Lawrence Bobo, Harvard University
NIJ Conference 2011
Lawrence Bobo Thank you, John, for that kind introduction. When I received a letter asking me if I'd be willing to speak to a small, informal brown bag group, I immediately leaped at it; I had no idea John had so many friends on his pages, but here we go. It is truly and honor and a challenge to speak to such a distinguished body of scholars, practitioners, thinkers and law enforcement researchers, as well as officials. And I hope that for the next half-hour or so I can step out of my own perch in the ivory tower and help identify a problem that I believe is worthy of all of our attention and concerted focus and efforts. And in doing so, again, I want to thank John Laub for this very special invitation to come here this afternoon. I want to be sure I know how to work the PowerPoint. There we go.
To begin, it is frequently said that we live in the post-racial era. If Jim Crow racism and the struggles over the civil rights era defined an earlier period in the American experience, then our own time is said to be defined by a new tolerance, a new commitment to diversity and finally moving beyond race as a line of division and inequality in American society. National survey data show, in fact, that substantial numbers of Americans believe in the post-racial narrative, including an overwhelming majority of white Americans who say that we have already arrived at a racially egalitarian society, and in fact, nearly a full third of African Americans. Yet there is at least one domain that remains a glaring exception to this narrative of hope and progress, and it involves the heavy overrepresentation of minorities, especially African Americans, among those in our jails and prisons. The main message of my remarks today is to underscore the importance of continuing to undertake the necessary research and policy-based efforts that will be required in order to genuinely and finally decouple what remains a very troubled nexus of race, crime and punishment that still defines our social landscape. Indeed, part of the reason that I bring you this message today is that I worry that we may be slipping into a place of complacency and routinization of a sort of new, subtle, indirect, less intentional but nonetheless form of racial bias that is built into the operation of our law enforcement system.
Now, it's not possible to understand the continuing linkage of race, crime and punishment without taking note of the more tough on crime and punishment focus tenor of law and social policy. Indeed, for more than 30 years now, America has pursued a deeply punitive anticrime social policy. This trend has proceeded under many broad labels: a wish to restore law and order to our streets, to get tough on crime, to wage a war on drugs, to take decision-making authority out of the hands of those who might be seen as in any way soft on crime. The policy tools attached to these variously labeled phenomena include aggressive stop-and-frisk practices, zero-tolerance and broken window-style policing, mandatory minimum sentences, truth in sentencing guidelines, sentencing enhancements for various offenses, crack versus powder cocaine sentencing differentials, the federalization of many of what were once only state criminal offenses, trying juveniles as adults, three strikes and you're out, et cetera, et cetera, to name only the more high-profile changes that have taken place.
This punitive turn has produced an epic expansion in our reliance, as a society, upon jails and prisons as the principal response to crime. In 1980, as this figure shows, some just over 2 million people were under some form of criminal justice supervision. By 2009, the adult correctional population — that is, identifying those on probation, parole, or in jail or prison — exceeded 7.2 million and was continuing to grow, though now at a much slower pace. By taking 1980 as a starting point, these comparisons are in fact somewhat misleading. It suggests a steady secular trend that is perhaps implicitly directly responsive to something about the actual level or nature of underlying crime. That would be something of a mistake in interpretation. Indeed, the trend we see from 1980 forward is a rather sharp departure from a many-decade steady state of much lower rates of incarceration in the U.S.
If we go back to the 1920s, the number of incarcerated men fluctuated between about 180,000 and 275,000 individuals for most of the 1925 through 1970 period. The sharp rise is really a post-1980 occurrence. As such, the changing trend corresponds much more to alterations and emphasis in the tenor of social policy than to the nature or levels of crime itself. Indeed, the incarceration trends upward even in recent periods of considerable decline in the overall crime rate. This trend or transformation has led many social scientists to speak of "mass incarceration." Legal scholar and sociologist David Garland defined the mass imprisonment society as having two features: First, a rate of imprisonment that is markedly above the historical and comparative norm for societies of this type, and second, the social concentration of imprisonment effects, such that incarceration ceases to be the imprisonment of individual offenders and becomes the systematic imprisonment of whole groups of the population. One indicator in that regard is to compare the U.S. to other major Western industrial societies, where, for example, we incarcerate roughly 5 times as many adults on average as the United Kingdom and fully 12 times as many as Japan.
