An examination of crime is an examination of ourselves. Fear and fascination are the two poles of our interest. Crime isn't just an indicator of individual mental health. As we evaluate our response to crime, we also learn about ourselves as a society. Is our response compassionate or severe? What are the political uses made of crime? Do we choose to understand or to punish the offender? Do we want revenge or to rehabilitate the criminal for eventual welcome back to the community?

Crime is a challenge to the normal order of things. It tests our values. Sometimes it is a mark of defiance. Sometimes criminal acts are more based on desperation than defiance. Occasionally, a criminal act is a call for justice. So, to study crime, you must also study the reality of social inequality, of class privilege and extreme deprivation, of race and racism, of neglected, abandoned or abused children. So often we cry profusely for the hurt child and then later scorn that same child as s/he has followed his/her natural path into crime during adulthood. The motivations for crime are varied, but if we are to reduce crime, we must look to the social environment where defiance, desperation or the call for justice is born. Part of the fabric of that social environment is the very procedures of the American criminal justice system; how we investigate crimes and identify criminals, at the institutions that determine guilt or innocence and the institutions that deliver the punishment. Our response to pain by inflicting pain is as old as civilization itself. The familiar Biblical "eye for an eye and a tooth for a tooth" seeks a measure of pain for pain. Balanced against that is the constitutional prohibition of "cruel and unusual punishment". So what is the correct balance between crime and punishment? Do we rape the rapist, or burn the home of the arsonist? Punishment must be had but what is the appropriate punishment?

Since over 50% of our 2 million prisoner population is African American while only 13% of the population, race plays an extremely significant factor in all the issues listed above. No one can think about crime without confronting this disproportionality and this view of American justice in black and white.

HISTORY

Some try to examine this question of disproportionality by simply studying society today. However, the question of race and crime has been linked since the earliest days of our country's history. This link was created by hundreds of years of law. In 1619, the first African slave ships started to arrive in the New World. How could a country founded on liberty for all embrace treating people as objects? They did it by denying the humanity of the slaves; they were property. To manage this property, they created Slave Codes (laws). The Slave Codes created two legal systems; one for whites and another for their black slaves. The codes gave the white slave owners the right to treat their black slaves any way that they wanted including whipping, branding, castration and execution. The Slave Codes prevented a slave owner from giving slaves any legal right or protection. Although the leaders declared in the Declaration of Independence that all men were created equal with certain unalienable rights, they purposefully and specifically denied everything to the slaves. The Constitution never used the term slave but it did provide the legal framework for the continuation of slavery. In the section for the apportionment of US representatives and of taxes, the state's population was to be determined by counting each free person as one and counting all "other" persons (slaves) as 3/5th of a person. The Constitution specified rules regarding the handling of escaped slaves. So, this high-minded document whose primary goal was to establish Justice, also delineated clearly that the meaning of justice varied across race lines, and it explicitly prohibited black slaves from pursuing the blessings of Liberty.

The Slave Codes didn't simply criminalize slave behavior. They also criminalized blackness itself since the free black people also had different treatment. The codes restricted where free black people could live and it restricted their movement. As late as 1804, Ohio prohibited blacks from becoming residents unless they could provide a "certificate of freedom" issued by some count of the US. Blacks were restricted in what jobs they could have. In 1834 it was a crime in South Carolina for a black person to work as a clerk or salesman. In 1835, it was a crime to teach any free or enslaved person of color to read or write. In 1850, the Fugitive Slave Act allowed slave owners to recruit a "slave patrol" to capture and transport the runaway "criminal" using any means necessary.

