An Unjust ‘Justice’ System: Victimizing the Innocent

I wrote the first post of what will eventually be part of a long series. The opening salvo was about racism without racists.

The series shall be primarily focused on violence and more generally on the corollaries of injustice, oppression and disadvantage. I’ll also include some other issues for analysis — besides race: region, culture, IQ, poverty, economic inequality, social mobility, pollution/toxins, and other environmental factors. These will be contrasted, when relevant, against genetic explanations.

I plan on being systematic about this series. I will present lots of data and analysis, lots of quotes and citations. I’m going to be thorough. Each post in this series will have a theme, a different angle on the same set of interlinked problems and issues.

However, I’m going to be busy with work for a couple of weeks and won’t be able to make much headway with this project. To offer one more taste of what I’ll be exploring further, let me share a passage from a book I’ve been reading, a book I highly recommend. The book is The New Jim Crow by Michelle Alexander. The section of the book is titled “Bad Deal”. It begins on page 87 in Chapter 2, The Lockdown.

Before I get to the passage itself, let me briefly explain why it is so significant.

One thing the author explains in this book is how little most people know about the system of police enforcement, courts and prisons. The media (news, tv shows and movies) do us a great disservice in not portraying the reality of what actually happens to people when they find themselves caught in a criminal system that seems to care little about whether you are innocent or not.

If you are poor as most are who find themselves targeted by police and prosecutors, there are few people to offer you help and guidance. Poor people certainly can’t afford lawyers and they would be naive to expect to get a lawyer offered them as happens on tv and in the movies. Most likely, you are on your own in a situation you can’t understand and no one will explain it to you. You have to make decisions that will effect your entire life with little information upon which to base that decision. The consequences are immense and, once set into motion, unalterable.

After you get a criminal record, the challenges and difficulties are numerous and diverse.

There are often severe restrictions about where you can live and with whom you can associate. Your drivers license might be revoked which makes very difficult normal life activities: shopping, taking kids to school/daycare, getting to work and keeping a job, and making the regular visits to one’s parole officer (even if you don’t have money to get on a bus because for example you can’t find or keep a job without having a car, missing a parole meeting can send you back to prison). There are expensive penalties and fees that many states demand parolees pay or else, in some cases, returning to prison.

However, at the same time it can be very hard to find a job for few employers want to hire ex-cons even if you were only convicted of a minor offense such as possessing a small amount of marijuana, and yet some states require employment as a requisite of parole. If you’re lucky to find a job, your paychecks can be garnished, sometimes almost entirely or even entirely. Furthermore, you are no longer eligible for government assistance and public housing, and so there is nothing to stop or discourage a downward economic spiral (quite the opposite actually). Under such conditions, it is easy to end up unemployed which often leads you to losing your housing and, if you become homeless, it could lead you to losing custody of your children (the most important part of many people’s live, often the one thing keeping the a struggling person from giving up entirely).

To rub salt into your wound, you may also permanently lose your right to vote and serve on juries. You will be treated like a second-class citizen. None of this would motivate and help you to rejoin normal society again. It is as if the entire world is against you. The punishment never ends. It doesn’t matter if you are innocent or not. It doesn’t matter if your crime was minor or victimless. Once assigned the status of a criminal, you are stigmatized for life. You become a part of the underclass or maybe even the permanent undercaste. Basically, your existence becomes a living hell.

Keep in mind also that most of these targeted poor people are poor minorities, mostly poor blacks. Numerous studies have shown that it is a racially biased system at every single step of the way, from policing to imprisonment. This is even worse when one considers, as the author does, how many innocent people become victimized by the very system that is supposed to protect victims. This is how families and entire communities are destroyed, many poor black communities with the vast of their male black populations (and much of their female black population as well) tangled up in the justice system or else in the school-to-prison pipeline.

To see some nice graphs, check out a previous post of mine: Prison Insanity. As violent crime has sharply decreased, the prison population has sharply increased. More specifically, even as violent crime has decreased among blacks and even though whites use and carry drugs more, the racially prejudiced War on Drugs has caused the black prison population to increase. That is an important point as the justification for imprisoning so many blacks is because of violent crime.

Without further ado, the following is the passage in question (key points in bold).

* * * *

Almost no one ever goes to trial. Nearly all criminal cases are resolved through plea bargaining— a guilty plea by the defendant in exchange for some form of leniency by the prosecutor. Though it is not widely known, the prosecutor is the most powerful law enforcement official in the criminal justice system. One might think that judges are the most powerful, or even the police, but in reality the prosecutor holds the cards. It is the prosecutor, far more than any other criminal justice official, who holds the keys to the jailhouse door.

After the police arrest someone, the prosecutor is in charge. Few rules constrain the exercise of his or her discretion. The prosecutor is free to dismiss a case for any reason or no reason at all. The prosecutor is also free to file more charges against a defendant than can realistically be proven in court, so long as probable cause arguably exists— a practice known as overcharging.

The practice of encouraging defendants to plead guilty to crimes, rather than affording them the benefit of a full trial, has always carried its risks and downsides. Never before in our history, though, have such an extraordinary number of people felt compelled to plead guilty, even if they are innocent, simply because the punishment for the minor, nonviolent offense with which they have been charged is so unbelievably severe. When prosecutors offer “only” three years in prison when the penalties defendants could receive if they took their case to trial would be five, ten, or twenty years— or life imprisonment— only extremely courageous (or foolish) defendents turn the offer down.

The pressure to plead guilty to crimes has increased exponentially since the advent of the War on Drugs. In 1986, Congress passed The Anti-Drug Abuse Act, which established extremely long mandatory minimum prison terms for low-level drug dealing and possession of crack cocaine. The typical mandatory sentence for a first-time drug offense in federal court is five or ten years. By contrast, in other developed countries around the world, a first-time drug offense would merit no more than six months in jail, if jail time is imposed at all. 70 State legislatures were eager to jump on the “get tough” bandwagon, passing harsh drug laws, as well as “three strikes ” laws mandating a life sentence for those convicted of any third offense. These mandatory minimum statutory schemes have transferred an enormous amount of power from judges to prosecutors . Now, simply by charging someone with an offense carrying a mandatory sentence of ten to fifteen years or life, prosecutors are able to force people to plead guilty rather than risk a decade or more in prison. Prosecutors admit that they routinely charge people with crimes for which they technically have probable cause but which they seriously doubt they could ever win in court. 71 They “load up” defendants with charges that carry extremely harsh sentences in order to force them to plead guilty to lesser offenses and— here’s the kicker— to obtain testimony for a related case. Harsh sentencing laws encourage people to snitch.

The number of snitches in drug cases has soared in recent years, partly because the government has tempted people to “cooperate” with law enforcement by offering cash, putting them “on payroll,” and promising cuts of seized drug assets, but also because ratting out co-defendants, friends, family, or acquaintances is often the only way to avoid a lengthy mandatory minimum sentence. 72 In fact , under the federal sentencing guidelines, providing “substantial assistance” is often the only way defendants can hope to obtain a sentence below the mandatory minimum. The “assistance” provided by snitches is notoriously unreliable, as studies have documented countless informants who have fabricated stories about drug-related and other criminal activity in exchange for money or leniency in their pending criminal cases. 73 While such conduct is deplorable, it is not difficult to understand. Who among us would not be tempted to lie if it was the only way to avoid a forty-year sentence for a minor drug crime?

The pressure to plea-bargain and thereby “convict yourself” in exchange for some kind of leniency is not an accidental by-product of the mandatory-sentencing regime. The U.S. Sentencing Commission itself has noted that “the value of a mandatory minimum sentence lies not in its imposition, but in its value as a bargaining chip to be given away in return for the resource-saving plea from the defendant to a more leniently sanctioned charge.” Describing severe mandatory sentences as a bargaining chip is a major understatement, given its potential for extracting guilty pleas from people who are innocent of any crime.

It is impossible to know for certain how many innocent drug defendants convict themselves every year by accepting a plea bargain out of fear of mandatory sentences, or how many are convicted due to lying informants and paid witnesses, but reliable estimates of the number of innocent people currently in prison tend to range from 2 percent to 5 percent. 74 While those numbers may sound small (and probably are underestimates), they translate into thousands of innocent people who are locked up, some of whom will die in prison. In fact, if only 1 percent of America’s prisoners are actually innocent of the crimes for which they have been convicted, that would mean tens of thousands of innocent people are currently languishing behind bars in the United States.

