Race, Crime, and Punishment

Debates about crime and punishment often follow a familiar script. From the left we hear about the social injustice perpetrated on poor and minority communities by the criminal justice system. The right fumes that the leftist critique ignores the problem of crime and the victimization avenged by police, prosecutors, and the prisons.

Both sides have a point. Glenn Loury’s essay on mass incarceration rightly observes that incarceration has become commonplace for young African American men, particularly those with no college education. This is new. We need only go back thirty years to find a time when prison was not a routine life event for black men with little schooling. The social consequences of mass incarceration have been devastating for poor African American communities, and there is no evidence that policymakers or policy experts seriously weighed these costs when designing a highly punitive system of criminal justice.

John Lott counters that policymakers did not target African Americans specifically. (James Q. Wilson’s essay was not posted at the time of this writing.) Instead, racial disparities in punishment are due to high rates of murder and other crime among blacks. What’s more, high rates of incarceration have produced large improvements in public safety that redound to the poor and minority communities that supply most of the nation’s prison inmates.

The challenge for policymakers is to absorb both these lessons — that harsh punishment leads to social injustice, and that crime is a grave problem for poor communities for which effective anti-crime strategies are needed.

The key point here is that a robust and sustainable public safety must be built on institutions that are seen as legitimate by the citizens who are governed by them. Here, I side with Loury. Such institutions must be inclusive, recognizing our shared humanity, and offering pathway back to the mainstream for those who have offended. Going further, inclusive and legitimate institutions will promote positive alternatives to crime even before would-be offenders have embarked on criminal careers.

To tackle these arguments about race, crime, and punishment, we first need to get some basic facts straight. There is a large research literature on racial disparities in criminal processing. Some of the simplest and most persuasive studies compare crime rates to imprisonment rates for blacks and whites. If disparities in crime equal disparities in imprisonment, high rates of black incarceration are plausibly due to crime, not harsh treatment by the authorities.

Early studies, from the 1980s, showed that about 80 percent of the 7-to-1 racial disparity in imprisonment was due to racial disparities in crime.  The unexplained disparity, 20 percent of the total, emerged after arrest because of racial disparities in convictions, sentencing, and time served in prison. The recent paper by Michael Tonry and Matthew Melewski shows that the unexplained disparity has grown from 20 to 40 percent of the total racial disparity. In short, over half the large racial difference in imprisonment is related to high rates of crime among blacks, but fully 40 percent of the racial disparity is due not to crime, but other factors.

Though a large share of the disparity in incarceration cannot be attributed to crime, racial inequality is also narrowly defined in this research. No account is taken of the possibility that the criminal law is written in a way that penalizes the kinds of crime committed by blacks more heavily than the kinds of crime committed by whites.

While 40 percent of the racial disparity in incarceration is not due to crime but other factors, surely mass incarceration contributed to the tremendous decline in crime through the 1990s. Indeed, the 1990s crime decline produced a great improvement in public safety. From 1993 to 2001, the violent crime rate was halved, murder rates in big cities like New York and Los Angeles fell by half or more, and this progress in social well-being was recorded by rich and poor alike. I analyzed crime rates in this period and found that rising prison populations did reduce crime, but not by much. The growth in state imprisonment accounted for 2 to 5 percent of the decline in serious crime — one-tenth of the crime drop from 1993 to 2001. The remaining nine-tenths was due to things like the increasing size of local police forces, the pacification of the drug trade following the crack epidemic of the early 1990s, and the role of local factors which resist a general explanation.

But to acknowledge that the prison boom reduced crime is not to say that it was worth it. The modest decline in serious crime over an eight-year period was purchased for $53 billion in additional correctional spending and half a million new prison inmates. If we add the lost earnings of prisoners, the family disruption, and the community instability produced by mass incarceration, a steep price was paid for a small improvement in public safety. What’s more, nearby examples show that crime has been controlled without large increases in imprisonment. Violent crime in Canada, for example, also declined greatly through the 1990s, but Canadian incarceration rates actually fell from 1991 to 1999.  New York maintained very low crime rates through the 2000s, but it is one of the few states that significantly cut its prison population over the last decade (see New York’s 2007 Crimestat Report, p. 38 [pdf]). Though large increases in imprisonment do reduce crime a little, the social cost is high and less punitive approaches have been equally successful.

