Michael Tonry - Punishing Race - A Continuing American Dilemma (2011, Oxford University Press)

PUNISHING
RACE
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PUNISHING RACE
A CONTINUING AMERICAN D ILEMMA
MICHAEL T ONRY
1
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Tonry, Michael H.
Punishing race : a continuing American dilemma / Michael Tonry.
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Includes bibliographical references and index.
ISBN 978-0-19-975137-2 (hardcover); 978-0-19-992646-6 (paperback)
1. Criminal justice, Administration of—United States.
2. Discrimination in criminal justice administration—United States.
3. Crime and race—United States. I. Title.
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contents
Preface vii
Acknowledgments xiii
1: A Continuing American Dilemma 1

2: Imprisonment 26
3: Drugs 53
4: Race, Bias, and Politics 77
5: Ideology, Moralism, and Government 115
6: Doing Less Harm 144
Notes 175
References 179
Index 199
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preface
This book is about racial injustice in the American criminal justice

system generally and about racial disparities in imprisonment in
particular. Racial injustices are, by definition, wrong. They do harm to
individuals, and they do harm to America’s ongoing mission to amelio-
rate the persisting effects of slavery, racial discrimination, and bigotry.
Those effects persist, and that is not surprising. The first important
federal civil rights legislation was enacted less than a half century ago,
in 1964. Explicit appeals to race in elections disappeared only a decade
later. Barely forty years have passed since George Wallace, in an openly
racist campaign, in 1968 received 13.5 percent of the presidential vote
and won five southern states. In 1966 Georgians elected as their governor
a man, Lester Maddox, who was most famous for vowing to stand in the
door of his restaurant, axe handle in hand, to greet black people who
dared try to eat there. Constitutionally barred from reelection, Maddox
was elected lieutenant governor in 1970.
Long before open appeals to racism disappeared from American
politics, conservative Republicans fashioned the “Southern Strategy,” a
deliberate attempt to focus on issues—initially states’ rights and later
crime, welfare fraud, busing, and affirmative action—that everyone
understood were coded appeals to whites’ antiblack animus, anxiety, and
resentment. The roots of the Southern Strategy lay in the 1940s, but the
term came into use only in the 1960s. Republican presidential candidate
Barry Goldwater in 1964 was the first to implement the strategy in a
national election. In retrospect few people deny that.
viii • PREFACE
It would be easy to dismiss these people—many Americans under

forty-five probably recognize few of their names—and the things they
did as ancient history, but that misses a major point. Although it is true
that few whites any longer believe in white supremacy or the racial
inferiority of black people, and that mainstream political candidates no
longer make open appeals to racism, it is also true that too many black
Americans are poor, disadvantaged, undereducated, and underem-
ployed. Those realities have everything to do with race.
When racial discrimination ceased to be legal, and later on, when
white beliefs about black inferiority substantially disappeared, large
percentages of black Americans were poor, ill educated, and either
unemployed or locked into menial unskilled jobs. That was not sur-
prising. Blacks were long excluded by bias and discrimination from
much that was good in American life. And so, of course, they were less
well-off than whites.
An optimist in 1964, however, would have predicted that by 2000
blacks would catch up. Descendants of European immigrants normally
were fully assimilated into American life and distinguishable, if at all,
only by their surnames two generations after their grandparents arrived.
If black Americans had been given a fair playing field on which to com-
pete they too should have been fully assimilated, and indistinguishable
from other Americans except for the pigment in their skin, within two
generations after the great victories of the civil rights movement.
That didn’t happen. On every demographic measure of well-being—
life expectancy, infant mortality, income, education, employment, home
ownership—black people in America are substantially worse off than
whites. The reasons for that are inextricably caught up in the politics of
race, and the public policies they engendered. No serious informed
person on the right or the left, for example, any longer questions that
federal housing policies on red-lining and mortgage eligibility long
made it impossible for many urban black people to buy homes. The
effect was to corral black Americans in deteriorating urban ghettos. Few
remember the welfare rules in the 1960s and 1970s that made women
ineligible to receive benefits for themselves and their children if there
was a “man in the house.” The effect was to break up couples and establish
a pattern that persists to this day of poor black single-parent female-headed
PREFACE • ix
households. And American drug and crime control policies since the
mid-1970s, the subject of this book, have disabled poor young black
men from successful participation in American life and thereby dam-
aged not only them but also their children, their families, and their
communities.
The supporting statistics are legion. The U.S. Department of Justice
predicts that one in three black baby boys born in 2001 will spend part
of his life as an inmate in a state or federal prison. At any time in the first
decade of the twenty-first century one-third of young black men in
their twenties were in jail or prison or on probation or parole.
Imprisonment rates for black men have for a quarter century been five
to seven times higher than those for white men.
The explanations for those patterns are complex, but they collapse
into three generalizations. First, the characteristics of people, black or
white (or Hispanic), who commit crimes, and who go to prison, are
exactly the same: disadvantaged childhoods, child abuse, unstable home
lives, bad educations, lack of employable skills, and drug and alcohol
dependence. These things, however, are much more likely to afflict or to
characterize black than white Americans. Second, legislators have
devised policies (e.g., the War on Drugs, crack cocaine sentencing laws)
and police have developed practices (e.g., racial profiling, emphasizing
drug arrests in inner-city neighborhoods) that hit blacks much harder
than whites. Third, policy makers in the past twenty years have enacted
laws (e.g., three-strikes, truth-in-sentencing, and mandatory-minimum
sentence laws) that require prison sentences of historically unprece-
dented lengths for crimes for which black Americans are dispropor-
tionately likely to be arrested and convicted.
The history of American race relations has everything to do with
each of those generalizations. Black people in the 1960s had to begin
individual efforts to improve their social and economic lives from
points well behind the starting line. They then found that housing,
employment, and other forms of discrimination persisted, as they do to
this day. By the 1980s the politics of racial resentment had led to the
weakening of policies such as school integration, affirmative action,
and equal employment opportunity that were meant to help blacks
overcome the legacies of racism and slavery. Many more blacks than
x • PREFACE
whites were and are handicapped by the social and economic charac-
teristics that lead to crime.
Black Americans, however, use illegal drugs less often than whites do.
The best evidence is that blacks are no more—probably less—involved
in drug dealing. Black people are more involved in violent crime than
are whites, but less so than in earlier times. In relation to drug offending,
criminal justice policies cause disparities in imprisonment. In relation
to violent crime, criminal justice policies worsen them.
The question I examine in this book is, how come? How did it hap-
pen that a long series of criminal justice policies that do special damage
to black people were conceived, adopted, and carried out in a country
in which few whites any longer believe in white supremacy or black
inferiority?
The answers after several decades of political and cognitive denial
are becoming clear, largely because of work by a generation of young
scholars in their twenties and thirties who looked afresh at problems
that most older people in emperor’s-new-clothes style could not or
would not see. The explanations operate at two levels.
At the first level are features of modern American culture. A large
and diverse literature on the psychology of American race relations
shows that many white Americans resent efforts made to help black
Americans overcome the legacy of racism, and that stereotypes of black
criminality support whites’ attitudes toward crime, criminals, and drug
and crime control policies. Sociological and historical literatures on
racial stratification show that whites have, unthinkingly but consis-
tently, initiated and supported policies that advantage whites and disad-
vantage blacks. Finally, recent work by historians and political scientists
shows how the Republican Southern Strategy, which was shaped by and
worsened those problems, led to the adoption of the policies that have
done so much damage to the life chances of poor black Americans.
At the second level are deeper features of American politics and
government. One is what historian Richard Hofstadter long ago called
the “paranoid streak in American politics,” a recurring phenomenon
in which proponents of particular views see the other side as a vast
conspiracy and believe that only way forward is to fight to the political
death. A second is the influence of Evangelical Protestantism, which
PREFACE • xi
sees crucial issues in moral terms of right and wrong and is likewise
often closed to the possibility of compromise. The third is a structure
of government, unique among developed Western countries, in which
judges and prosecutors are elected officials and government policy
making about crime is not insulated from influence by short-term
emotions and politics. These three elements created a political climate
that was long on vindictiveness and short on empathy, and govern-
mental institutions that were quick to adopt policies of unprecedented
severity.
Walt Kelly’s cartoon character Pogo was best known for his observa-
tion “We have met the enemy and he is us.” Extreme racial disparities
exist in the American criminal justice system because of policies
adopted mostly by white politicians who were motivated by personal
ambition, cynicism, and ideology and who were indifferent to the effects
of those policies on black Americans. Those policies and the disparities
they caused unnecessarily damaged the lives of millions of black people
and contributed substantially to the perpetuation of a black underclass
long after it should have ceased to exist. The damage cannot be undone,
but its effects can be ameliorated. Practices can be changed so that they
do less harm in the future. The way forward is clear. What needs to be
done is clear. What is unclear is whether Americans and the politicians
they elect have or can find the will to do so.
This book tells that story. The first chapter is a summary of the whole.
The second documents racial disparities in prison and the immediate
reasons for them. The third discusses racial differences in drug use and
trafficking: blacks use drugs less often than whites and sell them no
more but are vastly more likely to be arrested and imprisoned for drug
offenses. Chapter 4 examines the psychology, sociology, and politics of
American race relations and shows how they shape contemporary crime
and drug policies. The fifth chapter digs deeper into American history,
culture, and government to show why a political climate existed in
which policies and practices that do so much damage could have been
adopted. The sixth shows how things can be changed to do less unnec-
essary harm to black Americans in the future.
I primarily discuss the effects of contemporary criminal justice pol-
icies and practices on black people. In relation to the criminal justice
xii • PREFACE
system, the situation of black people in America is different from those

of members of other minority groups. Other groups—Native Americans
and, in earlier periods, various Asian-American groups leap to mind—
have suffered from discriminatory laws and government practices.
Hispanics have suffered from public and private discrimination. None
of those groups, however, have been the target of broad-based criminal
justice policies, experienced extreme disparities in imprisonment, or
bear the legacy of three centuries of slavery, Jim Crow, and legalized
discrimination. American blacks are the only group that satisfies those
criteria. And only the unique political and social status of American
blacks precipitated the Republican Southern Strategy.
Other books can, should, and no doubt will be written that consider
the criminal justice system experiences of members of other racial and
ethnic groups, or of a number of groups. Other books can, should, and
no doubt will be written about the distinctive experiences of black
women or of women of other groups. Worthy subjects all, but these are
different subjects from mine.
acknowledgments
Nonfiction books are written by individuals and reflect their writers’

idiosyncrasies but they draw mostly on collective knowledge. A writer
may ask a slightly different question, or shine a slightly different light,
or turn up what seem to be a few new bits of information, but, for most,
that is all. Isaac Newton, not a notably modest man, and one who for
his time said new things, nonetheless said that in doing so he had stood
on the shoulders of giants. We lesser folk can do no less. I could not
have written this book had not wise men and women who came before
me written other books and articles that tried to make sense of things
that perplex me. Some may have been giants. There is little point in list-
ing them here; they were writing for all the world, not just for me.
There is a point in identifying people who wrote and did things
meant only for me. Jamie Fellner, Roxanne Lieb, Marc Mauer, Michael E.
Smith, and Vesla Weaver read complete drafts of this book. All shared
knowledge that is deeper than mine and tried to save me from error.
Francis Cullen, Barry Feld, Richard Frase, Myron Orfield, Kevin Reitz,
and James Unnever read and commented on various chapters at various
times and tried to help me see more clearly. Matthew Melewski and Eric
Taubel ferreted out data and helped compensate for my exiguous
graphic skills. Adepeju Solarin and Su Smallen, on this as on innumer-
able other occasions, provided invaluable editorial and administrative
support. Colleen Chambers, Reece Almond, and Michael Abts provided
research assistance. The University of Minnesota Law School Library
XIV • ACKNOWLEDGMENTS
provides remarkably prompt, able, and good-spirited support to faculty.

David Zopfi-Jordan, in particular, tracked down fugitive materials from
around the corner and around the world with bewildering but grati-
fying speed and efficiency. I am grateful to all those kind and generous
people. None of them, alas, bear any responsibility for the contents of
this book. That burden is mine alone.
Portions of chapters 2, 3, 4, and 5, substantially revised and updated,
are based on articles that appeared in Crime and Justice: A Review of
Research, published by the University of Chicago Press, and Criminology,
published by the American Society of Criminology. Insofar as they are
reprinted, it is by permission.
PUNISHING
RACE
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1
A CONTINUING AMERICAN DILEMMA
Four aspects of American crime control policies stand

out: the world’s highest imprisonment rate, the Western world’s only use
of capital punishment, the Western world’s most severe punishments
short of death, and the devastating effects of those policies on black
Americans. Black men for a quarter century have been five to seven
times more likely than white men to be in prison, are much more likely
to receive decades-long sentences or life without the possibility of
parole, and are much likelier to be on death row.
Stark disparities in imprisonment and entanglement in the criminal
justice system result partly from racial differences in offending. To a
lesser extent they result from practitioners’ conscious biases and uncon-
scious stereotypes. Mostly they result from the adoption in the 1980s
and 1990s of drug and crime control policies that place much heavier
burdens on black Americans than on whites.
The classic example was a 1986 federal law generally referred to as the
“100-to-1 law.” It punished sales of crack cocaine, mostly by blacks, as
severely as sales a hundred times larger, mostly by whites, of powder
cocaine. Sale of five grams of crack, a typical low-level street transaction,
was punished as severely as sale of a half-kilogram of powder, an amount
typical of high-level distributors. Not surprisingly federal prisons filled
up with convicted black crack dealers. Many other statutes—most
conspicuously mandatory minimum sentence and three-strikes-and-
you’re-out laws—enacted in the 1980s and 1990s worked in the same
2 • PUNISHING RACE
way. They targeted offenses for which blacks were especially likely to
be arrested, and they worsened racial disparities in imprisonment.
Why did legislators and law enforcement officials adopt those pol-
icies, and why were they not changed when their racially skewed effects
became known? There is little evidence that raw racism in its crudest
forms was a significant factor. There is, however, substantial evidence
that social and political processes only slightly less pernicious played
and play a major role. Three—which might be thought of as the politics,
sociology, and social psychology of race and crime—are especially
important.
THE POLITICS OF RACE AND CRIME
The Republican “Southern Strategy” was a major precipitator of the

severity of modern criminal justice policies and the unfair burdens they
place on black Americans. The strategy’s executors focused initially on
crime and “states rights.” Later the focus broadened to include welfare
fraud, busing, and affirmative action. The aim was to appeal to the fears
and biases of southern and working-class whites, and thereby weaken
their traditional support for Democratic candidates. Crime was given a
black face, most emblematically later on that of Willie Horton in the
1988 presidential election. The criminal behaviors focused on, most
involving drugs and violence, and the types, especially crack cocaine
and street violence, were things for which blacks were more often
arrested than whites. More vigorous enforcement and longer prison
sentences could be expected to hit blacks hard, and did.
The Republican Southern Strategy had its roots in the 1940s when
white southern segregationists and conservative Republicans found
common cause in opposition to the civil rights initiatives of Democratic
presidents Franklin Delano Roosevelt and Harry S. Truman. The term,
however, dates from the 1960s, when Republican political operatives
decided to rebuild the party on a southern base. The strategy was pre-
mised on an extraordinary non sequitur: that black/white differences in
the South are indistinguishable from ethnic differences at other times
and places in American history. In the preface to The Emerging Republican
A CONTINUING AMERICAN DILEMMA •3
Majority, a book announcing and justifying the Southern Strategy, Kevin