The real point here, however, is not that innocent people are locked up. That has been true since penitentiaries first opened in America. The critical point is that thousands of people are swept into the criminal justice system every year pursuant to the drug war without much regard for their guilt or innocence. The police are allowed by the courts to conduct fishing expeditions for drugs on streets and freeways based on nothing more than a hunch. Homes may be searched for drugs based on a tip from an unreliable, confidential informant who is trading the information for money or to escape prison time. And once swept inside the system, people are often denied attorneys or meaningful representation and pressured into plea bargains by the threat of unbelievably harsh sentences— sentences for minor drug crimes that are higher than many countries impose on convicted murderers. This is the way the roundup works, and it works this way in virtually every major city in the United States.

70 Mauer, Race to Incarcerate, 35- 37.
71 See Angela J. Davis, Arbitrary Justice: The Power of the American Prosecutor (New York: Oxford University Press, 2007), 31-33.
72 See Alexandra Natapoff, “Snitching: The Institutional and Communal Consequences,” University of Cincinnati Law Review 645 (2004); and Emily Jane Dodds, “I’ll Make You a Deal: How Repeat Informants Are Corrupting the Criminal Justice System and What to Do About It,” William and Mary Law Review 50 (2008): 1063.
73 See “Riverside Drug Cases Under Review Over Use of Secret Informant,” Associated Press, Aug. 20, 2004; Ruben Narvette Jr., “Blame Stretches Far and Wide in Drug Scandal,” Dallas Morning News, Nov. 14, 2003; Rob Warden, How Snitch Testimony Sent Randy Steidl and Other Innocent Americans to Death Row (Chicago: Northwestern University School of Law, Center for Wrongful Convictions, 2004- 5); “The Informant Trap,” National Law Journal, Mar. 6, 1995; Steven Mills and Ken Armstrong, “The Jailhouse Informant,” Chicago Tribune, Nov. 16, 1999; and Ted Rohrlich and Robert Stewart, “Jailhouse Snitches: Trading Lies for Freedom,” Los Angeles Times, Apr. 16, 1989.
74 See Adam Liptak, “Consensus on Counting the Innocent: We Can’t,” New York Times, Mar. 25, 2008; and Adam Liptak, “Study Suspects Thousands of False Confessions,” New York Times, Apr. 19, 2004.

18 thoughts on “An Unjust ‘Justice’ System: Victimizing the Innocent

  1. Hi,

    Since I am not American, and I have not studied the topic in detail, I do not know “Numerous studies have shown that it is a racially biased system at every single step of the way, from policing to imprisonment. “. Could you update the post with few references?

    The phrase “As violent crime has sharply decreased, the prison population has sharply increased. ” is not clear. Do you mean that increase of prison population has followed the violent crime decrease (e.g. first rate decreased, then prison population increased)? Otherwise, the effect is what I would perfectly expect.

    • Let me answer the second part first.

      The US doesn’t have an overall higher crime rate than many other developed countries. There are even particular categories of crime with higher rates than the US. However, comparisons are hard to make because of differing laws and enforcement (which is also a major problem for comparing data between US states).

      The main category of crime that is higher in the US is violent crime. Rates of robbery for example is higher in some developed countries, but in those countries you are less likely to be assaulted and killed. The US also has the highest incarceration rate which as I said has been increasing. During this increase, violent crime has been decreasing all over the world including in the US and among blacks (one explanation being decrease of lead air pollution).

      The increase of US incarceration has com from the War on Drugs. This was an increase of criminalization of an drug dealing and drug use, but there was no equivalent increase in the activities of drug dealing and drug use. It is precisely the War on Drugs that has targeted blacks and formed the largest part of the increase in incarceration.

      No, there is no evidence that I know of for a causal relationship between decreasing overall criminal activity and increasing incarceration. That wouldn’t explain why violent crime, the higher part in the US, has decreased worldwide.

    • Now I’ll get to thefirst part.

      This post is part of my introducing the series. I wanted to give some sense of where I was heading. I plan on having entire detailed posts focused on each key issue. At this preliminary stage, I don’t want to try to argue the details before I’ve even had an opportunity to more fully gather all the data, organize it and analyze it.

      I’m in the middle of reading several books about all of this. Some of these I quoted above and in my previous post. There are many other books that I’ve only glanced at or barely have skimmed. There are still others I plan to buy. I’m still in research mode, but I promise to back up every claim as well as I can. I’m going to try my best to offer a well crafted argument. At that future point, I’d love to discuss further the evidence for and against.

      You or anyone else is welcome to join me in this process of research. If you have any thoughts, data, studies, books, etc, just leave a comment here or else in another one of my posts on the topic.

      If I were to make a single recommendation right now, I’d point to the book The New Jim Crow. The author, Michelle Alexander, makes a strong case using a lot of data and she covers many aspects of racial bias related to mass incarceration. Maybe I’ll come back later to make a list of books that have caught my attention.

    • Here is my list of books that are relevant to the specific issues of race, bias, inequality, crime and incarceration. Besides The New Jim Crow, here are some books I’ve been looking at or considering:

      Racism without Racists: Color-Blind Racism and the Persistance of Racial Inequalit in America
      by Eduardo Bonilla-Silva

      More than Just Race: Being Black and Poor in the Inner City
      by William Julius Wilson

      Worse Than Slavery
      by David M. Oshinsky

      Sundown Towns: A Hidden Dimension of American Racism
      James W. Loewen

      Slavery by another Name: the Re-enslavement of Black Americans from the Civll War to World War II
      by Douglas A. Blackmon

      Locked Out: Felon Disenfranchisement and American Democracy
      by Jeff Manza and Christopher Uggen

      Who Are the Criminals?: The Politics of Crime Policy from the Age of Roosevelt to the Age of Reagan
      by John Hagan

      Imprisoning Communities: How Mass Incarceration Makes Disadvantaged Neighborhoods Worse
      by Todd R. Clear

      The Many Colors of Crime
      by John Hagan

      Race, Incarceration, and American Values
      by Glenn C. Loury

      Punishing Race: A Continuing American Dilemma
      by Michael Tonry

      Marked: Race, Crime, and Finding Work in an Era of Mass Incarceration
      by Devah Pager

      Invisible Punishment: The Collateral Consequences of Mass Imprisonment
      by Marc Mauer and Meda Chesney-Lind

      Crime Is Not the Problem: Lethal Violence in America
      by Franklin E. Zimring and Gordon Hawkins

      The Condemnation of Blackness: Race, Crime, and the Making of Modern Urban America
      by Khalil Gibran Muhammad

      Daedalus 140:2 (Spring 2011) – Race, Inequality & Culture, Vol. 2

      Unequal Under Law: Race in the War on Drugs
      by Doris Marie Provine

      Race to Incarcerate
      by Marc Mauer

      Doing Time on the Outside: Incarceration and Family Life in Urban America
      by Donald Braman

      When Prisoners Come Home: Parole and Prisoner Reentry
      by Joan Petersilia

      Thinking About Crime: Sense and Sensibility in American Penal Culture
      by Michael Tonry

      Making Crime Pay: Law and Order in Contemporary American Politics
      by Katherine Beckett

      Banished: The New Social Control in Urban America
      by Katherine Beckett and Steve Herbert

      The Culture of Punishment
      by Michelle Brown

      Harsh Justice: Criminal Punishment and the Widening Divide between America and Europe
      by James Q. Whitman

      The Perils of Federalism: Race, Poverty, and the Politics of Crime Control
      by Lisa L. Miller

      The Politics of Imprisonment: How the Democratic Process Shapes the Way America Punishes Offenders
      by Vanessa Barker

      American Homicide
      by Randolph Roth

      Disciplining the Poor: Neoliberal Paternalism and the Persistent Power of Race
      by Joe Soss, Richard C. Fording and Sanford F. Schram

      Punishing the Poor: The Neoliberal Government of Social Insecurity
      by Loic Wacquant

      The Anatomy of Racial Inequality
      by Glenn C. Loury

      Stuck in Place: Urban Neighborhoods and the End of Progress Toward Racial Equality
      by Patrick Sharkey

      Off the Books: The Underground Economy of the Urban Poor
      by Sudhir Alladi Venkatesh

      Punished: Policing the Lives of Black and Latino Boys
      by Victor M. Rios

      Ghosts of Jim Crow: Ending Racism in Post-Racial America
      by F. Michael Higginbotham

      Daedalus 139:3 (Summer 2010) – On Mass Incarceration

      The Color of Wealth: The Story Behind the U.S. Racial Wealth Divide
      by Barbara J. Robles, Betsy Leondar-Wright, Rose M. Brewer, Rebecca Adamson and Meizhu Lui

      When Affirmative Action Was White: An Untold Story of Racial Inequality in the Twentieth-Century
      by Ira Katznelson

      The Segreated Origins of Social Security: African Americans and the Welfare State
      by Mary Poole

      Unequal Childhoods: Class, Race, and Family Life
      by Annette Lareau

      The Moynihan Report Revisited: Lessons and Reflections after Four Decades
      by Douglas S. Massey and Robert J. Sampson

      The Sociology of Discrimination: Racial Discrimination in Employment, Housing, Credit, and Consumer Markets
      by Devah Pager and Hana Shepherd

      Whistling Vivaldi: How Stereotypes Affect Us and What We Can Do About It
      by Claude M. Steele

      Race and Reality: What Everyone Should Know About Our Biological Diversity
      by Guy P. Harrison

      Genetics and the Unsettled Past: The Collision of DNA, Race, and History
      by Keith Wailoo, Alondra Nelson and Catherine Lee

      Race Decoded: The Genomic Fight for Social Justice
      by Catherine Bliss

      Fatal Invention: How Science, Politics, and Big Business Re-create Race in the Twenty-First Century
      by Dorothy Roberts

      The Emperor’s New Clothes: Biological Theories of Race at the New Millennium
      by Joseph L. Graves Jr.