The courts also participated in the dual legal system. The famous Dred Scott case in 1850 demonstrated the Supreme Court's decision to support the continuation of restricted legal status for all blacks. When Dred Scott, a slave, sued for his freedom, the US Supreme Court ruled that no one of "the negro race" - slave or free- could be an American citizen in the sense in which the Constitution used the word. The Constitution's framers, Chief Justice Roger B. Taney wrote that he understood blacks to be a "subordinate and inferior class of beings" and the constitution never intended to include them within the meaning of the phrase "We the People of the United States." Four years later the Civil War broke out resulting in 1865 in the Thirteen Amendment, which prohibited slavery, except for criminals. In spite of the 13th amendment, the legal status of African Americans did not improve because many southern states enacted the Black Codes, which like the Slave Codes restricted the rights and behavior of the freed slaves. For example, the Black Codes limited African Americans right to rent or own property, to bear arms, and to even meet in unsupervised groups. The Black Codes allowed blacks to be imprisoned for offenses that whites only received fines. They denied blacks the right to bring charges or testify against whites in court. They were only allowed menial jobs and were forbidden from being on the streets after dark. After that, the Fourteenth and Fifteen Amendments were ratified to correct these abuses. With these amendments and the Civil Rights Act of 1866, the US legal system began to warm to the idea that blacks deserved the legal rights of any US citizen. It actually took nearly another one hundred years before basic legal equality for blacks was attempted. This delay was due to the Jim Crow laws, which the southern states enacted, and the Supreme Court upheld, in the last two decades of the 19th century. These laws circumvented the 14th and 15th amendments. The Jim Crow laws mandated separated facilities for nearly all aspects of life; schools, dining areas, transportation and bathrooms. In 1896, the US Supreme Court upheld the Jim Crow law requiring blacks to sit in seats reserved for them. Legally sanctioned inequality was the order of the day.

Law enforcement and prosecution procedures were vastly different depending on the color of the persons in question. Unofficial but tolerated methods of "justice" such as lynching of blacks were used to terrorize black communities. More than 5,000 lynchings were documented between 1859 and 1918. These lynchings were sometimes advertised in newspapers as a spectator event. The lynchings were unbelievably brutal. After a lynching sometimes body parts such as fingers and ears were distributed or sold as souvenirs. The mobs would ride through the black communities assaulting and burning the homes of other blacks. This mob justice system, although incompatible with the justice ideals, was accepted and rarely punished. The police turned a blind eye to these horrendous crimes and sometimes even participated. Even if the mob crime was prosecuted, convictions were nearly impossible since blacks were not allowed to testify against whites, whites couldn't testify on behalf of blacks and juries and judges were all white.

Extreme sentencing disparities also existed. In nearly all situations, blacks got extreme sentences. A famous example case occurred in 1931 when nine black youths, ages 13 to 21, were accused of raping two white women. These young men came to be known as the Scottsboro Boys. The women made up the rape story to cover up the fact that they had sex with two white men and they were attempting to avoid possible jail sentences for vagrancy. In spite of the fact that the evidence did not support the allegations, after only three days all except the youngest were sentenced to die in the electric chair. Due to huge interest in the case and after appeals, one of the two women recanted their story. No rapes happened. Still, the new white jury, decided to convict. The judge threw out the verdict and then there was a third trial. Again, the Scottsboro Boys were convicted. In 1935, the Supreme Court overturned the convictions. Even though there was no doubt that the youth were innocent, the prosecutor again filed charges against the oldest five. Again, the retrial resulted in convictions for all the defendants. The last Scottsboro defendant finally gained his freedom in 1948 after spending 17 years behind bars.

We would like to believe that our country's history reflects little on today's challenge of disproportionality in our 21st century criminal justice system. That is an optimistic belief. Laws and procedures including law enforcement, the court system and sentencing of our modern day criminal justice system still contain the biases against blacks just as the criminal justice system from which our current system was born. And, remembering that criminal behavior is often a result of defiance, desperation or a call for justice, it is reasonable to assume that African Americans are justifiably feeling all three.

RACE, FEAR, CRIME, AND POLITICS

Fears related to crime and specifically black crime has been a long-standing political weapon. In 1988, Republican George Bush's political ad painted Democratic Michael Dukakis as "soft on crime" as a black man, Willie Horton, recently released from a Massachusetts prison raped a white woman. Bush's ad campaign coined the phrase "the revolving door prison policy" showing many convicts moving in slow motion through a revolving prison door. The revolving door commercial showed white prisoners entering prison and black and Hispanics being released into the community. Was he implying that the "liberal" approach took white men and turned them into "dangerous" blacks? Bush claimed that America couldn't risk what Dukakis did to Massachusetts. Bush thus furthered the image of the black man as a dangerous criminal. Critics wondered why Bush chose to feature a black man raping a white woman as his political ammunition. Bush won easily with this political use of race and fear.