Phillips, its chief intellectual architect, wrote, “Few people realize the
extent of ethnic influences in American politics. Historically, our party
system has reflected layer upon layer of group oppositions: Irish against
Yankee, Jewish against Catholic, French against English and so forth.
Racial and ethnic polarization has neither stopped progress nor worked
repression on the groups out of power” (1969, 22).
Those words were written in 1968, the year George Wallace ran as an
openly racist candidate for president and Martin Luther King was assas-
sinated. It was the end of the decade made famous by the civil rights
movement, the March on Selma, and notorious killings of civil rights
activists. It was the end of three centuries of white supremacy in the
South. The proposition that racial polarization has “neither stopped
progress nor worked repression on the groups out of power” is a mite
saccharine.
Phillips’s political rationale was that ethnic group conflict has always
characterized American politics. “Southern politics,” he observed, “like
those of the rest of the nation, cleave along distinct ethnic (racial in this
case) lines. Whereas in New York City, the Irish are lined up against the
Jews, in the South it is principally a division between Negroes and
whites” (1969, 287–88). That is why the Republican Party “decided to
break with its formative antecedents and make an ideological bid for the
anti–civil rights South” (33). The “formative antecedents” were the par-
ty’s historic commitment to civil rights of black Americans, from
Abraham Lincoln onward.
Phillips’s conclusion was that manipulation of racial passions would
enable Republicans to achieve political dominance in the South and
strengthen their appeal to working-class whites elsewhere. As a result he
favored aggressive federal enforcement of civil rights laws and decisions,
not because it was the right thing to do, but because it would alienate
white Democrats. Enforcement of “Negro voting rights in Dixie,” he wrote,
“is essential if southern conservatives are to be pressured into switching
to the Republican Party—for Negroes are beginning to seize control of
the national Democratic Party in some Black Belt areas” (1969, 464).
In the decades that followed, the executors of the Southern Strategy
managed to promote and implement a “tough-on-crime” agenda that
imposed no special burdens on their white constituency. Tough sen-

tences for violent and drug crimes disproportionately affect black
people. Racial profiling disproportionately—mostly—affects blacks.
The war on drugs targeted drugs that blacks sell and places where they
sell them.
Black people were locked up to attract white votes. When severe pol-
icies occasionally hit whites especially hard, as happened in relation to
marijuana in the 1970s, the policies were quickly changed. In many parts
of the United States, possession of and small-scale trafficking in mari-
juana were effectively decriminalized. When by contrast it became clear
in the early 1990s that federal crack cocaine policies disproportionately
affected blacks, nothing much happened. The U.S. Sentencing Com-
mission (e.g., 1995) repeatedly urged Congress to repeal or diminish the
sentencing differential between crack and powder cocaine contained in
the federal 100-to-1 law. Attorney General Janet Reno initially endorsed
the Commission’s 1995 proposal to eliminate the differential and, back-
tracking, she and “drug czar” General Barry McCaffrey later called for it
to be reduced to 10-to-1, but to no avail (Tonry 2004, chap. 1). Change
occurred only in August 2010 when President Obama signed the Fair
Sentencing Act of 2010. It modestly amended the 100-to-1 law but
removed neither its fundamental unfairness nor its foreseeable dispa-
rate effects on black offenders. It became an 18-to-1 law. A mandatory
minimum five-year prison sentence awaits any low-level dealer con-
victed of selling 28 grams of crack. A powder cocaine dealer must sell a
half kilogram to face such a destiny.
THE SOCIOLOGY OF RACE AND CRIME
A second, subtler, harder-to-grasp explanation for unjustifiable racial

disparities is that they help white Americans maintain social, economic,
and political dominance over blacks. This is not a conspiracy theory. It
is not a claim that whites over centuries consciously conspired to keep
blacks on the bottom (though of course at times many did), but an
observation that we human beings rationalize things that are in our
interest. Many men long believed that women are too delicate for
contact sports or heavy physical training; money spent on sport mostly

benefited men. Many men long believed that women are not tempera-
mentally suited for demanding work, or that motherhood and a
serious professional career are irreconcilable; women until recently
had little access to powerful or lucrative jobs. Many whites long
believed that blacks and members of other minority groups are less
intelligent or disciplined or responsible than whites; they needed less
education and were unsuitable for many jobs. Well-known patterns of
educational and employment discrimination resulted. In less conten-
tious realms owners of existing homes usually have “principled rea-
sons,” not merely a perceived self-interest, to explain why they oppose
the expansion of a nearby road or construction of a shopping center
or placement of a homeless shelter. Beneficiaries of federal subsidies—
agricultural price supports, venture capitalists’ low tax rates, home-
owners’ mortgage interest deductions—defend them as wise public
policies, and not simply because more money arrives or stays in their
own pockets.
Something similarly self-interested underpins modern drug and
crime control policies. A variety of cultural practices and legal institu-
tions maintained traditional American patterns of racial dominance
and hierarchy for more than three centuries, and contemporary drug
and crime policies do it today. Until the Civil War, slavery assured white
domination. After the war, social practices and conventions and legal
forms of discrimination known as Jim Crow laws kept blacks in their
“place.” After the large-scale migration of millions from south to north
to escape Jim Crow in the early twentieth century, the big-city ghettos
and employment and housing discrimination kept blacks subordinate.
And when deindustrialization and the flight of jobs to the suburbs left
disadvantaged blacks marooned in urban ghettos, the modern wars on
drugs and crime took over.
Bruce Western (2006), a Harvard sociologist, has shown that recent
criminal justice policies have devastatingly diminished poor black men’s
chances of living satisfying lives. If policy makers’ aim in setting drug
and crime control policies had been to reduce poor black men’s chances
of earning a decent living, or becoming a good husband and father, or
being socialized into positive social values, it is hard to see how they
could have done it more effectively. A dose of prison can damage anyone,
and usually does.
Douglas Massey, the author with Nancy Denton of American Apartheid,
a widely praised account of housing discrimination, observed in his book
Categorically Unequal, “Whether whites care to admit it or not, they have
a selfish interest in maintaining the categorical mechanisms that perpet-
uate racial stratification. As a result, when pushed by the federal
government to end overt discriminatory practices, they are likely to inno-
vate new and more subtle ways to maintain their privileged position in
society. . . . As discrimination moved underground, new mechanisms for
exclusion were built into the criminal justice system for African Americans”
(2007, 54, 251).
Massey is but one of many leading scholars who have come to the
same conclusion. Glenn C. Loury, an economics professor at Brown
University and one of the leading conservative speakers along with
Robert Bork at Republican Party conferences in the 1980s, is another.
The relation of the contemporary criminal justice system “to the history
of racial degradation and subordination in our country (lynching, min-
strelsy, segregation, ghettoization) is virtually self-evident,” he wrote.
“The racial subtext of our law and order political discourse over the last
three decades has been palpable” (2007).
Recent work by legal scholars reaches the same conclusion. The civil
rights lawyer Michelle Alexander (2010), for example, has argued that
the imprisonment of large percentages of poor blacks, and the
employment and other handicaps they experience after release, have
created a new racial caste system. It operates to keep poor blacks and,
through them, blacks as a group at the bottom. She argues that civil
rights leaders have mis-served poor blacks by focusing their attention
on broad-based civil rights issues rather than on justice issues that dis-
proportionately affect black people.
THE SOCIAL PSYCHOLOGY OF RACE AND CRIME
The third explanation for why the prospect of extreme racial disparities
did not impede policy makers, and why they continue to be tolerated, is
that most people, including many black people, are influenced by wide-
spread stereotypes about black criminality. A number of separate litera-
tures are relevant. One concerns attitudes toward punishment. Whites
generally have more punitive attitudes than do blacks and greater
confidence in the justice system and its practitioners (e.g., Unnever,
Cullen, and Jonson 2008; Peffley and Hurwitz 2010). Despite widely
acknowledged racial profiling by the police, for example, whites are
much less likely than blacks to believe that blacks are treated unfairly
(Blow 2009, A15). A rapidly growing body of research on public atti-
tudes and opinions shows that “negative racial stereotypes, anti-black
affect, and collective racial resentments are all positively correlated with
criminal justice policy punitiveness” (Bobo and Thompson 2010). Put
more bluntly, people who support punitive crime policies are especially
likely to harbor antiblack attitudes and resentments, and those policies
do disproportionate damage to black people.
Another relevant set of interrelated literatures concerns widely held
stereotypes of blacks as criminals. Studies by media scholars demon-
strate that the mass media—news and entertainment both—regularly
portray criminals as black and victims as white. Those stereotypes seep
into people’s thinking. A different literature shows that, when asked to
envision a drug addict or a violent criminal, most white people assume
the typical offender to be black.
A rapidly growing body of research on “colorism” shows that
Americans—blacks and whites alike—assume that blacks with a dark
skin tone are more likely to be criminals than blacks with a moderate or
light skin tone. Blacks with the lightest skin are no more likely than
whites to be stereotyped as criminals. Blacks with dark or moderate skin
tone are punished more severely than whites. Blacks with the darkest
skin are punished the most severely of all.
A related literature examines “Afro-American feature bias.” In many
people’s minds stereotypically black facial features—dark skin, wide
nose, full lips—are associated with criminality. When shown pictures of
black and white men and asked to guess which are criminals, observers
much more often choose those with Afrocentric features. Blacks (and
some whites) with Afrocentric features are punished more severely than
typical whites.
Yet another related literature examines “implicit bias.” Millions of

Americans have visited a Harvard University web page to take the
Implicit Association Test. The IAT encompasses a number of ques-
tionnaires and computer games that seek out unconscious associa-
tions of race with good and bad things. Every population group except
blacks unconsciously associates blacks with crime. In one game test
takers are told to shoot fleeing armed felons and are then shown
images of black and white people in different settings and carrying
different objects. Test takers are much more likely to shoot black felons
in ambiguous settings, and to shoot black felons holding objects other
than guns. Similar association tests have been given to police officers
and judges, with the same results. An entire issue of the California Law
Review was devoted to research on implicit bias. The conclusion: “A
substantial and actively accumulating body of research evidence
establishes that implicit race bias is pervasive and is associated with
bias against African Americans” (Greenwald and Krieger 2006, 966).
These literatures all document the existence of widely held uncon-
scious stereotypes about black crime and black criminals. It is hard to
imagine that police stopping people on the street, prosecutors deciding
whether to file charges, judges setting sentences, and legislators consid-
ering bills are immune from the influence of these stereotypes.
Put all these things together—the Southern Strategy, stereotypes of
black criminals, whites’ greater support for harsh punishments and
lesser belief in racial bias, the association of whites’ racial resentments
with support for punitive attitudes—and it is, alas, not surprising that
Congress enacted the 100-to-1 law, and that it and state legislatures
enacted many others like it. And it is not surprising that almost all such
laws remain on the books.1
All of these findings are consistent with the ideas that whites can
comfortably approve harsh policies that mostly affect nonwhites and
that social distance and racial stereotypes make white empathy for
blacks who are affected weak and uncommon. This is not a radical or
far-fetched observation. In a book that generally denies the signifi-
cance of racism and racial bias in the criminal justice system, the
conservative writers Stephan and Abigail Thernstrom nonetheless
acknowledge that “the capacity to feel empathy across racial lines is in

short supply” (1997, 277).
MORALISM, JUDGMENTALISM, AND SEVERE

PUNISHMENTS
Other facets of American history and culture compound problems of

race in the justice system by creating pressures for harsh crime and
drug control policies. Throughout American history political move-
ments have emerged with properties that the historian Richard
Hofstadter long ago characterized as the “paranoid streak in American
politics.” It is a recurring phenomenon in which political move-
ments, sometimes on the left but most recently on the right, adopt
black-and-white, right-versus-wrong, take-no-prisoners positions. The
law-and-order movement, especially in its victims’ movement compo-
nent, often had these characteristics. Crime control policy was seen as
a zero-sum game: you were either “for victims” or “for criminals.” There
was no middle ground.
A second complication is the influence of Evangelical Protestantism.
Many of its adherents see crucial criminal justice issues in terms of
moral right and moral wrong and are likewise closed to the possibility
of compromise. If criminals and drug users are immoral, well, then they
deserve neither empathy nor compassion. They have sinned, and they
should be severely punished for it. That’s that.
The third complication is the American structure of government,
unique among developed Western countries, in which judges and
prosecutors are elected or politically appointed and in which
government policy making about crime is not insulated from influence
by short-term emotions and politics. Some judges and prosecutors are
sensitive to public opinions and passions because they believe they
should be. Others pay attention because they believe doing so will
help them win reelection, be promoted to higher office, or just be more
popular in their community. In any case the effect is that practitioners’
decisions often reflect citizens’ anger and upset. That ratchet operates
in only one direction: upward. Similar pressures operate on other

public officials.
Taken together these three factors—the paranoid streak, religious
moralism, and the politicization of the justice system—created a political
climate that was long on vindictiveness and short on empathy, govern-
mental institutions that were quick to adopt policies of unprecedented
severity, and practitioners who were quick to apply them.
Later I develop these ideas and show why they should be taken seri-
ously.2 Assuming, however, that these arguments and research findings
have some merit, much else falls into place. Rising crime rates in the
1970s and 1980s, compounded by anxieties associated with rapid social
and economic changes, including the fruits of the civil rights movement,
made Americans anxious and eager for simple solutions to complex
problems. Politicians offered them. The Republican Southern Strategy
allowed politicians to appeal to whites’ racial anxieties and resentments
without doing so openly. American moralism made drugs and street
crime understandable problems to attack. White-collar and corporate
crimes, by contrast, are harder to understand, and the lines between
admirable entrepreneurism and criminal opportunism are harder to
draw and prove. Drugs and street crime, however, can be portrayed in
black-and-white terms: street crime is reprehensible and drug use is
irresponsible, and they are behaviors for which black people are dispro-
portionately arrested.
Attacking drugs and street crime with vigor and self-righteousness
appealed to white and middle-class voters in part because those prior-
ities posed little threat to people like them. This is why antidrug policies
treat crack much more severely than powder cocaine and why alcohol—
which plays a bigger role as a precipitant of crime and violence than
crack or powder and generates greater aggregate social costs—is not a
target of antidrug policies at all. Much larger percentages of whites than
blacks consume alcohol, and public health rather than criminal justice
approaches to it predominate.
Racially skewed policies allow the white majority to indulge a taste
for moralism at other people’s expense. If their own children had been
sent to prison in large numbers and had their later prospects for living
satisfying lives greatly reduced, white voters might have felt differently.
A CONTINUING AMERICAN DILEMMA • 11
Ghetto black kids were a different matter. It is hard to identify or

empathize with people you don’t know and who live lives almost unrec-
ognizably different from your own. The Republican Southern Strategy,
with its law and order corollary, emphasized how different white voters
were from poor blacks. It also destabilized poor black communities and
delayed full black participation in American life by at least several
generations.
It is much easier to be tough on crime or drugs when someone else’s
children will go to prison. That this is part of the problem is demon-
strated by marijuana law enforcement in the 1970s. Young whites in the
1960s and early 1970s were more likely than young blacks to be arrested
for drug offenses, especially involving marijuana. When President
Nixon’s war on drugs resulted in prison terms for many young mid-
dle-class whites a backlash set in. In many places minor marijuana
offenses were effectively decriminalized. White teens’ arrest rates plum-
meted, arrests of black teens took off, and ever since black teenagers have
had higher arrest rates than whites (Blumstein and Wallman 2006).
THE EFFECTS ON BLACK AMERICANS
The litany of ways drug and crime control policies disproportionately

affect black Americans is depressing, but so familiar as to surprise no
one with even nodding acquaintance with the subject. Blacks in 2005
constituted 12.8 percent of the general population but nearly half of
prison inmates and 42 percent of death row residents. About a third of
young black men ages twenty to twenty-nine were in prison or jail or on
probation or parole on an average day in 2005. The Bureau of Justice
Statistics estimated in 2003 that 32 percent of black baby boys born in
2001 would spend some part of their lives in a state or federal prison.
That is a substantial underestimate; it does not take account of confine-
ment in local jails, which is much more common than time in prison. By
2004 a third of adult black men had a felony conviction and half had
been convicted of a felony or a misdemeanor (Bonczar 2003; Bureau of
Justice Statistics 2007a, tables 6.33.2005, 6.17.2006, 6.80.2007; Pager
2007, 157; Uggen, Manza, and Thompson 2006).
Stop for a minute and think about those numbers. Try to step back in
your mind’s eye to the early 1990s and picture yourself in a classroom
full of black, bright-eyed first-grade boys at the beginning of a decade of
national prosperity. Then return to the present, knowing that one of
every three of those small boys grown up is today entangled in the arms
of the criminal law. Ask yourself, “How that can possibly be?” We know
the answer to that rhetorical question, but it invites another: “How could
American policy makers have let that happen?”
What is most striking about these patterns of racial disparity is not
that they exist, but that they are well-known, have long been
well-known, and have changed little in recent decades. Few people
except academics, law reformers, and offenders and their loved ones
much notice or care. The racial disparities caused by the federal 100-
to-1 law were foreseeable when the law was passed (Tonry 1995, 4–6)
and were irrefutably documented long ago (McDonald and Carlson
1993). The same is true of racial profiling by the police and of the wars
on crime and drugs: their effects on black Americans have long been
well known.
Since at least 1980 American drug and crime control policies have
undermined achievement of full unbiased participation of black
Americans in the nation’s social, economic, and political life. The fol-
lowing list of social, vocational, educational, and economic differences
between blacks and whites is drawn from 2010 edition of The Statistical
Abstract of the United States:
In 2007, 34.3 percent of black children lived in households below
the poverty line, compared with 14.4 percent of white children.
In 2005, the mortality rate for black infants was 13.7 per 1,000
live births, compared with 5.7 per 1,000 for whites.
In 2007, per capita income for black Americans was $18,428,
compared with $28,325 for whites.
In 2008, 10.1 percent of adult blacks were unemployed and
36.3 percent were not in the labor force, compared with
5.2 and 33.7 percent of whites.
In 2008, 19.6 percent of blacks twenty-five and older had college
degrees, compared with 29.8 percent of whites.
In 2007, 46.7 percent of blacks owned their own home, compared

with 72.5 percent of whites (U.S. Department of Commerce
2010, tables 112, 224, 576, 688, 696, 956).
Those differences partly result from and are exacerbated by the nearly
seven-to-one racial difference in black and white imprisonment rates
that has been typical for the past quarter century, the staggering difference
in black and white men’s lifetime chances of going to prison, and the
entanglement of a large minority of young black men in their twenties in
the justice system at a time of life when other young men and most
women are building careers and conventional lives (Western 2006).
Accumulating bodies of research show that going to prison makes get-
ting a job much harder later on (Pager 2007), reduces average and life-
time earnings (Fagan and Freeman 1999; Raphael, Holzer, and Stoll
2006), and reduces the later well-being of prisoners’ children (Murray
and Farrington 2008). A different literature shows that disadvantaged
minority communities are damaged, not helped, when large numbers of
their residents are sent to prison. Low levels of imprisonment at least
arguably prevent crime in a neighborhood through deterrence, incapac-
itation, and removal of antisocial role models. High levels cause crime
rates to increase and neighborhoods to deteriorate (Clear 2007, 2008).
With the advantage of hindsight it is clear that much of the damage
to black people and their communities could have been avoided if the
law-and-order movement, with its insensitivity to the interests of black
Americans, had not taken hold. Prominent proponents of the Republican
Southern Strategy, looking back, regret it. Kevin Phillips, the author of
The Emerging Republican Majority (1969), long ago recanted and con-
demned the deliberate use of “crime” and “violence” as racial code words.
Harry Dent, chairman of the Republican National Committee in the
1970s, a principal implementer, in 1980 expressed his regret for anything
he did “that stood in the way of the rights of black people” (Stout 2007,
B7). Had we known thirty years ago where the law-and-order movement
would lead, that in 2010 nearly 1 percent of Americans would be behind
bars and nearly a third of young black men would be supervised by the
criminal justice system, it is hard to imagine that many people would
have chosen our present as an acceptable future.
If imprisonment rates for jail and prison together had remained at