      Race?: Debunking a Scientific Myth
      by Ian Tattersall and Rob DeSalle

      Racecraft: The Soul of Inequality in Ameican Life
      by Barbara J. Fields and Karen Fields

      White Out: The Continuing Significance of Racism
      by Ashley W. Doane and Eduardo Bonilla-Silva

      State of White Supremacy: Racism, Governance, and the United States
      Moon-Kie Jung, Joao Costa Vargas and Eduardo Bonilla-Silva

      Brainwashed: Challenging the Myth of Black Inferiority
      by Tom Burrell

      What Is Intelligence?
      by James R. Flynn

      Intelligence and How to Get it: Why Schools and Cultures Count
      by Richard E. Nisbett

      The Myth of Inteligence
      by Patrick Winn

    • “the effect is what I would perfectly expect.”

      That is precisely the problem. Based on your beliefs, assumptions and biases, you form expectations that blind you to what goes against those expectations. It is perfectly unsurprising that you would chose an explanation that conforms to rather than challenges your beliefs, assumptions and biases.

      Yes, without knowing much of the data, your explanation would seem plausible. There are a lot of seemingly plausible explanations, depending on what you do and don’t know.

      The problem isn’t just choosing an explanation according to confirmation bias. The additional problem is that a convenient explanation based on limited data often closes down any further investigation into the data, especially data that contradicts or challenges that explanation. To put it simply, if you think you already know something, you are unlikely to look for what you don’t know you don’t know.

      To analyze this some more, I’ll continue with your statement.

      Increased incarceration implies many things. Even without knowing the data, some of these should come to mind. More people in prison means more families destroyed from missing parents and providers, and more families destroyed means more communities destroyed. More people in prison also means more ex-cons with destroyed lives returning to society and more likely to reoffend.

      Furthermore, such mass incarceration inevitably can only happen by creating a police state. I don’t know the comparative data on police states and non-police states, but I doubt the government losing legitimacy would decrease crime. A violent government probably goes hand in hand with a violent population.

      I think it is surprising that violent crime in particular has decreased. Only an environmental explanation like decreased lead poisoning could explain how this happened across the world.

      Beware the temptation of simplistic explanations for complex realities.

  2. Here is my eternal frustration.

    I listed all those books for several reasons. A main reason was to show all the relevant books on the topic. Most of those books are filled with data that the authors use to make detailed analyses and complex arguments.

    The frustrating point is that I have to list all those books. HBDers and race realists could find all those books and more, if they wanted to.

    That is the problem. It isn’t just a passive lack of knowledge. They are makng an active choice not to look for data that would challenge their worldview. Instead, the HBD blogosphere is mostly an echo chamber. Most of them don’t know what they don’t know and aren’t inclined to seek out uncomfortable knowledge and challenging data.

    It is typical human behavior, but still frustrating.

    This is the reason I’m doing this blog series. I’m going to read the books, I’m going to do the analysis and I’m going to go to the effort of communicating it all as clearly as possible. I have other things I’d rather do and spend my time on, but I’m doing all this because few if any HBDers or race realists would ever do so.

    This isn’t intended as an insult. It is simply the conclusion I’ve come to.

    If my conclusion was false, these types of books and the data in them would be regularly discussed in HBD and race realist blogs. The only reason I can think of for why this is not the case is because many of them already think they have the answer and so no new data is sought.

    Even mild-mannered hbd chick demonstrates this tendency. She’ll say that she knows she isn’t doing science in her blog and that her opinions are tentative, but she’ll also say that these very same unproven hypotheses would do more good than not if implemented as public policy and governmental law. These two sides contradict one another. Her opinions aren’t as tentative as she claims them to be. She actually holds them as convictions.

    I don’t think hbd chick’s expression of intellectual humility is fake. I suspet she has a conflict-avoidant personality. She partly hides her convictions because she probably doesn’t like confrontation and heated argument. That is fine. I understand and sympathize. However, it makes dicussion hard when you’re not sure where someone truly stands.

    This is a problem of race discussions in general. There is so much stigma and resentment involved that emotions run high. A frank discussion can seem impossible. This creates the perfect conditions for closing the ranks and hence the echo chamber effect. People argue past one another without even knowing the view of the other.

    All of us would be challeged in our views if we looked for and read books that challenge us. With this in mind, I wish to challenge others as I wish to be challenged. That is why I’m doing all this research and will be writing about it. My hope isn’t just to challenge people. What I hope is to inspire people to challenge themselves. Please don’t wait for me to read these books. Read them for yourself.

  3. I have to laugh at myself. I can get so worked about all of this. Then I come off sounding mean-spirited. I find myself constantly wanting to apologize.

    I really do care about what I see as oppression and prejudice in our society. That it largely seems unconscious and unintentional just makes it worse. We are all responsible and yet predictaby no one wants to take responsibility.

    I truly don’t mean to solely pick on HBDers. It just so happens they are on my mind at the moment. This is because I’ve been interacting with HBDers quite a bit lately. I was particularly spending a lot of time over at hbd chick’s blog which I still visit.

    The only relevance of focusing on HBDers is that their views seem so common in our society. I know HBDers like to think of themselves as outsiders, but they’re not. HBD fits perfectly into the mainstream worldview of Western society. Books like The Belle Curve are bestsellers in the United States. That book dominated the MSM when it came out and still receives more attenton than books that have criticized the data and analysis (there are quite a few such books).

    As an odd side note, I remember once having argued for the argument made in The Belle Curve about racial IQ differences. I was either still in hgh school at the time or it was right after high school. My conservative dad and I discussed the book because he had read it.

    Back then, the horizon of my knowledge was very narrow. In arguing for the case made in the book, I was mostly just parroting what my dad had told me. I early on learned my intellectual abilities from my dad and so if anything I had a conservative bias. If not for some countervailing forces of liberalism, maybe I’d still be making conservative arguments for racialism/race-realism. Maybe I’d even be an HBDer today.

    This is my way of saying that I should be more humble. There were things that challenged the worldview of my younger self, and so forcing me to think more deeply and broadly. I’m sure other things will continue to challenge my present views as well. It is so easy to get trapped in a mindset because our entire sense of self gets wrapped up in it.

    I want to move these discussions forward, but it feels like an uphill battle.

  4. I must admit that there is something about szopeno’s comment that gets stuck in my craw.

    When confronted with a new viewpoint, he responded neither with self-questioning about what he thought he knew nor with curiosity to research it for himself. It immediately became a confrontation. He demanded sources.

    That is fine in and of itself. I always seek to back up my claims. However, whenever confronteed with something new that challenges my assumptions/expectations, I take that very seriously and I challenge myself by researching it for myself.

    I feel that some people put a higher standard on my claims than they put on their own. Szopeno made some claims without backing them up. Why does he see it as my responsibility to disprove his claims?

    I’ll go to the effort to back up my claims once I get to the point of writing a post fully presenting the evidence. But will szopeno ever back up his stated assumptions/expectations? I have my doubts that he will. Why doesn’t it seem to occur to him to research it for himself with an open mind and see what he might find?

    I don’t want to force my views onto others. I don’t want polarized arguments or formal debates. All I want to do is explore new data and viewpoints with others who are equally motivated by curiosity and skepticism, not just skepticism toward others but also toward themselves.

    For whatever reason, skepticism comes naturally to me, almost a default position for me at this point. When push comes to shove, the position I almost always fall back on is that “it’s complicated”, a phrase I repeat on a regular basis. So, even when some claim I make turns out to be wrong or uncertain, it doesn’t alter my basic position for if anything it just further proves how much complication exists.

