One hundred years of race and crime.

• Author: Butler, Paul
• Position: Centennial Symposium: A Century of Criminal Justice

1. INTRODUCTION

   This Article considers the evolution of thinking about criminal justice and racial justice over the last one hundred years.

   If I were writing about race and crime in 1910, the year the Journal of Criminal Law and Criminology was founded, (1) the problem that I would have focused on would be lynchings, which were sometimes an extra-legal response to African-American criminal suspects (and sometimes just random mob violence). The National Association for the Advancement of Colored People (NAACP) was created the year before the Journal. (2) The NAACP began as a response to the domestic terrorism of rampant lynchings, which were mainly in the South but all over the country. (3) Most of the victims were African-American but there were Latino, Jewish, and immigrant victims as well. (4) Thus the main race and crime problem, as identified by the first significant civil rights organization, was black victimization by white criminals.

   Other race and crime problems I would have focused on in 1910 include de jure discrimination against African Americans, including their exclusion from juries. (5) I would have been concerned about wrongful convictions, especially in death penalty cases when there was a black suspect and a white victim. (6) I probably would have mentioned the related concern of lack of effective assistance of counsel. (7) I would have complained about the way that the police enforced vagrancy laws. (8) If punishment came up outside of the death penalty context, there might be some discussion of chain-gangs or conditions in segregated "colored only" prisons. (9) I would have been concerned about quasi-scientific responses to criminality like eugenics and forced sterilization,l[degrees] and worried about their application to African Americans. (11)

   A few years down the road from 1910, as formal police departments spread about the country, I certainly would have written about the problem of police brutality, and the widespread antipathy that blacks and police-two very distinct groups--had for each other. (12)

   If I had spoken to a conference of progressives, say the members of the NAACP, which from its inception included many whites, (13) I would also have mentioned the need for more black police officers. The suggestion that there needed to be more African-American prosecutors and judges would have been seen as so pie-in-the-sky as to be almost silly. In 1910 my great-grandfather cleaned outhouses for a living and, about twenty years later, my grandfather had one of the best jobs a black man could have--he was a Pullman porter.

   That was then, this is now. I am a law professor. The President of the United States is an African-American man. And there are almost one million African-American people in prison. (14) The major race and crime problems of our time are the mass incarceration of African Americans and the extraordinary disparities between blacks and whites in the criminal justice system.

   The fundamental paradox is that, in 2010, while evidence of racial progress is everywhere, racial disparities in criminal justice have never been greater. Nearly one in three young black men has a criminal case: he's either locked up, on probation or parole, or awaiting trial. (15) If we look at black-white racial disparities in education, (16) housing, (17) health care, (18) employment, (19) the ratio is usually 2:1 or 3:1. So, for example, the black unemployment rate is often twice the white unemployment rate. (20) Those disparities have either remained constant over the last one hundred years, or have gotten better. (21) Right now the black-white incarceration disparity is 7:1. (22) Over the last several decades, as African Americans presumably have had more and more opportunities, have been freed of de jure discrimination, and as overt racial prejudice has become socially stigmatized, the black-white disparity in incarceration has risen. (23) How can this be explained?

2. THE NEW JIM CROW

   There are two competing narratives about race and criminal justice over the last one hundred years (or, more accurately, the last one hundred and fifty years, since the end of slavery). One narrative is that mass incarceration is the "New Jim Crow." (24) Under this analysis, slavery, de jure segregation, and now mass incarceration serve many of the same functions and have many of the same effects. (25) There are more blacks in the criminal justice system now (incarcerated, on probation or parole, awaiting trial) than were slaves in 1850. (26) In 2006, one in nine young black men were in prison, and black men were eight times more likely to be in jail or prison than white men. (27) More black men are barred from voting than when the Fifteenth Amendment was ratified. (28)

