Excuses, Excuses: How the Right Rationalizes Racial Inequity, Part Two (Criminal Justice)

Published in The Black Commentator, May 19, 2005, Issue 139, www.blackcommentator.org

“It’s the crime stupid!” Thus read the first line of an e-mail I received a few weeks ago.

This particular love note came from someone who had run across an old article of mine in which I had discussed racism in the criminal justice system: specifically the racially disparate rates of incarceration for persons of color, over and above the rates for whites.

In this one sentence, all the weight of white America’s racial anxiety and hostility was poured out into my web browser, the implication being that there was no racism in the justice system, but rather, that the position of African Americans within that system was merely a function of disproportionate criminality. If blacks would just straighten up, everything would be fine. As with white America’s denial of racism in labor markets, the refusal to believe that bias plays a role in policing, prosecution or incarceration is commonplace. Although white Americans are more willing to accept the possibility of discrimination in the justice system than in other areas — such as education, housing or employment — still, two-thirds according to one poll insist that blacks and Latinos are treated equally in terms of law enforcement in their communities. Would that the evidence supported such optimism. Fact is, from the earliest stages of policing to the point of being jailed, evidence of racial bias is clear and overwhelming.

According to a Justice Department report from 2001, police are more than twice as likely to search vehicles driven by blacks after pulling them over, even though whites, when searched, are more than twice as likely to be in possession of illegal items, such as narcotics (1). Latino drivers were between 2 and 2.26 times more likely to be personally searched or to have their cars searched by police (2), even though they are less likely than whites to use drugs and thus possess them at any given moment (3)

In New York City, stop-and-frisk searches by police highlight the unfair treatment to which people of color are subjected. Even after controlling for differential crime rates and the population demographics of a given neighborhood, black and Latino residents of New York are far more likely to be stopped by police than whites (4). In mostly white parts of town, blacks are 2.25 times more likely to be stopped and searched on suspicion of weapons possession and three times more likely on suspicion of having committed a violent crime, relative to their arrest rates for those crimes. In other words, the fact that blacks have higher rates of offending in those categories does not explain the higher stoppage rates. The above-mentioned disproportions reflect the level of unequal treatment that remains after factoring in all the non-racial reasons that could explain searches. In heavily black parts of town, one would obviously expect most persons stopped by police to be black, as this would merely reflect local population demographics and probable crime rates in the area. But once again, even after controlling for those factors, blacks in mostly African American neighborhoods are still more than twice as likely as whites to be stopped by police on suspicion of weapons possession or the commission of a violent crime.

Perhaps most telling, police appear more likely to stop innocent blacks than whites. For every 4.6 whites stopped in 1997-1998, for example, police were able to make one arrest, meaning that roughly 22 percent of the time their suspicions were justified. Even this is not a very impressive percentage but it is far better than that for blacks. Police had to stop 7.3 blacks before making a single arrest, meaning that only 14 percent of the time was their suspicion justified. In all, whites stopped were more likely to actually be guilty of having committed a crime and yet the NYPD continued to disproportionately stop people of color.

Bias hardly ends at the point of police arrest or harassment, however. Black incarceration has exploded several times over, even while black crime has plummeted in the past twenty years (5). (And no, this is not because the incarceration itself has caused the black crime rate to plummet: crime has dropped just as much if not more in states with less punitive anti-crime tendencies) (6). Interestingly, while black and Latino crime, as a share of all crime is hardly different than in 1964, the share of persons incarcerated who are persons of color has risen from one-third to two-thirds in that period, while the share who are white has been cut in half (7).

Comparing crime data from the FBI (which includes only those crimes reported to law enforcement), with Justice Department data on criminal victimization (culled from victim reports, and which include crimes not reported to police), makes clear that black crime rates cannot explain the overrepresentation of African Americans in the justice system. Although black crime rates are higher than those for whites (for reasons that studies indicate are due to socioeconomic conditions disproportionately faced by blacks, like crowded housing, extreme poverty, and community disintegration) (8), there is still evidence that blacks are arrested more often, and whites less often, than would be expected based on rates of offending.