    I don’t have much in the way of a clear politcal ideology or belief system. I have some theories I’m fond of, but none that I would go to massive lengths to defend. All that I ascribe to is a very generalized sense of compassion and truth-seeking. Even with someone like Derrick Jensen whose writing has influenced me like no other, I can only follow his line of thought so far before my critical-mindedness kicks in. Jensen was a more interesting writer when he was expressing doubts and questioning everything, but like so many others he found an ‘answer’ to believe in and defend.

    My criticism of HBD is my standard criticism of all speculations and wonderings that slowly solidify into belief systems.

    Let us forget our preferred opinions and conclusions for the time being. With our minds open and clear, we can look at the data with fresh eyes, and I mean all the data, not just the data we already know which confirms what we think we already know.

    The entire reason I started reading hbd chick’s blog (and other HBD blogs) was because she was presenting data I didn’t know and presenting it in a way that challenged my thinking. But after that initial enjoyment of a new viewpoint, I came to see that the HBD worldview was limiting the thinking of its proponents. They are no longer looking at data on its own terms and instead are filtering all data through a HBD lense.

    For me, HBD is one view among many. To HBDers, it is their entire sense of reality or close to it. They simply see it as true and they can’t understand why others can’t see the truth of what they believe in. They take the typical defensive position that others are just afraid of the truth they are offering, it never occurring to them that maybe they are afraid of the truth of others.

    Heck, I’d say we are all afraid of the truth. The truth of our society and of human nature can be quite depressing and overwhelming. The biggest truth of all is how little we know. Our ignorance is immense. That is a scary thought, the collective ignorance that defines our humanity. That is also what makes biases so scary, racial biases or otherwise. Our ignorance and biases operate at a mostly unconscious level. We go through life almost entirely obivious to the world around us and the worlds within us.

    This is why humility is in order. Let’s stop acting like we have much of anything figured out. A sense of certainty is comforting, but it is also a lie.

    This kind of understanding should allow us to step back and take a breath. Just stop for a moment and sit with the questions we are faced with.

    What does all this violence in our society mean? Mass incarceration in the US exists at a higher level than ever seen before, higher than in the most oppressive police states and empires. That is mind-blowing. There is no satisfactory explanation to so much misery. It is simply beyond comprehension, like trying to count the stars in the sky.

    It is uncomfortable to deeply and seriously think about this, to contemplate it and grapple with it in our own experience, to imagine the experiences of all involved. This isn’t about numbers but about people. This isn’t about being right and others being wrong. There is no right and wrong in human suffering. There is just suffering, immense and incomprehensible. And we are all apart of it. There is no neutral position.

    No theory will comfort us amidst life’s cruelties or lessen our fears and anger, our frustrations and suffering. This isn’t idle discussion of abstract data. This is human reality, messy and ugly. We all have blood on our hands and there is no washing them clean.

    • There I go again, working myself into a tizzy. This is a fun game. I don’t even need anyone else to comment. I’ll respond to my own comments. I should just argue with myself. That way I can guarantee I’ll always win.

  5. I have some time free now after my long work week. Let me give a better response to szopeno.

    Since I am not American, and I have not studied the topic in detail, I do not know “Numerous studies have shown that it is a racially biased system at every single step of the way, from policing to imprisonment. “. Could you update the post with few references?

    The phrase “As violent crime has sharply decreased, the prison population has sharply increased. ” is not clear. Do you mean that increase of prison population has followed the violent crime decrease (e.g. first rate decreased, then prison population increased)? Otherwise, the effect is what I would perfectly expect.

    The first part will have to wait longer. There is so much information on that. It truly requires more than a comment, even a long comment. The issue I wanted to more fully deal with at present is the second point.

    I still have many other books to look at, but the following is some of the relevant crime/criminalization/incarceration data and analysis just from one book — The New Jim Crow by Michelle Alexander. I offer the full passages that explain the data and the citations from the notes.

    By the way, I stand corrected on one point of fact. Violent crime rates for blacks hasn’t been going down. However, studies have correlated violent crime rates to poverty/unemployment. If poverty/unemployment is controlled for, black and white violent crime rates are shown to be similar.

    When the rest of the country was doing well in the 80s and 90s, the inner cities were being deindustrialized which caused black poverty/unemployment rates to soar. The 80s and 90s were also the time of the escalating War on Drugs when state violence and the militarized police was increasingly being focused on them, thus increasing the comcommitant destruction of individuals, families and communities. Maybe it should be unsurprising that violently and economically oppressing people leads to violent crime.

    That is the core of the argument I want to emphasize. The U.S. is a violent country in so many ways. I don’t think it is mere coincidence that the U.S. has high rates pf violent crime and incarceration (the highest incarceration rates in the world and in history), high rates of poverty, unemployment and economic inequality (along with low rates of socio-economic mobility), highest military spending in the world (total, per capita and percentage of GDP) and a history of almost continuous warfare since the founding of the country (including many illegal/unconstitutional wars of aggression, illegal/unconstitutional detention and torture, and illegal/unconstitutional assassinations and coups; also, probably the highest or one of the highest rates of training and arming militant groups), and on and on.

    All of this violence has been mostly targeted at and experienced by poor minorities, both in the U.S. and in other countries. This has led to various kinds of blowback, both in terms of homegrown terrorism and foreign terrorism.

    Anyway, here is from The New Jim Crow about the issue of increasing incarceration and changing rates of crime.

    p. 8

    “Prison did not deter crime significantly, many experts concluded. Those who had meaningful economic and social opportunities were unlikely to commit crimes regardless of the penalty, while those who went to prison were far more likely to commit crimes again in the future. The growing consensus among experts was perhaps best reflected by the National Advisory Commission on Criminal Justice Standards and Goals, which issued a recommendation in 1973 that “no new institutions for adults should be built and existing institutions for juveniles should be closed.” 17 This recommendation was based on their finding that “the prison, the reformatory and the jail have achieved only a shocking record of failure. There is overwhelming evidence that these”

    (“17 National Advisory Commission on Criminal Justice Standards and Goals, Task Force Report on Corrections (Washington, DC: Government Printing Office, 1973), 358.
    18 Ibid., 597.”)

    p. 93

    “Most people imagine that the explosion in the U.S. prison population during the past twenty-five years reflects changes in crime rates. Few would guess that our prison population leaped from approximately 350,000 to 2.3 million in such a short period of time due to changes in laws and policies, not changes in crime rates. Yet it has been changes in our laws—particularly the dramatic increases in the length of prison sentences— that have been responsible for the growth of our prison system, not increases in crime. One study suggests that the entire increase in the prison population from 1980 to 2001 can be explained by sentencing policy changes. 88”

    (“88 See Mauer, Race to Incarcerate, 33, 36— 38, citing Warren Young and Mark Brown.”)

    p. 104

    “These rules have made it possible for law enforcement agencies to boost dramatically their rates of drug arrests and convictions, even in communities where drug crime is stable or declining. 33”

    (“33 Cities with similar demographic profiles often have vastly different drug arrest and conviction rates— not because of disparities in drug crime but rather because of differences in the amount of resources dedicated to drug law enforcement. Ryan S. King, Disparity by Geography: The War on Drugs in America’s Cities (Washington, DC: Sentencing Project, 2008).”)

    pp. 126-127

    “In 2002, a team of researchers at the University of Washington decided to take the defenses of the drug war seriously, by subjecting the arguments to empirical testing in a major study of drug-law enforcement in a racially mixed city—Seattle. 88 The study found that, contrary to the prevailing “common sense,” the high arrest rates of African Americans in drug-law enforcement could not be explained by rates of offending; nor could they be explained by other standard excuses, such as the ease and efficiency of policing open-air drug markets, citizen complaints , crime rates, or drug-related violence. The study also debunked the assumption that white drug dealers deal indoors , making their criminal activity more difficult to detect.

    “The authors found that it was untrue stereotypes about crack markets, crack dealers, and crack babies— not facts— that were driving discretionary decision making by the Seattle Police Department. The facts were as follows: Seattle residents were far more likely to report suspected narcotics activities in residences— not outdoors— but police devoted their resources to open-air drug markets and to the one precinct that was least likely to be identified as the site of suspected drug activity in citizen complaints. In fact, although hundreds of outdoor drug transactions were recorded in predominantly white areas of Seattle, police concentrated their drug enforcement efforts in one downtown drug market where the frequency of drug transactions was much lower. In racially mixed open-air drug markets, black dealers were far more likely to be arrested than whites , even though white dealers were present and visible. And the department focused overwhelmingly on crack— the one drug in Seattle more likely to be sold by African Americans— despite the fact that local hospital records indicated that overdose deaths involving heroin were more numerous than all overdose deaths for crack and powder cocaine combined . Local police acknowledged that no significant level of violence was associated with crack in Seattle and that other drugs were causing more hospitalizations, but steadfastly maintained that their deployment decisions were nondiscriminatory.