All this analysis considers only the short-term reductions in crime produced by imprisonment. Because of the social costs of punishment — in the lost earnings and broken families of ex-prisoners — the seeds of recidivism are sown by incarceration itself. Ex-prisoners, without jobs or family ties, are more likely to re-offend. More fundamentally, the poor and minority communities that are disparately policed and punished come to view law enforcement, the courts, and the jails with suspicion and not as sources of legitimate order and support. We have few estimates of how much distrust in criminal justice institutions increases crime, though the effects may be very large.

The evidence I’ve reviewed indicates that mass incarceration has produced a public safety that is short-term, expensive, and vulnerable to reversal. Mass incarceration deepens inequalities in economic opportunities and family life, and receives little positive support from the communities it regulates most closely. The failure of the system is due exactly to the kind of social exclusion that Glenn Loury described.

Much of this discussion though risks irrelevance. Whether Loury is right or wrong, governors now want to shrink prison populations and spend less on corrections. For statehouses around the country, the system is not cost-effective. It crowds out spending on more urgent priorities like higher education, Medicaid, and schools. The question today is not whether we should give full vent to our punitive instincts, but what should we do instead.

Though the old orthodoxy claimed that programs for criminal offenders don’t work, a new round of well-designed evaluation studies are showing that transitional employment programs for released prisoners can yield significant reductions in recidivism and gains to employment and earnings. I estimate that a national program of transitional employment for all parolees in need of work, supplemented by drug treatment and housing, would cost $8 billion dollars, or about 11 percent of the total correctional budget. This program would more than pay for itself in reduced correctional costs and crime averted.

Prisoner reentry programs, however, are only incremental. A thorough reversal of mass incarceration will depend, as Loury implies, on a universalistic social policy that promotes opportunities for all members of society. Two policy debates are currently considering universalistic goals that promote opportunities for all. These debates are in the areas of health and education. Universal health insurance that includes coverage for mental illness and addiction will greatly improve the life chances of crime victims and those most likely to go to prison. In education policy, early child programs and measures to reduce high school dropout deal with the problems of crime and incarceration before the most serious damage has been done.

These efforts to build a broad social citizenship are premised on the common humanity that Loury envisions, repairing the racial and economic inequalities on which the prison edifice was built.

Also from This Issue

Lead Essay

  • A Nation of Jailers by Glenn Loury

    In this month’s lead essay, Brown University’s Glenn Loury, author of Race, Incarceration, and American Values, points out that the United States imprisons more of its population than any country on the planet. America’s incaceration policies, Loury observes, fall disproportionately on black men. Loury is disturbed that we seem rarely to consider whether these policies make sense. He argues that they do not make sense, but that “the racially disparate incidence of punishment in the United States is a morally troubling residual effect of the nation’s history of enslavement, disenfranchisement, segregation, and discrimination.” Loury contends that the American ethos of individual responsibility has largely blinded us to the fact that “society at large is implicated in [the criminal’s] choices because we have acquiesced in structural arrangements which work to our benefit and his detriment.” Loury concludes: “What the brutal facts about punishment in today’s America show is that [the] American project of civic inclusion remains incomplete.”

Response Essays

  • Reforms that Ignore the Black Victims of Crime by John R. Lott Jr

    In his reply to this month’s lead essay, the University of Maryland’s John R. Lott, Jr. criticizes Loury for a selective presentation of facts about race and the American criminal justice system. Lott points out that blacks are the primary victims of crimes committed by other blacks. “If we punish black criminals a lot, isn’t it possible that the reason we are doing it is because we care about the black victims?” he asks. Lott argues that while the United States does have the world’s highest rates of incarceration, the evidence shows that the policies behind this fact have been effective in deterring crime. Additionally, Lott maintains that there is little evidence that other criminal penalties disproportionately burden blacks or the poor, and that well-intended policies meant to bring more blacks into law enforcement have actually increased crime rates in minority areas by lowering the average quality of new police recruits of all backgrounds.

  • Addressing the Problems that Lead to Prison by James Q. Wilson

    James Q. Wilson sympathizes with Glenn Loury’s “impassioned cry from the heart,” yet ultimately finds that it comes up short in substance. A more programmatic approach is in order, he argues. Although imprisonment has costs, it also has benefits, including decreased risk from several types of crimes. Yet programs that attempt to reduce criminality and recidivism must start outside the penal system and address broken families, neighborhoods, and educational systems.

The Conversation