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Commentary on Randall Kennedy’s Overview of the Justice System

Darnell F.Hawkins

Much evidence suggests that Blacks have made substantial social, political, and economic progress since 1950, despite the persistence of significant barriers to their advancement (Jaynes and Williams, 1989; Farley and Allen, 1989; Collins, 1997; Oliver and Shapiro, 1995). For the most part, however, official crime statistics and data reveal much less change in the level of racial disproportionality in the administration of justice in the United States. Indeed, some have argued that during the 1990s the nation witnessed a pronounced widening of the racial divide in terms of rates of crime and punishment and in public perceptions associated with these disparities (Mann, 1993; Tonry, 1995; Miller, 1996; Walker et al., 1996; Mann and Zatz, 1998; Russell, 1998).

This paradox—the overall social and economic progress of Blacks in contrast to the lack of improvement, and possibly a worsening of their plight, within the context of the American justice system—forms the basis for Randall Kennedy’s thoughtful and critical assessment of American criminal law and justice during the 1990s (Kennedy, 1998). Kennedy notes that administration of the criminal law in the United States has changed substantially. Gains have been made both in terms of protection accorded to Blacks against criminality and the treatment accorded to them as suspects, defendants, and convicts (Kennedy, 1998; Kennedy, 1997).

This critique is based on Randall Kennedy’s paper, “Racial Trends in the Administration of Criminal Justice,” prepared for the Research Conference on Racial Trends in the United States. National Research Council, Washington, D.C., October 15–16, 1998.



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America Becoming: Racial Trends and Their Consequences - Volume II 3 Commentary on Randall Kennedy’s Overview of the Justice System Darnell F.Hawkins Much evidence suggests that Blacks have made substantial social, political, and economic progress since 1950, despite the persistence of significant barriers to their advancement (Jaynes and Williams, 1989; Farley and Allen, 1989; Collins, 1997; Oliver and Shapiro, 1995). For the most part, however, official crime statistics and data reveal much less change in the level of racial disproportionality in the administration of justice in the United States. Indeed, some have argued that during the 1990s the nation witnessed a pronounced widening of the racial divide in terms of rates of crime and punishment and in public perceptions associated with these disparities (Mann, 1993; Tonry, 1995; Miller, 1996; Walker et al., 1996; Mann and Zatz, 1998; Russell, 1998). This paradox—the overall social and economic progress of Blacks in contrast to the lack of improvement, and possibly a worsening of their plight, within the context of the American justice system—forms the basis for Randall Kennedy’s thoughtful and critical assessment of American criminal law and justice during the 1990s (Kennedy, 1998). Kennedy notes that administration of the criminal law in the United States has changed substantially. Gains have been made both in terms of protection accorded to Blacks against criminality and the treatment accorded to them as suspects, defendants, and convicts (Kennedy, 1998; Kennedy, 1997). This critique is based on Randall Kennedy’s paper, “Racial Trends in the Administration of Criminal Justice,” prepared for the Research Conference on Racial Trends in the United States. National Research Council, Washington, D.C., October 15–16, 1998.

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America Becoming: Racial Trends and Their Consequences - Volume II It is against this backdrop of significant change in the “letter” and “spirit” of the law that Kennedy presents evidence to support his claim that much remains to be done to make the administration of the criminal law racially just, both in theory and in practice. He cites a 1995 Gallup Poll which reported that one-half of Blacks questioned believe the American criminal justice system is biased against them, and two-thirds believed the police to be anti-Black (Kennedy, 1998:1). For Kennedy, these public perceptions reveal one of two significant dimensions of the racial divide in American justice; the other significant dimension is the racial demographics of both crime and criminal law enforcement in the United States. He notes the wide racial gap in rates of imprisonment for American males and the extreme disparity in rates of homicide and other violent crime victimization for Blacks compared to Whites. Kennedy uses these statistics to disclose the essence of the dilemma faced by Blacks vis-à-vis the justice system—that not only are Blacks more likely than Whites to be arrested and punished for crime, they are also more likely to be crime victims. Thus, in comparison to other racial and ethnic groups, Blacks are in greater need of the protection afforded by the justice system and would, therefore, stand to gain most from a justice system that provides effective crime deterrence and expeditious punishment. According to Kennedy, the current reality is that the ability of the American justice system to provide the protection needed by Blacks is severely compromised by the persistence of racial bias and discrimination on the part of the protectors. Kennedy discusses three major areas of justice administration: (1) tactics used by the police for the surveillance of persons suspected of committing crime, (2) use of peremptory challenges in jury selection, and (3) sentencing and punishment for crime, particularly the imposition of the death penalty. This essay examines the social science and jurisprudential evidence of racial bias in each of these areas. RACE AND AMERICAN CRIMINAL JUSTICE IN THE 1990s: A CASE OF HEIGHTENED EXPECTATIONS? After 1950, Americans of all races came increasingly to believe that the nation had finally come to grips with the legal and social problems stemming from its racist past. Many social analysts and activists believed that the civil rights and due process “revolutions” were capable of eradicating not only the last vestiges of de jure racism, but also of promoting truly equal treatment under the law. It was hoped that civil rights and legal reforms would help promote economic and social equality. In the criminal justice arena, progressive Whites and Blacks concerned with the reduction of racial disparities embraced reforms aimed at (1) ensuring the

