An Essential Contribution to the Continuing Debate

By Rudovsky, David | Judicature, May/June 2005 | Go to article overview

An Essential Contribution to the Continuing Debate


Rudovsky, David, Judicature


An essential contribution to the continuing debate Thinking about Crime: Sense and Sensibility in American Penal Culture, by Michael Tonry. Oxford University Press. 2004. 272 pages. $30.

The statistics are stark and overwhelming. In 1970, the incarceration rate in the United States was a modest 144 of every 100,000 in the population, a rate that roughly mirrored that which prevailed in Western Europe at the time. By 2003, we had witnessed a five-fold increase to a rate of more than 700 per 100,000. Today we imprison more than two million persons, and millions of others are on probation or parole. Over the past 30 years, fueled by "mandatory minimums" and guidelines that almost always ratchet upward, the average sentence has tripled.

For African Americans, the story is especially grim. Nearly a third of young African American males are in prison or jail, or on probation or parole. Far more young black males are in custody than attend college. Several years ago, California, which at one time could boast of the country's best college and university system, saw its expenditures for prisons far surpass that for higher education, with the predictable decline of the state of higher education.

Much of the increase in imprisonment-and much of the racial disparity in prisons-is attributable to the war on drugs. More than 50 percent of all federal prisoners are serving sentences for drug offenses. We incarcerate more people for drug crimes than all of Western Europe imprisons for all crimes. We are spending more than $30 billion per year on this "war" and, in the process, have incarcerated millions of persons, mostly black and Latino. Yet the effort has resulted in few changes in either supply or demand, both of which remain high. A 1975 federal study found that 87 percent of young people said that marijuana was "very easy" to obtain; in 1998, after millions of marijuana arrests, the figure was almost 90 percent.

Recent studies and court cases exposing racial profiling practices by police in the enforcement of narcotics laws reveal the highly disproportionate impact of the drug war on racial minorities. Where police have wide discretion as to who to stop and search, racial minorities become the target. Yet they do not constitute a disproportionate part of the drug abusing or drug delivery population. United States Public Health Service self-reporting surveys find that 76 percent of all drug users are white, 14 percent African American, and 8 percent Latino. But African Americans constitute 35 percent of those arrested on drug charges, 55 percent of those convicted, and a staggering 74 percent of those imprisoned on these charges.

Michael Tonry has thought long and hard about crime, the criminal justice system, and imprisonment. He is the Sonosky Professor of Law and Public Policy at the University of Minnesota, is the author of significant books and articles, and has worked as an advisor to criminal justice agencies in the United States, Canada, Australia, and several European countries. He brings to this subject the insights of a careful scholar and the commentary of an acute observer of our national history, culture, and political system.

Asking why

Given the enormous changes in our sentencing and incarceration practices, including the devastating impact they have had in minority communities, it is not difficult to find fault with the prevailing theories and practices that have generated these large-scale changes. Tonry is sharply critical of many of the manifestations of these policies, but the focus of his book is less on the failings and unfairness of current practices and policies than on the question of why criminal justice policy has shifted so dramatically over the past 35 years. Tonry seeks both to explain the social and political forces that have coalesced to create the new paradigm and to analyze whether the "tough on crime" practices reflected in "zero tolerance," three-strikes legislation, mandatory minimums, and "truth in sentencing" laws can be credited with a reduction in crime.

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