America has a violent crime problem. It is, to a THE IMPOSSIBLE DILEMMA. By Glenn Loury. Between black crime and judicial racism.

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paranoia about the white establishment. Is there a conspiracy, Democratic Representative Bobby Rush asked during the sentencing debate, to incarcerate as many African American males as possible? Sucb
paranoia about the white establishment. Is there a conspiracy, Democratic Representative Bobby Rush asked during the sentencing debate, to incarcerate as many African American males as possible? Sucb sentiment has led black jurors to acquit clearly guilty criminal defendants to avoid sending more black men to jail. You see its consequences in other areas as well. Take the stifling of intelligent debate over decriminalization of drugs. On one side are claims that the war on drugs is genocidal because a disproportionate number of those subject to arrest, prosecution and incarceration are black. On the other are claims that decriminalizing drug use would amount to genocide because blacks would constittite a disproportionate number of those allowed to pursue their drug habits without deterrent intervention. Both of these claims are without basis. Both illustrate conspiratorial, disparity-mindedness run amok. Both are the products of calculated exaggeration. Both are aimed at short-circuiting rather than deepening discussion. I do not want to leave the impression that there is no race problem within the administration of criminal justice. There are a good many Mark Fuhrmans in the ranks of the police. Scores of prosecutors daily violate their oaths of office when, for racial reasons, they peremptorily strike potential jurors. Courts authorize the police to treat a person's race typically blackness as a proxy for an increased likelihood of misconduct. Therefore, if I, a black man, alight from an airplane, I stand a much greater risk than my white fellow citizen of being stopped and questioned by the Drug Enforcement Administration because courts have permitted it to use blackness as part of its drug courier profile. Liberals should attack these violations of racial neutrality in the administration of criminal justice and demand that conservatives join with them in doing so. After all, for the past quarter century conservatives have argued that the state should act without regard to race, though they have done so vehemently only in their opposition to affirmative action. There is, of course, a race problem in tbe administration of criminal justice a big one. But tbat problem resides not in race-neutral legislation sucb as the crack law, but ratber in laws and practices tbat purposefully treat blacks differently from wbites. The crack law, in my view, is overly harsh. Though there should be a difference in punishment between crack and powder because crack is more socially destructive tban powder, tbe current 100 to 1 ratio is too extreme. But by milking overheated and unstipportable racial rhetoric, liberals alienate people whose support they ultimately need to enact sensible reform. Going overboard, making a mistake, even being a damned fool is different from racism. Tbe difference matters. RANDALL KENNEDY, Professor of Law at Harvard University, is completing a book on race and tbe administration of criminal justice. Between black crime and judicial racism. THE IMPOSSIBLE DILEMMA By Glenn Loury America has a violent crime problem. It is, to a substantial degree, concentrated in this country's central cities. And black Americans, disproportionately concentrated in tbese dangerous environments, bear its brunt. In 1992, black males 12 to 19 years old were 25 percent more likely to be victims of crime than whites of their age group. Young black females (largely as the result of sexual assault) were 70 percent more likely than their white counterparts. The murder rate among black youtbs (persons under age 20), wbich was already three times that of white youths in 1986, doubled in the five years between 1986 and 1991, while the white rate remained unchanged. In Philadelphia, Princeton political scientist John Dilulio reports, there were eighty-nine murders of people under age 20 in All but five of tbe victims were nonwbite. Black criminals generally prey on tbeir own. AJtistice Department statistic tbat blacks arefiftytimes more likely to commit violent crime against whites than vice versa has led some to suggest that black criminals target whites, but tbe evidence does not bear this out. There are roughly eight times as many whites as blacks; and tbere are about six times as many violent criminals per capita among blacks as among whites. So, if criminals chose their victims at random, without regard to race, one would expect the black on white victimization rate per black person to be 48 times as large as tbe wbite on black rate per white person. Thus, it does not appear that black criminals take affirmative action to find white victims. JANUARY 1,1996 THE NEW REPUBLIC 21 Not surprisingly, black Americans increasingly view crime as