In 2001, for example, for all violent crimes, including simple assault, blacks committed twenty-eight percent of the total, according to the Justice Department (9). Yet, African Americans comprised thirty-four percent of all persons arrested for those crimes that year, meaning that blacks were arrested at a rate that was twenty percent above their rate of offending (10). Indeed, if blacks and whites had been arrested for these violent crimes at a rate that was equal to their rate of committing them, tens of thousands fewer blacks, and tens of thousands more whites would have been arrested for violent crime in 2001. Comparing racial arrest data with racial offending data for 2001 reveals that for every 100 violent crimes committed by blacks, roughly thirty were arrested, while for every 100 violent crimes committed by whites, about 26 were arrested, meaning that white offenders were about fifteen percent more likely to get away with their offenses than black offenders (11).

In addition to black arrest rates being higher than black offending rates would justify, there is also racial disparity in terms of who gets imprisoned and who doesn’t. In New York State, according to one recent study, if blacks arrested were treated the same as whites for the same crimes, with the same priors, in the same jurisdictions, one-third of all blacks in the state sent to jail or prison annually would have been spared such a sentence. This amounts to nearly 4500 blacks sent to jail or prison each year in New York who would not have been incarcerated had they merely been white (12). In Pennsylvania, even when prior records and severity of a given crime are the same, white male offenders between the ages of 18-29 are thirty-eight percent less likely to be imprisoned than similar black males (13).

Not only are blacks more likely to be arrested and imprisoned than their crime rates would justify, but whites are much less likely to wind up in prison despite their share of serious crime. More than half of all violent crimes are committed by non-Hispanic whites, but only a quarter of today’s prison population is white, according to the Justice Department. Blacks, on the other hand, commit a little more than one-fourth of all violent crime (according to victim recollections), but comprise nearly half the jail and prison population (14).

Racial bias seems especially evident in the case of juvenile offenders. One study in Florida, for example, found that even when prior records and severity of offense were taken into consideration, equally criminal black and Latino youth were twice as likely to be confined in a juvenile facility or transferred to adult court for more serious disposition (15). Nationally, black youth are forty-eight times more likely than whites to be incarcerated for a first-time drug offense, even when all factors surrounding the crime are the same (16).

Bias is especially evident with regard to non-violent, drug related offenses. African Americans, though only thirteen percent of drug users (17) and sixteen percent of dealers (18) according to federal data, comprise more than a third of all drug arrests (19), and when convicted of low-level drug dealing, are considerably more likely to be sent to prison and for longer sentences than comparable whites (20). Although blacks and Latinos are ninety percent of persons incarcerated nationally for drugs, they represent only twenty-three percent of drug users, according to the most recent federal data. Meanwhile, whites, who are between seventy percent and three-fourths of users, comprise less than ten percent of those incarcerated for drugs (21). In all, black drug users are nearly twenty times more likely than anyone else to spend time in prison for their use, and in fifteen states, the rate of black incarceration for drug offenses is anywhere from 20-57 times greater than for whites, despite equal or greater rates of drug law violations by whites (22). Amazingly, when all other factors surrounding an arrest are the same, black cocaine offenders are twice as likely to be sent to prison and will serve, on average, forty months more than white offenders (23).

The unequal prosecution and sentencing of drug offenders has been so severe that as many as a half-million blacks may have been imprisoned since the late 1980s, above and beyond the numbers one could have expected based on their rates of drug offenses. Likewise, whites receive racial privilege in this process, since our own criminality is less likely to result in punishment, or even detection. Examining the magnitude of these privileges, just with regard to the war on drugs is instructive.

In 2000, there were roughly 750,000 arrests for drug possession in the U.S (24). If arrest rates had mirrored drug usage rates for that year, roughly seventy-six percent of those busted would have been non-Hispanic whites, while 13.5 percent would have been black. This would have translated into roughly 570,000 whites and 100,000 blacks arrested for drug possession that year.

