Charges of racism flow freely in Professor Loury’s recent book and this essay. He makes it seem that we lock up blacks because whites are afraid of them or that we simply dislike them and want to keep them locked up and away from the rest of society. But Loury forgets an important fact: for violent and property crime there is always an individual victim who gets hurt — for black criminals that victim is overwhelmingly black. Nor does he recognize how extremely progressive criminal penalties are. He also neglects acknowledging that we can’t determine if the number of people in prison is “too high” without discussing the benefit from prison — without discussing how many crimes were deterred.
Many blacks have their lives disrupted by the criminal justice system, but the lives and property of many blacks are also protected by that same system. Looking at only the cost of imprisonment seems a very strange way to answer the question of whether we should change the current system.
Why Focus on the Race of the Criminals and Not Also the Race of the Victims?
Who are the victims of crime? Blacks overwhelmingly commit crime against other blacks. For example, in 2007, 90.2% of black murder victims were murdered by blacks.  To go even further, poor blacks commit crimes against poor blacks.  Is it less racist to care about the victims or the criminals? 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?
Take the high criminal penalties for crack cocaine. Many have argued along the lines of Loury and called the penalties racist because they have put many more blacks in prison than whites. But were the penalties set up to put blacks in prison? There is a very plausible alternative: they were set up because the lives of many blacks were being destroyed by blacks and people thought that they could help by having large penalties on those involved with crack. As someone who served as the chief economist for the U.S. Sentencing Commission when these penalties were adopted, I can say that many people talked about the horrible damage being done by crack to inner cities. No one ever mentioned that they wanted to punish blacks. While I personally didn’t support the separate higher penalties for crack, both liberal and conservative members of the Sentencing Commission voted for the change. The primary person who objected to the increase, Michael Block, is a conservative.
Possibly we might want to legalize drugs (though Loury never makes that point), and that would certainly take many blacks out of prison relative to whites, but it wouldn’t come near to eliminating the gap. For example, from 1976 to 2004, whites committed about 47 percent of murders. Blacks committed almost all of the remaining murders.
Loury’s “veil of ignorance” reference relies completely on focusing on what happens to criminals, not victims (Loury, 2008, pp. 32-35). If we value the black victims as much as the race of the criminals, it is hard to see how using Rawls’ logic would change the status quo.
When Are There Too Many People in Prison?
So the United States puts more people in prison than other countries? By itself that isn’t evidence that something has gone wrong. Do higher arrest and conviction rates and longer prison terms, and the death penalty deter crime? The evidence that punishment deters criminals is overwhelming. While that evidence should be sufficient, the United States has a high prison population, but the United States also appears to have a relatively low violent crime rate compared to most other developed countries.
A sophisticated analysis wouldn’t just say the penalties are too high, it would compare the costs of enforcement against the reduced costs from the crimes that are deterred. One good place to start is to recognize the benefits from deterrence. Changes in arrest rates account for up to about 18 percent of the variation in murder rates (see Lott, 2007, Chapter 4). Conviction rates explain up to another 12 percent. Prison sentences another 10 percent and the death penalty another 10 percent.
I don’t put much weight in the cross-sectional analysis apparently favored by Loury simply because it is much easier to control for differences across countries with panel data, but the United States’ high prison rate is at least balanced off by a relatively low violent crime rate. The International Crime Victimization Survey (ICVS) indicates that for the violent crime categories of sexual assault, robbery and aggravated assault, the U.S. looks remarkably safe.  This is even truer for the more serious categories of sexual assault and robbery. Prison is costly, but one could only imagine how much higher American crimes rates would be without it.
While murders make up only a fraction of violent crimes, they are by far the most costly type of crime. The ICVS doesn’t compare murder rates. The U.S. white murder rate is comparable to many countries in Europe, and is just a fraction of Russia’s, one country that Loury compares the US to. The difference is driven blacks. Murders in the United States are overwhelmingly a minority problem. But the bottom line is that for murder deterrence matters. Even for the death penalty the vast majority of published refereed academic work finds that the death penalty deters crime (Lott, 2007, pp. 136-7).
Why Focus on Prison as the Only Penalty?
The fact that blacks go to prison at relatively high rates is not the same thing as saying that they disproportionately bear the lion’s share of criminal penalties. Prison represents only one part of the penalties imposed on criminals, and for most criminals it is a small part of the penalty. Huge collateral and other criminal penalties are ignored. Ironically, Loury raises the issue of stigma and fails to mention the research that measures the penalty of stigma imposed by the legal process. He raises the issue of voter disenfranchisement in other work (e.g., Loury, 2008, p. 22), but he doesn’t mention all the other collateral penalties imposed on criminals. The criminal justice system discriminates against higher-income criminals (Lott, 1992a, 1992b).
Take the case of a bank embezzler with an income one standard deviation above the mean: he or she faces a total monetary penalty that is 4.94 times greater than that for an average income embezzler. The analogous bank larcenist faces a 2.1 to 1 ratio over the one with the mean income. Therefore, if the low- and high-income criminals in both cases are to face the same expected penalties from conviction, the high-income embezzler must face a probability of conviction that is only 20.7 percent of that of the mean income embezzler and the high income larcenist a probability that is only 47 percent of that of mean income larcenist. When the corresponding values for two standard deviations above the mean are used, the relative probability of convictions fall to only 11 and 30 percent.
These numbers can underestimate the true differences across criminals. For example, if the real reduction in earnings persisted for five years beyond the last year of probation or parole and the real interest rate was two percent, the present value of lost earnings for an average bank embezzler is $31,020 and for embezzlers with income one and two standard deviations above the mean the present values are $190,818 and $364,028.
