The Puzzle of Reform, Part II

Posted in: Criminal Law

How do we account for criminal justice reform? As I have written before, the most common explanations—falling crime rates and shrinking budgets—might be relevant, but it’s not clear how. Crime rates have been falling for decades, and no one has adequately explained how or why we might have reached a tipping point. In addition, most people believe—contrary to the evidence—that crime is getting worse, which would tend to increase support for the carceral state. As for the economic downturn, over the past 50 years, mass incarceration has increased during good times and bad. In any case, the conventional wisdom is that society gets more punitive during periods of economic hardship and scarcity.

Even more importantly, these explanations do nothing to explain the particulars of criminal justice reform as they are taking shape nationwide. Commentators describe reform as though it were reaching all aspects of the system equally, from policing to corrections. In fact, however, the reforms actually being implemented fall disproportionately on a very small part of the criminal justice spectrum. The question, therefore, ought not be, “why are we seeing reform,” but “why are we seeing this particular configuration of reform (and not something else)?”

In my last column on this topic, I wrote that reforms are concentrated in three broad areas:

First, there is a new concern for vulnerable populations. A consensus is emerging that they should not be treated like “ordinary criminals,” which has led to meaningful reform in, for instance, the treatment of drug addicts and juvenile offenders. To a lesser extent, it has also encouraged a re-examination of the tendency to use the criminal justice system to warehouse the mentally ill. In general, one increasingly hears that people in these groups should not be brought into the criminal justice system in the first place, and if they are, they should be spared some of the system’s worst features, like solitary confinement.

Second, offenders deserve a chance to start anew. States across the country are amending their laws to ease the collateral consequences that follow involvement in the criminal justice system. This has manifested itself in a number of ways, including a surprising willingness to restore the right to vote and remove some barriers to employment. In the last two decades, nearly half the states have amended their disenfranchisement statutes, adding about 800,000 voters to their roles. In the same spirit, according to a recent report by the VERA Institute, in the half decade between 2009 and 2014 alone, “forty-one states and the District of Columbia enacted 155 pieces of legislation to mitigate the burden of collateral consequences for people with certain criminal convictions.”

A complete accounting of these reforms would become repetitive, but the gathering success of the Ban the Box campaign is representative. According to the National Employment Law Project, more than 100 cities and counties nationwide, including New York City, Seattle, San Francisco, Atlanta, and Chicago, have “banned the box”—that is, they no longer inquire about conviction history in municipal employment applications—and 21 states have changed their public employment hiring practices to reduce discrimination based on a prior arrest or conviction. Some municipalities, as well as seven states, have extended this protection to private employers and government contractors.

Third, the police should be monitored, but not closely regulated. As I reported before, a recent survey by the Major City Chiefs’ Association and Major County Sheriffs’ Association found that nearly every large police department in the country plans to implement body-worn cameras. More than 95 percent of the departments are either committed to the cameras or have already begun to use them. Only 4.5 percent said they either do not intend to use body cameras or chose not to go forward with the technology after completing a pilot program. The increasing use of body cameras is, so far as I can tell, the only reform of police practices that has achieved or will soon achieve widespread acceptance in the United States.

In sum, over the past 15 years or so, we have become generally more solicitous of vulnerable populations, and inclined to give more ex-offenders a second chance. On the other hand, we are content with some external observation of the police and disinclined to regulate them more carefully. What does this imply? How do we account for this particular configuration of reform energy?

. . .

The short—though incomplete—answer is provided by the group-position thesis, which posits that racial attitudes are determined substantially by competition and conflict among racial and ethnic groups over resources, power, and status in society. The theory has long been used to explain both the attitude of one racial group toward another, as well as differences among racial groups in their attitude toward social institutions, like police and policing. As sociologists Ronald Weitzer and Steven Tuch have observed, “If the dominant group believes it is entitled to valued resources, it should also have an affinity with the institutions that serve its interests. One such institution has long been the police.” But what they say of the police is no less true of the criminal justice system as a whole; it is an institution that has long served the interests of “the dominant group” in American society—viz., whites, particularly affluent whites.

The group-position thesis suggests that whites (especially the well off) will support a social institution only so long as it serves their interests. But woe unto the institution that strays from its designated role as protector of the dominant group; in a contest between the two, the institution—no matter how deeply entrenched it has become in American society—will always be the worse for it. A dominant group will exercise the prerogative that comes from dominance and demand reform that reshapes the institution until at last it once again becomes the servant rather than the master.

To see how group-position might operate in criminal justice reform, we need to take a closer look at the state of play. First, the carceral state now touches almost everyone. Roughly one in three adults has been arrested by age 23. The FBI calculates that law enforcement in the United States has made more than a quarterbillion arrests in the past twenty years alone, and the FBI master criminal database contains more than 77 million names. By the start of President Obama’s second term, an estimated 70 million adults had a criminal record. By the end of 2014, roughly 6.8 million people were under some form of custodial supervision, down slightly from the prior year and from a peak of 7.3 million in 2007. Taken together, this means a substantial fraction of the people in the United States, if not a majority, have either been brought into the system or have a close personal connection with at least one person who has.