1970 levels (around 160 per 100,000) or at 1980 levels (around 210),
American crime control policies would have bitten much less deeply
into black American communities. Those rates would still be high by
modern international standards. In 2009 the highest rates in countries
with which Americans would ordinarily want to be compared were 150
to 170 per 100,000 (England, Spain, and New Zealand). Canada’s impris-
onment rate was 115 per 100,000; rates in Scandinavia and Italy were
between 65 and 75; and in France, Germany, and Belgium were under
100 (International Centre for Prison Studies 2010). Except for murder,
crime rates in the United States are not higher than in other wealthy
developed countries, and prisoners convicted of murder make up only
11 percent of the total.
By contrast, American imprisonment rates in 1970 were nothing
special; higher than in other developed democratic countries, but
lower than in others. Returning to 1970 or 1980 levels would simply
return the United States to the mainstream—where it ought always to
have been.
Fewer than half of the black Americans in prison in 2010 would have
been there had 1980 rates continued, and fewer than a quarter if 1970
levels had continued. Many fewer black men would have suffered the
pains of imprisonment, the resulting stigma, reduced employment pros-
pects, and the socialization into deviant values that prisons provide.
There would have been many fewer broken black families, fewer nega-
tive role models for black boys, and more black men whose social and
economic prospects made them attractive marriage partners. There
would have been less deterioration in poor black communities. Over at
least three decades when civil rights and welfare policies aimed at
improving opportunities and living standards for black Americans,
drug and crime policies steadily worsened them.
WHAT HAPPENED?
The massive imprisonment of black men in twenty-first-century

America did not happen overnight; it happened in the decades since
1973. In 1960 blacks made up 36 percent of the prison population. The

black imprisonment rate was 661 per 100,000. Part of that differential
resulted from racial bias and part from the greater involvement of blacks
in the kinds of crimes, mostly violent, that commonly resulted in prison
sentences. The part associated with bias was indefensible.
The part associated with relatively higher rates of arrest for violent
crimes raised more complicated issues. Social and economic depriva-
tion experienced by black Americans, caused and worsened by racial
discrimination, went a long way to explain greater involvement in crime.
Then as now, however, much violent crime occurred within racial
groups, not between them. Before the 1970s, American police forces
often did not record many black-on-black crimes that came to their
attention. The condescending rationale was that such crimes were not
police business and were best handled within the black community.
This means that police data systematically undercounted violent crimes
by black offenders against black victims.
Some blacks were no doubt arrested when whites would not have
been, and some blacks were no doubt not arrested when whites would
have been. It is impossible now to know whether the black percentage of
prison inmates was too high or too low. In any case, failure by the
criminal justice system to respond to violence against black victims
constituted a different sort of discrimination.
After 1960 the civil rights movement grew in scope and influence.
The U.S. Supreme Court struck down laws permitting racial discri-
mination. The first major twentieth-century civil rights legislation was
enacted. Increased social and economic opportunities for blacks should
have reduced their relative overinvolvement in violent crime, and the
imprisonment rate for black Americans should have declined.
That did not happen. The overall imprisonment rate increased from
161 per 100,000 population in 1970 to 780 in 2006. That increase, enor-
mous though it is, dwarfs what happened to black Americans. The black
imprisonment rate increased from 593 in 1970 to 2,661 per 100,000 in
2006. The percentage of prisoners who were black reached 50 percent in
the mid-1980s, a level at which it remained for a decade and from which
it has since fallen only slightly. Prison population numbers were higher
in 2010.
DOING BETTER
Much of the damage done to disadvantaged black Americans and their

loved ones in the name of crime control and drug law enforcement
was, and is, avoidable. We can do better. Two approaches are corrective:
radical reduction in the use of prison sentences and abandonment of
policies and laws that do unnecessary damage. Two others are preven-
tive: reduction of bias and stereotyping and creation of devices that
make future adoption of policies that cause unjustifiable racial dispar-
ities less likely.
R EDUCED U SE OF I MPRISONMENT
Efforts to reduce the influence of bias and stereotyping in official

decision making are being made throughout the United States and
should continue to be made. Unfortunately even if they were completely
successful they could have only modest effects. Prison disparities result
primarily not from biased decisions but from two other causes. The
police unfairly target minority offenders by use of racial profiling and
drug arrest policies that focus on crack cocaine and disadvantaged
minority areas of large cities. Sentencing policies call for extraordinarily
long prison terms for offenses of which blacks are disproportionately
often convicted.
The only way to reduce the massive damage current policies do to
black Americans is to reduce the prison population substantially, as is
illustrated in table 1.1, using data for 2006.3 Part of the disparity is caused
table 1.1 Hypothetical Reductions in Imprisonment, Effects of Racial Makeup

Black Imprisonment Black:White Ratio Reduction in Black
Rate Prisoners
In 2006 2,661 per 100,000 5.5:1
Less 10% disparity 2,395 per 100,000 5.0:1 101,000
Halve 2006 population 1,330 per 100,000 5.5:1 505,400
Return to 1980 level 827 per 100,000 5.5:1 697,000
Source: Tonry and Melewski (2008, table 5).

by racial bias and stereotyping. Ten percent is a high estimate of their

likely contribution. As the table shows, reducing the number of black
prisoners by 10 percent and holding all else constant would reduce dis-
parity but would reduce the number of black people in prison only by
about 100,000.
If instead the prison population were cut by half across the board,
racial disparities would remain the same but the black imprisonment
rate would fall by half.4 There would be 500,000 fewer black people in
prison. If imprisonment rates were brought down to 1980 levels the
black imprisonment rate would fall by more than two-thirds and there
would be 700,000 fewer blacks in prison.
The implications of these alternative approaches are enormous. Of
course every effort should be made to eliminate bias and stereotyping,
but even their diminution will not significantly reduce racial disparities
or the absolute number of black people in prison. Only radical reduction
in the scale of imprisonment in America can make a big difference.
Devices need to be created for reducing the lengths of current prison
sentences and releasing hundreds of thousands of people serving
unnecessarily long terms. Sentencing laws and guidelines need to be
changed to reduce the use of imprisonment and to shorten prison sen-
tences. New programs need to be created to divert many people from
prison or jail into community correctional programs. New systems of
parole, pardon, and commutation need to be developed. So do new pro-
grams of social welfare and support to ease ex-prisoners’ transition back
into the free community. None of these changes need be focused on
black offenders or on black prisoners. Black imprisonment rates are so
high partly for the reasons set out here, but also because American
imprisonment rates are so high.
The prison population cannot be reduced overnight or in a year, but
it can be reduced relatively quickly and in ways that do not substantially
impair public safety. As chapter 6 explains, there are no good reasons to
believe that the enormous numbers of people in prisons make the
United States a significantly safer place.
There are two theoretical rationales for current drug and crime con-
trol policies. The first is that aggressive drug law enforcement and severe
sentences for drug crimes reduce drug use by making drugs less
available. The second is that severe sentencing policies significantly

reduce crime rates by deterring and incapacitating offenders. The evi-
dence supports neither theory.
DRUG POLICY
The enormous increase in the size of the prison population over the
past 30 years is to a significant extent the product of the police and sen-
tencing policies associated with the war on drugs. The clear weight of
the evidence, however, and the conclusions of most leading drug policy
scholars concur: Arresting hundreds of thousands of inner-city street-
level drug dealers and sending them to prison has had little or no effect
on the availability of drugs in the United States. A single measure—
street prices of drugs—shows this. Federal drug enforcement agencies
for forty years have regularly purchased drugs from street-level dealers
in order to monitor drug prices and availability. If massive arrests and
severe penalties were making drugs less available, simple economic
theory instructs that prices should be rising. Instead they have fallen
steadily since the early 1980s.
Crack cocaine has been the primary target of drug law enforcement
since the mid-1980s; crack prices especially should have increased.
Instead data from the Office of National Drug Control Policy show that
the street price of one gram of pure crack fell from about $650 in 1982
to about $200 in 1992 (both in 2007 constant dollars) and has continued
to fall since then.5 The principal reason for this is that street-level drug
dealers who are arrested are quickly replaced. Other disadvantaged
young people are willing to accept substantial risks for what—mistak-
enly—they believe to be prospects of better earnings than are otherwise
available to them.
The evidence concerning deterrence and incapacitation is no more
supportive.6 The clear weight of the evidence for more than thirty years
has shown that, compared with lesser punishments, harsh punishments
have few if any additional deterrent effects, and that lengthy prison
terms are at best an inefficient, inhumane, and overly expensive way to
prevent crimes. No one doubts that society is safer having some criminal
penalties rather than none, but that choice is not in issue. The practical
question is whether increases in penalties, or having more rather than

less severe penalties, measurably reduces the incidence of serious
crimes. The answer is no.
DETERRENCE
There are three main places to look to find out whether increasing pen-
alties, or having severe penalties, deters crime. First, countries have
sought advice from expert advisory committees or national commis-
sions. Time and again they have concluded that knowledge about the
deterrent effects of penalties is insufficient to justify basing sentencing
laws on assumptions about deterrence. Examples include the Canadian
Sentencing Commission (1987), the Finnish National Research Institute
for Legal Policy (Törnudd 1993), and several panels of the U.S. National
Academy of Sciences (Blumstein, Cohen, and Nagin 1978; Reiss and
Roth 1993). A typical example comes from the British Home Office
when Margaret Thatcher was prime minister: “It is unrealistic to con-
struct sentencing arrangements on the assumption that most offenders
will weigh up the possibilities in advance and base their conduct on
rational calculation” (Home Office 1990, 6).
Second, a sizable number of surveys of research on the deterrent
effects of sanctions have been published. With only rare exceptions, they
conclude either that there is no credible evidence that increased pen-
alties reduce crime rates (e.g., von Hirsch et al. 1999; Tonry 2008b) or
that existing evidence is insufficient to provide meaningful policy
guidance (e.g., Nagin 1998). The Canadian scholars Anthony Doob and
Cheryl Webster concluded, “There is no plausible body of evidence that
supports policies based on this premise [that increased penalties reduce
crime]” (2003, 146). The American scholars Travis Pratt and his colleagues
concluded in more technical language that “the effects of ‘severity’
estimates and deterrence/sanctions composites, even when statistically
significant, are too weak to be of substantive significance” (2006, 379).
Third, evaluations have been conducted of the deterrent effects of
a wide range of newly enacted mandatory penalty laws. These
include New York’s Rockefeller Drug Laws, the first major modern
mandatory minimum penalty law in the United States, and one of
the toughest ( Joint Committee on New York Drug Law Evaluation

1978), and mandatory minimum sentence laws in Massachusetts,
Michigan, Florida, Pennsylvania, and Oregon (e.g., Beha 1977;
Rossman et al. 1979; Loftin, Heumann, and McDowall 1983; Loftin
and McDowall 1984; McDowall, Loftin, and Wiersema 1992). All
concluded that the laws had no deterrent effects or had short-term
effects that quickly disappeared. The vast majority of evaluations of
California’s three-strikes law conclude that it had no significant
effects on crimes rates.
INCAPACITATION
The evidence concerning incapacitation is little stronger. No one ques-

tions that some crimes in the community are avoided because would-be
offenders are locked up, but that is not the issue. There would be no
crime in the community if everyone was in prison, and relatively little if
all males aged fifteen to thirty-five were. Those are not options. The
question is whether enough crimes are averted by current practices to
justify having so many people in prison. The answer is no.
There are four good reasons to conclude that there are too many
people in prison from an incapacitative perspective. First, crime is a
young man’s game. Most who commit crimes in their teenage years or
early twenties will soon stop because they get tired of it or realize they
have too much to lose: a wife or girlfriend, a family, a job.
Second, crime is seldom an old man’s game. Very few remain crimi-
nally active after their mid-thirties. With only a few exceptions confine-
ment of people older than thirty-five is irrelevant from a crime-prevention
perspective and a waste of taxpayers’ money.
Third, for many behaviors, locking up a single offender is unlikely to
prevent crimes. The “replacement” problem concerning drug dealers is
the clearest; drug markets provide sufficient incentives to wannabes that
filling an open street corner is seldom difficult.
Fourth, among the quarter to a third of American prisoners in recent
years who were convicted of drug crimes, many were convicted of
street-level dealing or possession. Most of them do not present
significant risks of other forms of criminality.
There is a fifth reason why incapacitative considerations cannot

justify current imprisonment levels: many sentences are just too
long. It is a requirement of justice that punishments be proportionate
to the seriousness of crimes. This is not a merely academic point.
Most lay people believe as strongly as most philosophers that people
who commit comparable crimes should receive comparable punish-
ments, and that people who commit less serious crimes should be
punished less than people who commit more serious crimes. Most
three-strikes and mandatory minimum sentence laws require dis-
proportionately severe punishments of five, ten, twenty, thirty years,
and life. Sellers of tiny amounts of drugs are often sentenced more
severely than people convicted of burglaries, robberies, and sexual
assaults. Three-strikes laws require prison terms for minor crimes
that are longer than those served by most people convicted of rape,
robbery, or murder.
Some people deserve to be sent to prison for serious crimes, but
not for so long as many are now sent. Some people pose meaningful
risks to public safety; it is not unreasonable to confine them. There
are, however, few such people, and very few of them remain dan-
gerous past their mid-thirties. A large percentage of American pris-
oners could be sent home without significantly threatening public
safety.
Moreover accumulating evidence suggests that sending people to
prison makes them more likely to commit new crimes than if they
had been punished in some other way. The most recent authoritative
survey of the evidence concludes: “Most studies of the impact of
imprisonment on subsequent criminality find no effect or a crimi-
nogenic effect. . . . Existing research is not nearly sufficient for mak-
ing firm evidence-based conclusions for either science or public
policy” (Nagin, Cullen, and Jonson 2009, 121). Sending people to
prison makes them more likely to commit crimes after they are
released, not less. From a crime prevention perspective, little would
be lost if prisons held many fewer inmates. The savings in money
and human life chances would be substantial. The benefits for black
Americans would be enormous.
T ARGETING THE C AUSES OF R ACIAL D ISPARITIES

A wide range of contemporary criminal justice policies do unnecessary
damage to black Americans. Some can be addressed by the police.
Others require administrative or legislative changes.
RACIAL PROFILING
Under current American law, racial profiling is legal as long as the police
offer another, pretextual reason for stopping someone. Kevin R. Johnson
(2010) has shown, through a careful analysis of U.S. Supreme Court
decisions over four decades, that the court has systematically disman-
tled constitutional procedural protections that in earlier times would
have made racial profiling difficult to impossible. Under current law,
police can stop people because they are black or Hispanic or are mem-
bers of other ethnic groups, as long as the police provide some addi-
tional reason for doing so. This reason can be no more than a hunch or
a statement that “my experience led me to believe. . . .” Subjective consid-
erations such as those are impossible for courts to second guess.
Racial profiling is per se unfair. It alienates many minority citizens
and makes them distrust the police and the criminal justice system. It
also puts black people at greater risk than whites of being arrested for
reasons that would otherwise not come to the attention of the police. It
should stop. When an arrest results from an unlawful search or seizure,
the criminal charges are tossed out. Criminal charges resulting from
arrests based on racial profiling should be dealt with in the same way.
Police incentives would change substantially if after the fact every arrest
arguably resulting from profiling were subject to the same degree of
judicial scrutiny that warrants before the fact are supposed to receive.
DRUG ARRESTS
Drug arrests are the second source of disparity that is within the power
of police executives to alter. Police targeting of inner-city drug markets
has produced racial disparities between blacks and whites for drug
arrests as high as six to one in some years. Retargeting to focus equally
on white drug dealers would make an important symbolic statement
about racial fairness, reduce racial disparities, and pursue the aims of
drug law enforcement no less effectively. As a practical matter police

efforts to target whites and blacks equally would reduce arrests overall.
It takes much more time to apprehend whites selling drugs behind
closed doors than to arrest black sellers in open-air street markets.
Greatly increased emphasis on drug dealing by whites would most
likely produce a political backlash that would lead to a reconsideration
of drug enforcement policy, as happened with marijuana in the 1970s.
In any case it is unlikely that arresting many more whites would be
more effective in reducing drug sales, use, and prices than are current
practices. Police who try seriously to reduce unfair arrest disparities
will need to rethink their approach. The obvious move is to shift
primary emphasis from law enforcement approaches to treatment and
rehabilitation.
CRIMINAL RECORDS
The United States is unique among Western countries in giving very

great weight to prior convictions in setting sentences for new crimes. In
most countries, the effect of an offender having one or more prior con-
victions is to increase sentences for new crimes by a few months. In the
United States, the “recidivist premium” often doubles or triples the sen-
tence. Because black offenders are arrested more often and at younger
ages than whites, they are more often affected by prior record incre-
ments. Richard Frase (2009) has shown that two-thirds of the difference
in prison sentences received by blacks and whites in Minnesota result
from racial differences in prior records. Ways need to be devised to
change that. Exactly how is not so important. What is important is rec-
ognition that current practices and policies greatly worsen racial dis-
parities in imprisonment, to no good end, and that means must be
found to lessen the damage they do.
LENGTHY PRISON SENTENCES
Mandatory minimum, life without the possibility of parole, and truth-

in-sentencing laws mostly affect drug and violent criminals, often
require sentences measured in decades, and are a major contributor to
racial disparities. They should be repealed and no new ones should be
enacted. American jurisdictions need to establish principled new sys-

tems of sentencing guidelines coupled with new mechanisms for short-
ening unduly, disparately, or disproportionately long prison sentences.
Parole release systems long performed that function, among others, but
many have been abolished. They need to be reestablished. Parole boards
that survived became much too cautious and in doing so increased both
lengths of sentences served and prison populations. They need to
rethink their policies. New sentencing guidelines will need to call for
proportionate sentences measured mostly in months for many crimes,
in single-digit years for most serious crimes, and in longer periods only
for very serious crimes and very dangerous offenders.
R EDUCE R ACIAL BIAS AND S TEREOTYPING