their number one concern. Dilulio reports that the percentage of Americans who cited crime as a major national problem rose from about five to seven between 1985 and Yet tbe proportion of blacks living in central cities who identified crime as a major problem in their neighborhood rose from about one in ten to nearly one in four. Moreover, one in five black children in central city neighborhoods say they fear being attacked on their way to and from school; more than one-half of these children worry a lot or worry somewhat about being a crime victim. One study cited by Dilulio found that some 27 percent of black children, compared to 5 percent of white children, think it is likely that they will be shot. Only a decade ago, one national magazine after another reported on the purported psychological damage done to American children by their fears of nuclear war. Whatever the merits of those claims, it seems clear that the fears experienced by urban minority youngsters very real fears of being raped, bludgeoned or shot must be far more debilitating. Even more alarming, this situation will likely worsen considerably over the next decade as the male population aged 14 to 17 grows by about 25 percent overall and by 50 percent among blacks. Aggravating this demographic trend is the fact that, for at least a halfcentury, each successive generation of juvenile criminals has been more violent, and has committed more crimes, than its predecessor. Each twenty-year period since 1950 has witnessed an approximate tripling in the extent of violent lawbreaking among juveniles engaged in crime. There is no reason to expect this progression to attenuate, given the dismal condition of so many poor children in America's cities. Violent crime is, therefore, bound to increase in inner cities (and not only there) in the short run. Necessarily, a disproportionate number of the victims claimed by this rising tide of violence will be black. Urban violence on such a scale, involving blacks as both perpetrators and victims, poses a profound dilemma for black leaders and intellectuals. On the one hand, black elites must represent the decent, law-abiding majority of African Americans who cower fearfully inside their homes while drug-peddling teenagers rule the inner-city streets. They must do so not only to enhance their group's reputation among whites, but as a precondition for black dignity and self-respect. On the other hand, these elites must counter the demonization of young black men in which the majority culture is now feverishly engaged. Even as they condemn them for degrading their community, they cannot but view with sympathy the plight of the many poor, black youngsters who are not incorrigible but who have nevertheless committed crimes. They must wresde with the complex causes historical and contemporary, internal and external to the black experience that account for this pathology, even as they insist that. despite them, each black youngster has the freedom to choose a moral way of life. This, too, is necessary for the black community's dignity and self-respect. This dilemma is made all the more difficult by the reaction of whites to the threat posed by young blacks in the cities. White Americans are, to put it bluntly, frightened by and disgusted with the violent criminal behavior that, with reason, they associate with inner-city black youths. Their fear and disgust have bred contempt; and that contempt has in turn produced a truly remarkable degree of publicly expressed disrespect and disdain for blacks. It is no exaggeration to say that black, male youngsters in the central cities have been demonized in the popular mind as have no other group in recent American history. What was once whispered is now openly shouted. One conservative critic has. declared, perhaps aptly, of white opinion: the criminal and irresponsible black underclass represents a revival of barbarism in the midst of Western civilization. The objective basis for such harsh statements notwithstanding, there is more than a hint of racism in the relish with which some have taken up this newly liberated racial discourse. No reflective black American can fail to be alarmed by such rhetoric. What, for example, might the majority be expected to do, having discovered a malignant barbarism in its midst? Is it any wonder that rumors of genocidal plots against blacks circulate with credibility among residents of the poorest urban precincts? The wise political scientist James Q. Wilson observed, in the aftermath of 1992's Los Angeles riots, that white fear of young black males has powerfully contributed to worsening race relations. Fear, he noted, often produces behavior indistinguishable from that produced by oldfashioned racism: it keeps whites out of black neighborhoods and makes them uneasy about blacks moving into theirs; it can induce one police officer to intimidate black suspects and lead another, seeking the release of tensions, to tell a racistjoke. This is all plausible, but it is only part of the story. For, as Wilson would surely acknowledge, there