    “The study’s authors concluded, based on their review and analysis of the empirical evidence, that the Seattle Police Department’s decisions to focus so heavily on crack, to the near exclusion of other drugs, and to concentrate its efforts on outdoor drug markets in downtown areas rather than drug markets located indoors or in predominantly white communities, reflect “a racialized conception of the drug problem.” 89 As the authors put it: “ [The Seattle Police Department‘s] focus on black and Latino individuals and on the drug most strongly associated with ‘blackness’ suggest that law enforcement policies and practices are predicated on the assumption that the drug problem is, in fact, a black and Latino one, and that crack, the drug most strongly associated with urban blacks, is ‘the worst.’” 90 This racialized cultural script about who and what constitutes the drug problem renders illegal drug activity by whites invisible. “White people,” the study’s authors observed, “are simply not perceived as drug offenders by Seattle police officers.” 91”

    (“88 See Katherine Beckett, Kris Nyrop, Lori Pfingst, and Melissa Bowen, “Drug Use, Drug Possession Arrests, and the Question of Race: Lessons from Seattle,” Social Problems 52, no. 3 (2005): 419– 41; and Katherine Beckett, Kris Nyrop, and Lori Pfingst, “Race, Drugs and Policing: Understanding Disparities in Drug Delivery Arrests,” Criminology 44, no. 1 (2006): 105.
    89 Beckett, “Drug Use,” 436.
    90 Ibid.
    91 Ibid.”)

    p. 210

    “Although African Americans do not engage in drug crime at significantly higher rates than whites, black men do have much higher rates of violent crime, and violent crime is concentrated in ghetto communities. Studies have shown that joblessness— not race or black culture— explains the high rates of violent crime in poor black communities. When researchers have controlled for joblessness , differences in violent crime rates between young black and white men disappear. 75”

    (“75 See William Julius Wilson, When Work Disappears: The World of the New Urban Poor (New York: Vintage Books, 1997), 22, citing Delbert Elliott study.”)

    pp. 236-238

    “This system is better designed to create crime, and a perpetual class of people labeled criminals, rather than to eliminate crime or reduce the number of criminals.

    “It is not uncommon, however , to hear people claim that the mere fact that we have the lowest crime rates, at the same time that we have the highest incarceration rates, is all the proof needed that this system works well to control crime. But if you believe this system effectively controls crime, consider this: standard estimates of the amount of crime reduction that can be attributable to mass incarceration range from 3 to 25 percent. 27 Some scholars believe we have long since passed a tipping point where the declining marginal return on imprisonment has dipped below zero. Imprisonment, they say, now creates far more crime than it prevents, by ripping apart fragile social networks, destroying families, and creating a permanent class of unemployables. 28 Although it is common to think of poverty and joblessness as leading to crime and imprisonment, this research suggests that the War on Drugs is a major cause of poverty, chronic unemployment, broken families, and crime today. Todd R. Clear’s book Imprisoning Communities : How Mass Incarceration Makes Disadvantaged Communities Worse powerfully demonstrates that imprisonment has reached such extreme levels in many urban communities that a prison sentence and/ or a felon label poses a much greater threat to urban families than crime itself. This is not to say that crime—especially violent crime— does not pose a serious threat in ghetto communities today; it does. In fact, although violent crime rates have been falling nationwide, among black men violent crime is actually on the rise, especially in cities such as Chicago, where the drug war has been waged with the greatest ferocity. What a growing number of sociologists have found ought to be common sense: by locking millions of people out of the mainstream legal economy, by making it difficult or impossible for people to find housing or feed themselves, and by destroying familial bonds by warehousing millions for minor crimes, we make crime more— not less— likely in the most vulnerable communities. The success of pilot programs like Operation Ceasefire and Oakland’s Lifeline program— which reach out to gang members and offer them jobs and opportunities rather than prison time if they cease their criminal activities— in dramatically reducing violent crime rates should not be met with shock and amazement. 29 When given a choice , most people in the ghetto, like anywhere else, would prefer to be able to work, support their families, and live without fear of harm or violence, if given the chance.

    “But even assuming that our nation achieved as much as a 25 percent reduction in crime overall through mass incarceration, it still means that the overwhelming majority of incarceration— 75 percent— has had absolutely no impact on crime, despite costing nearly $ 200 billion annually . As a crime reduction strategy, mass incarceration is an abysmal failure. It is largely ineffective and extraordinarily expensive.

    “Saying mass incarceration is an abysmal failure makes sense, though, only if one assumes that the criminal justice system is designed to prevent and control crime. But if mass incarceration is understood as a system of social control-specifically, racial control-then the system is a fantastic success. 30 In less than two decades, the prison population quadrupled, and large majorities of poor people of color in urban areas throughout the United States were placed under the control of the criminal justice system or saddled with criminal records for life. Almost overnight, huge segments of ghetto communities were permanently relegated to a second-class status, disenfranchised, and subjected to perpetual surveillance and monitoring by law enforcement agencies. One could argue this result is a tragic, unforeseeable mistake, and that the goal was always crime control, not the creation of a racial undercaste. But judging by the political rhetoric and the legal rules employed in the War on Drugs, this result is no freak accident.

    “In order to make this point , we need to talk about race openly and honestly. We must stop debating crime policy as though it were purely about crime. People must come to understand the racial history and origins of mass incarceration-the many ways our conscious and unconscious biases have distorted our judgments over the years about what is fair, appropriate, and constructive when responding to drug use and drug crime. We must come to see, too, how our economic insecurities and racial resentments have been exploited for political gain, and how this manipulation has caused suffering for people of all colors. Finally, we must admit, out loud, that it was because of race that we didn’t care much what happened to “ those people” and imagined the worst possible things about them. The fact that our lack of care and concern may have been, at times, unintentional or unconscious does not mitigate our crime-if we refuse, when given the chance, to make amends.”

    (“27 Western, Punishment and Inequality in America, 5, 187; William Spelman, “The Limited Importance of Prison Expansion,” in The Crime Drop in America, ed. Alfred Blumstein and Joel Wallman (New York: Cambridge University Press, 2000), 97– 129; and Todd R. Clear, Imprisoning Communities: Haw Mass Incarceration Makes Disadvantaged Neighborhoods Worse (New York: Oxford University Press, 2007), 41– 48.
    28 See, e.g., Clear, Imprisoning Communities, 3.
    29 See, e.g., Chris Smith, “On the Block,” American Prospect, Jan.– Feb. 2011, 6– 8.
    30 Jeffrey Reiman makes a similar argument in The Rich Get Richer and the Poor Get Prison, 8th ed. (New York: Allyn & Bacon, 2006), although he mostly ignores the distinctive role of race in structuring the criminal justice system.”)

    • pp. 252-253:

      “Seasoned activists may respond that all of this is “just politics,” but, as we have seen in earlier chapters, they are the same politics that gave rise to the New Jim Crow. Obama has revived President Clinton’s Community Oriented Policing Services (COPS) program and increased funding for the Byrne grant program— two of the worst federal drug programs of the Clinton era. 51 These programs, despite their benign names, are responsible for the militarization of policing, SWAT teams, Pipeline drug task forces , and the laundry list of drug-war horrors described in chapter 2.

      “Remarkably, the Obama administration chose to increase funding for Byrne programs twelvefold not in response to any sudden spike in crime rates or any new studies indicating the effectiveness of these programs, but instead because handing law enforcement billions of dollars in cash is an easy, efficient jobs program in the midst of an economic crisis. 52 The dramatically increased funding for Byrne grants was included as part of the Economic

      “Reinvestment Act of 2009. While the channeling of stimulus dollars to law enforcement may help some police officers keep their jobs at a time when state and local budgets are being slashed, there is a cost. As New York Times columnist Charles Blow observed , “[ it’s] a callous political calculus…. The fact that they are ruining the lives of hundreds of thousands of black and Hispanic men and, by extension, the communities they belong to barely seems to register.” 53

      “Clinton once boasted that the COPS program, which put tens of thousands of officers on the streets, was responsible for the dramatic fifteen-year drop in violent crime that began in the 1990s. Recent studies, however, have shown that is not the case. A 2005 report by the Government Accountability Office concluded the program may have contributed to a 1 percent reduction in crime— at a cost of $ 8 billion. 54 A peer-reviewed study in the journal Criminology found that the COPS program, despite the hype, “had little or no effect on crime.” 55 And while Obama’s drug czar, former Seattle police chief Gil Kerlikowske, has said the War on Drugs should no longer be called a war, Obama’s budget for law enforcement is actually worse than the Bush administration’s in terms of the ratio of dollars devoted to prevention and drug treatment as opposed to law enforcement. 56 Obama, who is celebrated as evidence of America’s triumph over race, is proposing nothing less than revving up the drug war through the same failed policies and programs that have systematically locked young men of color into a permanent racial undercaste.”

