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Justice for Blacks?

Race, Crime, and the Law

by Randall Kennedy
Pantheon, 538 pp., $30.00

Search and Destroy: African-American Males in the Criminal Justice System

by Jerome G. Miller
Cambridge University Press, 304 pp., $16.95 (paper)

Malign Neglect—Race, Crime, and Punishment in America

by Michael Tonry
Oxford University Press, 233 pp., $11.95 (paper)

1.

African-Americans make up an eighth of the population, but they occupy about half the places in American prisons. This figure, as Michael Tonry, the author of Malign Neglect and a professor of law and public policy at the University of Minnesota, writes, “greatly underestimates” the vast disproportion of blacks, particularly young black men, caught up in the criminal justice system.1

In 1990, of every 100,000 whites in the US, 289 were in prison; of every 100,000 blacks, there were 1,860 in prison. Jerome Miller, a social worker and former head of the juvenile justice detention systems in Massachusetts and Illinois and author of Search and Destroy, reports that in Los Angeles in 1991, nearly one third of black men in their twenties had spent some time in jail. In Baltimore in 1992, 56 percent of black men aged eighteen to thirty-five were either imprisoned, on parole, out on bail, or had warrants out for their arrest. Young black men are also disproportionately victims of violence. Elliott Currie, a criminologist who teaches at Berkeley, cites a study by Donald Schwartz of the University of Pennsylvania medical school showing that over a four-year period, 40 percent of young black men from inner-city neighborhoods in Philadelphia “suffered a violent assault serious enough to send them to a hospital emergency room.”2

While the authors of the three books under review take very different political positions, none questions the fact that, in Randall Kennedy’s words, “relative to their proportion of the population, blacks are more likely than whites to commit street crimes.” Nor do these writers suggest a solution to the problem of black crime. Instead all three are concerned with the poisonous secondary effects that black crime has on race relations, politics, and jurisprudence. Blacks complain that whites treat them as potential criminals. Whites complain that blacks put loyalty to race over loyalty to the criminal justice system. Such incidents as the Tawana Brawley hoax and the cases of Charles Stuart and Susan Smith, who each gave false testimony accusing an imaginary black man of the murders they had themselves committed, periodically inflame one set of grievances while they are going on and another set after they have been exposed. Meanwhile, even while crime rates are falling, local and national governments are committing more and more of their financial resources to prison construction, shrinking the revenue available for other public services.

What has served to intensify the racial disparity in prisons since the early 1980s is the federal “war on drugs,” and particularly the Anti-Drug Abuse Act of 1986, passed after the death from a drug overdose of a college basketball star. The Anti-Drug Abuse Act imposed extremely harsh penalties on users and dealers of crack cocaine. Federal law now requires judges, in sentencing drug offenders, to treat one gram of crack as the equal of one hundred grams of cocaine—a distinction that Tonry insists has nothing to do with the power of the two drugs. Since more than 90 percent of crack defendants are black (and only 20 percent of those accused of possession of powder cocaine are black), the distinction has had the effect of increasing the disproportion of blacks in prison still further.

The percentage of drug offenders in the federal prison population rose from 25 in 1980 to 58 in 1992, and during that time the proportion of prisoners who were black steadily increased as well. Tonry estimates that the number of blacks in prison has tripled since 1980.3 Because the number of violent crimes by blacks has not grown during that time, it follows that the result of the war on drugs, if not the intention, has been to increase the black prison population rather than to reduce black crime.

Search and Destroy was written in reaction to the crime policies of the last decade. Jerome Miller believes that since the Eighties criminal justice authorities have been carrying out a politically motivated campaign to imprison masses of young black men. “The centerpiece of law enforcement was its preoccupation with highly visible groups who could be relatively easily and publicly arrested,” he writes. “The crown jewel was the handcuffed black youth or young men paraded before TV cameras so all might behold this symbol of lawlessness and disorder.” Miller regards the present system of criminal justice as a “rite,” which “may exist not so much to lower crime as to reassure the larger society that its metaphors regarding offenders in general, and the black male offender in particular, are sustained. Cutting actual crime seems beside the point.” His book contains several comparisons between the contemporary United States and Hitler’s Germany and the Soviet Union under Stalin.

Apart from his overheated rhetoric, Miller is in what was once the mainstream in thinking about crime. The position he expresses in his book shows the influence of the classic work on crime of the University of Chicago sociologists of the 1920s and 1930s, such as Robert E. Park, Ernest Burgess, and Clifford Shaw, who belonged to a tradition of liberal, meliorist thinking about crime that reaches back into the late nineteenth century, when Jacob Riis and Jane Addams ventured into the slums with a view to improving the lives of poor people, and turning young men away from crime to legitimate pursuits. The Chicago sociologists merged that tradition with academic research. Shaw, for example, did his fieldwork in the streets, finding individual criminals to study. He interviewed them extensively, producing case histories, with titles like The Jack-Roller: A Delinquent Boy’s Own Story, which ended by triumphantly reporting that the lad had been set on a straight course through intervention by social workers and placement in a foster home. In his most important work, Juvenile Delinquency and Urban Areas, Shaw pointed out that certain neighborhoods in Chicago, those with the highest proportions of poor people and immigrants, had the highest crime rates. He believed that adverse social conditions, not individual pathology, were the main cause of crime.

