Academic journal article Law and Contemporary Problems

Foreword: The Political Geography of Race Data in the Criminal Justice System

Academic journal article Law and Contemporary Problems

Foreword: The Political Geography of Race Data in the Criminal Justice System

Article excerpt



Several months ago, there was a heated discussion on CrimProf, the listserv for criminal law professors, about the disproportionate representation of minorities in the criminal justice system. (1) Few participants in this online discussion contested the reality that racial and ethnic minorities, especially African Americans, make up a far larger percentage of those arrested and incarcerated than should be expected from their percentage of the country's total population. (2) What made the discussion heated was the debate over the causes of this disparity. More African Americans, argued some discussants, commit crime than do their white counterparts. Therefore, said these discussants, the representation of blacks in the criminal justice system was not "disproportionate" to their representation among the population of criminal wrongdoers. (3) Perhaps there are societal injustices that contribute to causing a relatively high percentage of racial minorities to commit crimes, but crimes they are, and the fair appli cation of neutral legal principles requires punishing all who flout the law, regardless of their race. (4) Indeed, argued these commentators, racial minorities are disproportionately victimized by crime, crime that is usually intra-racial. (5) Accordingly, not punishing black criminals, for example, means leaving the law-abiding vast majority of African Americans inadequately protected from being preyed upon by criminal predators. (6)

To the contrary, argued others on the listserv, much of the disparity is due to racial bias in law enforcement. (7) Some of that bias may stem from race hatred, but more stems from subconscious racial stereotyping or systemic forces, such as its being easier for the police to catch poor black kids smoking crack on a street corner than to grab rich white kids snorting powder cocaine in the bedroom of a large suburban

home. (8) Still others argued that crime itself is "socially constructed." (9) Thus the War on Drugs condemned many small-time drug abusers to long-term prison sentences. That mass imprisonment in turn decimated certain neighborhoods, denuding them of so many young black men as to leave these localities partly abandoned, contributing further to a cycle of crime. (10) All this, these thinkers argued, foreseeably had a disparate impact on minority communities. Therefore, much of the decimation of those communities could have been avoided by a careful, consciously chosen alternative social (11) Drug possession should have been defined as an illness to be treated rather than a crime to be punished. (12) Because ill-devised social policies and biased law enforcement account for at least part of the high percentage of minorities ensnared in the justice system, that percentage is indeed "disproportionate" to what should obtain in a just world.

Listserv debates often tend to be more off-the-cuff and sometimes more extreme than more considered arguments in scholarly publications, and some of the participants in this particular discussion arguably may have used the word "disproportionately" imprecisely. Nevertheless, the CrimProf discussion still captured the contours of a lively and important dispute about the criminal justice system. It is not a dispute, however, that this Symposium seeks to resolve.

Instead of grappling with the big question of causes, the authors in this Symposium see more to be gained in smaller questions. The perspective is local rather than global. All the authors share a belief that, whatever the causes of high minority representation in the justice system, we should not knowingly adopt new policies that worsen the problem. Like doctors taking the Hippocratic Oath, we should, at least, do no harm. (13) Of course, we should make the patient better if we can. Harm is conceived of as raising the representation of racial minorities in the criminal justice system when alternative policies could equally well serve public safety without adding to racial disparities. …

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