But the numbers only reveal part of the story. To see the story in its entirety, we must examine the various threads that create the criminal justice storyline. The communications vehicle for the story involves political rhetoric and media coverage. Indeed, the combined result of political and media coverage of race and crime has been to stoke the hysteria around crime and the responses to it.4 The negative labeling and narratives that surround criminal justice involvement have created significant hurdles that make it difficult for individuals caught up in the system to repay and move past their debt to society. Stigmas that attach to criminal convictions have impaired the ability of formerly incarcerated individuals to reintegrate into society after even a successful completion of a sentence. When race is added to the mix, it becomes clear that these “collateral consequences” of conviction have had at once a disparate and a devastating impact on communities of color.
Explanations for the radically unequal incarceration rates between white offenders and people of color abound. One particularly potent argument attributes the disparities to the high concentration of law enforcement resources in communities of color generally and in the African American community in particular. In the 1980s and 1990s, the federal government waged the War on Drugs. This war created incentives for law enforcement to target open-air drug markets in low-income communities and, in the process, to turn its considerable attention to communities of color. There were a number of reasons why law enforcement concentrated its resources there. First, the federal government provided substantial amounts of funding to local law enforcement for the creation of drug task forces. These groups of officers often worked in conjunction with federal law enforcement agencies such as the Drug Enforcement Agency (DEA), Alcohol, Tobacco, and Firearms (ATF), and in some instances immigration officials. These task forces focused almost exclusively on Asian, Black, and Latino communities. Some of the focus on transportation hubs led to the use of “drug courier profiles,”5 which again tended to target people of color. Second, in addition to the increase in state and federal funding, local police also found considerable political support for their work. While politicians inside the Black community voiced concerns about protections against unreasonable searches and seizures under the Fourth Amendment, politicians outside of that community increasingly simplified their message and encouraged harsh enforcement tactics to stop the migration of crime into the suburbs. Finally, the media’s tendency to flood the airwaves in both the news and crime dramas with faces of color as the perpetrators of crime fueled the public belief that crime ran rampant in communities of color and that law enforcement’s targeting efforts were logical. The effect of these enforcement decisions was that communities of color became the focal point of attention and effort. As a consequence, the arrest rate and imprisonment of African American and Latino men soared.6
The policies of the War on Drugs focused more on supply-side enforcement against low-level dealers in inner-city areas than on those higher up in the chain, who were importing drugs and laundering money. While those involved at the top of the drug chain tended to be White, they rarely appeared in criminal courts facing drug or conspiracy charges. A significant amount of the racial disparity we see even today can trace its roots to those policies.7 In addition, the adoption and implementation of the Federal Sentencing Guidelines, which impose a 100-to-1 sentencing disparity between crack cocaine and powder cocaine, coupled with a federal law enforcement focus on crack offenses, contributed significantly to racial sentencing disparity.8 Again, since crack cocaine tended to be sold in low-income communities at a lower price point, the choice to focus enforcement on crack led to greater arrests of people of color.
The enforcement double standard that the War on Drugs reflected and drove was just one example of the sort of structural inequalities that characterize the U.S. criminal justice system. Crime control today continues to concentrate primarily in the inner city.9 Aggressive policing targeting communities of color is augmented by harsh mandatory sentences that combine to have a particularly pernicious effect in these communities.10 But these enforcement policies simply flow from structural inequities embedded in the system.11 While some make the empty argument that we can remedy all of the ills in the criminal justice arena by simply eliminating explicit and intentional racism,12 the real culprit is the double standard on which the criminal justice system depends and thrives: the choice to target particular communities and to turn a blind eye toward the same crimes committed in affluent communities.13 The Sentencing Project’s first report on the status of Black men in the criminal justice system, noting the disproportionate involvement of African American men in the system, opened the country’s eyes to the dramatic disparities in the justice system.14 Some data suggests a correlation between stereotypes about young men and issues of enforcement. A more in-depth view of this very difficult problem recognizes that the research involved in addressing racial disparities in offending, arrests, and incarceration requires more study.15
Others, though, point to different reasons for racial disparities in the criminal justice system. Some argue that the racial imbalance exists because of a disproportionate involvement in the commission of crimes that breaks down along racial lines. These commentators contend that African Americans are overrepresented in the prison population because they engage in more criminal activity. This view attempts to justify any criticism of racial inequity by suggesting that the “representation of Blacks in the criminal justice system is relative to their representation among the population of criminal wrongdoers.”16 Conservative commentators have asserted that because African Americans commit more crime, they should be detained and arrested more often than Whites.17 And as a seemingly logical extension of this argument, they contend that profiles that enable police officers to identify who is likely to commit a crime ought to include race as an element. Therefore, police should be able to consider race as a factor in making the decision to stop, question, or arrest a suspect.
But such arguments conveniently ignore empirical evidence that contradicts their premise. Let’s take drugs as an example. African Americans do not use drugs any more than Whites.18 Whites, however, are incarcerated at substantially lower rates than people of color.19 If the rate of criminal activity were really the differentiating factor, then one would expect roughly equal percentages of White offenders and people of color in criminal courts for drug offenses. But that is not the case. The face of the arrestee and convicted drug user tends to be a face of color. When presented with statistics that suggest consistent drug-use rates, some amend the argument to account for this discrepancy. They suggest that Whites are simply more discreet in that they commit the crime within the confines of their homes instead of on public streets. As a corollary to this argument, others then suggest that one of the reasons why crime, such as drug usage, is committed openly in communities of color is that these communities tolerate crime, treating the commission of crimes as a rite of passage for young men of color. Despite the lack of evidence to support such claims, these views have gained surprising traction in the public debate about crime.
The media may be partly to blame for the general acceptance of this view. Media depictions historically have powerfully influenced the development of public opinion, and have provided a launching pad for public policy. Indeed, the coverage of a criminal case or a victim’s story often leads to the introduction of legislation in the name of a victim. Media coverage of crime has often led people to believe that crime rates, violent crime, or drug crime was on the increase even when the reverse was true.
In the mid-1980s, crack cocaine exploded onto the streets and into the national media.20 The media described crack as a “demon” drug that posed dangers that differentiated it from any other drug: it was highly potent, was instantly addictive, and encouraged systemic violence, they claimed, even though these claims would later prove false.21 By the end of 1986, the major daily and weekly news magazines had presented the nation with more than one thousand stories in which crack figured prominently.22