Interviewing his subjects face to face created an empathy with criminals, especially juveniles, who, Shaw thought, could be put right by education, economic opportunity, and “participation in the life of conventional social groups.” There is a direct line of descent from the Chicago School sociologists to many of the academic criminologists of the 1960s, such as Lloyd Ohlin, who was himself trained at the University of Chicago and later became a professor of social work at Columbia, and Richard Cloward, a colleague of Ohlin’s at Columbia, both of whom were important advisors for Lyndon Johnson’s War on Poverty. Even more than Johnson, Robert Kennedy, who in the early 1960s headed the President’s Council on Juvenile Delinquency, believed that young criminals from poor neighborhoods could be reformed through government programs to improve social conditions.

Today the liberal view that crime can best be reduced by bettering the lot of the poor, and that many criminals can be reformed by supportive parole officers and social workers, has virtually no public acceptance. The most influential experts on crime today are conservatives like James Q. Wilson (not a criminologist but a political scientist, as Miller reminds us) and John DiIulio, a professor of public policy at Princeton, both of whom are more concerned with crime victims than with criminals, and believe that punishment, not rehabilitation, is the way to reduce crime.

In 1985 Wilson and Richard Herrnstein published a book called Crime and Human Nature, which revived theories of an innate predisposition to criminality that the Chicago sociologists had thought they had laid to rest three quarters of a century ago. Everybody knows that criminals are disproportionately male and young; yet Wilson and Herrnstein also explored whether body type and race (in the genetic sense) might be predictors of crime. It is difficult to estimate the effect of the idea that what Wilson and Herrnstein call “constitutional factors” in people cause crime, because no politician or policymaker would dare to voice it directly. Still, Wilson, who wrote in Crime and Human Nature that “the evidence leaves no doubt that constitutional traits correlate with criminal behavior,” is frequently consulted, and cited, by Republican politicians, including Mayor Rudolph Giuliani of New York City. Virtually no Democratic politician would publicly express the view that greater social opportunity and rehabilitation reduces crime.

Miller is troubled that academics writing on crime today rarely meet their subjects at close hand and tell their stories (although in his own book he does not do so either). Instead, he says, books by academic criminologists usually consist of computerized analyses of crime statistics that attempt to determine which of a series of variables correlates most closely with changes in the crime rate. By becoming more and more dependent on statistics, criminologists have deprived black criminals today of the empathetic treatment given the Chicago School’s criminals, who were mostly white immigrants.

It also bothers Miller that in the current atmosphere conservative politicians and policymakers produce tendentious statistics that the press accepts unquestioningly. For example, in 1992, William Barr, the US attorney general, claimed that the imprisonment of each convicted criminal saves society $400,000 a year, a figure computed on the basis that out of jail the average prisoner would commit more than 200 crimes a year. And in 1994, John DiIulio wrote in The Wall Street Journal that “more than 95 percent of state prisoners are violent criminals, repeat criminals (with two or more felony convictions), or violent repeat criminals.” DiIulio got this figure by including as “repeat offenders” people who were in jail for parole violations or minor drug crimes. Tonry, citing a convincing Justice Department study from 1991, says that about two fifths of state prisoners are in jail for the first time; while Elliott Currie points out that a fifth of state prisoners have no record of violent crime but are imprisoned for minor drug and other offenses. One can grasp the heart of the crime debate by turning these statistics around: while DiIulio seems prone to exaggeration and unreliable to professional criminologists, the criminologists find it hard to acknowledge that most state prisoners are, in fact, violent criminals.

For the most part Search and Destroy is a long wail of outrage. Yet it makes one useful point: if we continue to put a large portion of the adolescent black male population in jail for nonviolent offenses, including drug possession, the long-term effect may be to increase crime, not decrease it. Prison has become the main socializing institution for young black men. “The central abiding reality in our inner cities is that most of the young men who live in them can anticipate being ushered through a series of hothouses for sociopathy—prisons, jails, and reform schools,” Miller writes. “There they will learn to nurture the very deficiencies in human interchange that will subsequently be labeled as pathological.” The idea that early contact with the criminal justice system is itself a generator of crime has some statistical support: Miller cites a study by two sociologists, John H. Laub and Robert J. Sampson, showing that juvenile offenders are most likely to turn away from crime as adults if they find stable jobs and marry, both of which become less likely the longer they stay in jail.

  1. 1

    Michael Tonry, “Racial Disproportion in US Prisons,” British Journal of Criminology, Volume 34, Special Issue 1994.

  2. 2

    Elliott Currie, Crime and Punishment in America (Metropolitan Books, 1998).

  3. 3

    Elliott Currie maintains that the number of blacks in state prisons for drug offenses rose by 700 percent between 1985 and 1995.

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