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America Becoming: Racial Trends and Their Consequences - Volume II application of due process and equal protection standards in all legal proceedings, (2) providing judicial scrutiny of the conduct of the police and other system personnel, and (3) minimizing discretion through the adoption of more structured forms of sentencing, variously labeled as determinate, fixed, or mandatory (Tonry, 1988, 1993). Kennedy’s essay is framed against this backdrop of expectations. He observes that, contrary to expectations, the reforms have neither significantly altered the level of racial disparity nor ended racial bias in the operation of the criminal law (Kennedy, 1997). Much of the racial bias with which his essay is concerned can be traced to relatively recent changes in the criminal law and law enforcement, many of which were put in place during the 1980s and early 1990s. The research questions that appear to guide Kennedy’s and other recent studies of race, crime, and justice in the United States are: Why have the legal reforms of the last half-century failed to reduce the level of racial disproportionality? What role does racial discrimination in the administration of justice play in sustaining observed levels of racial disparity? Apart from racial bias in the justice system, what other factors have contributed to the persistence of the racial gap and its seeming widening in recent years? What are the social, political, economic, and legal consequences for American society of the failure to reduce discrimination and disparity in crime and justice? What additional legal reforms or areas of social change are needed to successfully reduce the level of racial inequality in crime and justice? Public Opinion and Social Change Public opinion and attitudes play a central role in Kennedy’s analysis. He suggests that contemporary law enforcement and criminal justice policies and practices aimed at the Black underclass have not only served to exacerbate the economic and social marginalization of that group, they have also increasingly impacted the lives of those Blacks of higher occupational and socioeconomic standing. Thus, he implies, the spillover of race-based criminal justice practices and policies across social class lines within the Black community accounts for the widespread belief among Blacks of all socioeconomic levels that the American criminal justice system is racially biased. To the extent that affluent Blacks can exert more influence on policy makers than can poor Blacks, concerted action taken by affluent Blacks

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America Becoming: Racial Trends and Their Consequences - Volume II might be pivotal in achieving the goal of a nonracist justice system. On the other hand, given the focus on race relations, which is an integral part of the President’s Initiative on Race, Kennedy might have provided more discussion of racial differences in perceptions of the American criminal justice system and the effects of those perceptual differences on the likelihood of achieving social change in criminal law and its enforcement. His introductory remarks highlighted public opinion among Blacks, but did so without explicit reference to the views of Whites and members of other races. Numerous studies have shown that significant differences exist in attitudes and public opinions related to law and justice. Walker and colleagues (1996:2), reporting on data from surveys of the American public, found that there is significant racial polarization in attitudes regarding crime and punishment expressed by respondents. In addition, the lines of racial cleavage they describe largely parallel the areas of bias discussed by Kennedy. Walker et al. (1996:87) note that racial differences in perceptions were especially evident in attitudes toward the death penalty and activities of the police. Other studies of racial differences in public attitude toward a variety of race-related topics also reveal a particularly wide racial divide (Bobo, 1988; Bobo and Hutchings, 1996; Hochschild, 1995). Whether one accepts the validity of the arguments presented in Kennedy’s essay might depend largely on race-linked experiences and perceptions one brings to the reading of it. Middle-class and affluent Whites are seldom the targets, either intentionally or inadvertently, of arbitrary and capricious practices of the justice system that result from consideration of their race or skin color. To the extent that Whites, and members of other races, are out of touch with perceived or real abuses of law enforcement, they may be reluctant to endorse legal and social reforms aimed at addressing them. Obviously, this line of race-linked perceptual discord must be confronted if the goals for a deracialized criminal justice system are to be achieved. Race and Police Profiles of Crime Suspects As regards the use of race in police surveillance and scrutiny of citizens suspected of crime, Kennedy suggests that this practice represents one of the most insidious, yet legally sanctioned, forms of racism in contemporary American society because it often inadvertently results in the targeting, and harassment, of Blacks who have no history of criminal conduct. As for the psychological impact on Blacks in general, Kennedy observes that policing practices such as these serve as a reminder for many Blacks of their second-class citizenship. In addition, he observes that despite the obvious potential for fostering interracial animosity, de-

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America Becoming: Racial Trends and Their Consequences - Volume II nying equal protection under the law, and further exacerbating racial disparity in crime and punishment, there is an absence of organized opposition to the use of racial profiling. Kennedy notes the irony in continued support of the use of racial profiles in policing, despite attacks on “racial discrimination” in affirmative action programs. Clearly, racial profiling targets citizens for different treatment on the basis of race, thus constituting governmental racial discrimination. Those who would dismantle affirmative action programs have premised their stance on the fact that such programs target citizens for different treatment on the basis of race, thus constituting governmental racial discrimination. Indeed, the irony prompted Butler (1997) to call for affirmative action in the administration of criminal law. Kennedy sees little chance that such racialist law enforcement procedures will be struck down by the courts, or that legislative remedies aimed at their delegitimization will be approved at the local, state, or federal levels, inasmuch as support for the use of racial profiles in policing has come from the federal courts (United States v. Weaver, 966 F. 2d 391, CA 8 1992; cert, denied, 506 U.S. 1040, 1992) and other decision makers. I am persuaded by most of Kennedy’s constitutional and public policy arguments against the use of racial profiles. I think, however, he might have further pushed public-policy reform objectives had he tackled headon and more systematically the question that undergirds the debate surrounding the use of race-based surveillance tactics: Does the disproportionate rate of Black involvement in crime, as measured by past arrests or other data, provide some logical, commonsensical, or rational basis for police use of racial profiles, even if such profiles are legally and morally dubious on other grounds? Kennedy alludes to the possibility of a rational basis for race-based law enforcement when at one point he says, “This differential treatment on a racial basis is racial discrimination. This is not to say—at least yet—that this racial discrimination is unjustified” (1998:3). Beyond this enticing remark, however, Kennedy gives little insight into what he considers to be the conditions under which race-based police surveillance is justified. The closest Kennedy comes to addressing this question is in his discussion of United States v. Weaver (1992). Kennedy notes the opinion of a dissenting judge who questions the lack of empirical evidence that race should matter in the search for drug suspects. Kennedy (1998:5) cites the judge as saying, “If we had evidence that young Blacks in Los Angeles were more prone to drug offenses than young Whites, the fact that a young person is Black might be of some significance.” Both the judge in that case and Kennedy appear to suggest that if empirical evidence, as opposed to anecdote, conjecture, or racial stereotype, is used as the basis for implementing racial profiles, the use might be legally acceptable.