      (51 Obama promised to increase Byrne funds when running for president. See David Hunt, “Obama Fields Questions on Jacksonville Crime,” Florida-Times Union, Sept. 22, 2008. Once elected, he made good on his promise, drastically increasing funding for the drug war. See “Federal Budget: Economic Stimulus Bill Stimulates Drug War, Too,” Drug War Chronicle, no. 573 (Feb. 20, 2009); Michelle Alexander, “Obama’s Drug War,” The Nation, Dec. 9, 2010 (noting that the 2009 economic stimulus package included a twelvefold increase in financing for Byrne programs).
      52 See Charles Blow, “Smoke and Horrors,” New York Times, Oct. 22, 2010, 2010/ 10/ 23/ opinion/ 23blow.html .
      53 Ibid.
      54 United States Government Accountability Office, Report to the Chairman, Committee on the Judiciary House of Representatives, Community Policing Grants: COPS Grants Were a Modest Contribution to Decline in Crime in 1990s, GAO-06-104, Oct. 2005, new/ items/ d06104. pdf .
      55 John L. Worrall and Tomislav V Kovandzic, “COPS Grants and Crime Revisited,” Criminology 45, no. 1 (Feb. 2007): 159– 90.
      56 Gary Fields, “White House Czar Calls for End of ‘War on Drugs,’” Wall Street Journal, May 24, 2009; see also Office of National Drug Control Policy White House Drug Control Budget, FY2010 Funding Highlights (May 2009).)

    • pp. 98-100

      In every state across our nation, African Americans— particularly in the poorest neighborhoods— are subjected to tactics and practices that would result in public outrage and scandal if committed in middle-class white neighborhoods. In the drug war , the enemy is racially defined . The law enforcement methods described in chapter 2 have been employed almost exclusively in poor communities of color, resulting in jaw-dropping numbers of African Americans and Latinos filling our nation’s prisons and jails every year. We are told by drug warriors that the enemy in this war is a thing— drugs— not a group of people, but the facts prove otherwise.

      Human Rights Watch reported in 2000 that, in seven states , African Americans constitute 80 to 90 percent of all drug offenders sent to prison. 3 In at least fifteen states, blacks are admitted to prison on drug charges at a rate from twenty to fifty-seven times greater than that of white men. 4 In fact, nationwide, the rate of incarceration for African American drug offenders dwarfs the rate of whites. When the War on Drugs gained full steam in the mid-1980s, prison admissions for African Americans skyrocketed, nearly quadrupling in three years, and then increasing steadily until it reached in 2000 a level more than twenty-six times the level in 1983. 5 The number of 2000 drug admissions for Latinos was twenty-two times the number of 1983 admissions. 6 Whites have been admitted to prison for drug offenses at increased rates as well— the number of whites admitted for drug offenses in 2000 was eight times the number admitted in 1983—but their relative numbers are small compared to blacks’ and Latinos’. 7 Although the majority of illegal drug users and dealers nationwide are white, three-fourths of all people imprisoned for drug offenses have been black or Latino . 8 In recent years, rates of black imprisonment for drug offenses have dipped somewhat—declining approximately 25 percent from their zenith in the mid-1990s— but it remains the case that African Americans are incarcerated at grossly disproportionate rates throughout the United States. 9

      There is, of course, an official explanation for all of this: crime rates. This explanation has tremendous appeal—before you know the facts— for it is consistent with, and reinforces, dominant racial narratives about crime and criminality dating back to slavery. The truth, however, is that rates and patterns of drug crime do not explain the glaring racial disparities in our criminal justice system. People of all races use and sell illegal drugs at remarkably similar rates. 10 If there are significant differences in the surveys to be found , they frequently suggest that whites, particularly white youth, are more likely to engage in illegal drug dealing than people of color. 11 One study, for example, published in 2000 by the National Institute on Drug Abuse reported that white students use cocaine at seven times the rate of black students, use crack cocaine at eight times the rate of black students, and use heroin at seven times the rate of black students. 12 That same survey revealed that nearly identical percentages of white and black high school seniors use marijuana. The National Household Survey on Drug Abuse reported in 2000 that white youth aged 12– 17 are more than a third more likely to have sold illegal drugs than African American youth. 13 Thus the very same year Human Rights Watch was reporting that African Americans were being arrested and imprisoned at unprecedented rates , government data revealed that blacks were no more likely to be guilty of drug crimes than whites and that white youth were actually the most likely of any racial or ethnic group to be guilty of illegal drug possession and sales. Any notion that drug use among blacks is more severe or dangerous is belied by the data; white youth have about three times the number of drug-related emergency room visits as their African American counterparts. 14

      The notion that whites comprise the vast majority of drug users and dealers —and may well be more likely than other racial groups to commit drug crimes —may seem implausible to some, given the media imagery we are fed on a daily basis and the racial composition of our prisons and jails. Upon reflection, however, the prevalence of white drug crime—including drug dealing— should not be surprising. After all, where do whites get their illegal drugs? Do they all drive to the ghetto to purchase them from somebody standing on a street corner? No. Studies consistently indicate that drug markets, like American society generally, reflect our nation’s racial and socioeconomic boundaries. Whites tend to sell to whites ; blacks to blacks. 15 University students tend to sell to each other. 16 Rural whites, for their part, don’t make a special trip to the ‘hood to purchase marijuana. They buy it from somebody down the road . 17 White high school students typically buy drugs from white classmates, friends, or older relatives. Even Barry McCaffrey, former director of the White House Office of National Drug Control Policy, once remarked, if your child bought drugs, “it was from a student of their own race generally.” 18 The notion that most illegal drug use and sales happens in the ghetto is pure fiction. Drug trafficking occurs there, but it occurs everywhere else in America as well. Nevertheless, black men have been admitted to state prison on drug charges at a rate that is more than thirteen times higher than white men . 19 The racial bias inherent in the drug war is a major reason that 1 in every 14 black men was behind bars in 2006, compared with 1 in 106 white men. 20 For young black men, the statistics are even worse . One in 9 black men between the ages of twenty and thirty-five was behind bars in 2006, and far more were under some form of penal control— such as probation or parole. 21 These gross racial disparities simply cannot be explained by rates of illegal drug activity among African Americans.