Many states have created racial equity task forces in their court systems.
Continuing education programs attempt to sensitize judges and court
and correctional personnel about the ubiquity and perniciousness of
unconscious stereotyping and attribution. Programs such as these are as
important for the normative messages they send—about the injustice of
racial stereotyping and the importance of treating people as equals—as
for the improvements they produce in the quality of American justice.
They need to continue and to be expanded.
DISPARITY IMPACT ASSESSMENTS
Federal and state governments in the United States should require that
racial disparity impact projections be prepared as a routine element of
consideration of proposed sentencing legislation, and that operating
agencies conduct racial disparity audits. Both should be relatively
uncontroversial. Most legislatures now require that fiscal impact assess-
ments accompany proposed legislation. Every American jurisdiction
requires development of environmental impact projections before new
buildings are built or existing ones are altered in sensitive environments.
Racial disparity audits examine current practices to see, in the first in-
stance, whether they affect members of different groups differently.
When disparities are documented, the next question is whether they
can be justified. Disparity impact projections are similar except that
they focus on proposed changes in policy and practice in order to iden-

tify foreseeable disparities and determine whether they can be justified.
If disparities cannot be justified, the proposals should be abandoned.
Proposals for major reductions in America’s prison population, repeal

of punitive legislation, and requirement of race and ethnicity impact
assessments may strike some readers as audacious. But if racial dispar-
ities and the damage they have unarguably done to millions of individual
black Americans and their families, and to black Americans as a group,
are pressing social problems, then strong measures are called for.
Perhaps as the normative developments that underlay the civil rights
movement wrestle with the beliefs and attitudes that have long main-
tained white dominance in America, a time will come when these pro-
posals do not look audacious. They are simple proposals that aim to
address profound injustices. Seen in that way, they are not audacious
at all.
2
IMPRISONMENT
Many features of the criminal justice system dispro-

portionately hurt black Americans—racial profiling, the War on Drugs,
bias and stereotyping—but the worst damage is done by excessive
imprisonment. Racial disparities in imprisonment and the enormous
absolute number of black people behind bars are major impediments to
the creation of an America in which race does not matter. So long as
32 percent of black baby boys can expect to spend time in prison and
33 percent of young black men are at any one time under the control of
the criminal justice system, the America in which race does not matter
will remain an impossible dream.
If large numbers of young black men continue to be disabled from
becoming successful workers, fathers, and citizens, black people will
continue to be less healthy, wealthy, and successful than other Americans.
Undoing, ameliorating, and compensating for the damage current
criminal justice policies cause is one goal. Diminishing future damage is
the other. Chapter 6 discusses how those things can be done. This and
the next chapter document the damage American drug and crime con-
trol policies do to black Americans and show how current patterns of
disparity and overimprisonment came to be.
Scholars have long paid attention to interactions among race, crime,
and criminal justice. W. E. B. Du Bois (1899/1988), the pioneering black
intellectual, and Gunner Myrdal, author of An American Dilemma
(1944), the classic account of race in American life, are two of the most
IMPRISONMENT • 27
famous. There have been many others. The stories Du Bois and Myrdal
told were of racial bias, greater black than white involvement in crime,
and higher black than white rates of imprisonment. Both attributed
higher rates of black crime to racial discrimination, disadvantaged lives,
and blocked opportunities.
Problems of excessive and disproportionate imprisonment of black
Americans are of long standing and are not getting better. In a 1995
book, Malign Neglect: Race, Crime, and Punishment in America, I sur-
veyed what was known about racial disparities and their causes. Here is
how things then stood. For a century before the 1960s black people had
been more likely to be held in prison than whites. Racial disparities
began to rise in the 1960s and then shot up to all-time highs in the
1980s, during the Reagan administration: blacks by then accounted for
half of American prisoners, though they were only 12 percent of the U.S.
population. A black American was seven times more likely to be in
prison on any given day than a white American. Part of the reason was
that blacks were sometimes treated more harshly than whites. Sometimes
this was because of racial bias. Other times it was because of the
influence of unconscious biases, stereotypes, and lack of empathy.
A larger part of the explanation for the historical pattern, however,
was that blacks were more likely than whites to be arrested for robbery,
rape, aggravated assault, and homicide, offenses that have long resulted
in prison sentences. Victims’ descriptions of assailants and police data
on victim-offender relationships in homicides indicated that the racial
offending patterns shown in arrest data were not far off from reality, at
least for serious crimes. Critically, however, there had been no significant
shifts in racial patterns in arrests for decades, and increased involve-
ment by black people in serious violent crime could not explain why
imprisonment rates shot up after the 1960s. A primary cause of the
increase in the 1980s was disproportionate arrest and imprisonment of
black people for drug offenses.
Little in that paragraph needs to be changed to describe conditions
in 2010, with three important exceptions. First, overall imprisonment
rates were much higher in 2010 than in 1993, and with their increase the
lifetime probability of imprisonment for black men and the percentage
of young black men in prison increased substantially. Second, the
absolute number of blacks in prison was substantially higher in 2010.

Third, however, blacks’ involvement in violent crimes had declined sub-
stantially. If prison were used primarily as a punishment for serious
violent crimes, as it is in most other countries, racial disparities should
have been falling for at least fifteen years.
The black fractions of the prison, jail, and death row populations did
not change much between 1993 and 2010. Nor did the ratio of black to
white imprisonment rates: black men remain six to seven times more
likely than white men to be inmates. Police arrest policies for drug
offenses continue to be primary causes of racial disparities. Racial pro-
filing by the police plays a major role. Other important causes include
mandatory minimum sentence and three-strikes laws that mandate
decades-long and life sentences, and the elimination of parole release
and other devices that enabled officials in earlier times to shorten
unduly long sentences.
Harsh sentencing policies for drug and violent crimes are a major
cause of the continuation of racial disparities. Until the early 1980s
tough sentencing laws mainly established minimum sentences for
violent and gun crimes, and the minimums were usually one or two
years (Shane-DuBow, Brown, and Olsen 1985). Beginning in the 1980s
laws were enacted requiring lengthy prison sentences for drug offenses,
including low-level street sales of small amounts. For fifteen years,
through the mid-1990s, state and federal legislators repeatedly enacted
laws requiring longer sentences for drugs, guns, and violence. Perhaps
because fingers and toes provide a handy frame of reference, mandatory
sentence laws often specify numbers in multiples of five—5 years, 10, 20,
and 30. Classic examples include the federal 100-to-1 law governing
cocaine sentencing that was in effect from 1986 to 2010, the 18-to-1 law
that replaced it, and California’s three-strikes law requiring sentences
ranging from twenty-five years to life for third felonies, no matter how
minor.
Black Americans have borne the brunt of this tougher sentencing.
Arrest rates for black people for drug crimes are far higher—three to
four times higher—than for whites and bear no relationship to levels of
black Americans’ drug use or involvement in drug trafficking. Black
Americans are less likely to use most drugs than are whites, and there is
IMPRISONMENT • 29
no credible evidence that they sell drugs more often. High arrest rates
for drug crimes result from police policy decisions to focus on sub-
stances blacks more often sell and places where they sell them. High
imprisonment rates for drug crimes result partly from skewed arrest
patterns and partly from legislative decisions to specify the longest sen-
tences for drug offenses for which blacks are more often arrested.
Black people are also disproportionately damaged by tougher sen-
tencing policies for violent crimes. Partly this is because black people
more often commit violent crimes and are arrested for them, even
though their relative overinvolvement in violent crime has been
declining. In absolute numbers violent crimes by black people have
plummeted as part of the national decline in crime since 1991, and con-
stitute smaller percentages of absolute numbers that are about half what
they were twenty years ago. The murder rate in 1980, for example, was
10.2 per 100,000 inhabitants of the United States. In 2008 it was 5.4. The
robbery rate in 1980 was 251.1 per 100,000. In 2008 it was 145.3.
Participation by black people in violent crimes has thus not only
fallen, but has fallen proportionately more than for members of other
groups. Prison disparities, however, have not fallen. Sentencing laws
enacted in the 1980s and 1990s have worsened disparities because they
call for prison terms that are vastly longer than in earlier times. If black
people are relatively more often convicted of violent crimes than white
people, longer sentences over time will increase the numbers and per-
centages of black people in prison. That is what has happened.
No serious person questions the appropriateness of punishing peo-
ple who commit serious violent crimes. If black people more often com-
mit violent crimes, more black people will be convicted for them, and be
sentenced, and wind up in prison. So be it. That is a partial explanation
for long-term racial disparities in imprisonment. The continuing
American dilemma, however, is not that some disparity exists. Insofar as
disparities result from bias or stereotyping, they are, of course, morally
unjustifiable. Much violent crime is intraracial; higher rates of violent
black offending mean higher rates of black victims of violence. That
would justify some level of disparity. The real dilemma is the rapid
increase in disparity in the 1970s and 1980s and its failure to decline sig-
nificantly since then.
The rapid increase in racial disparities after the 1960s and their
failure to decline since pose fundamental problems in social policy.
Conditions of life facing many black Americans produce higher levels
of involvement in crime. Contemporary crime policies perpetuate those
conditions. Poor educations, limited employment opportunities, broken
and unstable homes, and living in deteriorated neighborhoods are
among the reasons why too many black people commit crimes and are
sent to prison. People released from prison face special obstacles to
improving their educations, finding decent work, establishing stable
households, or moving to healthy neighborhoods. It is potentially an
endless cycle, which started with centuries of racism and racial
discrimination. That, after all, is why the conditions of life facing black
Americans in the second half of the twentieth century, after the suc-
cesses of the civil rights movement, were so much worse than those of
whites.
We know why involvement in violent crime is greater among blacks
than whites. More blacks than whites are afflicted by the factors that
lead young people to become involved in crime. They are the same for
members of all social groups: social and economic disadvantage, disor-
ganized childhoods, educational deficits, child abuse, lack of employment
skills, delinquent peers. Janet Lauritsen, for example, used data from
the National Crime Victimization Survey (NCVS) to investigate the
influence of individual, family, and community characteristics on vic-
timization by nonlethal violence. The NCVS is a survey conducted by
the U.S. Bureau of the Census since 1973 in which a large representative
sample (40,000 to 60,000 households) of the U.S. population are ques-
tioned every six months about their experiences as crime victims.
Lauritsen found that racial and ethnic differences disappeared when
family and community factors were taken into account. Blacks (and
Hispanics) had greater risks because they were more likely than whites
to spend time away from home, live in single-parent households, live in
disadvantaged communities, and have less stable living arrangements.
She observed, “The sources of risk are similar for all adolescents,
regardless of their race or ethnicity” (2003, 9).
A similar analysis of violent offending by McNulty and Bellair (2003)
found the same thing. Differences in violent behavior disappeared when
IMPRISONMENT • 31
individual factors, family characteristics, social bonds, gang involve-

ment, exposure to violence, and community characteristics were taken
into account. Race does not explain higher rates of violence by black
people; social and economic handicaps associated with being black in
twenty-first-century America do.
The legacies of slavery, Jim Crow, and overt racial discrimination
through the early 1970s have combined with employment, housing, and
educational discrimination against black people even into our own
time. Together they explain why many more young black than white
people begin their lives in conditions that make involvement in crime,
and in violent crime, more likely. For many young disadvantaged men,
slightly older men with prison records provide the local role models
and youth gangs provide peer acceptance. To people with no viable
work prospects, or prospects paying only the minimum wage, drug
dealing appears to promise material rewards available nowhere else.
Laws that increase sentences for the crimes such young men commit,
and are arrested for, inevitably exacerbate racial disparities.
The rest of this chapter documents the growth of racial disparities in
the past three decades and the extraordinary degree to which disadvan-
taged black people have become enmeshed in the criminal justice
system.
IMPRISONMENT RATES
Figure 2.1 shows black and white percentages of state and federal pris-
oners from 1950 to 2008. Blacks were about a third of prisoners in 1960
and under 40 percent in 1970. The black percentage rose continuously to
the mid 40 percents through 1980, rising slowly thereafter until the early
1990s and reaching a plateau at about 50 percent. In most years between
1991 and 2002 there were in absolute numbers more black than white
prisoners. If comparisons exclude Hispanics, in every recent year the
absolute number of non-Hispanic black prisoners has exceeded the abso-
lute number of non-Hispanic whites. In 2008, for example, 34 percent of
sentenced state and federal prisoners were non-Hispanic whites; 38 per-
cent were non-Hispanic blacks (Sabol, West, and Cooper 2009, table 5).
100
90
80
70
60
50
40
30
20
10
0
50
70
80
82
84
86
88
90
92
94
96
98
00
02
04
06
08
19
19
19
19
19
19
19
19
19
19
19
19
20
20
20
20
20
White Black
figure 2.1 Percentages of state and federal prisoners, by race, 1950–2008.
Sources: for 1950–80, Cahalan (1986); for 1980–2008, Bureau of Justice Statistics (various
years-a). Until the late 1990s race was broken down into three categories for all statistics:
white, black, and other. In recent years the Bureau of Justice Statistics has added Hispanic
as a racial category to various statistics, thus complicating linear representations of the
data. In 1999 the Bureau added Hispanic as a racial category to combined state and federal
prison statistics. The Hispanic category has been removed and redistributed for each year
since 1999. For earlier years data without the Hispanic separation were used. The category
“two or more races” has been redistributed evenly between blacks and whites.
Calculation of trend data has been complicated by a U.S. Bureau of

Justice Statistics decision in the late 1990s to report separate figures for
blacks, whites, and Hispanics. In earlier years Hispanics were included
within racial categories and sometimes were also reported separately.
The change had the misleading effect of reducing “black” imprisonment
rates. Skin color and “racial” identity, however, have been more salient
social characteristics in recent decades in the United States than has the
difference between being Hispanic or non-Hispanic. Insofar as racial
bias, stereotypes, and attributions have influenced officials’ decisions,
IMPRISONMENT • 33
skin color is much more likely than an Hispanic surname or ancestry to

influence decisions in individual cases. Accordingly in figure 2.1 (and
most other figures) Bureau of Justice Statistics prison population data
have been adjusted to take account of the estimated black and white
fractions among Hispanics.1 On the few occasions when “racial” data
have not been adjusted to include Hispanics, I refer explicitly to non-
Hispanic whites and non-Hispanic blacks.
The jail story is much the same. Figure 2.2 shows black and white
percentages of local jail inmates from 1950 to 2008. About a third of jail
inmates in 1950 and in 1960 were black and about 40 percent in 1970, a
100
90
80
70
60
50
40
30
20
10
0
50
70
78
81
83
85
87
89
91
93
95
97
99
01
03
05
07
19
19
19
19
19
19
19
19
19
19
19
19
19
20
20
20
20
White Black
figure 2.2 Percentages of local jail inmates, by race, 1950–2008.