is also a fair amount of white racism abroad in the land. (Yes, there is black racism, too!) A predisposition among some whites who, seeking a rationale for their invidious disdain for blacks, categorically deny them any benefit of the doubt can combine with the suspicions engendered in fair-minded whites by their wellfounded fears to create an implacable racial antagonism. It is surely fear, and an instinct for self-preservation, that explains the broad political support for efforts to increase the size of the incarcerated population. Over the last fifteen years, the public has rewarded politicians who promise to lock them up and throw away the key and has punished those who appear soft on crime. The politicians have learned their lesson. A shift of historic proportions has occurred in the administration of criminal justice since 1980, when the combined population of all state and federal prisons was some 500,000. By 1994, that number had tripled to over 1.5 million. This growth greatly exceeds the increase in violent crime during the same period. And the number of black men 22 THE NEW REPUBLIC JANUARY I, 1996 behind bars has probably risen almost four-fold. On a given day in 1992, 372 whites and Hispanics were incarcerated for each 100,000 in the overall population, while the rate for blacks was 2,678 per 100,000. Blacks, 13 percent of the U.S. population, represented 45 percent of those arrested for violent felonies in 1992 and roughly one-half of those held in state and federal prisons. On a typical day in 1994 nearly one-third of black men aged were either incarcerated, on parole or on bail awaiting trial. The racial disparity in prison populations has increased sharply in recent years, despite the fact (as nearly all experts agree) that blacks are not sentenced more severely than whites who have been convicted of the same crimes. the war on drugs has benefited their communities. There can be little doubt that blacks, even those living in the most dangerous communities, are deeply ambivalent about the trend toward increased incarceration of young black men. After all, those wreaking havoc in the urban ghettos are also the brothers, lovers, cousins and sons of law-abiding residents in these same districts. For most urban blacks, the desire for retribution is tempered by identification with the perpetrators. (There, but for the grace of God, go I, or my husband, or my son.) Thus, we now find urban jurors voting to nullify criminal charges against guilty black defendants and defending their action by saying they could not bear the thought of sending another young brother to prison. And we find liberal black politicians from the highest crime areas arguing against punitive criminal justice policies, even though their constituents could gain most from an improvement in public safety. These jurors are not fools; neither, I believe, are the politicians knaves. It is a safe assumption that these are deeply confiicted people, caught on the horns of an impossible dilemma. After all, the muted response of inner-city residents (and of their representatives) to their own victimization constitutes just about the only check on the severity of contemporary criminal justice policy in America. Were the residents of America's ghettos to demand, through their political leaders, in the name of justice and civil rights, that they be protected from the predation of these vicious criminals who just happen to be black, then their cries would powerfully complement the trend toward law and order that already dominates political debate. It would be arrogant to attribute, as do some on the right, their reticence to false consciousness. More plausibly, this muted response in the face of victimization is a direct and powerful refiection of their ambivalence toward and identification with the perpetrators of these crimes. Viewed in this light, one can better appreciate the tragic moral dilemma in which these people are trapped. What then accounts for the more rapid growth in black imprisonment? While participation, in violent crime has risen faster for blacks than whites, this accounts for no more than half the disparity. In Malign Neglect: Race, Crime and Punishment in America, University of Minnesota criminologist Michael Tonry argues that the war on drugs has been an important cause of the growing black presence in prisons over the last decade and a half. He notes that between 1980 and 1990 the proportion of drug offenders among those admitted to federal prisons in the U.S. rose from 22 to 40 percent, while over the same period the proportion of blacks among those arrested nationwide for drug offenses grew from 24 to 41 percent, and the percentage of blacks among persons admitted to state and federal prisons rose from 39 to 53 percent. It is worth noting that this anti-drug policy did little to redttce drug use in the U.S., even as it locked up a growing number of blacks. As Tonry observes, narcotic use had been falling for at least five years before the anti-drug campaign began in the mid-1980s, and this trend was not