The current assault on the criminal justice system has taken the form of an assault on local law enforcement as racist. Who speaks for the police? Not many. The task has apparently fallen to Milwaukee County Sheriff David Clarke, profiled recently by Charles Cooke in the NR cover story “The sheriff as rebel.”
Inundated as we are by a farrago of politically inspired falsehood and hysteria, it may be useful to return to basics. Drawing on my own previous study and writing, this is the first in a series of posts on the alleged racism of the criminal justice system. I use the term “racial profiling” as the indictment of the criminal justice system behind the farrago of falsehood and hysteria.
The subject is fraught with taboos that inhibit debate and discussion. The taboos arise in part from an understandable desire to avoid needless offense and hurt feelings. I take no pleasure in hurting anyone’s feelings. If these taboos ever served a useful purpose, however, the time is long since past. They have fostered destructive ignorance and political exploitation.
Here I set forth seven theses as rules of thumb that may help cut through the fog, numbered so that anyone can easily comment, elaborate, and/or dispute them. These theses may or may not bear on any particular case, which may or may not represent racist behavior on the part of law enforcement, but they set any such case in the larger context. I believe each to be true. These are the deep secrets of racial profiling:
(1) Statistical racial disparities permeate every stage of the criminal justice system, from arrest to conviction to incarceration and sentencing.
(2) The racial disparities reflect underlying behavioral disparities.
(3) Blacks are disproportionately subject to arrest, conviction, incarceration, and sentencing because they are disproportionately perpetrators of the corresponding criminal behavior.
(4) The statistical racial disparities do not derive from racially discriminatory law enforcement by the police or prosecutors or judges and juries.
(5) These disparities have now been the subject of scholarly observation and inquiry for generations. The scholarship supports each of the theses set forth above.
(6) Michael Tonry is the McKnight Presidential Professor of Criminal Law and Policy at the University of Minnesota Law School, director of the Institute on Crime and Public Policy of the University of Minnesota, and a Scientific Member of the Max Planck Institute on Comparative and International Criminal Law in Freiburg, Germany. He is a liberal critic of racial disparities in the criminal justice system. In his 1995 book Malign Neglect: Race, Crime, and Justice in America, Professor Tonry criticizes the 1980s-era war on drugs for contributing to racial disparities in the criminal justice system. He summarizes the scholarship on the subject of racial disparities in the criminal justice system in chapter 2 of the book:
[T]he answer to the question, “Is racial bias in the criminal justice system the principal reason that proportionately so many more blacks than whites are in prison?” is no, with one important caveat, addressed in the next chapter concerning drugs. From every available data source, discounted to take account of their measurement and methodological limits, the evidence seems clear that the main reason that black incarceration rates are substantially higher than those for whites is that black crime rates for imprisonable crimes are substantially higher than those for whites.
Tonry has kept up the campaign against the war on drugs in his most recent book. Tonry’s caveat, in my view, does not detract from his general observation one iota, yet the Obama administration has done done its best to moderate the effect of the drug laws in the name of civil rights.
(7) Since the adoption and enforcement of antidiscrimination laws, the civil rights movement has become a racket operating as an adjunct of the Democratic Party. Insofar as it addresses alleged bias in the criminal justice system, it takes up the cause of black perpetrators whose primary victims are the law-abiding citizens of minority neighborhoods. The liberation of these perpetrators makes up a most peculiar cause for anyone with the best interest of these citizens at heart.