Indeed, within a decade, it was already clear that the punitive turn was falling more heavily on some segments of the American population than others. As distinguished criminologist Alfred Blumstein documented, the black incarceration rate nearly tripled between 1980 and 2000 and is now over 8 times that for non-Hispanic whites. Indeed, fully 2 percent of the black population was incarcerated in 1999, and 1 in 10 black males in their 20s were under some form of criminal justice supervision. This change has reached such a level that a black male born in 1990 faced almost 1 in 3 lifetime odds of ending up in jail or prison, as compared to well under 1 in 10 lifetime chances for a comparable non-Hispanic white male. This is not merely a story of mass incarceration; it is one, I submit, of racialized mass incarceration. The trend has been so steady and arguably extreme that the U.S. is now the world's leader in incarcerating its own citizens. As the highly publicized title of the 2008 Pew Charitable Trust report put it, and the news headlines here show you, 1 in 100 Americans is now behind bars. This declaration is shocking and was surely emphasized by the report authors in order to jar us as a nation into considering the enormity of the waste of dollars and of human lives that the new mass incarceration society entails.
But we know something else: The rise of mass incarceration has fallen with radically severe disproportionality on African American communities, especially low-income black communities. It is true that 1 in 100 Americans are now behind bars and that 1 in 31 Americans are under some form of criminal justice supervision, if you include also those on probation and parole. The latter figure stands at a thoroughly depressing 1 in 18 for black Americans. One in 18. But it gets even worse. We're at a point where fully 1 in 15 black men are in jail or prison, and we're literally 1 in 9 black men between the ages of 20 and 34 is in jail or prison.
So how do we make sense of that? How do we even talk about it? University of California sociologist Loïc Wacquanthas labeled the modern era a new or fourth stage of racial oppression. In the wake of the successive collapse of slavery, then of the Jim Crow regime, and finally of ghetto segregation as mechanisms of controlling the black population, we get what he now calls the carceral state, or what legal scholar Michelle Alexander labels as the new Jim Crow and public policy analyst Michael Tonry calls punishing race.
Having invoked this series of book titles and the strong terminology they all involved, let me try to be clear about what I am not arguing. I am not arguing that deliberate or overt and explicit racial discrimination in the criminal justice system is the main problem. Not at all. Indeed, in his pivotal book, Race, Crime, and the Law, Harvard legal scholar Randall Kennedy rightly argues that, "The administration of criminal law has changed substantially for the better over the past half-century, and that there is reason to believe that, properly guided, it can be improved even more. Today, there are more formal and informal protections against racial bias than ever before, both in terms of the protections accorded blacks against criminality and the treatment accorded to black suspects, defendants and convicts."
No, the point is not that direct racial bias and discrimination are the problem or a greater problem than in the past. Just the opposite. The nature of the law and law enforcement as well as the makeup of law enforcement personnel have all changed too greatly and too much for the good to offer this simplistic analysis. There are simply too many committed energetic police and law enforcement officials to settle, I think, for such an analysis. However, this does not mean that new and troubling forms of racial bias are not at work, or that the time for vigilance has somehow passed. A complete and rigorous analysis of all the factors at work here are beyond the scope of what my brief remarks this afternoon can meaningfully cover. However, what I would like to stress is that racialized mass incarceration is a product, from my point of view, of the interplay of key economic, political and cultural factors. Thus, in brief, if I may, the intensification of patterns of relative joblessness, poverty, family breakdown and poor schooling in many urban black communities on the one hand coincided or combined with the number of other legal and policy changes involved with the punitive turn in the criminal justice system to bring us where we are today.
The end result, particularly as a consequence of the pursuit of the so-called War on Drugs, has been the greatly disproportionate incarceration of low-income urban blacks, especially poorly educated black men. To be a little bit more concrete about how this operates, consider the following scenario: If public policy and lawmakers tell police to focus their efforts on battling drug consumption and in particular to aggressively focus on the trade and consumption of crack cocaine, then this is how law enforcement will come to target its efforts. Such targeted efforts can in fact come to operate in ways that come to be strongly racially disproportionate in its effect. The best social survey information we have, for instance, suggests that there's little difference between black and white Americans and the frequency of illegal drug consumption, a pattern that is also confirmed by other behavioral data, such as emergency room admissions for drug overdoses and the like.
