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Chapter I

Mass Incarceration (concluded).

Why is it that the chances of incarceration at some time between the ages of 18 and 34 for a young adult Black man are six times those of a young, non-Hispanic, White man? Why is it that this is seemingly taken for granted by (White) society at large? Hispanics in the United States occupy a socio-economic position similar to that of African-Americans:  many live in poverty; many suffer from prejudice; many Hispanic children attend low-performing schools. And yet the incarceration rate for young adult Hispanic men, while twice as high as that of White, non-Hispanic, men, is only one-third that of Black men.  The relationship between White and Hispanic young adult male incarceration rates does not seem extreme when we take into account educational achievement, which, as we have seen, is a well-established factor affecting incarceration rates, and poverty. However, the disparity between the incarceration rates for young adult Black males and their Hispanic and other White peers cannot be explained in this way.

One interpretation of these statistics is that Black men have an extraordinary propensity to commit crimes. This is the interpretation given by representatives of the criminal justice system when explaining the concentration of police activity in Black communities. They “make Negroes into thieves, monsters and idiots,” as Du Bois put it. Another interpretation is that the police have an extraordinary propensity to arrest Black men and the courts have an extraordinary propensity to incarcerate them. The latter interpretation is now sufficiently well-known in federal government circles that the United States Equal Employment Opportunity Commission (EEOC) issued “enforcement guidance” in April, 2012, on the consideration of arrest and conviction records in employment decisions.  The EEOC implicitly attributes these disparities in arrest and incarceration rates to disparities in enforcement of drug laws: “African-Americans and Hispanics were more likely than Whites to be arrested, convicted, or sentenced for drug offenses even though their rate of drug use is similar to the rate of drug use for Whites.”   (As a matter of fact, the Annie E. Casey Foundation Kids Count (2012) study finds that “Among racial and ethnic groups, African-American and Asian teens were least likely (4 percent) to abuse or be dependent on alcohol or drugs” (p. 35).) If drug use rates are similar among Black, White and Hispanic Americans, and if Black and Hispanic drug users are more likely than Whites to be arrested, convicted or sentenced for drug offences, the variable, in the view of the EEOC, is not “criminality,” but the operations of the police and courts.  The EEOC guidance document makes it clear that the Commission does not believe that most African-American men are habitual criminals in the common sense of the term. The tone and argument of the document indicate that the Commission believes, rather, that the operations of the “criminal justice system” involve systematic racially disparate effects. In effect, the federal government is stating, as if as a matter of course, that the criminal justice system often penalizes African-Americans simply for being Black.

This seems indeed to be the case. As an example, we can point to New York City’s “stop and frisk” activities. According to a 2007 analysis of those activities in the Journal of the American Statistical Association, African-Americans represented 51% of the stops while making up only 26% of the New York City population. “Blacks were stopped 23% more often than whites … The differences in stop rates among ethnic groups are real, substantial, and not explained by previous arrest rates or precincts.”  (Emphasis added). If they cannot be explained by arrest rates or precincts (i.e., “to protect the residents of high crime neighborhoods”), the residual category is to explain them by the policies and practices of the police themselves. In 2010, according to The New York Times, when over 50,000 people in New York City were arrested on charges of marijuana possession, more than during the entire 19-year period from 1978 to 1996, “Seventy percent of those arrested are younger than 30, and 86 percent are black or Hispanic, even though, according to the Drug Policy Group, “young whites use marijuana at higher rates.”  

Possession of less than 25 grams of marijuana has been a violation, not a jailable crime, in New York since 1977. But having the drug “open to public view” is a crime, and advocates say that many people who simply have marijuana in their pockets are charged with having it in the open after officers order them to empty their pockets.
As we have learned, the pockets of young White people are more likely than the pockets of young Black people to contain marijuana, but New York City police are more likely to unlawfully order young Black people to empty their pockets, and then arrest them for doing so. A 2012 study of cases in the Bronx borough of New York City by the Bronx Defenders legal assistance agency found that 40% of arrests for low-level possession in 2011 were unlawful.    

The total number of marijuana arrests in the United States in 2010 was 854,000.  Most of those were arrests of African-American and Hispanic young men. If the findings of the Bronx Defenders study are nationally applicable, and there is no reason to think that they are not, 341,000 of those were unlawful arrests. In other words, hundreds of thousands of young Black and Hispanic men are unlawfully arrested each year for purported marijuana offenses alone. To these may be added those incarcerated Black men who would not be incarcerated, or would not be incarcerated for such lengthy periods, if it were not due to the disparate effects of arrests and sentencing for crack and powder cocaine. We can calculate this disproportionality in another way as a check on at least the order of magnitude of our estimates. Between 1980 and 2009, the rate of arrests of Black adults for drug possession averaged three times that of White adults. If we calculate a projected number of adult Black drug arrests (including both possession and sales) based on the drug arrest rate for White adults (given that the actual criminalized activity is roughly equivalent), we find that the difference between this projection and actual arrests, on average, is over 300,000 arrests of Black adults annually beyond the amount to be expected based on the actually equivalent drug use rates of Blacks and Whites. This corresponds well with the estimate of 314,000 unlawful arrests projected from the Bronx Defenders study. As the ratio between drug arrests and incarcerations is approximately three to one, there may be something on the order of 100,000 more Black adults incarcerated every year as the result of unlawful drug arrests than would be the case if the criminal justice system operated equitably. Given that the average sentence for drug offenses is about five years, at any one time it may be that hundreds of thousands of Black adults (overwhelmingly male) are in prison, away from their communities, leaving their families in poverty, because of the disproportionate number of drug arrests alone.