But in truth, the numbers looked nothing like this at all. In 2000, approximately 260,000 African Americans were busted for possession: 2.6 times more than the number of blacks who would have been arrested had arrest rates followed usage rates. Although data indicates that whites were a little over sixty-four percent of all persons arrested for drugs in 2000, this figure obscures the fact that those whom the government classifies as “Hispanic” are rolled in with whites for the purpose of state level drug arrest figures, meaning that the arrest rate for persons typically viewed as “white” (at least by other whites) is far lower. Once Hispanic whites are excluded from drug arrest figures for whites as a whole, even using a conservative methodology, there were no more than 325,000 possession arrests for whites in 2000: this represents a quarter-million fewer whites arrested than would have been the case had arrest rates mirrored usage rates (25). That’s a quarter-million whites able to blaze up or snort coke in their suburban homes, office suites, dorm rooms or fraternity houses, safe and secure in the knowledge that the drug warriors will not likely be dropping by for a visit.

Interestingly, even if whites do get busted, and go to jail for a drug offense, their future prospects will remain far brighter than those for the average black man in America. As one recent study in Milwaukee discovered, when equally qualified white and black men are sent out to look for jobs, and half of each group claim to have served eighteen months in prison for possession of drugs with intent to distribute (while the other half of each group claim to have no criminal record), those whites who claim to have done time are slightly more likely to get a callback for an interview than blacks who claim to be crime-free (26). And thus the cycle perpetuates itself, with worse job prospects only increasing the likelihood of criminal behavior, which will then be used to “justify” harsher criminal justice treatment.

While it’s true that the left has often made a mess of the case for racism in the justice system — for example, by fuming that blacks are only twelve percent of the population, and yet represent roughly half of all persons incarcerated (a point that means nothing, since incarceration would logically mirror crime rates, not population demographics) — the fact remains that even with regard to actual offending rates, especially for drugs, blacks are over-arrested, over-prosecuted and over-incarcerated.

In other words, it isn’t the crime stupid; it’s the color.


(1) Langan, Patrick A., Lawrence A. Greenfeld, Steven K. Smith, Matthew R. Durose and David J. Levin. 2001. Contacts Between Police and the Public: Findings From the 1999 National Survey. United States Department of Justice: Bureau of Justice Statistics, February: 2, 22

(2) Pastore, Ann L. and Kathleen Maquire, eds., 2002. Sourcebook of Criminal Justice Statistics 2001. (www.albany.edu/sourcebook)

(3) Substance Abuse and Mental Health Services Administration. 2001. Summary of Findings from the 2000 National Household Survey on Drug Abuse. Office of Applied Studies, Department of Health and Human Services, Rockville, MD. Table F.14

(4) Fagan, Jeffrey and Garth Davies. 2000. “Street Stops and Broken Windows: Terry, Race and Disorder in New York City.” Fordham Urban Law Journal, 28: 457, 479

(5) Miller, Jerome, 1996. Search and Destroy: African American Males in the Criminal Justice System, NY: Cambridge Univ. Press. 172; Fox, James Alan and Marianne W. Zawitz, 2000. Homicide Trends in the United States. United States Department of Justice, Bureau of Justice Statistics; Pastore, Ann L. and Kathleen Maquire, eds. 2000. Sourcebook of Criminal Justice Statistics, 1999. Table 3.146: 303, available online at: www.albany.edu/sourcebook

(6) Glassner, Barry, 1999. Fear: Why Americans are Afraid of the Wrong Things. NY: Basic Books, xvii; Human Rights Watch, 2000. Punishment and Prejudice: Racial Disparities in the War on Drugs. Washington, D.C. May, Volume 12, No. 2; Currie, Elliot. 1998. Crime and Punishment in America. NY: Metropolitan Books, 23.