Despite this apparent equality in turning to illegal drugs, African Americans are far, far more likely to be arrested and then formally jailed for drug use than their white counterparts. Now how does such a disparity arise, especially in an era of less overt racial discrimination? Carefully designed research by sociologist Katherine Beckett and her colleagues has yielded some of the most compelling evidence on just how substantial and institutionalized more subtle and indirect forms of racial bias can become in actual law enforcement practice. Specifically, she and her colleagues argue that the highly racialed discourse in politics that lead to the War on Drugs has become kind of built into street-level law enforcement actions, to wit, police selectively focus their attention on enforcement and arrests on the public space drug trade on crack, which typically or more often occurs among blacks and Latinos, in large part because public officials in broader social discourse identify crack consumption as the key problem to be focused on. Their own systematic observation of known drug trading locations show that police are more likely to pursue black and Latino suspects in the area than the white ones. As Beckett and colleagues concluded, "Our findings indicate that the majority of those who deliver methamphetamine, ecstasy, powder cocaine and heroin in Seattle are white. Blacks are the majority of those delivering only one drug: crack. Yet, 64 percent of those arrested for one of these five drugs is black. Predominately white, outdoor drug dealing markets receive far less attention than racially diverse markets. The overrepresentation of blacks and underrepresentation of whites among those arrested for delivery of illegal narcotics does not appear to be explicable in fully race-neutral terms."
Now, no one is arguing that someone set out to produce racially disparate outcomes but that is, in effect, what ends up happening. A similar type of bias on the basis of race has been shown in examinations of recent stop-and-frisk data. For example, as the New York Times reported just last month, blacks and Latinos were nine times as likely as whites to be stopped by the police in that city in 2009 — but, once stopped, it turned out, were no more likely to be arrested. Again, the level of disparity in supervision and intrusion on individuals here is extreme. According to the 2009 data, nearly 490,000 blacks and Latinos were stopped by police on the streets last year, compared with 53,000 whites. But once stopped, the arrest rates were virtually identical. Whites were in fact arrested in slightly more than 6 percent of the stops, blacks in slightly fewer than 6 percent. About 1.7 percent of whites who were stopped were found to have a weapon, while 1.1 percent of blacks were found to have one.
A major assessment of traffic stops also by the Los Angeles Police Department, carried out by the economist and legal scholar Ian Ayres, showed very similar results. Ayres found that blacks were three times as likely as whites to be stopped but were less likely on any given occasion to receive a citation. As the report concludes, so many blacks are subject to frequent stops that they nonetheless remain twice as likely overall to get citations. But one cannot avoid the conclusion that many of these stops were not warranted and reflect the routinization of a sort of element of bias.
I want to stress several points about the problem of racialized mass incarceration, after trying to quickly sketch this sociological and more practical process. First, the level of incarceration is now so extreme and disproportionate on the basis of class and race that, sadly, prison has become an almost ordinary life experience for poorly educated blacks, and is done so in a manner that is not characteristic of any other segment of American society. My Harvard colleague and sociologist Bruce Western, in his book Punishment and Inequality in America, compared rates of incarceration for two generations of men: those born in the five years immediately following World War II, and those born during the height of the Vietnam War era, 1965 to '69. Black men in the post-WWII generation who did not graduate from high school had a less than 1 in 5 chance of going to jail or prison by the time they were 30 years old. Similar black men born in the Vietnam era, however, had a 3 in 5 chance of spending some time in prison by the time they reached age 30. That is, nearly 60 percent of poorly educated black men in this more recent cohort were destined for jail or prison, a figure that is sure to be worse for the more recent cohorts of poor and poorly educated black men. That means, literally, we are talking about neighborhoods where a young black man sees his older brothers, uncles, fathers and grandfathers as people who have almost all certainly spent some time in jail or prison, and it's normative not because it's a desired outcome, it's just because that's what happens.
This now means that exposure to jail and prison is a more common experience for a generation of poor blacks than is, say, membership in a labor union, service in the military, or receipt of a variety of government benefits. As Western goes on to write, "The criminal justice system has become so pervasive that we should count prisons and jails as among the key institutions that shape the life course of recent birth cohorts of African American men. By the end of the 1990s, black men with little schooling were more likely to be in prison or jail than to be in a union or enrolled in a government welfare or training program. Black men born in the late 1960s were more likely by '99 to have served time in state or federal prison than to have obtained a four-year degree or served in the military. For non-college black men, a prison record has become twice as common as military service."
