer than those for white men for similar crimes; and the Commission had documented previously that blacks were more likely than whites to be charged with crimes that had mandatory minimum sentences. But the Commission warned against interpreting the numbers as evidence of racial discrimination.
In a working paper released in 2012, law professor Sonja Starr and economics professor Marit Rehavi studied a sample of 58,000 federal cases, including property crimes, violent crimes, and weapons and regulatory offenses. They found that 83 percent of the sentencing disparity between blacks and whites could be explained by differences in criminal record, the arrest offense, gender, age, and location. The disparity that remained was a result of charging differences. Starr and Rehavi say there is no indication that disparate charging is a result of racial discrimination; there are, they note, other relevant factors that might not appear in the data.
Lauren Shermer, of Widener University, and Brian Johnson, of the University of Maryland, published a study in 2009 that looked at federal charging and found that a defendant’s race did not affect U.S. attorneys’ decisions to reduce charges. Travis Franklin, of Sam Houston State University, found the same to be true of prosecutors’ decisions to drop charges at the state level.
Critics of the criminal-justice system may concede these numbers but reply that racism exists in the criminal code itself as a result of the war on drugs. Wrote Michelle Alexander in The Nation, “The drug war was part of a grand and highly successful Republican Party strategy of using racially coded political appeals on issues of crime and welfare to attract poor and working-class white voters who were resentful of, and threatened by, desegregation, busing, and affirmative action.” That is, the drug war had nothing to do with an increase in the amount of drugs or a crack crisis in impoverished black communities; it had to do with locking up black people.
But “the data tell a different story,” says political scientist John J. DiIulio Jr., writing in City Journal. “In 1980 [before the drug war], 46.6 percent of state prisoners and 34.4 percent of federal prisoners were black; by 1990 [four years into it], 48.9 percent of state prisoners and 31.4 percent of federal prisoners were black.” Looking at more recent data, Mac Donald noted: “In 2006 blacks were 37.5 percent of the 1,274,600 state prisoners. If you remove drug prisoners from that population, the percentage of black prisoners drops to 37 percent.” Not exactly damning evidence that blacks have been disproportionately victimized by drug-law enforcement. Nor was the drug war the main reason for the increase in the number of black prisoners. From 1980 to 1990, when authorities were supposedly swooping down to arrest every teenager on Harlem’s streets, violent crime was a greater contributor to the increase in state-prison populations (which hold the vast majority of prisoners) than was drug crime.
Mandatory minimum federal sentences are also often cited as an indication of the drug war’s racism, since they penalize possession of crack cocaine much more severely than possession of powder cocaine, and the former has been more common in black communities. But you could typically avoid the mandatory minimum if you met three conditions: Don’t hurt anyone, don’t have a gun, and don’t lie to the police. In 2006, only 15.4 percent of crack defendants met these conditions, as opposed to nearly half of powder-cocaine defendants. Congress appears to have been justified in viewing crack as the greater problem. The sentencing disparity was in any case dramatically reduced by the Fair Sentencing Act, signed into law by President Obama in 2010.
As for the myth of a white-Republican conspiracy, it was the Congressional Black Caucus that pushed the 1986 Anti-Drug Abuse Act and, two years later, the creation of the Office of National Drug Control Policy administered by a “drug czar” — a term coined, approvingly, by Senator Joe Biden in 1982.
Some allege that the drug war’s targeting of blacks has moved to a new drug. In June the ACLU published a study that found that blacks are 3.7 times more likely to be arrested for marijuana possession than are whites, despite similar usage rates. This much-touted report, though, does not control for “individual characteristics of each arrest, such as amount of marijuana possessed and the age and criminal history record of the individual arrested,” leaving that to “a more scholarly analysis.” But those characteristics are crucial to making an accurate determination of the cause of the disparity, which the study does not purport to do; it is “a purely descriptive analysis.” Nonetheless Ezekiel Edwards, director of the ACLU’s Criminal Law Reform Project and lead author of the report, claims that the study confirms racial profiling — a pronouncement that has, in turn, been propagated by uncurious media. The further questions in need of study are myriad, and the reliable studies are few. Since police are likely to focus more on marijuana sellers than on users, are blacks more likely to sell? Are they more likely to use or sell in the open, rather than secretly? Are they using or selling in areas where there is a greater police presence? If the answers align with those for other kinds of arrests, there is little reason to attribute the racial disparity in marijuana arrests to discrimination.
In the end, the cause of the racial disparity in the criminal-justice system is simple: A disproportionate share of blacks are in prison because blacks commit a disproportionate share of crimes. This is what Sampson and Lauritsen concluded a decade and a half ago, and study after study since then has supported their conclusion. According to the latest U.S. Census Bureau data, the white-to-black ratio in the general population is 5.9 to 1. In the prison population as of year-end 2010 it was 1 to 1.18 — that is, of the 1.6 million state and federal prisoners, 499,600 were white and 588,000 were black. To match the white-to-black ratio of the general population, the population of black prisoners would have to fall to 84,678 — that is, by 85 percent.
Are 85 percent of the current black prison population victims of racism?
None of this is to deny the existence of racist cops, racist attorneys, racist jurors, and racist judges. But unlike that of the Jim Crow era, any racism in the criminal-justice system today cannot be shown to be institutional, and it is likely to be corrected by the many checks within the system.
In Ferguson, every indication is that that system, from law-enforcement officers to grand-jury members, worked carefully and dispassionately, protesters’ claims notwithstanding. So as accusations of entrenched prejudice extending from the squad car to the jury box persist, those who know the facts can only continue to present their case and do their best to get the evidence a fair trial.
— Ian Tuttle is a William F. Buckley Jr. Fellow at the National Review Institute. This article is adapted from one that appeared in the August 19, 2013 issue of National Review.