“No: the high percentage of blacks behind bars reflects crime rates, not bigotry.”
by Heather Mac Donald on City Journal
The race industry and its elite enablers take it as self-evident that high black incarceration rates result from discrimination. At a presidential primary debate this Martin Luther King Day, for instance, Senator Barack Obama charged that blacks and whites “are arrested at very different rates, are convicted at very different rates, [and] receive very different sentences . . . for the same crime.” Not to be outdone, Senator Hillary Clinton promptly denounced the “disgrace of a criminal-justice system that incarcerates so many more African-Americans proportionately than whites.”
If a listener didn’t know anything about crime, such charges of disparate treatment might seem plausible. After all, in 2006, blacks were 37.5 percent of all state and federal prisoners, though they’re under 13 percent of the national population. About one in 33 black men was in prison in 2006, compared with one in 205 white men and one in 79 Hispanic men. Eleven percent of all black males between the ages of 20 and 34 are in prison or jail. The dramatic rise in the prison and jail population over the last three decades—to 2.3 million people at the end of 2007 (see box)—has only amplified the racial accusations against the criminal-justice system.
The favorite culprits for high black prison rates include a biased legal system, draconian drug enforcement, and even prison itself. None of these explanations stands up to scrutiny. The black incarceration rate is overwhelmingly a function of black crime. Insisting otherwise only worsens black alienation and further defers a real solution to the black crime problem.
Racial activists usually remain assiduously silent about that problem. But in 2005, the black homicide rate was over seven times higher than that of whites and Hispanics combined, according to the federal Bureau of Justice Statistics. From 1976 to 2005, blacks committed over 52 percent of all murders in America. In 2006, the black arrest rate for most crimes was two to nearly three times blacks’ representation in the population. Blacks constituted 39.3 percent of all violent-crime arrests, including 56.3 percent of all robbery and 34.5 percent of all aggravated-assault arrests, and 29.4 percent of all property-crime arrests.
The advocates acknowledge such crime data only indirectly: by charging bias on the part of the system’s decision makers. As Obama suggested in the Martin Luther King debate, police, prosecutors, and judges treat blacks and whites differently “for the same crime.”
Let’s start with the idea that cops over-arrest blacks and ignore white criminals. In fact, the race of criminals reported by crime victims matches arrest data. As long ago as 1978, a study of robbery and aggravated assault in eight cities found parity between the race of assailants in victim identifications and in arrests—a finding replicated many times since, across a range of crimes. No one has ever come up with a plausible argument as to why crime victims would be biased in their reports.
Moving up the enforcement chain, the campaign against the criminal-justice system next claims that prosecutors overcharge and judges oversentence blacks. Obama describes this alleged postarrest treatment as “Scooter Libby justice for some and Jena justice for others.” Jena, Louisiana, of course, was where a D.A. initially lodged attempted second-degree murder charges against black students who, in December 2006, slammed a white student’s head against a concrete beam, knocking him unconscious, and then stomped and kicked him in the head while he was down. As Charlotte Allen has brilliantly chronicled in The Weekly Standard, a local civil rights activist crafted a narrative linking the attack to an unrelated incident months earlier, in which three white students hung two nooses from a schoolyard tree—a display that may or may not have been intended as a racial provocation. This entrepreneur then embellished the tale with other alleged instances of redneck racism—above all, the initial attempted-murder charges. An enthusiastic national press responded to the bait exactly as intended, transforming the “Jena Six” into victims rather than perpetrators. In the seven months of ensuing headlines and protests, Jena became a symbol of systemic racial unfairness in America’s court system. If blacks were disproportionately in prison, the refrain went, it was because they faced biased prosecutors—like the one in Jena—as well as biased juries and judges.
Backing up this bias claim has been the holy grail of criminology for decades—and the prize remains as elusive as ever. In 1997, criminologists Robert Sampson and Janet Lauritsen reviewed the massive literature on charging and sentencing. They concluded that “large racial differences in criminal offending,” not racism, explained why more blacks were in prison proportionately than whites and for longer terms. A 1987 analysis of Georgia felony convictions, for example, found that blacks frequently received disproportionately lenient punishment. A 1990 study of 11,000 California cases found that slight racial disparities in sentence length resulted from blacks’ prior records and other legally relevant variables. A 1994 Justice Department survey of felony cases from the country’s 75 largest urban areas discovered that blacks actually had a lower chance of prosecution following a felony than whites did and that they were less likely to be found guilty at trial. Following conviction, blacks were more likely to receive prison sentences, however—an outcome that reflected the gravity of their offenses as well as their criminal records.
Another criminologist—easily as liberal as Sampson—reached the same conclusion in 1995: “Racial differences in patterns of offending, not racial bias by police and other officials, are the principal reason that such greater proportions of blacks than whites are arrested, prosecuted, convicted and imprisoned,” Michael Tonry wrote in Malign Neglect. (Tonry did go on to impute malign racial motives to drug enforcement, however.) The media’s favorite criminologist, Alfred Blumstein, found in 1993 that blacks were significantly underrepresented in prison for homicide compared with their presence in arrest.
This consensus hasn’t made the slightest dent in the ongoing search for systemic racism. An entire industry in the law schools now dedicates itself to flushing out prosecutorial and judicial bias, using ever more complicated statistical artillery. The net result? A few new studies show tiny, unexplained racial disparities in sentencing, while other analyses continue to find none. Any differences that do show up are trivially small compared with the exponentially greater rates of criminal offending among blacks. No criminologist would claim, moreover, to have controlled for every legal factor that affects criminal-justice outcomes, says Patrick Langan, former senior statistician for the Bureau of Justice Statistics. Prosecutors and judges observe the heinousness of a defendant’s conduct, for example, but a number-crunching researcher has no easy way to discover and quantify that variable.
Some criminologists replace statistics with High Theory in their search for racism. The criminal-justice system does treat individual suspects and criminals equally, they concede. But the problem is how society defines crime and criminals. Crime is a social construction designed to marginalize minorities, these theorists argue. A liberal use of scare quotes is virtually mandatory in such discussions, to signal one’s distance from primitive notions like “law-abiding” and “dangerous.” Arguably, vice crimes are partly definitional (though even there, the law enforcement system focuses on them to the extent that they harm communities). But the social constructivists are talking about all crime, and it’s hard to see how one could “socially reconstruct” assault or robbery so as to convince victims that they haven’t been injured.
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