Sources: for 1950–83, Cahalan (1986); Bureau of Justice Statistics (1984, 1990); for 1983–89,
Bureau of Justice Statistics (various years-b); for 1990–95, Gilliard and Beck (1996); for
1996–2008, Bureau of Justice Statistics (various years-c). The Bureau of Justice Statistics
began using a separate Hispanic category much earlier in reporting jail data than in
reporting prisoner data. For every year starting in 1990 the Hispanic category has been
removed and redistributed.
level around which the black percentage oscillated until the mid-1980s.
For a decade after that, coinciding with the most aggressive years of the
war on drugs, blacks were 45 to 48 percent of inmates, after which the
percentage declined somewhat.
Because these two figures are expressed in black and white percent-
ages they do not reflect the true magnitude of racial differences in
imprisonment rates. It would be natural for someone new to the subject
to compare the black percentage of the general population (12–13) to the
black percentage of the combined jail and prison populations (46–50)
and conclude that blacks are four times more likely to be confined than
should be expected.
That would be incorrect, and misleading. Calculating the difference
that way understates the extent of racial disparity. The correct way to
calculate racial disparities in imprisonment is to compare the black
imprisonment rate per 100,000 black people with the white imprison-
ment rate per 100,000 white people.
For the past two decades that comparison has shown that total
imprisonment rates for blacks have been five to seven times those for
whites. The differential is greater for men than for women. In 2000,
for example, the total imprisonment rate for non-Hispanic black men
for jail and prison combined was 3,457 per 100,000, and the rate for
non-Hispanic white men was 449 per 100,000 (the corresponding rates
for non-Hispanic black and white women were 205 and 34). The black
male rate was seven times that for whites. The black female rate was six
times higher. In 2008, the difference in male rates was about the same.
The difference in female rates had fallen to three (Sabol, West, and
Cooper 2009, table 6). Figure 2.3 shows aggregate black and white
imprisonment rates for jails and federal and state prisons from 1950 to
2008. Black rates dwarf those of whites. The increase in the black rate
between 1980 and 2006 (1,834 per 100,000) was 3.8 times the total white
rate (483 per 100,000) in 2006. The magnitude of racial differences in
combined imprisonment rates can be illustrated in another way. By
2006 the white rate of 483 per 100,000, after thirty-three years of
increases beginning in 1973, failed to reach the black rate in 1950 (598).
The racial difference in aggregate imprisonment rates is huge.
The extent to which increased imprisonment over recent decades
IMPRISONMENT • 35
3600
3400
3200
3000
2800
2600
2400
2200
2000 Black
1800
1600
1400
1200
1000
800
600
400
200
White
0
50
70
81
83
85
87
89
91
93
95
97
99
01
03
05
07
19
19
19
19
19
19
19
19
19
19
19
19
20
20
20
20
figure 2.3 Incarceration in state and federal prisons and local jails per 100,000, by race,
1950–2008.
Sources: Bureau of Justice Statistics (1984, 1990, various years-a, various years-b, various
years-c); Cahalan (1986); Gilliard and Beck (1996). This figure is based on data used in
figures 2.1 and 2.2, then compared with the population statistics provided by the U.S.
Bureau of the Census.
has destabilized America’s black population can be shown in another

way. The six- to sevenfold difference in imprisonment rates continued
nearly unchanged for a quarter century. That means that the incremental
increase for blacks each year has on average been seven times higher
than the increase for whites.
Figure 2.4 shows this. It depicts year-to-year increases in total impris-
onment rates for blacks and whites from 1990 to 2008 and the cumulative
increases for the whole period. In eleven of the nineteen years shown
the increase in black imprisonment rates exceeded 50 per 100,000. In
four of those years the increase exceeded 100 per 100,000. Those
one-year increases exceed the total imprisonment rates of Canada in
many years and of many European countries at any time in the
past forty years. In 2009 the imprisonment rates for the Scandinavian
1000
934
800
600
400
234
200
126 107 139 137
82 99 88 95
71
0
91
92
93
94
95
96
97
98
99
20 0
01
02
03
04
05
06
Cu 2 7
ul 8
ive
0
0
m 00
19
19
19
19
19
19
19
19
19
20
20
20
20
20
20
20
at
–200 White Black
figure 2.4 Increases in the total imprisonment rate per 100,000, by race, 1990–2008.
Sources: Same as for Fig. 2.3.
countries ranged between 65 and 74 per 100,000 population. The rates

for France, Germany, and Belgium fell between 88 and 96 per 100,000.
The Canadian rate was just above 100 per 100,000 (International Centre
for Prison Studies 2010).
In recent years the number of people serving life sentences has
exploded. Seventy thousand people were serving life sentences in 1992.
In 2008, after more than fifteen years of declining crime rates, nearly
141,000 people were. That is nearly 9 percent of the total state and
federal prison population that year of 1,610,000. The imprisonment
rate for state and federal prisons was 506 per 100,000. This means that
the life sentence imprisonment rate for the United States was nearly
50 per 100,000, not much below the total rates for all prisoners,
including people being held before trial, in the Scandinavian coun-
tries (Nellis and King 2009; Sabol, West, and Cooper 2009). Stop and
IMPRISONMENT • 37
think about that for a moment: America locks up for life almost as
large a segment of its population as other developed countries lock up
altogether.
Disparities affecting black people serving life sentences are even
greater than prison disparities generally. As table 2.1 shows, 38 percent
of sentenced federal and state prisoners in 2008 were non-Hispanic
black, 34 percent were non-Hispanic white, and 20 percent were
Hispanic. However, among people serving life sentences, 64.7 percent of
those in federal prisons were non-Hispanic blacks and in all prisons
48.3 percent were. Among the 41,000 people serving sentences of life
without the possibility of parole (LWOP) in federal or state prisons, the
racial skewing is even greater: 56.4 percent were non-Hispanic blacks.
Table 2.2 shows similar patterns for juveniles. In most developed
countries there are few or no people serving time in adult prisons for
crimes they committed as children. In the United States, in 2008,
nearly 7,000 people were serving life sentences for crimes committed
as juveniles; 47.3 percent were non-Hispanic blacks. Of the nearly
1,800 serving LWOP sentences, 56.1 percent were non-Hispanic blacks.
If Hispanics had been apportioned among black and white prisoners
in this table and table 2.1, the black percentages and numbers would
be even higher.
table 2.1 Life Sentences in the United States, 2008, Black, White, Hispanic Percentages
Population Black White Hispanic
Sentenced state and 38 34 20
federal prisoners, total
Life sentences, federal 64.7 17.8 13.7
Life sentences, state and 48.3 (N = 66,918) 33.4 (N = 47,032) 14.4 (N = 20,309)
federal combined
LWOPs, federal 66.8 15.6 14.7
LWOPs, state and federal 56.4 (N = 23,181) 33.5 (N = 13,751) 7.4 (N = 3,052)
combined
Note: LWOP is the sentence of life without the possibility of parole.

Source: Nellis and King (2009, tables 3, 5).
table 2.2 Life Sentences, 2008, Black, White, Hispanic Juvenile Percentages
Population Black White Hispanic
Sentenced state and 38 34 20
federal Prisoners, total
Life sentences, federal 53.9 22.9 17.1
Life sentences, state and 47.3 (N = 3,219) 22.7 (N = 1,547) 23.7 (N = 1,615)
federal combined
LWOPs, federal 54.3 25.7 17.1
LWOPs, state and federal 56.1 (N = 984) 28.3 (N = 497) 11.7 (N = 205)
combined
Note: LWOP is the sentence of life without the possibility of parole.

Source: Nellis and King (2009, tables 8, 9).
Death, finally, in this respect is not different. Racial disparities on death

row parallel those for imprisonment generally. Figure 2.5 shows absolute
numbers of blacks and whites on death row (including Hispanics). The
black share has not changed significantly for twenty-five years, despite a
steep decline in homicide rates, the huge increase in blacks serving
LWOPs, and significant declines in the numbers of blacks arrested for
homicide. On July 23, 2010, 41.6 percent of the residents of death row were
non-Hispanic blacks (Death Penalty Information Center 2010).
The disproportionate presence of blacks in American prisons and
jails has not changed substantially since 1980. The important questions
are why black rates are so much higher than those for whites, and why
they have remained so much higher.
There are at least five reasons. The three most important are that
black Americans engage in violent crime at higher rates than whites do,
that the War on Drugs has unfairly targeted black people, and that enor-
mous increases in prison sentence lengths for violent and drug crimes
have disproportionately affected black offenders. The other reasons, less
important empirically but as important morally, are racial bias and the
influence of unconscious bias and stereotypes. I defer discussion of
the last of these to chapter 4 and mostly defer discussion of the effects
of the War on Drugs to chapter 3.
IMPRISONMENT • 39
2500
2000
1500
1000
500
0
68
70
72
74
76
78
80
82
84
86
88
90
92
94
96
98
00
02
04
06
08
19
19
19
19
19
19
19
19
19
19
19
19
19
19
19
19
20
20
20
20
20
White Black Other
figure 2.5 Prisoners under sentence of death, by race, 1968–2008.

Source: Snell (2009).
RACIAL DIFFERENCES IN CRIMINALITY
Thirty years ago possible explanations for why the prison population
was nearly half black were contentious and hotly disputed. The belief
was widespread that criminal justice officials were racially biased and
too much influenced by racial stereotypes (e.g., American Friends
Service Committee 1971). During the 1980s, however, a consensus
view emerged that, though bias and stereotyping existed, they were
not the primary causes of racial disparities. For serious violent crimes,
racial differences in offending were a significant factor: blacks
committed homicides, rapes, robberies, and serious assaults at higher
rates than whites did. Much violent offending is intraracial, so failure
to take black offenders’ violent crimes seriously would constitute

indifference to the experiences of black victims, and few people
would want to do that. Racial disparities preponderantly based on
differences in rates of violent offending are difficult to challenge on
normative grounds.
There are two important caveats to the explanation that racial offend-
ing differences accounted for imprisonment differences. First, it applied
mostly to serious violent offenses; for less serious offenses, offending
explained much less of imprisonment disparities. For the most serious
crimes, the crime itself appeared to be the primary factor explaining
sentencing decisions, leaving comparatively little room for bias or ste-
reotyping to operate. Less serious crimes allowed more room for
discretionary decision making and the crime itself explained less.
Second, for some crimes, arrest differences have no necessary link to
offending differences; drug arrests are the most important example.
Police can arrest inner-city street-level drug dealers almost at will,
meaning that arrests are more a measure of police activity than of crim-
inality. Disparities in arrests for drug offenses occur because police
choose to arrest more black people.
The preceding paragraphs summarize analyses catalyzed by a land-
mark article by Alfred Blumstein (1982) that compared racial differ-
ences in arrests to racial differences in imprisonment, by offense and
overall. It prompted additional, more refined analyses by others (e.g.,
Langan 1985; Tonry 1995). Blumstein’s basic conclusions held up and
were broadly confirmed by research on sentencing disparities. That
work generally concluded that there are relatively few racial differ-
ences in sentence lengths for offenders sent to prison; differences are
more likely concerning the decision whether to send someone to
prison (typically concerning less serious offenses and offenders;
Blumstein et al. 1983; Harrington and Spohn 2007; Spohn 2000,
forthcoming).
In the next few paragraphs, I summarize Blumstein’s original anal-
ysis, present the results of a replication of his analysis using 2004 data,
and discuss other sources of information that might confirm or refute
the conclusions he reached.
IMPRISONMENT • 41
BLUMSTEIN ’ S O RIGINAL A NALYSIS

Blumstein (1982) compared racial percentages among people arrested for
particular offenses to racial percentages among state prisoners sentenced
following convictions for those offenses. Lots of questions can be raised as
to whether arrests are a valid measure of offending (they might be, for
example, systematically biased or erratically incomplete), whether jail
inmates should have been taken into account, and whether arrest patterns
should be compared with racial patterns in prison admissions rather than
in prison populations. I return to some of those questions below.
Table 2.3 sets out Blumstein’s original analysis and adds one addi-
tional column of information. The first two columns show black and
white percentages among people serving prison sentences in 1979 for
eleven offense categories and overall. The third and fourth columns
show black and white percentages of people age eighteen and older
arrested in 1979 for those offense categories and overall. The sixth
column, which was not in Blumstein’s analysis, compares the black
percentages in the preceding columns and shows, for example, that
black arrests for homicide “explain” all but 1.3 percent of the black
percentage among people imprisoned for homicide. The unexplained
variations among people imprisoned for robbery and aggravated
assault are larger, but still small. For lesser assaults, auto theft, and bur-
glary, the unexplained variation ranges from 16.6 to 29.8 percent, with
the largest unexplained variation being for drug crime (36.7 percent).
Blumstein used a different analysis. His results are shown in the fifth
column. He compared black imprisonment relative to black arrests to
white imprisonment relative to white arrests. Whites were relatively
underrepresented in prison compared with their presence among
arrestees (e.g., 47.7 percent of homicide prisoners but 48.5 percent of
homicide arrestees; 57.7 percent of burglary prisoners but 67.1 percent
of burglary arrestees). He thus compared blacks’ presence in prison
given an arrest for a particular offense to whites’ presence given an arrest
for the same offense. Between-race calculations (column 5) produce
higher rates of unexplained variation than do within-race calculations
(column 6; 20.5 percent overall compared with 11.6), but the results
using either calculation were inconsistent with the hypothesis that racial
table 2.3 Comparison of Crime-Specific Percentages of Blacks in State Prison and

among Persons Arrested, 1979
Prisoners Arrests
Crime White Black White Black % Black Prisoners % Black
Unexplained by Prisoners
Arrest, Relative to Unexplained
White Prisoners by Arrest
Murder and 47.7 52.3 48.4 51.6 2.8 1.3
non-negligent
manslaughter
Forcible rape 43.7 56.3 51.3 48.7 26.3 13.5
Robbery 38.8 61.2 42.9 57.1 15.6 6.7
Aggravated assault 57.7 42.3 59.0 41.0 5.2 3.1
Other violent 53.1 46.9 60.9 39.1 27.3 16.6
Burglary 57.7 42.3 67.1 32.9 33.1 22.2
Larceny/auto theft 50.7 49.3 65.4 34.6 45.6 29.8
Other property 64.4 35.6 65.4 34.6 4.3 2.8
Drugs 60.5 39.5 75.0 25.0 48.9 36.7
Public order 61.4 38.6 69.3 30.7 29.5 20.5
Other 71.7 28.3 66.3 33.7 -28.7 -19.1
Total 50.9 49.14 56.6 43.45 20.5 11.6
Source: Blumstein (1982).
bias and stereotyping explained the largest part of disparities in impris-

onment rates for serious crimes.
There are two primary objections to Blumstein’s analysis. First,
arrests may be a biased basis for making comparisons. Second, prison
population data result from a combination of how many people are sen-
tenced to prison and for how long. Whites, for one hypothetical example,
might be sentenced to prison less often than blacks for particular
offenses, but for longer average times. That might be because prosecu-
tors screened out most low-severity robberies involving whites but
prosecuted those involving blacks. Simple comparisons of numbers of
blacks and whites in prison following convictions for those offenses
would obscure those differences.
IMPRISONMENT • 43
Patrick Langan (1985) explored these objections. His aim was to

get behind arrests by looking at data on assailants identified by
victims and, to avoid the confounding interaction effects of prison
admission rates and average sentence lengths, by looking at pri-
son admission rates alone. He compared data from the National Crime
Victimization Survey for 1973, 1979, and 1982 on victims’ characteriza-
tions of their assailants’ race with racially disaggregated data on prison
admissions. Victimization data by definition cannot ask about homi-
cides, and rape numbers in victimization data are too small to permit
meaningful analyses, so Langan looked at robbery, aggravated assault,
and three property crimes. For robbery, his findings paralleled
Blumstein’s. Possible racial bias in police arrests for serious crimes did
not seem to be a major contributor to racial disparities: the racial pat-
terns shown in victims’ reports on the race of the people who robbed
them were nearly identical to racial patterns in prison admissions.
Like Blumstein, Langan concluded that about 80 percent of racial dis-
parity in prison was explainable by reference to offending patterns
and, overall, that “test results generally support the differential involve-
ment [in crime] hypothesis” (678).
R EPLICATION U SING 2004 D ATA

Matthew Melewski, then a University of Minnesota law student, and
I replicated Blumstein’s analysis using arrest and prison population
data for 2004 (Tonry and Melewski 2008).
Table 2.4 shows the results. A much smaller part of racial disparities
in imprisonment can be explained by arrest patterns in 2004 than
Blumstein found for 1979. In Blumstein’s between-race comparisons,
arrests explained all but 2.8 percent of imprisonment disparities in
homicide imprisonment; 11.6 percent remained unexplained in 2004.
For robbery in 1979, 15.6 percent of imprisonment disparities went
unexplained; in 2004, 37.2 percent. Overall Blumstein’s 1979 analysis left
20.5 percent of imprisonment disparities unexplained; the 2004 anal-
ysis left 57.4 percent unexplained. That is a staggering difference. Had
Blumstein in his 1982 article found unexplained disparities as large as
we found for 2004, surely his conclusion would have been the opposite
table 2.4 Comparison of Crime-Specific Percentages of Blacks in State Prison and

among Persons Arrested, 2004
Prisoners Arrests
Crime White Black White Black  Black Prisoners  Black
Unexplained by Prisoners
Arrest, Relative to Unexplained
White Prisoners by Arrest
Murder and 48.9 51.1 52.0 48.0 11.6 6.0
non-negligent
manslaughter
Forcible rape 61.7 38.3 67.7 32.3 23.2 15.7
Robbery 37.6 62.4 49.0 51.0 37.2 18.2
Assault 53.3 46.7 73.5 26.5 58.8 43.2
Burglary 59.1 40.9 72.6 27.4 45.5 33.0
Larceny-theft 57.8 42.2 71.1 28.9 44.3 31.5
Motor vehicle theft 63.3 36.7 67.4 32.6 16.7 11.2
Drugs 45.5 54.5 66.2 33.8 57.4 38.0
Violent crime 52.1 47.9 63.9 36.1 38.4 24.6
Property crime 60.3 39.7 71.1 28.9 38.3 27.3
Total 53.2 46.8 65.0 35.0 38.9 25.3
Sources: Bureau of Justice Statistics (2006); Federal Bureau of Investigation (2005).
of what it was: such large unexplained variation creates a strong

presumption of racial bias. Racial disparities in imprisonment in the
United States are getting worse, much worse, not better.
This huge difference between our findings and Blumstein’s does not
mean that his core conclusion—that racial differences in offending
were the primary cause of imprisonment disparities in 1979—was
wrong. The analysis in table 2.4, however, shows that racial differences
in offending are not the primary cause of imprisonment disparities in
our time.
In trying to understand why the results are so different for 2004 we
looked at racial trends in arrest patterns. Perhaps black percentages
among people arrested for serious crimes rose rapidly after 1979, with
black percentages in 2004 being anomalously low. That is not the
IMPRISONMENT • 45
70
63.6
55.9
60 54.1
55.7
49.4
50 48.2
40.1
40
Percent
32.6 33.9
30
20
10
0
Homicide Rape Robbery Aggravated Assault
figure 2.6 Black percentages among the Uniform Crime Report violent index arrestees,
1984–2008 (5-year averages).
Source: Federal Bureau of Investigation (various years).
explanation. The opposite is true: black Americans’ involvement in

violence is declining. Figure 2.6 shows black percentages, averaged
over five-year periods, among people arrested for homicide, forcible
rape, robbery, and aggravated assault between 1984 and 2008. I use
five-year averages to eliminate year-to-year distortions and capture
the main underlying long-term trends. Although black Americans
continue to be overrepresented among arrestees, the degree of over-
representation has been falling for a quarter century. Fifty-six percent
of homicide arrestees in 1989–93 were black; 49 percent were in
2004–8. Forty-eight percent of rape arrestees in 1984–88 were black;
33 percent were in 2004–8. The declines are almost as steep for rob-
bery and aggravated assault.
That’s good news. Violent crime has been falling in the United
States since 1991–92. In absolute terms, black involvement in violent
crime has followed the general pattern. In relative terms, black involve-
ment in violent crime has fallen substantially more than the overall
averages.
Perhaps, we thought, the explanation for why imprisonment dis-
parities are no longer closely linked to arrest disparities has something
to do with changes in arrest data that operate to underreport black
violence. To check this, using NCVS data we compared the percent-
ages of black suspects among people arrested for robbery and
aggravated assault with victims’ descriptions of the racial character-
istics of their assailants. Figure 2.7 shows the result: no significant
100
90
80
70
60
50
40
30
20
10
0
78
80
82
84
86
88
90
92
94
96
98
00
02
04
06
19
19
19
19
19
19
19
19
19
19
19
20
20
20
20
Robbery Arrests Aggravated Assault Arrests