      3 Human Rights Watch, Punishment and Prejudice: Racial Disparities in the War on Drugs, HRW Reports, vol. 12, no. 2 (May 2000).
      4 Ibid.
      5 Jeremy Travis, But They All Come Back: Facing the Challenges of Prisoner Reentry (Washington, DC: Urban Institute Press, 2002), 28.
      6 Ibid.
      7 Ibid.
      8 Marc Mauer and Ryan S. King, Schools and Prisons: Fifty Years After Brown v. Board of Education (Washington, DC: Sentencing Project, 2004), 3.
      9 Marc Mauer, The Changing Racial Dynamics of the War on Drugs (Washington, DC: Sentencing Project, Apr. 2009).
      10 See, e.g., U.S. Department of Health and Human Services, Substance Abuse and Mental Health Services Administration, Summary of Findings from the 2000 National Household Survey on Drug Abuse, NHSDA series H-13, DHHS pub. no. SMA 01-3549 (Rockville, MD: 2001), reporting that 6.4 percent of whites, 6.4 percent of blacks, and 5.3 percent of Hispanics were current illegal drug users in 2000; Results from the 2002 National Survey on Drug Use and Health: National Findings, NSDUH series H-22, DHHS pub. no. SMA 03-3836 (2003), revealing nearly identical rates of illegal drug use among whites and blacks, only a single percentage point between them; Results from the 2007 National Survey on Drug Use and Health: National Findings, NSDUH series H-34, DHHS pub. no. SMA 08-4343 (2007) showing essentially the same findings; and Marc Mauer and Ryan S. King, A 25-Year Quagmire: The War on Drugs and Its Impact on American Society (Washington, DC: Sentencing Project, Sept. 2007), 19, citing a study suggesting that African Americans have slightly higher rates of illegal drug use than whites.
      11 See, e.g., Howard N. Snyder and Melissa Sickman, Juvenile Offenders and Victims: 2006 National Report, U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention (Washington, DC: 2006), reporting that white youth are more likely than black youth to engage in illegal drug sales; Lloyd D. Johnson, Patrick M. O‘Malley Jerald G. Bachman, and John E. Schulenberg, Monitoring the Future, National Survey Results on Drug Use, 1975— 2006, vol. 1, Secondary School Students, U.S. Department of Health and Human Services, National Institute on Drug Abuse, NIH pub. no. 07-6205 (Bethesda, MD: 2007), 32, stating “African American 12th graders have consistently shown lower usage rates than White 12th graders for most drugs, both licit and illicit”; and Lloyd D. Johnston, Patrick M. O’Malley and Jerald G. Bachman, Monitoring the Future: National Results on Adolescent Drug Use: Overview of Key Findings 2002, U.S. Department of Health and Human Services, National Institute on Drug Abuse, NIH pub. no. 03-5374 (Bethesda, MD: 2003), presenting data showing that African American adolescents have slightly lower rates of illicit drug use than their white counterparts.
      12 National Institute on Drug Abuse, Monitoring the Future, National Survey Results on Drug Use, 1975— 1999, vol. 1, Secondary School Students (Washington, DC: National Institute on Drug Abuse, 2000).
      13 U.S. Department of Health, National Household Survey on Drug Abuse, 1999 (Washington, DC: Substance Abuse and Mental Health Services Administration, Office of Applied Studies, 2000), table G, p. 71, statistics/ statistics.html .
      14 Bruce Western, Punishment and Inequality (New York: Russell Sage Foundation, 2006), 47.
      15 Researchers have found that drug users are most likely to report using as a main source for drugs someone who is of their own racial or ethnic background. See, e.g., K. Jack Riley Crack, Powder Cocaine and Heroin: Drug Purchase and Use Patterns in Six U.S. Cities (Washington, DC: National Institute of Justice, 1997), 1; see also George Rengert and James LeBeau, “The Impact of Ethnic Boundaries on the Spatial Choice of Illegal Drug Dealers,” paper presented at the annual meeting of the American Society of Criminology Atlanta, Georgia, Nov. 13, 2007 (unpublished manuscript), finding that most illegal drug dealers sell in their own neighborhood and that a variety of factors influence whether dealers are willing to travel outside their home community
      16 See Rafik Mohamed and Erik Fritsvold, “Damn, It Feels Good to Be a Gangsta: The Social Organization of the Illicit Drug Trade Servicing a Private College Campus,” Deviant Behavior 27 (2006): 97—125.
      17 See Ralph Weisheit, Domestic Marijuana: A Neglected Industry (Westport, CT: Greenwood, 1992); and Ralph Weisheit, David Falcone, and L. Edward Wells, Crime and Policing in Rural and Small-Town America (Prospect Heights, IL: Wave-land, 1996).
      18 Patricia Davis and Pierre Thomas, “In Affluent Suburbs, Young Users and Sellers Abound,” Washington Post, Dec. 14, 1997.
      19 Human Rights Watch, Punishment and Prejudice.
      20 PEW Center on the States, One in 100: Behind Bars in America 2008 (Washington, DC: Pew Charitable Trusts, 2008)— data analysis is based on statistics for midyear 2006 published by the U.S. Department of Justice in June 2007.
      21 Ibid.; Pew Center on the States, One in 31: The Long Reach of American Corrections (Washington, DC: Pew Charitable Trusts, 2009).

    • pp. 101-102

      This dramatically changed racial climate has led defenders of mass incarceration to insist that our criminal justice system, whatever its past sins, is now largely fair and nondiscriminatory. They point to violent crime rates in the African American community as a justification for the staggering number of black men who find themselves behind bars. Black men, they say, have much higher rates of violent crime; that’s why so many of them are locked up. Typically, this is where the discussion ends.

      The problem with this abbreviated analysis is that violent crime is not responsible for mass incarceration. As numerous researchers have shown, violent crime rates have fluctuated over the years and bear little relationship to incarceration rates— which have soared during the past three decades regardless of whether violent crime was going up or down. 23 Today violent crime rates are at historically low levels, yet incarceration rates continue to climb.

      Murder convictions tend to receive a tremendous amount of media attention, which feeds the public’s sense that violent crime is rampant and forever on the rise. But like violent crime in general, the murder rate cannot explain the growth of the penal apparatus. Homicide convictions account for a tiny fraction of the growth in the prison population. In the federal system, for example, homicide offenders account for 0.4 percent of the past decade’s growth in the federal prison population, while drug offenders account for nearly 61 percent of that expansion. 24 In the state system, less than 3 percent of new court commitments to state prison typically involve people convicted of homicide. 25 As much as half of state prisoners are violent offenders, but that statistic can easily be misinterpreted. Violent offenders tend to get longer prison sentences than nonviolent offenders, and therefore comprise a much larger share of the prison population than they would if they had earlier release dates. In addition, state prison data excludes federal prisoners, who are overwhelmingly incarcerated for nonviolent offenses. As of September 2009, only 7.9 percent of federal prisoners were convicted of violent crimes. 26

      The most important fact to keep in mind, however , is this: debates about prison statistics ignore the fact that most people who are under correctional control today are not in prison. As noted earlier, of the nearly 7.3 million people currently under correctional control, only 1.6 million are in prison. 27 This caste system extends far beyond prison walls and governs millions of people who are on probation and parole, primarily for nonviolent offenses. They have been swept into the system, branded criminals or felons, and ushered into a permanent second-class status— acquiring records that will follow them for life. Probationers are the clear majority of those who are under community supervision (84 percent), and only 19 percent of them were convicted of a violent offense. 28 The most common offense for which probationers are under supervision is a drug offense. 29 Even if the analysis is limited to people convicted of felonies —thus excluding extremely minor crimes and misdemeanors— nonviolent offenders still predominate. Only about a quarter of felony defendants in large urban counties were charged with a violent offense in 2006. 30 In cities such as Chicago, criminal courts are clogged with low-level drug cases. In one study, 72 percent of criminal cases in Cook County (Chicago ) had a drug charge, and 70 percent of them were charged as class 4 felony possession (the lowest-level felony charge). 31

      None of this is to suggest that we ought not be concerned about violent crime in impoverished urban communities. We should care deeply , and as discussed in the final chapter , we must come to understand the ways in which mass imprisonment increases— not decreases—the likelihood of violence in urban communities. But at the same time, we ought not be misled by those who insist that violent crime has driven the rise of this unprecedented system of racial and social control. The uncomfortable reality is that arrests and convictions for drug offenses— not violent crime— have propelled mass incarceration. In many states, including Colorado and Maryland, drug offenders now constitute the single largest category of people admitted to prison. 32 People of color are convicted of drug offenses at rates out of all proportion to their drug crimes, a fact that has greatly contributed to the emergence of a vast new racial undercaste.

      23 See, e.g., Marc Mauer, Race to Incarcerate (New York: The New Press, 1999), 28-35, 92-112
      24 ibid.
      25 Katherine Beckett and Theodore Sasson, The Politics of Injustice: Crime and Punishment in America (Thousand Oaks, CA: Sage Publications, 2004), 22.
      26 Heather West and William Sobol, “Prisoners in 2009,” Bureau of Justice Statistics, Dec. 2010.
      27 Lauren Glaze, “Correctional Populations in the United States, 2009,” Bureau of Justice Statistics, Dec. 2010.
      28 Ibid.
      29 Ibid.
      30 Thomas Cohen and Tracy Kyckelhahn, “Felony Defendants in Large Urban Counties, 2006,” Bureau of Justice Statistics Bulletin, May 2010.
      31 Report of the illinois of Disproportionate Justice Impact Study Commission, Dec. 2010, available at .
      32 Mike Drause, “The Case for Further sentencing Reform in Colorado,” Independence Institute, Jan. 2011, 3. In 1982, drug offenders made up only 6 percent of total prison admissions in Colorado; today they comprise 23 percent of total admissions. Ibid. See also Erick Lotke and Jason Ziedenberg, “Tipping Point: Maryland’s Overuse of Incarceration and the Impact on Community Safety,” Justice Policy Institute, Mar. 2005 (noting that the size of Maryland’s prison system has tripled in recent years, and that “this expansion was driven mainly by drug imprisonment and drug addiciont”).

    • pp. 84-86

      So far, we have seen that the legal rules governing the drug war ensure that extraordinary numbers of people will be swept into the criminal justice system- arrested on drug charges, often for very minor offenses. But what happens after arrest? How does the design of the system help to ensure the creation of a massive undercaste?