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America Becoming: Racial Trends and Their Consequences - Volume II Given such conjecture, and its seeming inconsistency with the main thrust of Kennedy’s argument against racial profiling, I would like to have seen more discussion of the problems inherent in an attempt to gather the data needed to meet such an evidentiary standard—i.e., the showing of racial difference in “proneness” to drug offending or other forms of crime. But how can either supporters or critics of racial profiling use criminal justice system data to bolster their argument and, at the same time, avoid the Catch 22-like conundrum to which use of such data would lead? On one hand, it may be argued that if racial disproportionality is the yardstick, official crime data for a variety of offenses, including drug law violation, could arguably be used to support racial profiling—Blacks have high rates of reported crime, thus justifying greater scrutiny of them. For nearly a century, there has been little debate about the fact that, in comparison to their numbers in the population, Blacks are disproportionately represented in the nation’s criminal justice system (Jaynes and Williams, 1989: Chapter 9). On the other hand, such uncritical acceptance of crime statistics as proof of racial differences in behavior ignores nearly a century of research and statistics delineating the effect of race on detection and punishment of crime in the United States. Indeed, it goes against the major arguments made by Kennedy in this essay and in his earlier work on the subject (1997). The use of racial profiles, based often on social-control objectives that have little to do with the detection or control of criminal conduct, has been commonplace throughout most of American history. So, too, has the use of profiles, based on a legitimate concern for crime control. Both these forms of bias have also contributed to the level of racial disparity seen in official crime statistics in the past, and according to Kennedy (1997), continue to do so today. Thus, any use of potentially “tainted” crime data for the purposes of justifying the current and future use of racial profiles is inherently problematic. Although Kennedy is largely concerned with preventing the future use of racial profiles, I propose that the effects of past profiling and its effects on notions of “proneness” and “propensity” are an inextricable and unavoidable part of the policy and legal debate over its current justification. RACE AND DRUG-LAW VIOLATIONS In recent decades, the overrepresentation of Blacks among those charged with and punished for drug offenses—the offense for which the police are most likely to use racial profiling—has been particularly sizeable and rapidly growing (Blumstein, 1982, 1993; Hawkins, 1986; Tonry, 1995; Miller, 1996). Drug-law violations also provide a classic example of the pitfalls involved in the use of official crime statistics in an effort to

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America Becoming: Racial Trends and Their Consequences - Volume II establish racial differences in the likelihood of engaging in illegal behavior. In comparison to almost every other category of crime perceived as serious, by law and by the public, the detection of illicit drug use and sales is acutely affected by the practices and biases of law-enforcement personnel. Arrests for drug-related offenses, unlike crimes involving discernible victims, seldom result from citizen complaints. The fact that citizens of all social classes purchase and use illicit drugs, and tend to do so in discrete ways, minimizes their risk of detection. Further, even when drug sales and purchases are more publicly visible, citizens observing sales of drugs often “look the other way.” Such patterns of offending obviously mean that direct police surveillance of suspected criminals is often the only viable means of law enforcement. Although suspected drug offenders have been the most frequent targets of police surveillance, it is clear that the use of racial profiles is not limited to drug offenses. Other offense categories likely to be affected by differential law-enforcement practices based on race include shoplifting and other forms of theft and conversion, weapons offenses, traffic-law violations, and numerous public order offenses. Indeed, the instances of racial profiling that have garnered the most attention in the media have involved the stopping of Blacks who were simply driving or walking through predominantly White, or even their own, neighborhoods. Thus, we must ask, as Kennedy does, whether police use of racial profiles is based on sound, unbiased evidence of racial differences in offending for the specific offense categories that are targeted. In addition, we must ask whether, after discounting the biasing effects of police-surveillance activities, Blacks are more likely than Whites to be involved in the commission of these crimes. These questions lie, of course, at the center of the perennial debate among criminologists regarding the relationship between race and crime. Since the beginning of national crime victimization surveys, nearly 25 years ago, many criminological researchers have been inclined to believe that bias in the detection of crime does exist, but that it does not account for all of the differences observed between Blacks and Whites in rates of offending. Racial descriptions of offenders given by persons victimized by serious crime closely match those descriptions found for arrests and crimes known to the police (Hindelang, 1978; Jaynes and Williams, 1989: Chapter 9; Walker et al., 1996). Some researchers have gone so far as to suggest that although bias in the administration of justice might have accounted for a large portion of racial disparity in crime and punishment in the past, such bias is largely nonexistent today (Wilbanks, 1987). Apart from the question of sufficient proof of racial difference in criminal involvement to legitimize race-based police surveillance, from a public-policy perspective a more significant question might be whether