Second, while the carceral state in general has become staggeringly large, the face of drug use, abuse, and addiction has changed from black to white. The shift began at roughly the turn of the century, when criminal justice reform began to gather steam. A report by the Sentencing Project shows that between 1999 and 2005, black admissions to prison for drug cases fell by almost 22 percent, while white admissions rose by almost 43 percent, a change attributed in part to the decline of crack and the rise of methamphetamine. Since then, the trend has only continued. The Drug Enforcement Administration, for instance, reports that both the use and availability of cocaine—in all forms—began to decline significantly in 2007, reaching a new, substantially lower floor in 2014.

During the same period, methamphetamine—though still on the rise—was eclipsed by a different category of illegal drugs. According to the DEA, prescription drug abuse is the fastest growing drug problem in the country, and opioids (which are pharmacologically kin to heroin) are the most widely abused prescription drug. The number of people touched by this issue is extraordinary. In a recent survey, more than half the public reported “that they or someone they know has abused, been addicted to, or died from prescription painkillers.”

Almost 1 in 6 said they know someone who has died from an overdose of a prescription painkiller, and 9 percent say that person was a family member or close friend. By the end of 2013, the number of deaths attributable to prescription drug abuse was greater than for cocaine and heroin combined, and the number of people abusing prescription drugs was greater than cocaine, heroin, methamphetamine, and PCP combined. In every year since 2008, drug overdose has been the leading cause of accidental death in the United States, exceeding both firearms and motor vehicles.

But as widespread as this crisis has become, it is especially acute among two subgroups: whites, who are substantially more likely to report “a personal connection to prescription painkillers” than blacks and Hispanics (63 percent vs. 44 percent and 37 percent, respectively), and people who report an income of $90,000 or more (63 percent of whom report a personal experience with the problem). In short, the fastest growing drug problem in the country, and the problem that now causes more deaths than motor vehicle accidents, has struck disproportionately at the wealthy and the white.

Third and finally, unlike drug use and abuse, violent crime is still committed disproportionately by blacks. A study by the Department of Justice, for instance, found that between 1980 and 2008, the offending rate for homicide among blacks was almost 8 times higher than the rate for whites. Arrest data from the Bureau of Justice Statistics for other violent crimes reveal similar disparities over extended periods. To be sure, in absolute numbers, whites commit many more violent crimes than blacks, but the violent crime rate is substantially higher among blacks, and has been for many years. Not coincidentally, public opinion data consistently show that whites—especially affluent whites—tend to hold the police in very high regard, support aggressive crime-control strategies and practices, and are skeptical of criticisms of the police, including charges of systematic bias and brutality.

If we reflect on these three aspects of the carceral state, we can see that group-position theory predicts precisely the sort of reforms we are seeing. First, the sheer enormity of the carceral state has swept far too many whites into its reach, which triggers increasing support for reform of overbroad collateral consequences. Some of these changes no doubt also benefit blacks, but they are unintended beneficiaries. Second, the changing complexion of drug use, abuse, and addiction has led to a demand to see drugs as a public health challenge rather than a crime. Once again, blacks may emerge as secondary beneficiaries, but the primary targets were whites. And third, the continued concentration of violent crime among blacks helps ensure that meaningful change in police practices will not be part of the reform landscape. Here, it is some whites who suffer unintentionally, but blacks remain the first targets. As with so much in American life, the best explanation for the current configuration of criminal justice reform is captured in a single word: race.

Of course, some might protest that my argument misses the obvious. Addiction, they might say, should be treated differently from violent crime, and easing the path of an offender’s reentry into society is a no-brainer. The policies, they would insist, have nothing to do with race. But this is no answer at all. To begin with, the difference between addiction and violence has always been true, and therefore cannot explain why a similar sympathy did not emerge for the black crack addict, who was described and punished as though he were even more dangerous than a person who committed a crime of violence. The same is true for collateral consequences. They’ve always been unfair.

More importantly, the self-evident fact that violent crimes are different from non-violent crimes does not justify police strategies that systematically destroy the very communities police are trying to save. Given what we know about the hyper-concentration of violent crime among a tiny group of offenders at a comparably tiny number of locations, which I have described before, there is little criminological justification for saturation policing. The great majority of people in even the most disadvantaged neighborhoods have no connection either to crime in general or to violence in particular. To put it simply, if violent crime were hyper-concentrated in white communities, whites would insist on targeted, focused enforcement strategies that left most people alone, and would never tolerate saturation policing like New York’s stop and frisk program. Yet there is precious little white support nationwide for targeted concentration of police resources in black and brown neighborhoods.

Nonetheless, a few caveats are in order. The operation of the group-position thesis is more complex than I have described, and space does not permit me to develop the argument in detail. After all, there is more to criminal justice than drug cases and crimes of violence. In addition, the thesis may not account for all the reforms taking place. For instance, it is not immediately clear how group-position would lead to reform of solitary confinement, which, as I have elsewhere described, might be the most promising reform of all. Still, these cautions and qualifications do not change the essential take-away: if you want to explain the puzzle of reform, the place to start is race.