(7) Harrison, Paige and Jennifer Karberg, 2003. Prison and Jail Inmates and Midyear 2002, U.S. Department of Justice, Bureau of Justice Statistics, Bulletin, April: 1.; World Without Work: Causes and Consequences of Black Male Joblessness. 1994. DC: Center for the Study of Social Policy and the Philadelphia Children’s Network.

(8) Krivo, L.J. and R.D. Peterson, 1996. “Extremely Disadvantaged Neighborhoods and Urban Crime,” Social Forces. 75, 2. December: 619-48.; Chasin, Barbara, 1997. Inequality and Violence in the United States: Casualties of Capitalism. NJ: Humanities Press International: 49; Mukherjee, Satyanshu. 1999. “Ethnicity and Crime,” Trends and Issues in Crime and Criminal Justice. Australian Institute of Criminology: Canberra. May: 1; Johnson, Calvin and Chanchalat Chanhatasilpa, 2003. “The Race/Ethnicity and Poverty Nexus of Violent Crime: Reconciling Differences in Chicago’s Community Area Homicide Rates,” in Violent Crime: Assessing Race and Ethnic Differences. Darnell Hawkins, ed., Cambridge University Press: 98; Pope, John, 1995, “Murder linked to dense poverty,” New Orleans Times-Picayune. June 14; Greenberg, M. and D. Schneider. 1994. “Violence in American Cities: Young Black Males is the Answer, but What was the Question?” Social Science Medicine, 39 (2); Land, K., P.L. McCall and L.E. Cohen, 1990. “Structural Covariates of Homicide Rates: Are There Any Invariances Across Time and Social Space?” American Journal of Sociology, 95: 922-63.

(9) United States Department of Justice, Bureau of Justice Statistics, 2003. Criminal Victimization in the United States, 2001 Statistical Tables. Tables 40 and 46 and calculations by the author.

(10) U.S. Department of Justice, FBI, 2002. Crime in the United States, 2001. Uniform Crime Reports, and calculations by the author. Note, this is the arrest percentage for blacks for the crimes of aggravated assault, robbery, rape/sexual assault and “other assaults” (which is the FBI’s terminology for what the Bureau of Justice Statistics refers to as simple assaults in the NCVS). While the FBI does not consider simple assaults to be among the most serious Index Crimes, the NCVS counts them as violent offenses. Thus, to determine the possible disproportionality of black arrests relative to violent offenses, they should be added to the numbers for the more “serious” offenses counted as violent by the FBI. Indeed, if one only examines arrests for robbery, rape and aggravated assault, and compares black arrest rates for those crimes in the aggregate, to the rates of black offenses for those crimes in the aggregate, one discovers no racial disparity: roughly 38 percent of these combined offenses are committed by blacks and roughly 38 percent of arrests for these combined offenses are of blacks. This, despite the individual disparities that emerge for rape and aggravated assault in isolation. But the disparity for simple assault is quite dramatic, making the overall disparity emerge once these crimes are considered along with the others. For example, in 2001, blacks were 32.2 percent of all persons arrested for simple assault, but only 23 percent of persons who committed such an assault: an arrest rate that is 40 percent above offending rates

(11) United States Department of Justice, Bureau of Justice Statistics, 2003. Criminal Victimization in the United States, 2001 Statistical Tables. Tables 40 and 46 and calculations by the author. U.S. Department of Justice, FBI, 2002. Crime in the United States, 2001. Uniform Crime Reports and calculations by the author. In 2001, whites committed (according to the NCVS) 3,319,461 crimes for which race was known or knowable from the data, while they were arrested 847,593 times: a rate relative to offending of 25.5 percent. Blacks, in 2001, committed 1,517,346 crimes for which race was known or knowable, and were arrested 447,146 times, for a rate relative to offending of 29.5 percent. Note: the disparities here may be even larger than indicated, since this “white” total includes crimes committed by Hispanics which get included in the white totals by the FBI and NCVS.

(12) Steffensmier, Darrell, Jeffrey Ulmer and John Kramer, 1998. “The Interaction of Race, Gender, and Age in Criminal Sentencing of Habitual Offenders,” Criminology. 36

(13) Ibid.