Young black men are persistently fighting the image as dangerous criminal. This stereotyping is the origin of the thinking that perpetuates racial profiling. Andrew Hacker, author and political Science professor, demonstrates the intensity of white fear with his students as he asked white students to choose between having $300 stolen from them by someone white, or having $100 stolen from them by someone black. Almost always the students are willing to lose an extra $200 to avoid contact with a black. It was this kind of white fear that Bush critics charged was exploited and reinforced.

RACE, CLASS AND CRIME

Studies consistently demonstrate that conditions that increase criminality among African Americans seem to have the same effect on other racial or ethnic groups. Social scientists have found that city residence is a factor that contributes significantly to violent crime. This is true in all countries. Other factors that cause crime are joblessness, poverty, and general family disruption. These factors have equal influence on blacks and whites.

However, other research has shown that blacks and whites don't share the status of disadvantaged equally. African American's disproportionate share of crime matches their disproportionate share for poverty, unemployment, homelessness, infant mortality and substandard housing. The 1995 Census confirms the tremendous and persistent social differences between the races.

And, unemployment and poverty alone are less predictive of potential criminal behavior than are other social and economic characteristics of the community where they live. A poor, unemployed person living in a mostly middle class suburban neighborhood or in a rural area is less inclined to become involved in crime than a poor, unemployed person living in a dilapidated city ghetto. Evidence supports that crime rates are not a matter of race but rather a matter of place.

However, for historical, social, and economic reasons, blacks are more likely to live in areas which produce crime. Since white Americans are unaware of this relationship between place of residence and crime, they mistakenly view the behaviors produced by the urban decay as cultural traits of African Americans in general. Overall, less than 7 percent of poor whites live in extreme poverty or ghetto conditions. And, 38 percent of blacks live in the ghetto. Researchers shocked by these statistics tried to find cities where the population of blacks living in poverty was equal to or less than the proportion of whites, but they were unable to find a single such city. Other research supports the understanding that dilapidated, disorganized communities tend to generate value systems and attitudes that tolerate crime such as; "toughness", "getting big money", "going for bad", and "having fun". Although use of violence is not necessarily a ghetto value, it is expected and tolerated as a fact of life. Living with violence as a fact of life creates the helplessness, hopelessness and desperation associated with crime.

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Again, the American social structure as shaped by history plays a major role in black criminality. As we move from a manufacturing economy to a service and information economy, hundreds of thousands of blue collar jobs have been lost in the cities. Also, large scale movement of whites and middle class blacks from the city to the suburb leave the urban communities with declining property values, shrinking tax bases, and underfunded schools. These factors accelerate the decline of the urban community to the crime-infested community. The public housing projects of the 1960s and 1970s further isolated the poor and minorities in economically disadvantaged areas making hope even less possible.

RACE AND THE POLICE

Logically, it can be expected that there would be more police presence in neighborhoods with high criminal activity. And, logically this exposure would create a greater possibility of arrests. However, statistics suggest that high numbers of police contacts aren't limited to poor, urban blacks. Higher police contacts are experienced by all blacks. Since police have bought into the notion that blacks as a group are a dangerous, criminal element, they have justified the profiling of blacks. This exposes all blacks to unwarranted police scrutiny. Blacks in an expensive car are profiled as potential cocaine carriers. In addition to the racial profiling, statistics show that African Americans are also subject to higher levels of force in encounters with police. The Rodney King beating is the most well known example of this. While King was on the ground, surrounded by more than a dozen policemen and pleading for mercy, three officers beat him savagely with nightsticks as a sergeant observed the "feeding frenzy". These officers were acquitted of any wrongdoing in spite of the world witnessing their crimes. Many, many cases of unwarranted deadly force used against blacks by police exist in cities throughout the country. Maybe again the police feel that because a suspect is black he is more dangerous and inherently more criminal? In Memphis between 1969 and 1974, for example, police shot and killed 14 people who were categorized as "unarmed and not assaultive"; 13 of them were African Americans. If the police who are charged with protecting communities are seen as a treat to that very community, how would that affect a person's propensity to criminal activities? Again, this contributes to defiance and calls to justice.