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America Becoming: Racial Trends and Their Consequences - Volume II such tactics yield significant returns—i.e., do law enforcement officials actually detect more crime and has public safety been enhanced for all citizens? If so, do the benefits derived from the use of such surveillance outweigh the associated social and political costs—e.g., the fostering of interracial animosity, distrust by minorities of the criminal justice system, and the potential for denying equal protection under the law? The correct answer to both questions may depend on the specific criminal offense that is the target of surveillance activity. Although Blacks are overrepresented in official and unofficial crime statistics in comparison to their numbers in the general population, the Black share of the pool of known offenders varies substantially from one offense category to another. For 1992, the percentage of arrestees who were Black ranged from 10.1 percent for driving under the influence (DUI), to 33.6 percent for forgery, and as high as 60.9 percent for robbery (Walker et al., 1996:40–41). These are national data, and the actual level of racial disproportionality by offense will vary from one place to another. Nevertheless, they do suggest that, in most locales, a practice of racial profiling aimed at Blacks for the purposes of detecting those committing DUI or forgery will be less rational and potentially less successful than one aimed at robbery. For the offense categories at which racial profiling is typically aimed— possession, use, or trafficking of drugs—research findings suggest that use of official crime data (arrests, prosecution, and punishment) results in an underestimate of the involvement of Whites and an overestimate of the involvement of Blacks. Surveys (Bachman et al., 1991, National Institute on Drug Abuse, 1991; Rebach, 1992; Lockwood et al., 1995) have shown high use of drugs, including cocaine, among White adults, and unexpectedly low rates of drug use among Black adolescents. Of course, drug trafficking, as opposed to drug use, is the offense category at which most racial profiling is aimed. There are obvious problems involved in trying to come up with estimates of the “true” extent of racial difference for trafficking, as compared to drug use, for which accurate measurement is problematic in its own right. Yet, it appears likely that the overrepresentation of Blacks in drug trafficking may be limited to the street-level running of drugs in large urban areas, where Black youth predominate. No evidence suggests that Whites, including organized crime, have abandoned their traditional involvement in the trafficking of illicit drugs. Indeed, lucrative drug markets for marijuana, heroin, cocaine, methamphetamines, and other controlled substances exist in both rural and suburban areas, where White traffickers predominate. Further, some Black community activists have insisted that a large portion of the “wholesale” drug dealing within inner-city neighborhoods continues to be under the control of Whites. To the extent that evidence supports such observations and speculation, the differential targeting of Blacks for the

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America Becoming: Racial Trends and Their Consequences - Volume II purposes of suppressing the flow and purchase of drugs makes little sense from the perspective of either effective law enforcement or protection of the public’s health. Despite failing to come to grips with the thorny evidentiary problems I have briefly described, Kennedy and the dissenting judge in United States v. Weaver do raise several important questions of relevance for the making of legal and public policy. Both acknowledge that some form of profiling of criminal suspects is an expected and unavoidable part of law enforcement. They insist, however, that if race is to be the basis for the development of law-enforcement profiles, definitive proof of racial differences in social behavior is required to make such profiles justifiable and rational. In the obvious absence of reliable, unbiased data of the sort I have described, Kennedy suggests that current racial profiling within the criminal justice system likely stems as much from racial stereotyping as from any concrete evidence of racial differences in behavior. Further, although the police may be expected to use their experiences within given communities to help disentangle the effects of “race” and criminal involvement, some research suggests that their attitudes toward race and crime may stem as much from social forces found in the wider society as from their police work. For example, some early studies of the police in large urban areas found that even seasoned officers overestimated the extent of racial disproportionality in criminal involvement, even in the neighborhoods that they patrolled, and adhered to many of the traditional racial stereotypes (National Advisory Commission on Civil Disorders, 1968). Further, like all Americans, those who enforce the law are also greatly influenced by the daily media coverage of crime. To the extent they are, research has shown that media depictions seldom reflect an accurate count of the actual incidence of crime or its relative distribution across racial groups or residential areas (Fishman, 1980; Surette, 1984; Donnerstein and Linz, 1995; Johnstone et al., 1994; Hawkins et al., 1995; Hawkins, 1998). Nevertheless, these distorted perceptions derived from the mass media likely affect the racial profiling of crime suspects by the police and the acceptance of such profiling by courts, policy makers, and the public. RACE AND PUNISHMENT The “front end” issue of racialized police profiling tactics has elicited much more public notice and debate than the “back end” matters of racial bias in jury selection and the punishment of persons convicted of crime. As Kennedy notes, bias in law enforcement raises concerns that cut across all segments of the Black community; such bias has historically provided a flashpoint for both riots and other forms of social protest, and estab-

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America Becoming: Racial Trends and Their Consequences - Volume II lishes a case study for civil libertarian critiques of American justice. Critics of American justice, such as Paul Butler, noted, however, that at the level of public policy the three areas of racial bias within American justice outlined by Kennedy are inextricably linked. As regards serving on juries, much of the impetus for some prosecutors to exclude Blacks may reflect a fear of Black jurists’ potential and willingness to “nullify” the harsh penalties now associated with convictions for drug-law violations (Butler, 1995). Further, it is clear that the failure of American courts to prohibit racial profiling, or to enforce the Batson v. Kentucky (1986) prohibition against the use of race in peremptory challenges, has relevance for the persistence of racial differences in sentencing, the subject Kennedy tackles in the last part of his essay. Because I believe that few Americans disagree as to the inherent unfairness of jury-selection procedures designed to deny the participation of specific racial groups, I will limit my remaining comments to the question of racial bias in sentencing and criminal punishment. My own examination of crime and punishment data since 1950, presented here and in Hawkins and Herring (forthcoming), lends support to Kennedy’s assertions regarding the continued salience of race for determining the severity of criminal punishment. Table 3–1 lists the racial makeup of the nation’s prison population from 1950 through 1995. The first thing one notices is the gradual, then precipitous, increase in the number of prisoners of all races. The percentage of Blacks also increases disproportionately—from slightly more than one-third of all prisoners in 1950 to nearly one-half in the mid-1990s. Indeed, the trend in Table 3–1 suggests a worsening of the plight of Blacks, compared to other racial groups, especially since 1970. The extent to which Blacks and other racial and ethnic minorities have come to constitute a significantly larger percentage of prison inmates becomes even more evident when one examines changes in the rate of Hispanic confinement. Between 1980 and 1995, the Hispanic percentage of the nation’s prison population more than doubled, going from 7.6 percent to 15.5 percent. Thus, at the end of 1995, nearly two-thirds of all state and federal prisoners were either Black, Hispanic, or a member of another non-White racial group.1 In comparison to the year-end prison population statistics in Table 3–1, prison-admissions data provide a better picture of temporal change in the racial disproportionality in the nation’s prison population. The trend for prison admissions (Table 3–2) reveals a pattern of increase for 1   See periodic imprisonment reports, Prisoners in State and Federal Institutions on December 31, from the U.S. Department of Justice. Years used for this data are from 1981 to 1996.