Robbery, as Reported by Aggravated Assault, as
Victims Reported by Victims
figure 2.7 Percentages of blacks among lone offenders as perceived by victims and
percentages of black arrests, 1978–2007.
Sources: Bureau of Justice Statistics (various years-d, various years-e,); Federal Bureau of
Investigation, (various years).
IMPRISONMENT • 47
change in a third of a century. The data on victim identification of

assailants fluctuate more than the arrest data because both offenses
(but especially robbery) are relatively rare events and numbers vary
randomly from year to year. Black percentages among arrestees for
both offenses have nonetheless consistently paralleled victims’ char-
acterizations but have been somewhat higher. The black percentages
among people arrested are higher because some robberies and
assaults involve more than one assailant. The NCVS data, by contrast,
are based on victims’ reports only about crimes involving a single
assailant.
Comparison of racial percentages among people arrested and
held in prison for serious crimes in Blumstein’s analysis showed
that crime and imprisonment were closely linked. Others’ efforts to
test his findings by looking at prison admissions rather than at
prison populations, and by comparing victims’ reports with police
records, broadly confirmed Blumstein’s main conclusion. Melewski’s
and my analysis twenty-five years later of 2004 data reached the
opposite conclusion. Crime and imprisonment patterns are no
longer closely linked.
Pulling things together to this point: black people are arrested for
violent crimes at significantly higher rates than whites, but that difference
has been declining over time. Victims’ reports and police records show
no difference over time in relations between violent victimization and
police data on recorded crime. Racial disparities in imprisonment have,
however, not appreciably declined since they reached historic highs
during the Reagan administration in the 1980s. Blacks are to an enor-
mous extent disproportionately affected by prison sentences generally,
life sentences, LWOPs, and death sentences.
CRIMINAL JUSTICE SYSTEM EXPLANATIONS

FOR DISPARITIES
Why are so many blacks in prison compared with whites despite both
absolute and relative reductions in violent crimes committed by black
people? Sentencing policies for violent and drug crimes and police drug
law enforcement practices are a major part of the explanation. So is

racial profiling by the police. Biased judges are not.
S ENTENCING P OLICIES FOR V IOLENT AND DRUG CRIMES

Black Americans have borne the brunt of tougher sentencing policies.
For drug crimes, as chapter 3 shows, police arrest blacks at rates that are
way out of proportion to their drug use or involvement in drug traffick-
ing. For understandable reasons of social disadvantage and limited life
chances, blacks have long been more involved than whites in violent
crime, but that difference is becoming less. Laws that increase sentences
for drug and violent crimes inevitably exacerbate racial disparities.
The National Corrections Reporting Program of the Bureau of
Justice Statistics, for example, reports new state prison commitments by
conviction offense and race. In 2003, among whites 53.7 percent were
committed for violent, drug, or gun crimes, compared with 69.4 percent
of black offenders (in both cases including Hispanic same-race
offenders). The racial skew is even greater when the focus is narrowed
to robbery, drugs, and guns (52.1 percent of black prisoners, 32.3 percent
of white). The effects of police policies concerning drug arrests explain
much of the difference. Among black prisoners 37.5 percent were com-
mitted for drug crimes; among white prisoners, 25.5 percent were
(Bureau of Justice Statistics 2010).
In chapter 6 I discuss current knowledge about the effects of the War
on Drugs and about the deterrent and incapacitative effects of lengthy
prison sentences. There have long been good reasons to doubt that
longer sentences for drug crimes have any effect on levels of drug use,
prices, or trafficking (e.g., J. Q. Wilson 1990; Dills, Miron, and Summers
2008; MacCoun and Martin 2009). And there are good reasons to doubt
that increasing penalties for particular violent or drug crimes from
three years to five, five years to ten, or ten years to twenty has any dis-
cernible effects on crime rates (e.g., Doob and Webster 2003; Tonry
2008b; Dills, Miron, and Summers 2008). Those things being true, to
increase penalties for crimes with which blacks are charged, for what-
ever reason, is to increase racial disparities in prison for no good reason
or for a poorly justified one.
IMPRISONMENT • 49
BIASED S ENTENCING
The sentencing literature documents relatively small racial differences
in sentences for black and white offenders convicted of the same crime.
Black defendants, all else being equal, are slightly more likely than
whites to be sentenced to confinement, but, among those incarcerated,
not to receive longer sentences (Spohn 2000, 2002, forthcoming). Blacks
are less likely than whites to be diverted to nonincarcerative punish-
ments, and more likely in states that have sentencing guidelines to
receive sentences at the top rather than at the bottom of guideline ranges
(Tonry 1996, chap. 2). Individual studies present divergent findings,
often showing small disparities by race and ethnicity for men but not
for women (or to different extents), for Hispanics but not for blacks, and
for young offenders but not for older ones (or in each case vice versa;
e.g., Walker, Spohn, and DeLone 2006; Harrington and Spohn 2007,
40–45). Overall, when statistical controls are used to take account of
offense characteristics, prior criminal records, and personal characteris-
tics, black defendants are on average sentenced somewhat but not sub-
stantially more severely than whites. Research discussed in chapter 4
shows that most people, black, white, and Hispanic, are influenced by
subconscious stereotypes about black criminality, but the effects on
decisions are probably not large in the aggregate. Those stereotypes no
doubt sometimes influence judges’ decisions. Overall, however, there is
no credible evidence that biased decision making by judges is a major
cause of sentencing disparities.
The sentencing literature, however, misses a major point. Research-
ers compare punishments received by black and white offenders for
the same offense and attempt to control for other individual charac-
teristics, notably differences in prior criminal records. Such compari-
sons overlook the larger reality that black defendants are much more
likely than white to be convicted of drug and violent offenses for
which American laws authorize or mandate sentences measured in
decades and lifetimes. In 2008, for example, 79.8 percent of offenders
sentenced in federal courts for crack cocaine offenses were black;
10.4 percent were white (U.S. Sentencing Commission 2009, table 34).
That there were not major differences in the sentences black and white
crack defendants received is much less consequential than that the
prison sentences that crack offenders, mostly black, received were

vastly longer than the sentences that powder cocaine offenders
received for offenses involving comparable amounts of drugs. Judges
may not impose substantially longer sentences on blacks than on
whites when they are convicted of the same offense, but the federal
100-to-1 rule resulted in much longer sentences for black defendants
and for many more blacks in prison. The 18-to-1 rule that replaced it
in 2010 will reduce the difference but only slightly. Three-strikes laws,
“dangerous offender” laws, and mandatory minimum sentences for
violent and drug crimes work the same way. Vastly higher imprison-
ment rates for black Americans are attributable primarily not to bad
and biased judges but to bad and biased laws.
R ACIAL P ROFILING
No one doubts that racial profiling by the police takes place or that it
results in many more arrests of black people than would otherwise
occur. The fundamental questions concerning racial profiling are
whether police stop blacks at higher rates than they do whites (yes, they
do) and whether police have valid bases for stopping blacks much more
often than whites (no, they do not). Answers to the second question are
usually sought in evidence about the outcomes of the stops. If blacks are
stopped at twice the rate of whites but drugs, guns, and other contra-
band are found in the same or a higher percentage of cases, that implic-
itly demonstrates that police had valid reasons more often to be
suspicious of blacks. However, the reverse is true. Research on profiling
generally concludes that police stop blacks disproportionately often on
sidewalks and streets and generally find contraband at lower rates for
blacks than for whites (e.g., Engel and Calnon 2004).
An especially comprehensive analysis of police stop-and-frisk prac-
tices documenting these patterns was released early in 2009. The data,
on police practices in New York City for forty-two months ending in
mid-2008, were compiled by the New York City Police Department
under a federal district court order relating to a lawsuit on racial pro-
filing. Also under court order, the data were turned over to the Center
for Constitutional Rights (2009), which released an early analysis. There
IMPRISONMENT • 51
were nearly 1,600,000 police stops of citizens in those forty-two months.

Ten percent of those stopped were non-Hispanic whites, though they
made up 44 percent of the population. Half of those stopped were non-
Hispanic blacks, though they made up only a quarter of the population.
Hispanics constituted 28 percent of the population and 30 percent of
those stopped.
Arrest rates were about the same for the three groups but for every
other measure arrests of blacks were more intrusive and less productive.
Once stopped, blacks were much more likely than whites to be frisked
(28 percent of whites in 2006 and 41 percent in 2008, compared with
46 percent of blacks in 2006 and 56 percent in 2008). Only in 1 percent
of cases were weapons found, but at higher rates among whites than
among blacks and Hispanics. Overall and in each year separately, whites
were more likely than blacks and Hispanics to be in possession of drugs
or other contraband. Finally, police used force against the people they
stopped in nearly a quarter of cases. Over the four years 15 to 19 percent
of whites stopped were the victims of police use of force and 21 to 26
percent of blacks and Hispanics.
This massive data set on the operations of the largest police
department in the United States thus strongly corroborates the findings
of scholarly research. Blacks are stopped much more often than whites,
relative to the composition of New York City’s population, and are much
more likely when stopped to be frisked and to have force used against
them. They are, however, less likely to be in possession of guns or other
contraband and are no more likely to be arrested. That last point war-
rants elaboration lest an important reality be ignored. Because so many
more blacks than whites are stopped, the same or a somewhat lower
arrest rate produces vastly larger numbers of black than white people
taken into police custody (Center for Constitutional Rights 2009).
The effects of bias and stereotyping are likely to be different at police
and sentencing stages of the criminal justice system. Stops of blacks
often result in more arrests, however, partly because blacks are more
likely to resent the stop and to resist or act disrespectfully or impatiently,
partly because blacks are more likely to have outstanding arrest war-
rants or to be in violation of parole or probation conditions, and partly
because some police are racially biased. Police profiling practices thus
lead to higher levels of black arrests, and therefore convictions and pris-
oners, than would otherwise happen. These practices are particularly
likely to worsen racial disparities for drug and firearms offenses as those
are the two kinds of illegal contraband police stops are most likely to
yield.
The situation with court officials is different. On the basis of personal
interactions over decades with judges in many American jurisdictions,
I do not believe invidious racial bias and gross stereotypes substantially
affect sentencing decisions. This is a subject judges worry about, are
taught about at judicial conferences, and discuss often among them-
selves and with others. Sentencing research showing that there are few
racial differences in sentence lengths is consistent with this belief.
Research showing that black offenders are slightly more likely than
whites to receive prison terms are not strongly inconsistent with it.
Black defendants, especially young ones, often have more extensive
criminal records than whites, and judges take criminal records into
account when deciding which defendants deserve another chance.
Similarly black defendants on average have less stable home lives, less
conventional employment records, and fewer educational attainments
than whites, and judges take such things into account in deciding which
defendants are more likely to succeed in community sentences and pro-
grams and which are more likely to reoffend.
Black Americans suffer from imprisonment rates five to seven times
higher than whites primarily for two reasons. First, American sen-
tencing laws and policies specify punishments that are both absolutely
and relatively severe for violent, drug, and gun crimes, for which blacks
are more likely than whites to be arrested and prosecuted. The effects of
racial profiling exacerbate those differences. Second, as the following
chapter shows, police arrest policies for drugs target a type of drug traf-
ficking (street-level transactions in inner-city areas) in which blacks are
disproportionately involved even though overall they are less likely than
whites to use drugs and no more likely to sell drugs.
3
DRUGS
No honest observer can deny that racial disparities in

imprisonment are substantially attributable to the War on Drugs. People
disagree about whether its disparate effects on blacks and whites are
justifiable. Reagan administration attorney general Edwin Meese argued
that drug laws are inherently neutral and that disparities exist only
because more black people choose to violate them. Critics, I among
them, reply that policy makers understood that human behavior is pre-
dictable, that inner-city young people could be expected to be involved
in drug sales, and that undue damage would be done to black people,
individually and collectively. More succinctly, policy makers adopted
policies they knew would especially damage black people. This is a mor-
ally important disagreement.
Those who agree with Meese say that policy makers made rational
decisions aimed at reducing drug use and its damaging effects, and that
black people who wind up in prison choose to disobey the law by dis-
tributing drugs. They have only themselves to blame. It is too bad that so
many young black people decide to sell drugs, but so be it.
Those who agree with me say that the dismal realities and limited
opportunities of urban ghetto life make it not at all surprising that many
disadvantaged young blacks are enticed into drug use and selling. They
also point out that so many young black people are convicted of crimes
because police especially target drugs that black people sell and places
where they sell them. Policy makers ignored the predictable unhappy
consequences of their decisions for the individuals directly affected, and

