Considering race and crime: distilling non-partisan policy from opposing theories.

• Author: Wolpert, Carolyn

1. INTRODUCTION

   Much ink has been spilled discussing the intersections of race and crime. In most of these discussions, "race" signifies African Americans(1) and issues of disproportionate incarceration and arrest are the most familiar starting points. Consider the following: On an average day in 1991, forty-two percent of all the African American males between the ages of 18 and 35 living in the District of Columbia were in jail, in prison, on probation/parole, out on bond, or being sought on arrest warrants.(2) In 1995, more than one in three African American young men were under criminal supervision nationwide.(3) In 1993, more than half of the men in state and federal prisons were African American.(4) In 1995, more young African American men nationwide were in prison than in college.(5) These dismal statistics have become familiar to many of us, and to many in legal academia they represent the inherent racism of the criminal justice system. Paul Butler has stated that he knows that one-third of African Americans are not dangerous or evil, and that any system of law placing them under its supervision is morally bankrupt and in need of immediate subversion.(6) Professor Butler recommends a limited form of jury nullification as a way to counteract institutional racism.

   Other voices have begun to speak out about startlingly disproportionate victimization statistics. Black males experienced robberies at more than twice the rate of white males in 1993; black females had a robbery rate three times that of white females.(7) Many convicts report committing crimes in their own neighborhoods, and black households in 1991 were three times more likely than white households to state neighborhood crime as a serious concern.(8) Blacks experience higher rates of violent crime, and those crimes cause greater injury than similar crimes against other races.(9) Based on these statistics, Professor Randall Kennedy has argued that underenforcement, not overenforcement, is a larger problem for African American communities burdened by crime.(10) Kennedy urges that while African Americans are victimized by crime at an alarming rate, many who seek to champion the interests of African Americans retard efforts to control crime (and thereby to protect victims) by deeming the state and its criminal justice system "an instrument of racist oppression."(11)

   These two conceptualizations of the relationship between African Americans and crime represent opposite ends of a spectrum without much in between. While there are traditional liberal and conservative approaches which differ slightly from the two positions briefly described above,(12) opposing sides dominate the discussion of race and crime without leaving room for middle ground.(13) Some argue that American criminologists and sociologists have not done well studying the interconnections between race and crime partially because "public discourse about both crime and race in the United States has always been an ideological and political minefield."(14)

   Black America is reportedly deeply ambivalent as to these inflammatory issues.(15) Support for re-energized law enforcement is countered by dismay at the disproportionate number of African American men in the care of the criminal justice system.(16) The black men "wreaking havoc" in the ghetto, after all, are the sons of the working class black people who are often their victims.(17) The racial critique of the criminal justice system has infiltrated much of the African American community. While blacks are victimized, blacks are very often unable to see law enforcement as a "public good" because they consider the law enforcement system racist.(18) At the same time, concern about neighborhood crime :in 1991 grew twice as rapidly among black households as among white households, and crime was the number one concern of black center city households.(19)

   Those African Americans working within the criminal justice system are often accused of "selling out" and being "traitors to their race." The role of Christopher Darden in the trial of O.J. Simpson was seen as somewhat of an analogue for all black prosecutors; Darden was seen as "an Uncle Tom, a collaborator with the white man and his bigoted system."(20) The trial became a debate about "blackness," about whether blacks can place faith in a "white" system of criminal justice, and whether blacks who participate in that system are "worthy of membership in the black race."(21) Considering all of these conflicts associated with race and crime, it seems that the immediate problem--the crisis in America's largely African American inner cities--has been given somewhat of a "back seat" position to concerns over who can explain or simply name the tragedy most persuasively, or who can make the best case for their particular political or ideological position while gleefully discrediting the opposition in the process. All sides of the debate attempt to state best the views of a community that is too diverse to be represented by a soundbyte or a discrete political, legal, or sociological theory. In arguing over which position on crime best serves the communities in question, real progress has been obstructed.

   This Note attempts to move the discussion of race and crime forward, but first surveys its evolution. I propose to distill the best elements of the diametrically opposed arguments presented here into broadly applicable policy recommendations. Part II reviews legal literature discussing race and crime, attempting to characterize general voices and trends of critical theory, neo-conservative thought on race and crime, and traditional liberal and conservative approaches. Part III then analyzes sociological and criminological works discussing the theorized causes of crime, while focusing on those studies which examine the disproportionate amount of "black crime." Part IV synthesizes the most valuable ideas from the theories and studies discussed into non-partisan substantive policy recommendations which can address the diverse needs of African American communities. The four policy recommendations are: de-emphasizing race, recognizing the non-mutually exclusive nature of proposed solutions, improved and increased policing, and a hard look at sentencing and law enforcement tactics.

2. OPPOSING THEORETICAL ARGUMENTS

   1. Critical Race Theory

      Emphasizing the "historically inequitable treatment of minorities in general and Blacks in particular,"(22) critical theories (when they address race and crime)(23) focus on historical oppression,(24) socially constructed ideas about race which influence legal reactions to crime,(25) and institutional racism. According to Gary Peller:

      Criminal law is an obvious topic for a critical analysis of racial power... racial power is often most dramatically exercised, and most easily recognized, in the enforcement of criminal laws, at the point of contact between police and people of color.... No fancy theoretical conceptualization is necessary to explain how race figures in police brutality, in prosecutorial decisions, in jury selection, in conviction rates, and in the incarceration and capital sentencing of people of color in America.(26) Historically, law enforcement in America has been used to control African Americans.(27) In times of slavery, blacks were not protected by law but were more severely punished by it;(28) after emancipation, blacks were still unprotected from lynchings and abuse. Whether criminal justice is used today as a tool of racial subordination is a much more controversial topic. To the critical scholars, the motivations of power and control which were obviously apparent during slavery and the pre-Civil Rights era are ever present in the "patrol [of] black neighborhoods as if they were occupied territories,"(29) where police serve "not to protect black citizens,(30) but to protect white citizens from black criminals."(31) Most convincingly to critical scholars, however, the continued use of criminal justice for racial domination is evidenced by the disproportionate arrest and imprisonment of African American men.(32)

      Many critical scholars discuss the "racial construction of crime," meaning that race is primary in the identification of criminals, in the definitions (social and legal) of what constitutes a crime, and in the designation of what crimes are treated most seriously.(33) Anecdotal examples of false identifications of criminals are used to support this theory, such as accusations against the "young black male"(34) and round-ups of suspects based solely on race.(35) Media coverage of "black crime"(36) is implicated here as well--critical scholars argue that the criminal justice belief system "constructs crime in terms of race and race in terms of crime."(37)

      As for institutional racism, critical scholars often analogize the "war on drugs" to slave codes, stating that the "war" selects petty drug offenses as targets for "massive law enforcement," facilitating the incarceration of huge numbers of African American men.(38) According to Jerome G. Miller, in recent years, the war on drugs has exposed the racism of the criminal justice system in full relief.(39) While African Americans and Hispanics make up the bulk of

      those arrested, convicted, and imprisoned for drug crimes, the U.S. Public Health Service's Substance Abuse and Mental Health Services Administration has estimated that seventy-six percent of drug users are white; only fourteen percent are black, and eight percent Hispanic.(40)

      In his controversial law review article discussing his proposal of racially based jury nullification, Professor Butler offered the following thesis: The black community is better off when some nonviolent criminals are spared incarceration to remain in the community.(41) Professor Butler believes that white lawmakers have failed to provide feasible, "nonincarcerative" responses to black "antisocial" conduct.(42) Because the black community is hurt by the...