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America Becoming: Racial Trends and Their Consequences - Volume II TABLE 3–1 Prisoners Under State and Federal Jurisdiction, by Race, 1950–1995 Year Total White Black %Black Othera 1950 178,065 NA NA 34 NA 1960 226,344 NA NA 37 NA 1970 198,831 NA NA 41 NA 1980 328,695 169,274 150,249 46 9,172 1981 368,772 190,503 168,129 46 10,140 1982 414,362 214,741 189,610 46 10,011 1983 437,238 225,902 200,216 46 11,120 1984 462,442 239,428 209,673 45 13,341 1985 502,507 253,599 220,700 44 28,208 1986 544,972 274,701 246,833 45 23,438 1987 585,040 291,606 262,958 45 30,476 1988 627,600 308,712 289,462 46 29,426 1989 712,364 343,550 334,952 47 33,862 1990 773,919 369,485 367,122 47 37,312 1991 825,619 385,347 395,245 48 45,027 1992 882,500 409,700 424,900 48 47,900 1993 970,444 444,100 473,300 49 53,044 1994 1,054,774 464,167 501,672 48 88,935 1995 1,126,287 455,021 544,005 48 127,261 aIncludes other races and persons for whom race was undetermined. Hispanics are typically included with blacks and whites. SOURCE: U.S. Department of Justice, year-end reports and other periodic publications. Titles vary. Racial breakdowns were not available in most of the reports for the period between 1950 and 1980. The “%Black” data for 1950, 1960, 1970, and 1980 were taken from a special Department of Justice study prepared by Cahalan (1986). Blacks similar to that seen in Table 3–1. In addition, in Table 3–2, there is evidence of the sharp rise in the non-White percentage of new prisoners during the late 1980s. There was a more-or-less steady increase in the rate of Black admissions between 1950 and 1987, and then a rather sharp increase after 1987. From only 30 percent of all new prison admissions in 1950, Blacks were 41 percent by 1970. By the early 1990s, Blacks were 53 percent of all admissions. Two important studies published by the Sentencing Commission show the extent of racial differences in criminal justice system control of 20 to 29 year olds in the United States. Between 1989 and 1994, the percentage of White young adults who were either in jail, in a state or federal prison, or on probation or parole, grew from 6.2 to 6.7 percent of all U.S. White males. For the same period, the percentage of Blacks grew from 23 to 30.2 percent (Mauer, 1990; Mauer and Huling, 1995). The trends in detention of juveniles closely mirror those seen for

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America Becoming: Racial Trends and Their Consequences - Volume II TABLE 3–2 State and Federal Prison Admissions, by Race, United States, 1950–1986 Year Percent White Percent Black Percent Other Race 1950 69 30 1 1960 66 32 2 1970 61 39 – 1975 64 35 1 1980 58 41 1 1981 57 42 1 1982 55 44 1 1983 58 41 1 1984 58 41 1 1985 56 43 1 1986 55 44 1 1987 53 45 2 1988 49 50 1 1989 47 52 1 1990 48 51 1 1991 46 53 1 1992 46 53 1 1993 46 53 1 1994 47 52 1 1995 51 48 1   SOURCES: Langan (1991) and U.S. Department of Justice (1997). young and older adults (Krisberg, 1987; Hawkins and Jones, 1989). Snyder and Sickmund (1995:166) reported that the minority juvenile custody population increased between 1983 and 1991, while the White custody population decreased. By 1991, the long-term custody rate for Black youth in public institutions was 424 per 100,000 Black juveniles in the population—five times the custody rate for White juveniles. For Black youth in Nevada and California, lock-up rates per 100,000 were as high as 1,174 and 1,191, respectively. Increasing Minority Confinement: A Question of Racial Bias? A more detailed and nuanced discussion of the issues and debates surrounding the increase since 1950 in overall rates of imprisonment, and in the level of racial disproportionality, is clearly beyond the scope of the present discussion. Blumstein and Beck (1999) explore many of these factors in their recent work on this subject. For our purposes here, however, several observations appear to be warranted. It is clear that a number of historical and demographic trends have come together since 1950 to help