their families and communities, and for the interests of black Americans
generally.
It is clear beyond peradventure of doubt that the War on Drugs pro-
duced massive racial disparities in arrest, conviction, and imprison-
ment. In 2008 the arrest rate of blacks for drug crimes was 3.5 times
higher than that for whites. In 2006, the last year for which national data
from state courts are available, 49 percent of defendants in urban courts
charged with drug crimes were non-Hispanic blacks and 26 percent
were non-Hispanic whites. For trafficking the racial imbalance is greater:
59 percent black, 16 percent white (Cohen and Kyckelhahn 2010, table
A2). In 2003 37.5 percent of black people committed to state prisons had
been convicted of drug crimes; among whites newly committed to
prison, 25.5 percent were (Bureau of Justice Statistics 2010). In 2006, 45
percent (117,600) of those held in state prisons for drug offenses were
non-Hispanic blacks and 27 percent (72,100) were non-Hispanic whites
(Sabol, West, and Cooper 2009, table A15).
These differences do not occur because black Americans are more
involved with drugs than whites. Black Americans do not use drugs as
much or as often as white Americans. Drug selling is at least as frequent
among whites as among blacks. Racial disparities are a product of how
the drug wars have been fought.
These patterns are the products of two unwise strategic decisions
and two tactical mistakes. The strategic decisions were to focus on the
supply of drugs rather than on demand for them and to approach drug
abuse as a moral problem rather than a public health problem. The tac-
tical mistakes were police decisions to emphasize arrests of street-level
dealers and legislative decisions to mandate breathtakingly long prison
sentences for many drug crimes.
The decision to focus on supply rather than on demand meant that
law enforcement approaches were given priority over treatment and
drug abuse prevention, even though the latter are more effective and
more cost-effective ways to reduce drug use and dependence. The
decision to treat drug abuse as a moral rather than a public health
problem contrasts starkly with alcohol abuse policies. Alcohol has not
been criminalized, even though many more people are dependent on
DRUGS • 55
alcohol than on other drugs and even though the medical costs, years of
lost life, and social damage associated with alcohol dependence are
far higher than for any other drug. Much alcohol policy, however, is
predicated on medical ideas about harm reduction and about genetic
predispositions to dependence (Cook 2007). By contrast, for other
drugs self-righteous and judgmental approaches were adopted rather
than empathetic and problem-solving ones. This led to views of drug
use and selling as moral matters of right and wrong. It also led to the
characterization of drug dealers as evil predators rather than as the
troubled, disadvantaged young people many were and are.
The decision to emphasize arrests of street-level dealers inexorably
led to a focus on minority drug sellers in the inner cities. That is where
drug deals are most visible and where dealers are easiest to arrest. The
emphasis on lengthy prison sentences meant that drug dealers sen-
tenced to prison stayed there a long time. Almost everyone who works
on drug policy issues agrees, however, that street-level arrests and
subsequent imprisonments have no significant effects on the availability
of drugs. The gains to be realized from drug selling appear so great, and
the benefits from legitimate employment available to poorly educated
ghetto youth so small, that plenty are ready to step into selling roles
opened up by their predecessors’ arrests.
This is a pathetic dynamic. Ethnographic and economic analyses make
it clear that aspiring low-level drug sellers generally make a big mistake:
they overestimate their likely gains and underestimate their risks. Reuter,
MacCoun, and Murphy (1990) estimate that an average daily drug retailer
in Washington, D.C., in 1988 sold a median of $3,600 worth of drugs each
month. Each was estimated to have spent sixty-six hours per month
selling and to earn $7 per hour when they worked in the legal labor
market. Hourly net earnings from drug sales were not significantly better,
but vastly more dangerous to obtain (Caulkins and Reuter 1998). Levitt
and Venkatesh (2000) worked with financial records of a drug-selling
gang in Chicago in the mid-1990s. They estimated that most of those
selling crack earned roughly the legal minimum wage.
An endless circle results: young people take risks they underestimate
in pursuit of gains they overestimate. When arrested and convicted they
receive lengthy prison terms that have no effects on others’ willingness
to take the same ill-considered risks. Other young people take their
places and accept risks they underestimate in pursuit of gains they over-
estimate. It goes on and on.
Because of those fundamental mistakes American prisons over the
past three decades have held, and continue to hold, many hundreds of
thousands of drug offenders whose confinement, and broken lives, have
had little or no effect on the availability of drugs. And well over half of
them have been black.
This chapter documents the criminal justice system effects of the
War on Drugs on black Americans over the past thirty years, a period
during which the number of inmates in state prisons convicted of
drug crimes increased by seventeen times—from about 16,000 in 1979
to 266,000 in 2006—and racial disparities for drug crimes became
much, much worse (Sabol, West, and Cooper 2009, table 8). Alfred
Blumstein’s 1982 analysis of the 1979 state prison population, which I
discussed in chapter 2, compared racial percentages of people in
prison after convictions for particular offenses with their percentages
among people arrested for those offenses. For serious violent crimes,
racial patterns among people arrested closely resembled racial pat-
terns among people in prison for the same offenses. Arrests explained
all but 2.8 percent of racial variation for homicide and 5.2 percent for
aggravated assault (see table 2.3). Arrest patterns for drug offenses
explained the smallest percentage of racial disparity in imprisonment
(48.9 percent unexplained) of any offense. However, in 1979 only 5.7
percent of prisoners (16,000) had been convicted of drug crimes.
Drug offenders were not and could not have been a major source of
racial disparity.
Matthew Melewski and I replicated Blumstein’s earlier analysis using
2004 prison data (Tonry and Melewski 2008). Arrest patterns for drug
offenses explained the smallest percentages of imprisonment disparities
of any offense (38.9 percent unexplained), just as it had for Blumstein
twenty-five years earlier (see table 2.4). However, by 2004 vastly more
people were affected. Twenty percent of state prisoners (249,400) had
been convicted of drug crimes.
To be imprisoned people first must be arrested. Figures 3.1 and 3.2
show changes over time in racial patterns of arrests for drug crimes.
DRUGS • 57
100
90
80
70
60
50
40
30
20
10
0 00
02
04
06
78
80
82
84
86
88
90
92
94
96
98
08
20
20
19
19
19
19
19
19
19
19
19
20
20
19
19
20
White Black
figure 3.1 Total arrests for drug offenses, by race, 1978–2008.

Sources: Bureau of Justice Statistics (various years-d); Federal Bureau of Investigation
(various years).
Two patterns attributable to the War on Drugs stand out: arrest rates for
black Americans are vastly higher than those for white Americans, and
the stark differences began to emerge thirty years ago.
Figure 3.1 shows black and white percentages among people arrested
for drug crimes between 1978 and 2008 (including Hispanics). As
recently as 1978, during the Carter administration, approximately 80
percent of adult drug arrestees were white. That, however, was before
the Reagan administration’s War on Drugs was launched. By 1989 the
black share exceeded 40 percent, and in the years since it has fluctuated
between 32 and 40 percent.
Figure 3.2 shows black and white arrest rates per 100,000 from 1978
to 2008. The black rate in 1978 was approximately twice the white rate.
By the mid-1980s the black rate was three times higher. Startlingly, in
1,600
1,400
1,200
1,000
800
600
400
200
0
78
80
82
84
86
88
90
92
94
96
98
00
02
04
06
08
19
19
19
19
19
19
19
19
19
19
19
20
20
20
20
20
White Black
figure 3.2 Total arrests for drug offenses, by race, 1978–2008.

Sources: Bureau of Justice Statistics (various years-d).
the late 1980s the black arrest rate for drug crimes was nearly six times
the white rate. Since then the arrest rate disparity has usually been at
Reagan administration levels, with the black rate between three and
four times higher.
Why are blacks so much more often arrested and imprisoned for
drug crimes? There are four possible answers: blacks use drugs at higher
rates than whites, blacks sell drugs at higher rates than whites, police
arrest blacks for drug offenses in numbers disproportionate to their
involvement in drug dealing, and black drug offenders receive harsher
sentences than white offenders. The first two explanations do not with-
stand scrutiny: blacks neither use nor sell drugs at higher rates than
whites. The second two explain what has been happening: police focus
substantially greater attention on drug sales by blacks, and once blacks
are arrested they are dealt with more severely.
DRUGS • 59
BLACKS DO NOT USE DRUGS AT HIGHER RATES

THAN WHITES
The explanation for high black rates of drug arrests is not that more
blacks than whites use drugs. National surveys carried out for the federal
government have tracked self-reported drug use since the 1970s. The
National Survey on Drug Use and Health is an annual representative
survey among persons 12 years and older. Table 3.1 shows percentages
table 3.1 Percentage Aged 12 and Over Using Illicit Drugs and Alcohol, by Race, 2007–8
Drug 2007 2008
White Black White Black
Alcohol
Ever used 87.0 74.7 86.5 74.8
Within past year 70.4 54.5 70.4 56.9
Within past month 56.1 39.3 56.2 41.9
All Illicit Drugs*
Ever used 50.3 43.1 50.7 46.1
Within past year 14.9 16.0 14.4 16.9
Marijuana
Ever used 45.2 38.0 45.1 41.1
Within past year 10.5 12.2 10.4 13.5
Cocaine**
Ever used 16.4 10.0 16.5 11.2
Within past year 2.5 2.0 2.2 2.0
Crack
Ever used 3.4 5.3 3.4 5.1
Hallucinogens
Ever used 16.4 6.6 16.8 8.8
(continued )
table 3.1 Continued

Drug 2007 2008
White Black White Black
Inhalants
Ever used 10.7 3.7 10.3 4.1
Source: Office of Applied Studies (2010, tables 2.37B, 1.19B, 1.24B, 1.29B, 1.34B, 1.44B,
and 1.39B).
* Illicit drugs include marijuana or hashish, cocaine (including crack), heroin,
hallucinogens, inhalants, or prescription-type psychotherapeutics used nonmedically.
** Includes crack cocaine.
of blacks and whites who reported in 2007 and 2008 using alcohol,
any other drugs, and five specific illicit substances ever, in the past year,
and in the past month.
For everything but crack, the percentages of whites reporting that
they had ever used particular substances were higher than the black
percentages. For hallucinogens and inhalants, the white percentages
were two to three times higher. For cocaine, the white percentages were
50 percent higher. For alcohol, the white percentages were 15 percent
higher; for marijuana they were 10 percent higher. Only for crack, for
which use levels are far lower than for powder cocaine, were the black
percentages higher.
Larger percentages of whites reported using alcohol, cocaine, hallu-
cinogens, and inhalants in the preceding year, and the differences are
large. In 2007 alcohol was used by 70.4 percent of whites and 54.5 per-
cent of blacks, cocaine by 2.5 percent of whites and 2.0 percent of blacks,
hallucinogens by 1.6 percent of whites and 1.3 percent of blacks. Only
for marijuana (12.2 percent versus 10.5) and crack (1.3 percent versus
0.6) were black levels higher. Crack, however, is chemically indistin-
guishable from powder cocaine, and as to cocaine generally, relatively
more whites are users. Only for crack (considered alone) do blacks
report significantly higher use levels than whites, but in absolute terms
the levels of use are low. In 2008 there were six times more white
(243 million) than black (39 million) Americans. The absolute numbers
DRUGS • 61
of whites using any dangerous substance are four to ten times higher
depending on the substance.
Even though lower percentages of whites than blacks, for example,
report having used crack ever in their lives or in the preceding year or
month, the absolute numbers of white crack users are far higher. In
2007, nearly 5.8 million whites were estimated ever to have used crack,
compared with 1.5 million blacks. Among whites, 938,000 were esti-
mated to have used crack in the preceding year compared with 385,000
blacks. The use estimates for the preceding month were 399,000 for
whites and 155,000 for blacks (Office of Applied Studies 2010, table
1.34A). One conclusion is clear: blacks are not arrested or imprisoned so
much more often than whites for drug crimes because black people use
drugs much more extensively than whites. They don’t.
BLACKS DO NOT SELL DRUGS MORE

OFTEN THAN WHITES
The second possible reason why blacks might more often be arrested for
drug crimes is that they are much more extensively involved in drug
trafficking. Several sources suggest that this is not true. The best are the
national drug use surveys based on representative samples of the U.S.
population. Figure 3.3 shows self-reported drug selling by twelve-
to seventeen-year-old blacks and whites for the years 2001 to 2008.
Three to 4 percent of each group typically reported selling drugs at least
once during the preceding year, and 1 percent of each group reported
selling drugs ten or more times. The black and white rates are nearly
identical. However, on average for the entire period and for most years,
self-reported rates of drug selling by whites were slightly higher than
rates for blacks.
Other sources confirm the assertion that black Americans are not
more actively involved in selling drugs than whites. The National
Longitudinal Survey of Youth, a long-term survey of a representative
sample of American young people, found that 13 percent of black youth
reported ever selling drugs, compared with 17 percent of white youth.
Among twelve- to seventeen-year-olds, the proportions who reported
4 Sold an Illicit
Drug at Least
Once in the
3 Past Year
2
Sold an Illicit
Drug at Least
1 Ten Times in
the Past Year
0
2001 2002 2003 2004 2005 2006 2007 2008
White Black
figure 3.3 Illicit drug sales among youths ages 12–17, by race, 2001–8.
Source: Office of Applied Studies (various years).
selling drugs were the same for black, white, and Hispanic young people
(H. Snyder and Sicklund 2006).
Representative national surveys undercount transient and homeless
populations and do not count institutionalized populations (in prisons,
jails, mental institutions) at all. The effect is that measures that distin-
guish black and white rates may undercount black rates because relatively
more blacks than whites have no permanent address or are confined in
institutions. These problems, however, are much less significant for
twelve- to seventeen-year-olds, most of whom live with a parent or care-
taker and few of whom are confined in institutions. However, even if
these sampling problems to some degree affect the data in figure 3.3, they
are unlikely significantly to change the drug trafficking patterns shown;
increasing black rates by 25 percent, for example, would not materially
DRUGS • 63
alter the black-white comparisons. It would make the black rates slightly
higher than the white rates rather than slightly lower.
The reason why so many more blacks than whites are arrested and
for drug crimes is well-known and long recognized. They are much
easier to arrest. Much white drug trafficking occurs behind closed doors
and in private. Much black drug dealing occurs in public or semipublic,
on the streets, and in open-air drug markets. And much black drug
dealing occurs between strangers.
Figures 3.4 and 3.5 present self-report data from the national drug use
and health surveys for 2001–8 on where and from whom twelve- to
seventeen-year-olds most recently purchased marijuana. As figure 3.4
shows, in each year 87 to 88 percent of whites made their purchases from
friends, relatives, and family members. By contrast blacks purchased
100
90
Purchased from
80 a Friend,
Relative, or
70 Family Member
60
50
40
30
Purchased from
20 Someone You
Had Just Met or
Did Not Know
10
Very Well
0
2001 2002 2003 2004 2005 2006 2007 2008
White Black
figure 3.4 Source of last purchase of marijuana, by race, 2001–8.
Source: Office of Applied Studies (various years).
70
60
Inside a Home or
Apartment
50
40
30
Outside in a
Public Area
20
10
0
2001 2002 2003 2004 2005 2006 2007 2008
White Black
figure 3.5 Location of last purchase of marijuana, by race, 2001–8.
Source: Office of Applied Studies (various years). Categories do not add to 100 percent of
purchases. Some response categories were excluded.
marijuana from people they had just met or did not know well 30 to 40
percent of the time.
The importance of that difference should not be underestimated.
Purchasing drugs is a much riskier activity for young black people than
for young whites. Only one in ten whites bought marijuana from
someone they did not already know. The chances that they were pur-
chasing from an undercover police officer who might arrest them were
low. Conversely the chances that sellers to white buyers were selling to
an undercover police officer were also low. For blacks, the transactions
were far riskier for buyers and sellers alike, especially for the black seller:
a much larger proportion of sales are to strangers.
Drug transactions involving strangers rather than friends or acquain-
tances are much less likely to occur in comparatively safe private
DRUGS • 65
places such as dormitories and private homes. Transactions involving

strangers are much likelier to occur in riskier settings out of doors or in
public spaces. Figure 3.5 presents data on where marijuana is purchased.
Depending on the year, 57 to 62 percent of purchases by whites occurred
inside a home, apartment, or dorm, and only 11 to 14 percent outdoors
in public spaces such as parking lots or street corners. For black pur-
chasers the pattern was reversed. Forty percent or fewer of purchases
occurred in private indoor spaces; 26 to 35 percent were made outdoors
in public spaces.
The surveys show that black people buy and sell drugs in riskier
transactions and in more vulnerable circumstances than whites.
Evidence from studies supported by the federal Office of National
Drug Control Policy (ONDCP), the office of the drug czar, points in
the same direction. People arrested for serious crimes in ten cities
were asked to consent to a short interview and to provide a urine
sample to be tested for indications of recent drug use. More than 80
percent agreed to the interview and 86 percent of those provided the
urine sample. From 49 to 87 percent of the interviewed arrestees in
the ten cities tested positive for some drug, though the drugs of
preference varied widely.
Arrestees were asked where they obtain drugs and from what kinds
of sources. People who used crack cocaine (the only drug blacks use at
higher rates than whites, and for which the vast majority of arrested
sellers are black) were much more likely than other users to purchase
drugs outdoors and the least likely to purchase in a house or apartment.
Crack is “often exchanged in an open air or more public market; in 9 of
10 sites at least 40 percent of arrestees report that their crack purchases
were made in outdoor settings and in some sites (Atlanta, Washington,
D.C., New York, and Chicago) that proportion is even higher (63–87
percent report outdoor sales)” (ONDCP 2009, viii).
Table 3.2 shows data on the locations of purchases of marijuana,
crack cocaine, and powder cocaine in the ten cities. Except by a narrow
margin in Portland, Oregon, purchase of crack in public places is much
more likely than public purchase of marijuana and powder cocaine. The
transactions in which blacks are disproportionately involved are the
most vulnerable to police surveillance and apprehension.
table 3.2 Outside Location of Last Purchase of Marijuana, Crack, or Powder,

ADAM II Arrestees, in Percentages
Site Marijuana Crack Powder
Atlanta 45.3 63.9 30.0
Charlotte 32.8 46.6 29.2
Chicago 60.7 67.1 39.4
Denver 42.7 53.9 48.3
Indianapolis 32.4 44.8 40.2
Minneapolis 57.6 59.4 32.3
New York 70.4 75.0 55.1
Portland, OR 34.9 63.8 64.1
Sacramento 40.9 43.0 23.9
Washington 60.9 77.9 unavailable
Source: Office of National Drug Control Policy (2009, appendix C).
The data I have discussed so far come mostly from national surveys.
Other substantial literatures have accumulated on racial patterns in
arrests (with particular emphasis on profiling). They document race-
based police practices. Police invest more time and energy on street-
level drug dealing than on white and middle-class dealing behind closed
doors. Even among open-air street dealers police emphasize arrests of
minority dealers in crack over white dealers in other illicit drugs.
The most extensive and fine-grained studies of street-level drug mar-
kets and police arrest policies were carried out in Seattle. Overall only
8.4 percent of Seattle’s residents in 2000 were black, but in a twenty-
eight-month period during 1999–2001, 51.1 percent of those arrested for
drug offenses were black (Beckett et al. 2005, 424). A majority of people
who shared, sold, or transferred drugs were white, but 64 percent of
people arrested for trafficking offenses were black. Among outdoor drug
transactions, a third involved crack, a third involved heroin, and a fourth
involved powder cocaine. Among arrests for outdoor drug dealing, 79
percent were for crack, 17 percent involved heroin, and 3 percent
involved powder cocaine (Beckett, Nyrop, and Pfingst 2006, figure 1).
The researchers concluded that the disparity was the result of the
police department’s emphasis on the outdoor drug market in the racially
DRUGS • 67
diverse downtown, its lack of attention to other outdoor markets that

were predominantly white, its relative disinterest in heroin sellers
(who were predominantly white), and its emphasis on crack cocaine:
“In over two-thirds of buy-bust operations (in which undercover
enforcement officers solicit drugs from suspected drug dealers), officers
requested crack cocaine. We even came across records of cases in which
undercover officers were offered heroin and powder cocaine by street
dealers (both black and white) and refused to purchase those substances,
saying they only wanted crack” (Beckett et al. 2005, 429).
POLICE ARREST BLACKS FOR DRUG DEALING