RACE AND PROSECUTION

In 1994, the US prison population exceeded one million. This number of prison inmates had doubled in just 10 years. What drove this growth was more severe punishments. Widespread fear of and anger towards violent criminals and perceptions that illegal drug trade was out of control, caused legislators to enact very stiff sentences. Given black's disproportionate arrest rates, black's incarceration rate in 1994 was seven times that of whites. One might think that the different rates of incarceration for blacks and whites would match their respective arrest rates. That, however, was not found to be the case. The incarceration rate for blacks is significantly higher. Nearly one-half of all prisoners are black, yet the proportion of black arrests doesn't approach that figure. The discrepancy lies in the way the criminal justice system treats blacks and whites after arrest and the way crimes are prosecuted and punished. At the discretion of the prosecutor, one suspect could be charged with assault and another with attempted murder. Some people are offered a plea bargain with a lesser charge while others are forced to go to court with the same crime on more serious charges. Blacks are charged with the crimes bringing tougher sentences. A 1991 study revealed that federal prosecutors routinely charged more black men than white men with offenses that called for mandatory sentences. It also found that prosecutors were less inclined to offer plea bargains to black defendants. As a result, the study showed, blacks received sentences that were 49 percent longer than those of whites convicted of similar offenses.

Another factor is whether a crime is tried in a federal court with stiffer mandatory sentencing or a state court. In 1992, the Los Angeles Times reported, not one white offender had been convicted of crack cocaine offense in federal court in the Los Angeles metropolitan area since 1986, when Congress first enacted mandatory drug sentences. Of the 222 white defendants charged with crack cocaine offenses in Los Angles from 1990 to 1992, all had been prosecuted in state court, thus avoiding the harsher sentences required under the federal sentencing mandates. The defendants in all 24 crack cocaine cases tried in federal court in Los Angeles during the same period were African Americans. A 1992 study showed that no white defendants had been prosecuted federally on crack charges in 17 states and many cities. Only one white person had been convicted in federal courts in California, two in Texas, three in New York and two in Pennsylvania. This is in spite of the fact that many people believe that most crack cocaine users are black but according to federal surveys, most crack cocaine users are white (a 1995 report put the figure at 52 percent).

Studies have also documented apparent bias in pretrial detention practices. Nationally, when compared to whites in the same category, unconvicted black defendants are more likely to be confined in jail while awaiting trial. The same pattern holds true for juveniles.

The discretion of prosecutors also works against black defendants in murder cases, especially when the victim is white. Prosecutors request the death penalty for a black defendant 70 percent of the time when the victim is white. If the defendant and victim are white, the death penalty is requested 32 percent of the time. If both defendant and victim are black, the death penalty is requested 15 percent of the time. In southern states these ratios are even more extreme. In Georgia, a study of 2,000 murder cases showed that prosecutors sought the death penalty in 70 percent of the cases with a black defendant and white victim but in just 19 percent of cases where the victim is black and the defendant white. In 1861 a Georgia law imposed a mandatory death penalty for the rape of a white woman by a black man and a prison sentence of 2 to 20 years for the same crime if the man were white. The rape of black women was punished by law with "fine and imprisonment, at the discretion of the court” So how far have we really come?

RACE AND SENTENCING

In addition to the impact of the prosecutorial bias on sentencing, the laws themselves are biased against blacks resulting in sentencing disparities. No, the laws no longer specifically state that blacks are punished more severely than whites, but the results demonstrate that they are. Specifically, there are two types of statutes that have an overwhelmingly negative impact on blacks. They are referred to as the "War on Drugs" laws and the "three strikes and you're out" laws.

The so-called War on Drugs began in the 1980s which is when dangers from drug abuse seemed severe. Cocaine abuse increased along with deaths and violence as gangs competed for their share of the market. So, Congress enacted several many changes with severe penalties for drug offenders. The Omnibus Anti-Drug Act of 1986 has a mandatory minimum sentence of five years in prison, with no parole, even for first time offenders selling or possessing with intent to sell 500 grams of powder cocaine or 5 grams of crack cocaine. This law was toughened further in 1988. Lawmakers decided to treat dealers, possessors, and conspirators of any kind exactly the same. So, mere possession of 5 grams of crack cocaine which weighs as much as two pennies, results in the same punishment as possession of 500 grams of powder cocaine. Also, the conspiracy rules also stiffened. It now provided the same penalty for every participant in a drug ring, not matter how minor his or her role in the operation. These laws eliminated judges’ discretion in sentencing drug offenders. These laws caused the prison population to explode from 57,975 to 353,564 between 1983 and 1993. It has been demonstrated that resources are better allocated for treatment rather than incarceration. Nevertheless, the laws remain. Those familiar with cocaine use know that powder cocaine is used mostly by rich, white people and crack cocaine is typically used by poorer, black people. Interestingly, the crime involving powder cocaine is not listed as a "three strikes you’re out" crime but the crime involving the crack cocaine is. Again, these inequities punish people for being black and for being poor. In the first five years after the passage of the Omnibus Anti-Drug Act of 1986, African American accounted for more than 80 percent of the increase in incarcerated drug offenders. In state facilities during that period, the rate of black citizens incarcerated by 465.5 percent, compared to a 110.6 percent increase for whites. One may guess that this disparity is due to extremely high drug use by blacks, but according to the US Sentencing Commission, only 13 percent of all drug users are black which matches their percent in the population. And, in 1993, a typical year, US Sentencing Commission figures show that 88.3 percent of those sentenced federally (with the more severe treatment) for crack cocaine offenses were African American, and only 4.1 percent were white.