   Michelle Alexander's book, The New Jim Crow, advances the theory that, in today's "colorblind[]" era, police, prosecutors, judges, and legislators use criminal history as a proxy for race, thereby establishing (or maintaining) a racial caste system. (29) During the Jim Crow era, blacks were discriminated against, disenfranchised, excluded from juries, prevented from bringing legal challenges, and denied other civil, political, and legal rights. (30) The same can be said today about felons, a disproportionate number of whom are African-American. (31) Alexander asserts that in the era of mass incarceration, a newly freed felon has "scarcely more rights, and arguably less respect, than a freed slave or a black person living 'free' in Mississippi at the height of Jim Crow." (32)

   According to Alexander, the war on drugs is the primary tool in creating today's caste system. Since the war on drugs began approximately thirty years ago, the U.S. penal population has almost sextupled, growing from around 300,000 to two million; more than half of these incarcerations were drug convictions. (33) Today, about half of a million people are in jail or prison for a drug offense; this is more than a ten-fold increase from 1980. (34) As a result, the United States has the highest incarceration rate in the world by far; we incarcerate 750 adults per 100,000, while Germany, for example, incarcerates 93 per 100,000. (35) The incarceration rate has skyrocketed despite the fact that the rate of violent crimes is historically low. (36)

   The discriminatory results of the drug war are clear. Three-fourths of those imprisoned for drug offenses are black or Latino. (37) In seven states, 80% to 90% of imprisoned drug offenders are black. (38) Such disparities cannot be explained by disproportionate use of drugs by African Americans; blacks don't use drugs more than any other group, and some studies have even found that they use them less. (39)

   Instead of a formally discriminatory legal regime under Jim Crow, the caste system of mass incarceration relies on the unchecked discretion of police officers and prosecutors. Though all races use illegal drugs at similar rates, law enforcement officers target inner-city minorities; one study in Seattle showed that officers more frequently surveilled open-air drug markets even though most citizen complaints regarded suspected drug use in residences, that officers targeted a downtown drug market even though the frequency of transactions was higher in an outdoor drug market in a white neighborhood, that officers arrested black dealers far more often than white dealers even though white dealers were plainly visible, and that officers overwhelmingly focused on crack cocaine, preferred by the African-American community, even though more overdose deaths were the result of heroin use. (40) The Supreme Court has contributed to this highly differential system. Between 1982 and 1991, 90% of Supreme Court decisions regarding the Fourth Amendment as applied to narcotics were reversals in favor of the government. (41) Frustrated, Justice Thurgood Marshall had to remind his colleagues that there is "no drug exception" to the Bill of Rights. (42)

   Similar statistics reveal racial disparities in police officers use of traffic stops; on the New Jersey Turnpike, where 15% of drivers are black, 42% of stops, and 73% of arrests were of black motorists, even though whites were more likely to be found carrying illegal drugs in their vehicles. (43)

   Even though America's laws must be formally colorblind, the Supreme Court has approved the practice of using race as a factor to determine whether an individual is sufficiently suspicious to investigate, at least in the context of immigration. (44) Moreover, the Court has made it difficult to challenge discrimination other than in its extreme forms. For example, the Court refused to grant relief to a death row inmate convicted in Georgia, where prosecutors sought the death penalty in 70% of cases involving blacks accused of killing whites but only 19% of cases involving whites accused of killing blacks. (45) The Court held that an undeniable pattern of discrimination was not sufficient and that the Equal Protection Clause would be implicated only if a defendant could prove that the prosecutor, judge, or jury consciously discriminated against the defendant in his own particular case. (46) Relying on this precedent, a subsequent Georgia Supreme Court decision upheld a statute allowing a judge to impose life imprisonment for a second drug offense, even though Georgia's prosecutors requested that the policy be applied against blacks sixteen times more often than against whites; 98.4% of persons discretionarily sentenced under the law were black. (47) The Court has also made it practically impossible to ensure a fair jury of one's peers; though the Court requires prosecutors to have a non-racially discriminatory justification for using a peremptory challenge, (48) the Court has accepted clearly pretextual justifications, such as having "the longest hair of anybody on the panel by far," or having a "mustache and goatee type beard," which according to the prosecutor in question, "look[ed] suspicious" and made the...