Andrew Hacker has pointed out a flaw in the emphasis on drug offenses as the single cause of the disproportionality of incarcerations: many more Black men with felony convictions are incarcerated for violent crimes than for drug offenses.  Let us turn then to an analysis of the racial distributions of violent crimes. Half those in custody as the result of felony convictions in New York State prisons are Black and approximately equal numbers are White, non-Hispanic, and Hispanic. The distribution in the general population in the state is 58% White, non-Hispanic, 16% Black and 18% Hispanic. Thus the Black prison population is far greater than proportionate to either the Hispanic or White, non-Hispanic, prison populations. The offenses of White, non-Hispanic, prisoners (24% of the total) are predominately crimes against property (48% of all White incarcerations) and “Other Violent Offenses” (34%): for the most part “other sexual offenses” and robbery. The offenses of Black prisoners are Violent Felonies (murder, robbery and weapons violations) and Drug Offenses.

Why are this large number of Black men in prison for violent offenses? Is there something special in Black life that causes men to murder and rob one another (as it is indeed other African-Americans who are most often the victims)? The answer seems to be “yes,” and that factor is disproportionate poverty. Professor Lance Hannon, usually in collaboration with Professor Robert DeFina, both now at Villanova, has published a series of studies establishing a causal chain connecting incarceration for criminal behavior to poverty. In an article asking whether poverty’s effects on violent crime varies with race, they find that in fact, this is not the case. They conclude: “Reductions in neighborhood poverty appear to produce similar reductions in violent crime in white and black neighborhoods.”  And, one deduces, the reverse. Their research indicates that the higher rates of violent crime in Black neighborhoods is an effect of poverty, not race.

Jeffrey Fagan, Valerie West and Jan Holland of Columbia University found from a review of the research that the “risks of going to jail or prison grow over time for persons living in poor neighborhoods, contributing to the accumulation of social and economic adversity for people living in these areas, as well as to the [lack of] overall well-being of the neighborhood itself.”  Fagan and his colleagues conclude from this and other analyses that “incarceration is not simply a consequence of neighborhood crime, but instead may … actually elevate crime within neighborhoods.”   The neighborhoods in question are those housing people, for the most part African-American people, living in poverty:  “[T]he overall excess of incarceration rates over crime rates seems to be concentrated among non-white males living in the City's poorest neighborhoods … neighborhoods with high rates of incarceration invite closer and more punitive police enforcement and parole surveillance, contributing to the growing number of repeat admissions and the resilience of incarceration, even as crime rates fall. Incarceration begets more incarceration, and incarceration also begets more crime, which in turn invites more aggressive enforcement, which then re-supplies incarceration.   [Emphasis added.] Fagan and his colleagues conclude that “incarceration provides a steady supply of offenders for more incarceration.

We show that over a relatively long time period, and across very different levels of crime citywide and within neighborhoods, incarceration trends first unfold as closely tied to crime, and then over the interval, become somewhat independent of crime. As this cycle spirals forward, incarceration threatens to become endogenous in these neighborhoods, or “grown from within,” seeping into and permanently staining the social and psychological fabric of neighborhood life in poor neighborhoods of New York and many other cities. Incarceration thus is part of the ecological backdrop of childhood socialization, whose effects are multiplied by grinding poverty, and an everyday contingency, particularly for young men, as they navigate the transition from adolescence to adulthood. As the risks of going to jail or prison grow over time for persons living in these areas, their prospects for marriage or earning a living and family sustaining wage diminish as the incarceration rates around them rise, closing off social exits into productive social roles. Overtime, incarceration creates more incarceration in a spiraling dynamic.  
It is important to emphasize here that Fagan and his colleagues are not saying that crime is rising in these areas, but that the criminal justice system is incarcerating increasing numbers of young men “independent of crime.” This is distinguishable from Blackmon’s “slavery by another name” only in that the process does not end in slave labor but in incarceration, which is an expense, not a source of income. In other words, it is a tax levied by themselves on those who control the criminal justice system. There are those who rationalize this by pointing to the rising profits of private prisons, but most prisons are governmental: their costs greatly outweigh the corporate profits of private prisons. Mass incarceration of African-American men is not dependent on the existence of corporate prisons. It is a price, an accepted cost, of an ideology of racial inferiority.