(14) Department of Justice, 2002, Criminal Victimization in the United States, Statistical Tables, 2000Rodriguez, Cindy. 2001. “Latino prison count called inaccurate,” Boston Globe. June 7: A3; Harrison, Paige and Jennifer Karberg, 2003. Prison and Jail Inmates and Midyear 2002, U.S. Department of Justice, Bureau of Justice Statistics, Bulletin, April: 1.

(15) Wordes, Madeline, Timothy S. Bynum and Charles J. Corley, 1994. “Locking up Youth: The Impact of Race on Detention Decisions,” Journal of Research in Crime and Delinquency. 31, May: 149-65

(16) “Young White Offenders get lighter treatment,” 2000. The Tennesseean. April 26: 8A.

(17) Substance Abuse and Mental Health Services Administration (SAMHSA), 2003, Results from the 2002 National Survey on Drug Use and Health, also, 2002, 2001, 2000, 1999. Summary of Findings from the National Household Survey on Drug Abuse. Office of Applied Studies, Department of Health and Human Services, Rockville, MD.

(18) Covington, Jeanette. 2001. “Round Up the Usual Suspects: Racial Profiling and the War on Drugs,” in Petit Apartheid in the U.S. Criminal Justice System: The Dark Figure of Racism, Dragan Milovanovic and Katheryn K. Russell, eds., Carolina Academic Press: 33

(19) United States Department of Justice, Federal Bureau of Investigation, 2002. Crime in the United States, 2001. Uniform Crime Reports.

(20) Richey Mann, Coramae, 1993. Unequal Justice: A Question of Color. Indiana University Press, 224.

(21) Sidanius, Jim, Shana Levin and Felicia Pratto, 1998. “Hierarchial Group Relations, Institutional Terror and the Dynamics of the Criminal Justice System,” in Confronting Racism: The Problem and the Response. Jennifer Eberhardt and Susan T. Fiske, eds. London: Sage Publications: 142; SAMHSA, 2003: Table H.1., and calculations by the author. According to the SAMHSA report, there are 19.5 million current users of illegal narcotics. According to the data in the report, there are 165.4 million whites age 12 and over in the U.S., and 8.5 percent of these are current users, which translates to 14 million white users. 14 million as a share of 19.5 million is 72 percent. According to the same report, there are 26.8 million blacks 12 and over in the U.S., of whom 9.7 percent are current drug users. This translates into 2.6 million current black drug users, which, as a share of 19.5 million is 13 percent. According to the report, there are 29 million Hispanics, of whom 7.2 percent, or 2 million, are current drug users. 2 million as a share of 19.5 million is 10 percent. Combined then, the black and Latino users come to 23 percent of all drug users

(22) Human Rights Watch, 2000. Punishment and Prejudice: Racial Disparities in the War on Drugs. Washington, D.C. May, Volume 12, No. 2

(23) Brown, Michael K, Martin Carnoy, Elliott Currie, Troy Duster, David B. Oppenheimer, Marjorie M. Schultz and David Wellman, 2003. Whitewashing Race: The Myth of a Color-Blind Society. University of California, 144.

(24) U.S. Department of Justice, FBI, 2001. Crime in the United States, 2000. Uniform Crime Reports.

(25) Ibid and calculations by the author. For the sake of this computation, I assumed that Hispanics were likely to be arrested at a rate that is double their share of the population, for drug possession offenses. This is a conservative estimate, since Hispanics are arrested for dealing at a rate that is roughly three times their share of the population, and since law enforcement efforts are so concentrated in communities of color generally. Once we extract roughly 22 percent of the “white” users from the white category (double the 11 percent share of the population 12 and over that was Latino that year), we are left with the “real” number of “real” whites arrested that year from drug possession.

(26) Pager, Devah. 2003. “The Mark of a Criminal Record,” American Journal of Sociology, 108:5, March: 937-75.

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