      Once arrested, one’s chances of ever being truly free of the system of control are slim, often to the vanishing point. Defendants are typically denied meaningful legal representation, pressured by the threat of a lengthy sentence into a plea bargain, and then placed under formal control- in prison or jail, on probation or parole. Most Americans probably have no idea how common it is for people to be convicted without ever having the benefit of legal representation, or how many people plead guilty to crimes they did not commit because of fear of mandatory sentences.

      Tens of thousands of poor people go to jail every year without ever talking to a lawyer, and those who do meet with a lawyer for a drug offense often spend only a few minutes discussing their case and options before making a decision that will profoundly affect the rest of their lives. As one public defender explained to the Los Angeles Times, “They are herded like cattle [into the courtroom lockup], up at 3 or 4 in the morning. Then they have to make decisions that affect the rest of their lives. You can imagine how stressful it is.” 63

      More than forty years ago, in Gideon v. Wainwright, the Supreme Court ruled that poor people accused of serious crimes were entitled to counsel. Yet thousands of people are processed through America’s courts annually either with no lawyer at all or with a lawyer who does not have the time, resources or, in some cases, the inclination to provide effective representation. In Gideon, the Supreme Court left it to state and local governments to decide how legal services should be funded. However, in the midst of a drug war, when politicians compete with each other to prove how “tough” they can be on crime and criminals, funding public defender offices and paying private attorneys to represent those accused of crimes has been a low priority.

      Approximately 80 percent of criminal defendants are indigent and thus unable to hire a lawyer. 64 Yet our nation’s public defender system is woefully inadequate. The most visible sign of the failed system is the astonishingly large caseloads public defenders routinely carry, making it impossible for them to provide meaningful representation to their clients. Sometimes defenders have well over one hundred clients at a time; many of these clients are facing decades behind bars or life imprisonment. Too often the quality of court-appointed counsel is poor because the miserable working conditions and low pay discourage good attorneys from participating in the system. And some states deny representation to impoverished defendants on the theory that somehow they should be able to pay for a lawyer, even though they are scarecely able to pay for food or rent. In Virginia, for example, fees paid to court-appointed attorneys for representing someone charged with a felony that carries a sentence of less than twenty years are capped at $ 428. And in Wisconsin, more than 11,000 poor people go to court without representation every year because anyone who earns more than $ 3,000 per year is considered able to afford a lawyer. 65 In Lake Charles, Louisiana, the public defender office has only two investigators for the 2,500 new felony cases and 4,000 new misdemeanor cases assigned to the office each year. 66 The NAACP Legal Defense Fund and the Southern Center for Human Rights in Atlanta sued the city of Gulfport, Mississippi, alleging that the city operated a “modern day debtor’s prison” by jailing poor people who are unable to pay their fines and denying them the right to lawyers.

      In 2004, the American Bar Association released a report on the status of indigent defense, concluding that, “All too often, defendants plead guilty, even if they are innocent, without really understanding their legal rights or what is occurring. Sometimes the proceedings reflect little or no recognition that the accused is mentally ill or does not adequately understand English. The fundamental right to a lawyer that Americans assume applies to everyone accused of criminal conduct effectively does not exist in practice for countless people across the United States.” 67

      Even when people are charged with extremely serious crimes, such as murder, they may find themselves languishing in jail for years without meeting with an attorney, much less getting a trial. One extreme example is the experience of James Thomas, an impoverished day laborer in Baton Rouge, Louisiana, who was charged with murder in 1996, and waited eight and a half years for his case to go to trial. It never did. His mother finally succeeded in getting his case dismissed, after scraping together $ 500 to hire an attorney, who demonstrated to the court that, in the time Thomas spent waiting for his case to go to trial, his alibi witness had died of kidney disease. Another Louisiana man, Johnny Lee Ball, was convicted of second-degree murder and sentenced to life in prison without the possibility of parole after meeting with a public defender for just eleven minutes before trial. If indicted murderers have a hard time getting meaningful representation, what are the odds that small-time drug dealers find themselves represented by a zealous advocate? As David Carroll, the research director for the National Legal Aid & Defender Association explained to USA Today, “There’s a real disconnect in this country between what people perceive is the state of indigent defense and what it is. I attribute that to shows like Law & Order, where the defendant says, `I want a lawyer,’ and all of a sudden Legal Aid appears in the cell. That’s what people think.” 68

      Children caught up in this system are the most vulnerable and yet are the least likely to be represented by counsel. In 1967, the U.S. Supreme Court ruled in In re Gault that children under the age of eighteen have the right to legal assistance with any criminal charges filed against them. In practice, however, children routinely “waive” their right to counsel in juvenile proceedings. In some states, such as Ohio, as many as 90 percent of children charged with criminal wrongdoing are not represented by a lawyer. As one public defender explained, “The kids come in with their parents, who want to get this dealt with as quickly as possible, and they say, `You did it, admit it.’ If people were informed about what could be done, they might actually ask for help.” 69

      63 John Balzar, “The System: Deals, Deadlines, Few Trials,” Los Angeles Times, Sept. 4, 2006.
      64 Marc Mauer and Ryan S. King, Schools and Prisons: Fifty Years After Brown v. Board of Education (Washington, DC: Sentencing Project, 2004), 4.
      65 Laura Parker, “8 Years in a Louisiana Jail but He Never Went to Trial,” USA Today, Aug. 29, 2005.
      66 Mauer and King, Schools and Prisons, 4.
      67 American Bar Association, Standing Committee on Legal Aid and Indigent Defendants, Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice (Washington, DC: American Bar Association, Dec. 2004), Executive Summary IV; adopted by American Bar Association House of Delegates, Aug. 9, 2005, leadership/ 2005/ annual/ dailyjournal/ 107. doc.
      68 Parker, “8 Years in a Louisiana Jail.”
      69 Kim Brooks and Darlene Kamine, eds., Justice Cut Short: An Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings In Ohio (Columbus: Ohio State Bar Foundation, 2003), 28.


    According to “get-tough on crime” politicians and policy-makers, “prison works”: it reduces crime rates. But that intuitively seductive argument, which cites the declining federal crime index of the 1990s as its primary evidence, cannot explain why crime rates increased in the 1970s and the late 1980s while prison rates grew at the same rate as they did in the 1990s. It ignores the fact that drug convictions do not figure into the federal index‹a crucial omission since incarceration rates are strongly fed by the “war on drugs.” It ignores the strong possibility that other factors, including the record-length economic expansion of the 1990s, provide better explanations than mass incarceration for declining official crime. It is embarrassed, finally, by comparative international data. U.S. citizens are just as likely to be victimized by crime as citizens in European countries who jail and imprison relatively tiny percentages of their population because they view prisons as fundamentally criminogenic‹as breeders of crime. Americans are far more likely than their low-incarceration European counterparts to be victimized by rape, murder, robbery, and violent assault in general.

    Clear has discovered three “crime-enhancing effects of prison” on impoverished urban communities. First, the rampant arrest and incarceration of inner-city youth for drug crimes creates an ironic “replacement effect” that “cancels out the crime-prevention benefits of incapacitation.” In the face of a stable demand for illegal substances, mass arrest and incarceration “creates job openings in the drug delivery enterprise and allows for an ever-broadening recruitment of citizens into the illegal trade.” Modern criminal justice practice is often blind to this phenomenon, Clear argued, because its “atomistic” understanding of criminal behavior as purely individual behavior obscures the group basis of much illegal inner-city activity. Second, mass incarceration deepens the presence of negative “social factors” that contribute to “criminality” in minority communities: broken families, inequality, poverty, alienation, and social disorder. Third, mass incarceration ironically undercuts the deterrent power of prison.

    “As more people acquire a grounded knowledge of prison life,” Clear learned, “the power of prison to deter crime through fear is diminished.” Thus, Newsweek reporter Ellis Cose noted last year that prison has “become so routine” in some neighborhoods “that going in can be an opportunity for reconnecting with friends.” A drug-dealer from Maryland told Cose of his “panic on conviction. Having heard horror stories about young men abused inside, he fretted about how he would fend off attacks. Once behind bars, he discovered that the population consisted largely of buddies from the hood. Instead of something to fear, prison ‘was like a big camp.'”

    Clear and fellow criminologist Dina Rose think that certain U.S. communities have reached what they see as a curious criminal justice “tipping point”- the locus at which repressive state policies actually drive up crime rates. When 1 percent or more of a neighborhood’s residents are imprisoned per year, they theorize, mass incarceration incapacitates neighborhood social networks to the point where they can no longer keep crime under control. But, of course, the communities “tipped” by criminal justice policies are located in a relatively small number of minority-based inner-city zip codes. The record 600,000 offenders released from prison last year “return,” notes the New York Times, “largely to poor neighborhoods of large cities.”

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