There are many other effects to which we may point as a consequence of racialized mass incarceration. And I'm just going to put a long list out here and then talk about a couple of these. It is clear that a criminal record diminishes the employment prospects for an individual. We now have strong field experimental data carried out by sociologist Devah Pager showing that this effect is especially destructive of the future employment prospects of black men. The loss of the right to vote, as well as access to other federal, state programs and benefits, increasingly attaches to a felony conviction. As a consequence, we are potentially creating more and more people with a tenuous claim to full citizenship, or the prospects for even viable self-support once they've paid their debt to society via a jail or prison sentence. Indeed, some scholars are increasingly worried that the level of incarceration is at a point where it begins to destabilize families and communities and in turn becomes directly criminogenic itself. That is, there are a series of interconnected social and political effects to the current state of racialized mass incarceration, about which I think we should all be deeply concerned.
Second, this circumstance has the implications for health of our legal system and for American society writ large. As Alfred Blumstein observed, "There is a large, disproportionate representation of minorities, especially blacks, involved in all aspects of the criminal justice system; and this disproportionality alone, regardless of its legitimacy, conveys a profound sense of unfairness to the overrepresented groups." Indeed, this condition does raise questions about the fairness and equity of our legal system and processes. A number of the national surveys I have conducted reveal enormous disparities between blacks and whites in the level of confidence they have in police, prosecutors and in the courts. These differences are in fact in the 50-plus percentage point range. I mean, they define different world views, with, for example, 79 percent of white Americans in a national survey saying they have a lot or some confidence that judges will treat blacks and whites fairly, whereas only 28 percent of black Americans express such a view. This cynicism about the criminal justice system among is potentially quite consequential. Via a series of experiments embedded within national surveys, we have shown that blacks are far more likely than whites to be ready engage in what has been called jury nullification. This tendency is particularly strong among those who believe the war on drugs has been racially biased in its practice, and we have shown is greatly enhanced under those experimental conditions when a hypothetical black defendant alleges some degree of bias by the police. Whether the scenario we posed in our experiments involved a nonviolent drug-related arrest or an attempted murder charge, when the experimental condition mentioned any potential for racial bias on the part of the police, the level of willingness to engage in jury nullification among blacks rose by a full 20 percentage points — so, in the case of a nonviolent drug arrest, arriving at nearly 70 percent saying they would probably vote to let go a person who they thought was guilty.
Third, and quite independent of the racial dimension of the problem, the growth in state expenditures of jails and prisons of course has far outstripped the growth of almost all other state expenditures, with the one exception of Medicaid. In particular, the growth and spending on corrections has absolutely dwarfed growth and spending on higher education. The Pew Charitable Trust estimates that on average it costs $29,000 a year per inmate to incarcerate someone. In 2007, we spent $49 billion on corrections, jails, prisons and supervision of those probation and parole. That figure is four times what it had been a decade earlier and reflects growth over the decade of more than 127 percent in inflation-adjusted dollars. Over the same time period, spending on higher education on average rose by only 21 percent, one-sixth of the growth seen in prison expenditures. Moreover, according to the Pew report, in some states, such as Connecticut, Vermont, Michigan, Delaware, Oregon, correction spending actually exceeded that on higher ed. As the New York Times wrote in an editorial following the release of the Pew report, "These statistics point to a terrible waste of money and lives." In an era of profoundly constrained state budgets, it requires no great leap of logic or exercise in higher order econometric analysis to conclude that scarce state dollars are surely better invested in early childhood education programs and meaningful access to higher education than in building, staffing and filling more prison cells with inmates.
The time has come, in effect, to both get smart on crime and to rededicate ourselves to decoupling the connection between race, crime and punishment. The get-tough punitive agenda has both arguably failed as a pure crime fighting strategy and tragically run the risks of deepening racial division. We must recognize that the crime reduction benefits of incarceration do exist but appear to be limited. Indeed, the best and most defensible estimates suggest that perhaps as little as 5, though maybe as much as 10 to 15 percent of the decline in crime rates seen over the last decade and a half can be attributed to incapacitation and deterrence effects of the new mass incarceration society. Rather, the larger share of the decline seems to be attributable to a combination of changing population age distribution, stabilization of the crack cocaine markets, the destigmatization of cocaine usage and dependence — crack cocaine use and dependence — and a shift to community policing strategies that makes police more of a partner and a much more visible presence in many communities.