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America Becoming: Racial Trends and Their Consequences - Volume II shape the rising racial imbalance in levels of imprisonment, particularly the rise in the proportion of inmates who are Black. The Mainstreaming of White Ethnics The extent to which America’s White ethnics were overrepresented during the past within the nation’s criminal justice system is well documented. However, the American criminal justice system of the 1980s and 1990s, in comparison to decades earlier, reflects the successful integration of White ethnics into the American economic, political, and social mainstream. This success has been marked by a sharp decline in the rate of arrests and criminal punishment for members of these groups. Steinberg (1989) reminds us that the successful integration of White ethnics into mainstream American society took much longer than is commonly believed. From the time of their entry into the United States, most immigrant families passed through two to three generations before achieving truly middle-class status. This gradual mainstreaming of White ethnics in part explains the widening of the White-non-White gap in rates of crime and punishment seen since the 1950s. The Success of Public Policies Aimed at the Exclusion and Marginalization of Non-Black Racial Minorities Although both American Indians and persons of Asian ancestry were likely to be overrepresented among the nation’s prisoners prior to the turn of the century, several governmental policies minimized the likelihood of their continued disproportionate presence; these include the restriction of the immigration of persons of Asian ancestry from the late 1800s into the early decades of the twentieth century. Coupled with the fact that many of the earliest Asian immigrants, like White ethnics, experienced less residential and social segregation, allowing them greater entry to the American economic mainstream, populations of Asian Americans now tend to be underrepresented within the nation’s justice system. Similarly, policies during the nineteenth century, which forced American Indians onto reservations and until recently limited the access of immigrants from Latin America, have also minimized their presence within the nation’s justice system. Both of these sets of policies resulted in a greater Black-White contrast in American crime and punishment than might have existed absent such public policies. To assess both the historical and contemporary significance of such public policies, one need only look to recent crime and justice trends in the western United States and major eastern cities where both Asians and Hispanics have immigrated in large numbers. In many of

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America Becoming: Racial Trends and Their Consequences - Volume II these areas, rates of criminal justice system involvement for Hispanics have recently approached rates seen for Blacks. In addition, many of the various ethnic groupings that comprise the Asian and Pacific Islander populations have rates of involvement quite at odds with past labels of all Asians as “model minorities.” Given such trends, it is conceivable that, in the future, members of these groups may experience the kinds of race-based law enforcement tactics now aimed largely at Blacks. The fact that Hispanics are already frequent targets of such surveillance for the purposes of drug law enforcement, and Asian gangs are a source of concern, may not bode well for the future of American race and ethnic relations. Black Migration from the South The large-scale movement of Blacks from the rural south to the urban north and west greatly increased the risk of their involvement with the criminal justice system. In addition to setting in motion social forces that led to the rise of the contemporary urban underclass (Wilson, 1987), the increased risk of Black crime and punishment in the urban context is a result of the well-developed institutions of social control found in cities, compared to small towns or rural areas. The Mainstreaming of White Southerners Apart from its obvious benefits for Black Americans, among the legacies of the American Civil Rights Movement and the changes it wrought are the social and political reforms that have enabled greater access to the American economic mainstream by Whites living in the South. Although still more likely than their northern counterparts to run afoul of the law today, White working-class southerners were even more disproportionately found in the area’s prisons and jails during earlier decades. The Geographic and Social Marginalization of the White Underclass Although much attention has been paid to the plight of the Black underclass, the large number of economically marginal Whites has been largely overlooked. It appears that this lack of attention may result partly from their geographic isolation. In comparison to the Black underclass, the tendency of the White underclass to be found in rural and small town America may shield them from some of the forms of crime detection and social control found in the large cities. By comparison, the Black underclass is disproportionately concentrated not only in urban areas, but also within the inner cities of the nation’s largest cities. All of these trends have contributed to the increasingly dispropor-

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America Becoming: Racial Trends and Their Consequences - Volume II tionate presence of Blacks in the nation’s justice system—from arrest through parole. The question posed by Kennedy is whether, in addition to the social forces described, continuing racial bias in the administration of the criminal law also contributes to the levels of racial disparity seen in Tables 3–1 and 3–2. Prompted largely by the precipitous rise in rates of imprisonment in the 1980s, and several widely publicized instances of racial bias in the justice system, a number of other researchers have raised questions similar to Kennedy’s. For example, the idea that the recent increase in the Black percentage of the nation’s prison population results from a similar increase during this period in the percentage of serious crime committed by Blacks has been discounted by Tonry (1995:49–80), who notes the relative stability of racial disparity in arrest rates for serious crime (see, also, Hawkins and Herring, forthcoming). Chambliss (1995), Mauer (1990), Mauer and Huling (1995), Miller (1996), and Russell (1998), among others, have all observed that the rather significant increase in the percentage of Blacks admitted to and detained in prisons after 1987 (Table 3–2) appears to reflect the targeting of Black criminal suspects, especially drug offenders. As Kennedy notes, this targeting has taken the form of new federal and state laws aimed at the control of crack cocaine, enacted during the mid-1980s. It has also taken the form of increased police surveillance—at local, state, and federal levels—aimed at drug, and other, offenses. Given the increase in the marketing of crack cocaine in the 1980s, and its seeming concentration in the nation’s inner cities, many social commentators have been inclined to think of rising rates of imprisonment among Blacks as simply a reflection of higher rates of drug trafficking and use in Black communities. However, much of the racial imbalance seen for drug arrests and sentencing predates the advent of the crack cocaine epidemic. Blumstein’s (1982) study of the extent to which racial differences in arrests explained levels of imprisonment revealed that, as early as the late 1970s, drug offenses were the crime category for which there was the most unexplained racial disparity. Follow-up studies have also shown significant racial differences in arrest and imprisonment rates for the use and sale of drugs that do not appear to be explained by arrest rates alone (Hawkins, 1986; Blumstein, 1993; Tonry, 1996). Recent statistics reveal that greater levels of racial disproportionality for drug offenses, compared to other types of offending, are not limited to adult offenders. Snyder and Sickmund (1995:142) reported that during 1992, of all Black juveniles in the United States who were processed though the justice system for varying offenses, 25 percent were detained. This compared to 18 percent of White juveniles, and 22 percent of juveniles of other races. In contrast, the rates of confinement for juveniles