In these early decades of the twenty-first century, disparate poverty rates and rates of contacts with police, as exemplified by “stop and frisk” and other police actions, lead to (rather than from) disparate rates of arrests and these, in turn to disparate rates of incarceration. Just as vagrancy laws were used in the Jim Crow era to maintain structures of inequality and debt peonage in the South, so today drug laws and police practices not necessarily connected with those laws, remove large numbers of Black men from their communities and not incidentally, the electoral rolls. For in many, if not most cases, those convicted of a felony are literally disenfranchised. As with Jim Crow debt-peonage, today, “Once a person is labeled a felon, he or she is ushered into a parallel universe in which discrimination, stigma, and exclusion are perfectly legal, and privileges of citizenship such as voting and jury service are off-limits.”  This variety of civic death is one consequence of mass incarceration. There are others. The more felons in a group, the more families living in poverty, the fewer voters. The fewer voters, the less influence over decisions about such matters as police practices and  school funding.

In The New Jim Crow: Mass Incarceration in the Age of Colorblindness, Michelle Alexander asserts that “mass incarceration operates as a tightly networked system of laws, policies, customs, and institutions that operate collectively to ensure the subordinate status of a group defined largely by race.”  She sees the operations of the criminal justice system as formative for the structure of contemporary society: “We have not ended racial caste in America; we have merely redesigned it.”  Although it could be pedantically argued that caste is a specifically Hindu social structure, “caste” is a convenient term for any group of people with highly restricted social mobility. Many societies have pariah castes. Indian Untouchables “were” those who made their living as butchers, hunters, fishermen, leather workers and those engaged in sanitation. Japanese pariahs, the burakumin or kawata, were leather workers and undertakers.  In Europe the pariah groups have included Gypsies and Jews (and for some, the Irish). The class identification of an individual can change—a middle class person can become impoverished or, on the other hand, can marry into an aristocracy—however, caste is maintained without reference with economic status. In India, Kocheril Raman Narayanan, was an Untouchable, a Dalit, a member of a Scheduled Caste, for all that he was President of India. In the United States, it is the association between the former status of enslavement and the racial identity of Africans and their descendents that has led to the perpetuation of the status of African-Americans as something close enough to a caste to allow the use of the term. As Du Bois has taught us, an outward sign of that caste is the imputation, the imposition, of criminality: the vagrancy criminality of debt peonage under Jim Crow, the drug-offense criminality of the late-twentieth and early-twenty first centuries.

Michelle Alexander goes so far as to claim that in relation to African-Americans, “The nature of the criminal justice system has changed. It is no longer concerned primarily with the prevention and punishment of crime, but rather with the management and control of the dispossessed,”  with the designation and enforcement of caste. Blackmon would argue that, especially in the South, no change was needed. It could also be pointed out that criminal justice systems are always concerned with both crime and the management and control of members of subordinate groups. What Alexander has brought to wide attention is that in twenty-first-century America, in both the North and the South, increasingly the latter role—control of members of subordinate groups—predominates, in stark contrast to what Myrdal hoped from democracy, which he idealistically called “the American Creed.” Alexander argues that this co-option of policing, courts and prisons has as its primary purpose the maintenance of the American caste system. “Today mass incarceration defines the meaning of blackness in America:  black people, especially black men, are criminals. That is what it means to be black …”  Perhaps what has changed is exactly this penetration of traditional Southern ideas of the purpose of the criminal justice system throughout the country as a whole. Never were the Fugitive Slave Laws embraced so warmly outside the South as is the agenda of “law and order” today.

Alexander’s argument moves from the unusual nature of the crimes which are the focus of the “war on drugs,” to the disproportionate and extraordinary scale of incarceration in this country, and then to the resultant construction, reconstruction, of caste. “The process of marking black youth as black criminals is essential to the function of mass incarceration as [constitutive of] a racial caste system.”  More than three-quarters of a century ago Du Bois wrote that “The normal amount of crime which an ignorant working population would have evolved has been tremendously increased [by the Southern criminal justice system]. Young criminals and vagrants were deliberately multiplied and this in turn made an excuse for mob law and lynching.”  As researchers Bruce Western and Becky Pettit have pointed out, these disparate rates of incarceration are a matter of implicit public policy: “The United States’ prison population did not balloon by accident, nor was its expansion driven principally by surging crime rates or demographic dynamics beyond the control of state leaders. Rather, the growth flowed primarily from changes in sentencing laws, inmate release decisions, community supervision practices and other correctional policies that determine who goes to prison and for how long.”  [Emphasis added.]

What is to be done?  The answer is still that with which Myrdal concluded his discussion of the criminal justice system in the South, circa 1940:  “White people must be taught to understand the damaging effects upon the whole society of a system of justice which is not equitable.”  Mass incarceration could be brought to an end in an afternoon. Local district attorneys and police chiefs could make the decision to stop inequitable arrests and prosecutions any day over lunch. They could issue the requisite orders when they returned to their offices and announce them to the press later in the afternoon.

We can put down a marker here: 100,000 young adult Black men imprisoned each year under the drug laws who most probably would not have been imprisoned if they were White. Many times that number imprisoned for violent offenses arising from the sheer poverty endemic in Black neighborhoods. These point us toward a more detailed discussion of African-American poverty and then to public education and Black male students. They point also to a way out of the circuit of mass incarceration, poverty and inadequate education.

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