accelerated by the war on drugs. Moreover, a number of police officials and prosecutors have admitted that pressure for tangible results in the drug war led to more arrests in poor inner-city areas where, due in large part to the disorganization of these communities, drug sales frequently occur on the streets, and Iwas reminded of this delicate, perplexing dilemma undercover operations are relatively easy to mount. when talking recently with a young black lawyer of This is not to say that fighting the drug traffic in many years' acquaintance, who now labors as a urban black communities was not in the interest of residents. It would be hard to imagine any single thing that attorney's office in a large city. This young woman, let prosecutor for the juvenile division of the district would improve life more in poor black neighborhoods. us call her Elaine, did not want her identity publicly The point is that, ironically, increased arrests of streetlevel drug dealers have not reduced the availability or When first entering law school, Elaine never dreamed disclosed. raised the price of cocaine. Disrupted open-air drug she would become a prosecutor. Like many of her peers, markets easily move to new locations; and there appears she presumed that the black struggle could be best to be no shortage of young inner-city blacks willing to pursued as a member of the defense bar. However, a replace the street-level dealers arrested in anti-drug summer in the public defender's office changed that. I sweeps. In the end, the anti-drug strategy has had a negligible impact on the supply of cocaine and heroin, but most heinous offenses. Shaken from her natvete, she realized that all of our clients were guilty, some of the it has caused a major increase in the supply of black applied for an assistant D.A. position upon graduation, convicts. It is likely that, because they often commit violent crimes, many of these convicts deserve to be from the predations of the bad. After a brief apprentice- to serve her community by protecting the good people behind bars anyway. Still, it is hardly surprising that ship, she assumed responsibility for a large number of many blacks remain skeptical about the extent to which juvenile felony cases that came into the D.A.'s office. JANUARY 1,1996 THE NEW REPUBLIC 23 Elaine describes her experience as difficult and frustrating. She talks derisively of those litde gang bangers, every one black or Hispanic, who are both defendants and victims in the endless stream of shooting cases that come across her desk. It seems that there aren't that many good guys out there; most of these kids involved in gang-related cases, both the victims and the defendants, are bad guys. Especially troubling to her is the extent to which the gangs use the criminal justice system as a mere extension of their street activities. A victim in a case one day becomes a defendant the next, walking right out of court to seek retaliation against the assailant's gang. Or a witness one day disappears the next as a sudden truce between the warring gangs leads him to forget what he first claimed to have seen. Thus, while Elaine began thinking she would help protect the community from bad people, she has begun to wonder, especially when dealing with gang violence, whether this was an impossible vision. She has also begun to question how her office handles gang-related violence. Every allegation is pursued straightforwardly, even though it is ultimately unclear whether 'justice is being done. They're just shooting each other, and we're sweeping up the mess, she says. The more we sweep, the dustier it gets. Sometimes I wonder if we wouldn't do more good by just standing back and letting them have at it. But she immediately dismisses the thought. The scale of the mess is staggering. I just don't know how long I can go on, staring into the vacant eyes of these children who have, without apparent remorse, done the most awful things. In one case, a 14-year-old child used a baseball bat to bludgeon a parent to death. In another, youngsters aged 13 and 14 collaborated in a robbery-cum-murder, masquerading as petty drug dealers to lure their prey out of his automobile. In yet another, a 15-year-old boy explained his apparently senseless shooting spree that resulted in several serious injuries by saying, I had a lot to prove. He was referring to his need to earn the respect of fellow gang members. Elaine constantly laments that these little gang bangers have no fear, either of jail or of death, it seems. Indeed, Elaine finds them almost indifferent to the prospect of incarceration, which they see as a rite of passage, another step in their burgeoning criminal careers. They don't see any future for themselves; their future doesn't extend beyond tomorrow. They have no hope. They don't respect or value human life. She believes that many of the youngsters whom she encounters have been abused or neglected, though she cannot be certain since only a small fraction of her juvenile defendants' familie
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