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America Becoming: Racial Trends and Their Consequences - Volume II charged with drug offenses were 47 percent for Blacks, 26 percent for Whites, and 19 percent for others. Thus, it seems that for several decades, but especially during the last decade, arrests and punishment for drug-law violations contributed disproportionately to the widening of the racial gap in the justice system. Why drug offenses? Why the focus on Blacks? Given the professed intentions of the war on drugs, how is it that greater attention has not been paid to the drug-law violations of the White population? In light of the consistency of findings reporting greater levels of police surveillance and punishment for Black drug offenders, one wonders what motives—both individual and institutional—undergird that pattern of racial inequality. It is plausible, as Tonry (1995) and others have noted, that this pattern of inequality represents abuses that arise from the conjoining of ideologies that are a part of both the “get tough” philosophy of the war on drugs and the racist philosophies intrinsic in the nation’s heritage. Much of Kennedy’s argument (1997, 1998) appears to support this view. I think, however, that one cannot overlook another important purpose that is served by the inordinate attention that is paid to drug offenses by the American criminal justice system. The rigorous enforcement of drug laws is likely seen by many policy makers and law enforcement officials as a form of “selective incapacitation” or “preventive detention” (see, e.g., Miller, 1996). It is true that drug offenses and offenders possess traits that lend themselves to concerns for incarceration. Drug trafficking, particularly in crack cocaine, has often been highly correlated with an individual’s likelihood of involvement in interpersonal violence. Similarly, drug use to the level of addiction has been perennially associated with high rates of both property, and property-related, violent crime. Thus, given the reality and long-term expectation of high rates of property and violent offending by young Black males, the current regime of mandatory and extremely punitive sentencing guidelines for drug offenses may have more to do with the concern of law enforcement and the American public for the prevention of nondrug crime and violence than with the protection of the public’s health or economic productivity—goals often cited as justification for punitive stances toward drug use and sales. Indeed, one of the consequences—perhaps both intended and unintended—of drug law enforcement is the incapacitation through incarceration of legions of lower-class, minority youth who are perceived as having little chance in their lifetimes of joining the economic and social mainstream of American society. As Kennedy observes, however, the price we pay as a society for the legal strategies used to achieve these results may be great, and one that ultimately will cost all of us.

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America Becoming: Racial Trends and Their Consequences - Volume II Kennedy concludes by noting that one of the most distressing aspects of the official response to the problems of inequality and injustice is the lack of public concern and attentiveness. Even as the evidence mounts of the persistence of significant forms of racial bias in the administration of American criminal justice, many policy makers and citizens either deny the existence of the problems he describes or tend to de-emphasize their significance. That observation serves to highlight one of the most disheartening features of Kennedy’s essay. More than 30 years ago, the Kerner Commission raised similar concerns and reached very similar conclusions in its study of American race relations and administration of justice in the aftermath of the civil disorders of the 1960s (National Advisory Commission on Civil Disorders, 1968); in turn, many of that Commission’s observations arose from insights provided nearly a quarter of a century earlier by Gunnar Myrdal (1944) in his treatment of race and the administration of justice. It is perhaps the recognition and acceptance of the fact that nearly all of the instances of racial bias Kennedy describes have been well documented in earlier studies that prompted him to close his essay by saying that much work awaits all who attempt to move forward to build on the gains in the administration of justice achieved during the last half of the twentieth century. Kennedy’s emphasis on racial bias in the administration of justice should not be seen as inconsistent with accounts of race, crime, and justice that attribute the extreme racial disparities in rates of criminal involvement found in the United States today to the operation of other social forces that disdvantage Black Americans. To his credit, nowhere in his essay does Kennedy suggest that currently high rates of homicide, assault, robbery, and property offenses found in many Black communities can be significantly reduced merely through the implementation of the race-neutral justice administration policies he advocates. Clearly, race trends in crime and violence are responsive to the same economic, social structural, psychological, and ecological forces that shape other manifestations of racial inequality in the United States. Significant progress toward addressing racial disproportionality in crime and justice will depend on progress in these broader social, economic, and political domains. Unfortunately, even as the nation enters a new millennium, these potentially corrective domains also continue to be plagued by problems of racial bias and disparity. REFERENCES Bachman, J., J.Wallace, Jr., P.O’Malley, L.Johnston, C.Kurth, and H.Neighbors 1991 Racial/ethnic differences in smoking, drinking, and illicit drug use among American high school seniors, 1976–89. American Journal of Public Health 81:372–377.

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America Becoming: Racial Trends and Their Consequences - Volume II Blumstein, A. 1982 On the racial disproportionality of United States’ prison populations. Journal of Criminal Law and Criminology 73:1259–1281. 1993 Racial disproportionality of U.S. prison populations revisited. University of Colorado Law Review 64:743–760. Blumstein, A., and A.Beck 1999 Factors contributing to the growth in the U.S. prison populations. In Crime and Justice: A Review of Research, M.Tonry, ed. Chicago: University of Chicago Press. Bobo, L. 1988 Group conflict, prejudice, and the paradox of contemporary racial attitudes. Pp. 85–114 in Eliminating Racism: Profiles in Controversy, P.Katz and D.Taylor, eds. New York: Plenum. Bobo, L., and V.Hutchings 1996 Perceptions of racial group competition: Extending Blumer’s theory of group position to a multiracial social context. American Sociological Review 61 (December):951–972. Butler, P. 1995 Racially based jury nullification: Black power in the criminal justice system. Yale Law Journal 105:677+. 1997 Affirmative action and the criminal law. University of Colorado Law Review. 68(Fall):841–889. Cahalan, M. 1986 Historical Corrections Statistics in the United States, 1850–1984. Washington, D.C.: U.S. Department of Justice, Bureau of Justice Statistics. Chambliss, W. 1995 Crime control and ethnic minorities: Legitimizing racial oppression by creating moral panics. Pp. 235–258 in Ethnicity, Race, and Crime: Perspectives across Time and Place, D.Hawkins, ed. Albany: State University of New York Press. Collins, S. 1997 Black Corporate Executives: The Making and Breaking of a Black Middle Class. Philadelphia: Temple University Press. Donnerstein, E., and D.Linz 1995 The media. Pp. 237–264 in Crime, J.Wilson and J.Petersilia, eds. San Francisco: Institute for Contemporary Studies Press. Farley, R., and W.Allen 1989 The Color Line and the Quality of Life in America. New York: Oxford University Press. Fishman, M. 1980 Manufacturing the News. Austin: University of Texas Press. Hawkins, D. 1986 Race, crime type, and imprisonment. Justice Quarterly 3:251–269. 1995 Race, social class, and newspaper coverage of homicide. National Journal of Sociology 9:113–140. 1998 The nations within: Race, class, region, and American lethal violence. University of Colorado Law Review. 69(Fall):905–926. Hawkins, D., and C.Herring Forth-coming Race, crime, and punishment: Old controversies and new challenges. In New Directions: African Americans in a Diversifying Nation, J.Jackson, ed. Washington, D.C.: National Policy Association Press.