The so-called three strikes laws were also designed to target certain types of criminals. In theory they were to affect repeat, serious, violent felony offenders. The actual result of these laws is that they have acted as a net to gather and incarcerate great numbers of non-violent, poor, people of color who have committed a series of minor offenses but have not had the advantage of adequate representation or access to drug treatment. And again, these laws are meant to remove the discretion of the judges. Between 1993 and 1995, the federal government and 24 states adopted some form of a three strikes law. Again, on paper these laws seem simple and fair but in practice they are the major contributors to the racial disparities. For example, in Georgia as of 1995 the state has used this law in a way which resulted in 98.4 percent of those serving life sentences are black. How could this be? Although judges no longer have the discretion, the prosecutors now exercise their control by charging a greater proportion of African Americans with offenses that call for long, mandatory prison sentences. And, the poorer people do not have the resources to get adequate representation. This combined with a general lack of awareness of civil rights and the prevalence of racial profiling result in further disparities. In California, the first state to pass a three-strikes law, African Americans were imprisoned for a third offense at over 13 times the rate of whites during the first three years after the law took effect, according to the Justice Policy Institute in Washington, D.C. Blacks, who constitute only 7 percent of California’s population and account for 20 percent of felony arrests, make up 43 percent of the state’s more than 26,000 third-strike offenders. If the laws were being applied equally, would we have a more than 100 percent difference between felony arrests and third-strike sentences for African Americans?

Why is it that laws designed to reduce sentencing disparity and target upper-level pushers and the most dangerous felons have resulted in the incarceration of the usual: minorities, the poor and low-level offenders? By removing the discretion from judges, these laws have simply moved it to the prosecutors at the charging phase. Obviously, prosecutors are charging African Americans with offenses that call for long, mandatory prison sentences. Even when judges have discretion, studies find in the area of low level offenses blacks fare worse than whites convicted of similar offenses. When convicted of more serious crimes, offenders of all races are almost equally likely to receive a prison term. However, statistics for 1992 show that blacks, both male and female, received longer maximum sentences than their white counterparts at the time of initial sentencing for comparable offenses. And, blacks served more time before being released than whites. For example, for violent offenses, black males served, on average, 5 to 10 months more time in prison than did white males. Black females sentenced for a “violent offense” served on average 81 months before being released, and white females served 69 to 75 months.

As we study these issues we see there is a difference between disparity and discrimination. Disparity in criminal sentencing refers to the idea that individuals who commit the same or similar offenses receive different punishment once convicted. Disparate sentencing outcomes across race are possible even in the “absence of malice” on the part of the judicial authority making the sentencing decision. Discrimination, on the other hand, implies some level of intentional wrongdoing on the part of sentencing judges. Unintentional but unwarranted disparity and intentional discrimination in sentencing are equally unacceptable. They do, after all, produce the same result-more severe treatment for a specific group of citizens. It would be easy to read all the statistics with cool detachment, but these are not merely statistics. These statistics reflect the reality of the lives of many, many, individuals who have been treated unjustly. And, these statistics reflect the unhealthy state of our society. It is real and it needs to change.

Please reread the information above about the history of discrimination and disparity for African Americans in our country. Then, reconsider the statistics which demonstrate what happens today. Remembering that slavery is legal in prisons, please ask yourself how far have we really come and isn’t it time to do something about this?

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