Loury advocates more progressive criminal penalties, but criminal penalties are already extremely progressive. Yet, it isn’t clear why an economist would advocate having greater penalties for a criminal simply because he has a higher income. Economists normally view criminal penalties as making the criminal bear the harm that he is imposing on others. Progressive penalties aren’t consistent with that. If Loury is after more equality in society, why not instead use the income tax to redistribute wealth?
There are at least 32 different types of collateral penalties from felony convictions — including the loss of professional and business licenses, prohibitions on working for the government or getting union jobs, lost rights to inheritances and pension funds, partial or complete divestment of assets, loosing life and automobile insurance, lost parental rights and rights in divorce, and prohibitions on running for public office and owning guns (Lott, 1992b, p. 585). Overall these penalties are greater for higher-income criminals.
The Total Monetary Penalty from Committing a Crime (All values are in 1984 dollars) 
[Click table for larger version]
Another Type of Criminal Penalty: The Death Penalty
From 1976 to 2004, 65 percent of executions involved whites, but whites committed only 47 percent of murders.  If we valued the lives of black victims more, possibly we should have an even greater penalty. But it is hard to look at this data and claim that the death penalty is obviously adversely applied against minorities.
Unfortunately, to the extent that notions of racial justice have entered into the criminal justice system they have actually harmed the most vulnerable around us. There are many obvious benefits from hiring minority and women officers. For example, minority police officers may be more effective in minority areas simply because residents could be more forthcoming about information that will facilitate arrests and convictions or because of the officers’ ability to serve as undercover agents. Trust is important for other reasons, as reports of riots erupting after white officers have shot blacks attest.
The problem though is the way minorities have been brought into law enforcement. By eliminating or reducing standards on basic intelligence tests, police departments appear to have lowered the quality of new hires across the racial spectrum and made police less effective in solving crime. These lower quality recruits have increased crime rates, and the largest increases have occurred in more heavily minority areas.
Loury is a distinguished academic, but, disappointingly, he has provided an extremely narrow and distorted view of the criminal justice system. Minorities have faced real problems and there is undoubtedly discrimination in the legal system as there has been in other areas of American life, but making inaccurate claims about perceived slights doesn’t help the cause. In Loury’s response, I look forward to understanding why we should care about black criminals but not their black victims. Indeed, in his various writings I can’t find any reference to the costs that crime imposes on victims. It is hard to claim that we have too many people in prison without some reference to what is being accomplished by that punishment. He references notions of stigma or collateral penalties in a very inconsistent way. He calls for a progressive criminal penalty structure and ignores the literature showing that we already have an extremely (arguably overly) progressive system.
John R. Lott, Jr. is a Senior Research Scientist at the University of Maryland
 Expanded Homicide Data Table 5, FBI Uniform Crime Report, 2007 (http://www.fbi.gov/ucr/cius2007/offenses/expanded_information/data/shrt…).
 Obviously, many of the black murders are committed against other black criminals, but the victims of other crimes are much more clearly likely to be innocent. In any case, the question Loury must answer is what weight do we put on those who have been murdered
 Using the International Crime Victimization Survey helps to ensure that the same crimes are being compared across countries and to deal with the fact that victims might not report crimes to police at the same rate in all countries. (http://www.unicri.it/wwd/analysis/icvs/statistics.php)
 Please see Lott (1992a and 1992b) for a discussion of how these estimates were derived. The first four cases assume a white, single, male Californian with no previous criminal history. The fifth category assumes the criminal is from the District of Columbia. Sample mean values for each crime category are used for each group’s age, presentence income, and the dollar value of the drugs involved in the crime, and these estimates also assume that the crimes involved no breach of trust. Negative predicted fines are set equal to zero, and all values are in July 1984 dollars. In the first three cases, if the criminal was from a different circuit court with lower preconviction incomes, the reported drop in postconviction income would be lowered for both high- and low-income criminals and conviction tended to result in higher incomes after conviction for those with the lowest preconviction incomes. S.D. = standard deviation.
 Data obtained from four primary sources: Bureau of Justice Statistics, Capital Punishment, 1985-2004; (http://www.ojp.usdoj.gov/bjs/pubalp2.htm#cp), Sourcebook of Criminal Justice Research, 1978-1986, U.S. Department of Justice, Criminal Justice esearch Center, Albany, NY.; FBI Supplementary Homicide Reports, 1976-2004, (http://www.ojp.usdoj.gov/bjs/homicide/tables/oracetab.htm); and FBI Uniform Crime Reports, 1976-2004, (http://www.ojp.usdoj.gov/bjs/homicide/tables/totalstab.htm).
Lott, John R., Jr., “An Attempt at Measuring the Total Monetary Penalty from Drug Convictions: The Importance of an Individual’s Reputation,” Journal of Legal Studies, Vol. 21, no. 1, January 1992a: 159-187.
Lott, John R., Jr., “Do We Punish High Income Criminals too Heavily?” Economic Inquiry, Vol. 30, no. 4, October 1992b: 583-608.
Lott, John R., Jr., “Does a Helping hand Put Others At Risk?: Affirmative Action, Police Departments, and Crime,” Economic Inquiry, Vol. 38, no. 2 (April 2000): 239-277.
Lott, John R., Jr., More Guns, Less Crime: Analyzing Crime and Gun Control Laws, Second edition, University of Chicago Press: Chicago, Illinois (2000).
Lott, John R., Jr., Freedomnomics: Why the Free Market Works and Other Half-Baked Theories Don’t, Regnery Publishers: Washington, DC, 2007.
Loury, Glenn, “Social Identity and the Ethics of Punishment,” Tanner Lecture II, 2007.
Loury, Glenn,Race, Incarceration, and American Values, MIT Press: Cambridge, Massachusetts, 2008.