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America Becoming: Racial Trends and Their Consequences - Volume II Hawkins, D., J.Johnstone, and A.Michener 1995 Race, social class, and newspaper coverage of homicide. National Journal of Sociology 9(Summer):113–140. Hawkins, D., and N.Jones 1989 Black adolescents and the criminal justice system. Pp. 403–425 in Black Adolescents, R.Jones, ed. Berkeley, Calif.: Cobb and Henry Publishers. Hindelang, M. 1978 Race and involvement in common law personal crimes. American Sociological Review 43:93–109. Hochschild, J. 1995 Facing Up to the American Dream: Race, Class, and the Soul of the Nation. Princeton, N.J. : Princeton University Press. Jaynes, G., and R.Williams, Jr. 1989 A Common Destiny: Blacks and American Society. Washington, D.C.: National Academy Press. Johnstone, J., D.Hawkins, and A.Michener 1994 Homicide reporting in Chicago dailies. Journalism Quarterly 71:860–872. Kennedy, R. 1997 Race, Crime, and the Law. New York: Pantheon Books. 1998 Overview of racial trends in the administration of criminal justice. Paper prepared for the Research Conference on Racial Trends in the United States, Washington, D.C., October 15–16. Krisberg, B., ed. 1987 Crime and Delinquency. Special issue on minority youth incarceration and crime. 33(April). Langan, P. 1991 Race of Prisoners Admitted to State and Federal Institutions, 1926–1986, NCJ-125618. Washington, D.C.: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics. Lockwood, D., A.Pottieger, and J.Inciardi 1995 Crack use, crime by crack users, and ethnicity. Pp. 213–234 in Ethnicity, Race, and Crime: Perspectives Across Time and Place, D.Hawkins, ed. Albany: State University of New York Press. Mann, C. 1993 Unequal Justice: A Question of Color. Bloomington: Indiana University Press. Mann, C., and M.Zatz 1998 Images of Color-Images of Crime. Los Angeles: Roxbury Publishing. Mauer, M. 1990 Young Black Men and the Criminal Justice System: A Growing Problem. Washington, D.C.: The Sentencing Project. Mauer, M., and T.Huling 1995 young Black Americans and the Criminal Justice System: Five years Later. Washington, D.C.: The Sentencing Project. Miller, J. 1996 Search and Destroy: African-American Males in the Criminal Justice System. New York: Cambridge University Press. Myrdal, G. 1944 An American Dilemma. New York: Harper and Row. National Advisory Commission on Civil Disorders 1968 Report of the National Advisory Commission on Civil Disorders. New York: Bantam Books.

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America Becoming: Racial Trends and Their Consequences - Volume II National Institute on Drug Abuse 1991 National Household Survey on Drug Abuse: Population Estimates. U.S. Department of Health and Human Services publication No. [ADM] 92–1887. Rockville, Md.: National Institute on Drug Abuse. Oliver, M., and T.Shapiro 1995 Black Wealth-White Wealth: A New Perspective on Racial Inequality. New York: Routledge. Rebach, H. 1992 Alcohol and drug use among American minorities. Drugs and Society 6:23–57. Russell, K. 1998 The Color of Crime: Racial Hoaxes, White Fear, Black Protectionism, Police Harassment, and Other Macroaggressions. New York: New York University Press. Snyder, H., and M.Sickmund 1995 Juvenile Offenders and Victims: A National Report. Washington, D.C.: Office of Juvenile Justice and Delinquency Prevention. Steinberg, S. 1989 The Ethnic Myth: Race, Ethnicity and Class in America. Boston: Beacon. Surette, R., ed. 1984 Justice and the Media: Issues and Research. Springfield, Ill.: C.C.Thomas Publishers. Tonry, M. 1988 Structuring sentencing. In Crime and Justice: A Review of Research, M.Tonry and N. Morris, eds. Chicago: University of Chicago Press. 1993 Sentencing commissions and their guidelines. In Crime and Justice: A Review of Research, M.Tonry and N.Morris, eds. Chicago: University of Chicago Press. 1995 Malign Neglect: Race, Crime, and Punishment in America. New York: Oxford University Press. 1996 Sentencing Matters. New York: Oxford University Press. U.S. Department of Justice 1997 Correctional Populations in the United States, 1995, NCJ-163916. Washington, D.C.: Office of Justice Programs, Bureau of Justice Statistics. Walker, S., C.Spohn, and M.DeLone 1996 The Color of Justice: Race, Ethnicity, and Crime in America. Belmont, Calif.: Wadsworth. Wilbanks, W. 1987 The Myth of a Racist Criminal Justice System. Monterey, Calif.: Brooks/Cole. Wilson, W. 1987 The Truly Disadvantaged. Chicago: University of Chicago Press.