Professor Wilson is exactly right about the need to discuss policy. Unfortunately, I can find only one clear policy recommendation, and it is not from Loury’s essay, but from his book — if blacks and whites commit the same crime, blacks should get a lower criminal penalty. Again, this is not based on any evidence, just an incorrect use of Rawls’ “veil of ignorance,” but it is still a policy. I will also briefly discuss some policies where there might be areas of agreement.
Bruce Western offers a possible area of agreement: we might want to decriminalize some activities. This would reduce the number of prisoners — blacks as well as whites. Drug possession and sales is one area, but there are surely a lot of white-collar crimes, such as insider trading, that could simply be treated as theft and not have to have their own set of criminal penalties (Bainbridge, 2008). In other words, firms could decide what types of stock trades their officers should engage in, rather than blanket bans. I suggested the possibility of cutting penalties for drugs in my original piece (there are both costs and benefits from such actions and the net effect isn’t completely obvious), but Loury avoided following up on this issue. I hope that we evaluate eliminating laws based upon the value of the law and not just on the groups that violate those laws at the highest rates.
Should Penalties be Higher for Whites than Blacks?
Loury’s book suggests that a Rawlsean approach implies that criminal penalties should be based on how we “apportion blame and affix responsibility for the cultural and social pathologies evident in some quarters of our society” (Loury, 2008, p. 33). In other words, blacks, who Loury believes suffer from these “cultural and social pathologies,” should have lower criminal penalties for the same crime. Norming — setting different required test scores for different groups — has become the standard for hiring people such as police so possibly it isn’t to surprising that we are now getting around to also applying it to criminals (Lott, 2000a). These different standards are very common. Blacks, not whites, with criminal records get hired to be police (Lott, 2000a). So possibly Loury sees this as no big deal. If you want to ensure that blacks commit even more crime relative to whites, to increase crimes primarily against fellow blacks, this is surely one way to accomplish that. Is this a serious suggestion? Do we want to protect white victims more than black ones? Will poor blacks get even lower criminal penalties for the same crime than more well-to-do blacks?
Unfortunately, while Loury protests that “I am fully aware that crime produces victims,” he doesn’t seem to understand the implications of that statement. Loury relies on the “veil of ignorance” argument for this conclusion, but that in turn relies completely on focusing on what happens to criminals, not victims (Loury, 2008, pp. 32-35). If we value black victims as much as black criminals, it is hard to see how using Rawls’ logic would change the status quo.
So is the unexplained prison gap evidence of racism?
Comparing blacks’ and whites’ share of arrests and their share of the prison population does not allow you to measure racism. It doesn’t do so at a point in time or over time because there are so many things that have nothing to do with racism that can also be changing over this period. I previously mentioned three important differences that actually suggest that per arrest blacks don’t spend enough time in prison: a criminal’s criminal history, the commitment of more serious crimes, and a higher number of offenses (even when the primary offense is the same). I gave numbers for these other factors at a point in time because in past research I had calculated these numbers. Would it be nice to have additional academic work over time? Sure, but given how large the gaps are in these three factors alone, it is doubtful that in 2004 there is a gap that goes against blacks.
Let me put it this way, the 33 percent longer criminal history for blacks is all by itself almost equal to the so-called “unexplained” prison sentencing gap in 2004 by itself. The commitment of more serious crimes and a higher number of offenses would clearly explain much more than the claimed gap. If there were no changes in these factors over time, the “unexplained prison” gap (assuming that it measures racism) implies a less racist system over time — a system that is less racist against whites. The gap starts off large against whites and gets smaller over time. Instead, I would rather just argue that the approach Western uses, and the people he cites approvingly, are just wrong.
Of course, these penalties against whites are on top of the extremely progressive penalty system that I have pointed to time after time here. Loury and Western have spoken volumes by their unwillingness to even address the topic.
There is another irony. Why don’t they look at the death penalty for their “unexplained” punishment claims? Again, I think that the reason they ignore this is obvious. They ignore it because it shows the opposite of racism against blacks.
What if we wanted to help the victims of crime and deter some criminals?
It seems to me that there are real solutions. One that I would throw out is making it easier for blacks, particularly poor law-abiding blacks in urban areas, to get more guns. The gun ownership rate by blacks is very low, as is the gun ownership rate in high-crime urban areas (Lott, 2000b, Chapter 3). Many laws such as bans of inexpensive guns (bans of “Saturday Night Specials”) as well as high fees for concealed carry permits and training classes make it costly for the poor to get guns for protection, but my research convinces me that it is precisely poor blacks who live in high-crime neighborhoods who benefit the most from being able to defend themselves. It would be great if the police could instantly be there to protect people, but we have to acknowledge what the police clearly understand — they almost always get to the crime scene after the crime has been committed.
Personally, I would simply get rid of a lot of laws that make it more difficult for law-abiding people to own guns, and reduce or eliminate the various fees. Others might go further and actively encourage blacks to actively defend themselves.
Are we really going to debate these days that different criminals should have different penalties based on the criminal’s race? What is clear is that that will increase crimes against other blacks. Is that what we really what? There are alternatives to reduce the crime rate in poor black areas. Can’t we talk about those policies?
Again, it is also disappointing that neither Loury nor Western are willing even to acknowledge how incredibly progressive the current criminal penalty structure is.
 There are so many problems with the measure of unexplained prison arrest gap that it is hard to know where to start. Let me give one more example. Prison is a “stock” variable — it is determined by arrest and conviction rates and prison sentences over many years. The arrest rate is a “flow” variable; it only exists within the period of one year. Why anyone would want to compare the prison rate from many years with an arrest rate from a single year and say that a single arrest rate should explain the people who are in prison is a bit of a mystery to me.
 I have been using the categories of criminals desired by Loury and Western, but someplace it should be acknowledged that a lot of white criminals are actually Hispanics. For example, I suspect that even if one ignored all my other points about Western’s argument there was a significant change in the share of whites who were Hispanics in prison from 1979 to 2004, and this alone would play havoc with Western’s claim of increasing racism.
Bainbridge, Stephen M., “Manne on Insider Trading,” UCLA working paper, March 1, 2008
Lott, John R., Jr., “Does a Helping hand Put Others At Risk? Affirmative Action, Police Departments, and Crime,” Economic Inquiry 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).
Loury, Glenn, Race, Incarceration, and American Values. MIT Press: Cambridge, Massachusetts, 2008.