We should instead be focused now on reducing the number of prison admissions, reducing the length of prison stays for those not involved in violent crime, and increasing the pressure on local and state officials to evaluate and intervene on any policing strategy or a adjudication practice that is producing clearly racially disparate rates of official scrutiny, arrest and incarceration. Now, as suggested at the outset, the rise in incarceration has largely been driven by policy changes, not by changes in the amount of severity in the crime problem itself. If policy produced mass incarceration, policy can also do much to change the circumstance. In terms of high-level goals for our criminal system, policy analysts Henry Ruth and Kevin Reitz argue that crime policy should be formulated and routinely evaluated against 5 key ambitions: the reduction of crime; the reduction of public fear; justice for victims, offenders, and the larger public; law enforcement and law practices that foster perceived legitimacy; and, five, the avoidance of the extension of law beyond those actions truly necessary to address serious harms faced by society. With respect to mass incarceration trend, and specifically with regard to race, they propose that we require changes in punishment laws be preceded by systematic and thorough assessment of the racial and ethnic changes that may result from any alteration in practice and policies. Those interventions that will foreseeably result in racially disproportionate outcomes need to be very carefully scrutinized and problematized as to whether they are truly appropriate to serving a compelling and legitimate law enforcement need.
As I reflect on the evident punitiveness trend and state of racialized mass incarceration, one might be inclined to despair and conclude that this would have never gone on for so long or reach such extreme levels had those being swept up into it not been largely black, poor, and poorly educated. To now exist in a circumstance when going to jail or prison looks like the normal life experience for poor black men, when we as a society are investing relatively more aggressively in jails, prisons and state supervision apparatus than we are in higher education, and where the evidence of a quite marginal crime reduction payoff to mass incarceration mounts, it seems to be time to renew a commitment to doing the research that identifies the ways that bias may still operate, that assesses other, more appropriate lines of effective response to real issues of violent crime and community and individual endangerment.
For the first time in more than 30 years state prison populations showed a slight decline in recent data. But the federal prison population continued to grow and the heavily disproportionate incarceration of minorities, especially poor blacks for low-level drug offenses, continues. Scholar and policy analyst analyst John DiIulio, once an advocate for many more punitive policies, changed his own emphasis a decade ago, calling for a shift in our priorities. In particular, he called for reform in our drug laws and greater emphasis on prevention and alternatives to incarceration. Small steps have been taken in both of these directions. Those efforts and the research needed to support them need to be accelerated. He also identified a series of other policy steps that might well be attempted.
Writing at the dawn of the 20th century, the great African American sociologist W.E.B. Du Bois bemoaned the extent to which crime had come to define the black presence in the urban north — surprise, surprise. Although writing at a time where the magnitude of the racial gap he observed was far, far smaller than anything we see today, Du Bois nonetheless wrote, "There is a widespread feeling that something is wrong with the race that is responsible for so much crime, and that strong remedies are called for. Indeed, to the minds of many this is the real negro problem." Even in his day of course, Du Bois rejected this sort of analysis and called for a whole different way of thinking and approaching the problem.
I opened by treating the linkage of race, crime and punishment as the great exception to the narrative of a post-racial America. I want to conclude with a simple illustration of how mass incarceration reinforces racial inequality and division. In our national surveys, we asked respondents whether they have a close friend or family member who is currently incarcerated. We found that only 1 out of 10 whites said yes in these national surveys. In contrast, fully half of African Americans responded yes. Even more striking is that among the very lowest education and income whites, we still find just one in five responding yes to the question about a friend or relative incarcerated — 20 percent. However, that number is nearly 60 percent among low-education, low-income blacks. Perhaps even more striking is that while fewer than 5 percent of the highest status whites, that is those who have completed college and have very high incomes, say yes. Fewer than 5 percent. Nearly one in three of the very highest status African Americans said yes. Strikingly, the rate of such exposure to the criminal justice system among the most well-off blacks is such that it exceeds that even among the most disadvantaged segment of the white population.
America can and should do better than this. The time has come to reaffirm a commitment to decoupling the intertwining of race, crime and punishment. I am indeed in many ways inspired and confident that the sort of gathering we are all at here today and over the next couple of days brings together the right mix of scholars, policy makers, researchers and law enforcement officials, and it is on the basis of the sort of goodwill, deep expertise and knowledge, and broad skill possessed by folks like all of you here that I think we can indeed make progress on this important national problem and priority. Thank you very much.
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Lawrence Bobo, W.E.B. DuBois Professor of the Social Sciences, Harvard University
Date created: September 06, 2011