MUCH MORE OFTEN THAN THEY ARREST WHITES
Racial differences in arrest rates for drug offenses are enormous, as the
findings of a 2009 Human Rights Watch analysis of state and federal
arrest data show. The percentage of blacks among people arrested for
drug offenses grew from 27 percent in 1980 to 35 percent in 2007 and
ranged during the Bush I administration between 40 and 42 percent.1
The white percentages were at their lowest of the past three decades
during the Bush I administration (Human Rights Watch 2009, table 1).
Racial differences are as acute when expressed as rates. Figure 3.2
(see page 58) shows black and white arrest rates per 100,000 same race
population. The differences are even more stark when rates are calcu-
lated only for adults. The drug arrest rate for black adults has ranged
between 1,500 and 2,000 per 100,000 since 1990. Racial disparities in
drug arrests exploded in the 1980s, as table 3.3 shows. In 1980 the black
arrest rate of 658 per 100,000 was less than twice the white rate (367). By
2003 the black rate was 3.5 times higher and had grown by 225 percent.
The white rate increased by 70 percent.
White arrest rates have recently slightly increased because of an
emphasis on methamphetamine (Human Rights Watch 2009, figure 1).
Higher drug arrest rates for blacks than for whites characterized every
state in 2006, with differences ranging from a factor of 3 in several states
to more than 11 in Minnesota and Iowa. More than 3 percent of black
adults (i.e., more than 3,000 per 100,000) were arrested in California,
table 3.3 Adult Drug Arrests per 100,000 by Race, 1980 and 2003
Race 1980 2003 Growth Rate
White 367 658 70 percent
Black 684 2,221 225 percent
Source: King (2008, table 3).
Illinois, Minnesota, Nebraska, and Oregon (Human Rights Watch 2009,

table 4).
Undercover drug agents can relatively easily penetrate black urban
drug markets in socially disorganized areas and make arrests almost at
will. An undercover police officer can purchase drugs on the street from
strangers. Even with street-level dealers who are more cautious, a
minority officer working undercover can within hours or days become
a familiar local figure. Most white drug dealing, by contrast, occurs
within existing social networks in which people know one another and
in private places—homes, locker rooms in factories, local bars—to
which strangers cannot easily gain admission. Undercover agents have
to invest much more time in establishing their bona fides. A stranger in
a bar asking “Who here will sell me some coke?” is unlikely to find a
willing seller. Getting into private homes or factories to buy drugs is
even harder.
John Hagedorn, a sociologist, conducted ethnographic studies of
black and white drug markets in Milwaukee. Black drug sales generally
occurred openly in the inner city, on the streets, and often to strangers.
In white suburban communities, where “nearly all drug transactions
were at places of employment or at after-work leisure activities,” the pic-
ture was different and more insular:
Drugs are sold mainly by “word-of-mouth” means in the suburbs

and to white youth. There are no stable, neighborhood, drug-
selling locales like [in the African American neighborhoods
studied]. . . . White youth and suburban drug dealers hire very few
employees, and drug dealing is more part of a “partying” lifestyle
than a job. Drugs are sold to whites through contacts at work, at
taverns and athletic leagues, and at alternative cultural events. . . .
DRUGS • 69
These methods are more hidden from law enforcement than

neighborhood-based sales. (Hagedorn 1998, 1–2)
The arrest yield from a fixed amount of time or effort is much lower
when pursuing white than when pursuing black sellers. In a city in
which drug arrests are emphasized, an individual officer’s productivity
in a given amount of time is much greater when black dealers are tar-
geted. If the department wants to maximize arrests, the individual
officer will also.
Equally important, police stop blacks more often on the sidewalks and
on the streets, for less valid reasons, than they do whites. Blacks are more
likely to be stopped on the sidewalk, regardless of whether rates are cal-
culated according to the number of people living in the neighborhood or
to the number of people passing through, and on the roads regardless
of whether rates are calculated according to the resident population or
to the numbers and characteristics of drivers who use the road.
Once stopped, blacks (and Hispanics) are more likely than whites to
be searched, have force used against them, and be arrested. These three
post-stop phenomena interact. Blacks are more likely than whites to be
on bail, probation, or parole or to be subject to pending criminal charges.
They are also more likely to feel unfairly treated and that they are vic-
tims of police disrespect, bias, or harassment, and to behave in a way
that police can characterize as being disrespectful or resisting arrest.
Once a suspect is stopped police can check to see whether there are out-
standing warrants or parole or probation revocations. Even assuming
police stops of blacks were as often made for valid reasons as for whites,
the factors would result in more black arrests. Given that police stops of
blacks are less often made for valid reasons, that amplification process is
even more pronounced.
Critically important, percentages of stops resulting in seizures of
“contraband” (a euphemism usually for drugs or guns), however, tend to
be lower for blacks than for whites. This indicates that police stop blacks
for less valid, often pretextual reasons (e.g., Engel and Calnon 2004,
77–81).
Stop and think about that: police stop blacks much more often than
whites, and more often than is objectively justifiable, but are less likely
on average to find contraband. Overall, however, because police stop so

many more blacks than whites in relative terms, they find many more
black people, relative to the population, who possess guns or drugs.
Police arrest them.
Black arrest rates for drug crimes are high for two reasons. First,
police invest more energy and effort in arresting people in inner cities
and on the streets, circumstances that disproportionately target drug
transactions involving blacks. Second, racial profiling in police stops of
citizens identifies disproportionate numbers of black people possessing
drugs who can be arrested. There is therefore no mystery as to why
blacks are so much more often arrested for drug crimes than whites,
even though they use drugs less often and sell drugs no more. It results
from the ways the police choose to enforce drug laws.
BLACK DRUG ARRESTEES ARE MORE

LIKELY THAN WHITES TO BE CONVICTED
AND IMPRISONED
Once the arrests are made the machinery of the criminal justice system
is set in motion. Racial disparities in imprisonment for drug crimes are
vastly greater than can be explained by reference even to racially dispa-
rate patterns of arrest. Of all major crime categories for which people
are sent to prison, as the Blumstein (1982) and Tonry and Melewski
(2008) analyses show, drug arrests “explain” the lowest amount of racial
disparity in imprisonment.
Blacks’ much higher drug arrest rates lead to even greater disparities
in imprisonment, as a series of Bureau of Justice Statistics reports
on state court operations shows for 2006. Two-thirds of drug felony
charges resulted in convictions, and two-thirds of drug felony convic-
tions resulted in imprisonment. Although blacks constituted about a
third of drug arrestees, they constituted 49 percent of drug felony defen-
dants in 2006. Among people convicted of drug felonies, 71 percent
of blacks were sentenced to confinement, compared with 63 percent of
whites (Cohen and Kyckelhahn 2010). When all those higher black per-
centages are taken into account, a 2008 Human Rights Watch analysis of
DRUGS • 71
prison admissions for 2003 showed that relative to population, blacks

were 10.1 times more likely than whites to be imprisoned for drug crimes.
A compounding is going on: blacks are arrested for drug crimes
much more often than their participation in drug use or trafficking
would justify, but then, in addition, they are sent to prison in numbers
much greater than their arrests for drug offenses would justify. Why?
There are two primary possibilities: prosecutors and judges are biased
against blacks and as a result black drug offenders receive harsher sen-
tences, or sentencing laws and guidelines treat the offenses blacks are
arrested for more harshly than the offenses whites are arrested for.
National data sources provide no meaningful data on prosecutors,
who possess enormous discretion. They can decide not to file charges or
dismiss those police have filed. They can divert offenders to treatment
programs, including, in many jurisdictions, to drug courts. They may
decide that prosecution in a particular case should not be pursued for
evidentiary reasons, or because as a matter of resource allocation office
policies give higher priority to other kinds of cases. We do know, of
course, that police arrest disproportionate numbers of blacks for drug
crimes, but we don’t know what prosecutors do with those cases.
Comparatively little empirical research has been done on the inner
workings of prosecutors’ offices. The tiny bit that has been done is not
encouraging. The Vera Institute of Justice in New York City, a well-known
law reform organization, for example, has worked with urban prosecu-
tors in three cities to assess racial differences in case flows and in
decisions to decline prosecution in cases in which police made arrests.
In Milwaukee they found that prosecutors more often declined to pros-
ecute white drug suspects than blacks. Forty-one percent of drug
paraphernalia cases against whites were declined, compared with 27 per-
cent against nonwhites. Among first-time marijuana possession cases,
16 percent involving whites were declined, compared with 12 percent
involving nonwhites. For first-time cocaine possession, 12 percent of
white cases were declined, and 7 percent of black cases (MacKenzie,
Stemen, and Coursen 2009, 6). Another report showed that Milwaukee
prosecutors “declined drug charges . . . against whites more often” (Miller
and Wright 2008, 164). These reports put the findings in a positive light,
since documentation of the racial differences led the prosecutor to
change policies. Less optimistically, if such differences exist even in pro-

gressive and innovative offices that cooperate with Vera’s Prosecution
and Racial Justice Project, they are likely to exist and be worse in less
enlightened places. Overall, the most plausible inference to draw is that
prosecutors are tougher on black drug offenders than on whites.
Judges, however, appear to sentence black and white drug defendants
relatively even-handedly, although there are not many sources of
national data on court processes and operations, and those tend to be
dated. The Bureau of Justice Statistics publishes two relevant data series.
One, Felony Defendants in Large Urban Counties, collects court data
from the seventy-five most populous U.S. counties (Kyckelhahn and
Cohen 2008; Cohen and Kyckelhahn 2010). The other, State Court
Sentencing of Convicted Felons, also available most recently for 2006, is
based on a nationally representative sample of state courts from three
hundred counties (Durose and Langan 2007). Tables 3.4 to 3.7 provide
general descriptive information on processing of drug felony cases in
state courts in 2006. For that year the FBI reported that 63.6 percent of
people arrested for state drug offenses were white and 35.1 percent were
black (Hispanics are included within racial categories). Because whites
are underrepresented among drug arrestees and blacks are overrepre-
sented, the racial difference is greater than the numbers suggest.
Calculated as arrest rates per 100,000 same-race population, the black
rate (1,500 per 100,000) in 2004, for example, was 3.6 times higher than
the white rate (418 per 100,000; Human Rights Watch 2009, table 2).
Those arrest figures do not easily translate into felony court statistics.
Some arrests are not followed by prosecutions. Some involve minors
table 3.4 Race and Hispanic Origin of Defendants, Drug Felonies, Percentages, State
Courts, 2006
Offense Black, non-Hispanic White, non-Hispanic Hispanic Other
Total 49 26 24 1
Trafficking 59 16 23 2
Other drugs 43 33 24 1
Source: Cohen and Kyckelhahn (2010, table A2).

DRUGS • 73
who are handled in juvenile courts. Some are dismissed by prosecutors

or judges. Some result in misdemeanor convictions.
Table 3.4 shows that blacks were much more heavily overrepresented
among felony drug defendants in 2006 than their 35 percent share
among arrestees appears to justify: 49 percent of felony drug defendants
were non-Hispanic blacks, 26 percent were non-Hispanic whites, and
24 percent were Hispanic. Fifty-nine percent of those prosecuted for
trafficking were non-Hispanic blacks. That racial breakdown is used in
the original source. If Hispanics were allocated between the racial
groups, the black percentage would be even higher.
Table 3.5 points up the disproportionate black presence among
people convicted of drug offenses in 2006. Forty-four percent of peo-
ple convicted of any drug offense were non-Hispanic blacks, as were
49 percent of those convicted for drug trafficking. Here as always,
if Hispanics were included within racial categories, the black percent-
ages would be higher.
Blacks convicted of drug offenses receive harsher sentences than
whites. This is primarily because many more black than white offenders
are arrested and convicted for crack cocaine offenses and because more
blacks are affected by mandatory minimum sentence laws. The research
on sentencing discussed in chapter two generally concludes that there
are relatively few racial differences in sentences judges impose once the
offense of conviction and past criminal records are taken into account.
However, if blacks are disproportionately often convicted of offenses
subject to mandatory sentence laws or that receive especially long sen-
tences, substantial racial disparities in imprisonment are inevitable.
That is what happens.
table 3.5 Racial Characteristics of Persons Convicted of Drug Felonies, State Courts,
2006
Drug Offense Black* White* Other
All drugs 44 55 1
Possession 36 62 2
Trafficking 49 50 1
Source: Rosenmerkel, Farole, and Durose (2009, table 3.2).

table 3.6 Type of Sentence, Drug Felonies in Urban Counties, By Race, 2006,
Percentages
Offense Total Incarceration Prison Jail Non-incarceration
Black White Black White Black White Black White
All drug 70 61 43 31 27 30 30 39
Trafficking 70 59 46 33 25 26 30 41
Possession 71 63 38 28 33 35 29 37
Source: Rosenmerkel, Durose, and Farole (2009, table 3.4).
Table 3.6 shows the types of sentences received following drug felony
convictions by black and white drug offenders in state courts in 2006.
The general pattern is that blacks more often receive prison sentences
and that whites more often receive jail and non-incarcerative sentences.
The first two columns show that 70 percent of black drug felons receive
incarcerative sentences compared with 61 percent of white drug felons.
The last two columns show that 39 percent of whites receive nonincar-
cerative sentences compared with 30 percent of blacks. The intermediate
columns show that slightly more whites receive (by definition, short) jail
sentences. Blacks are much more likely to be sentenced to state prisons.
There are no good national data on racial differences in length of
sentence for drug crimes. The available data do not show major differ-
ences in the lengths of sentences imposed. This is consistent with find-
ings of research on sentencing but is misleading. The statistical systems
sometimes combine data for jail and prison sentences, and generally
combine data for men and women. Women receive shorter sentences
than men. Black women make up a larger percentage of drug felons
than do white women, which reduces the overall averages for blacks.
The best national data I have been able to find, shown in table 3.7, are
for people released from prison in 2006. The mean average times served
by released black drug felons are a third longer than for whites. The num-
bers are lower than someone new to the subject might expect (24 months
time served overall for blacks and 18 months for whites), but they are
misleadingly low. One reason is that the numbers refer to both men and
women; the women’s averages are lower and the men’s are higher. A sec-
ond is that the numbers are for people released during a one-year period.
DRUGS • 75
table 3.7 Time Served at First Release from State Prison in Months, 2006, By Race
Offense White Median Black Median White Mean Black Mean
All 12 15 18 24
Possession 10 13 14 19
Trafficking 14 18 20 27
Other drugs 12 14 18 22
Source: Bonczar (2010, table 11).
By definition they include relatively large numbers of people serving

short sentences and relatively small numbers serving long ones: One
hundred percent of the people serving one-year sentences will be released
within a year but only ten percent of those serving ten-year sentences.
A third is that the laws mandating sentences of 10 or 20 years or longer
were passed from the mid-1980s to the mid-1990s and most of the peo-
ple who received them were still in prison in 2006.
Even with all those qualifications, the numbers shown in table 3.7
are disturbing. They show that the average black drug felon spends a
third longer in prison. When the effects of lengthy mandatory mini-
mums, which heavily disproportionately affect blacks, are taken into
account the real difference is much greater. Black drug offenders will
accumulate in prison in disproportionate numbers if comparatively
more of them receive especially long sentences. Under 100-to-1, truth-
in-sentencing, and mandatory minimum sentence laws that’s what
happens.
So there it is. When all the relevant data are pulled together, it is clear
that black people bear most of the brunt of the War on Drugs. It is also
clear that racial disparities among people imprisoned for drug offenses
arise primarily from racial profiling by the police, deliberate police pol-
icies to focus drug law enforcement on inner-city drug markets, and
deliberate legislative decisions to attach the longest prison sentences to
drug offenses for which blacks are disproportionately arrested. I have
purposely not used the word racism to this point, but it is difficult not to
wonder. Racial profiling is, after all, racial profiling and happens
throughout the United States. Legislators enacting 100-to-1 and other
mandatory minimum sentence laws for drug offenses are advised by
smart, informed people and cannot have failed to foresee that mostly
black people would bear the brunt of the “expressive” and “symbolic”
laws they enacted.
The system responded when in the 1960s and 1970s it became clear
that large numbers of young white people were being arrested and
imprisoned for marijuana offenses and accumulating criminal records
that could affect them for the rest of their lives. Arrests of young white
people for marijuana offenses plummeted. Some states and more
counties effectively decriminalized low-level marijuana dealing. The
National Commission on Marihuana and Drug Abuse (1973) proposed
decriminalization of marijuana, as did President Jimmy Carter and his
primary drug advisor, Dr. Peter Bourne (Musto and Korsmeyer 2002).
The damage done to young black people by the federal 100-to-1 law
and the disproportionate burdens placed by the War on Drugs on black
people have been clear for two decades. And nothing has happened to
change the police practices and sentencing policies that produce those
results.
4
RACE, BIAS, AND POLITICS
Racial disparities in the U.S. criminal justice system raise

two important causal questions. The first is how they happened. Those
answers are clear. Police practices and legislative and executive policy
decisions systematically treated black offenders differently, and more
severely, than whites. Policy makers emphasized law enforcement
approaches to drug abuse over preventive approaches. Police concen-
trated on inner-city, primarily minority neighborhoods, where many
black Americans live, and on crack cocaine, of which blacks are a large
majority of arrested sellers. Police officers engaged in widespread racial
profiling and stopped blacks on streets and sidewalks much more often
than is justifiable in terms of objective, race-neutral criteria. Legislatures
and administrative agencies established policies in the 1980s and 1990s
that mandated sentences of historically unmatched severity for violent
and drug crimes, for both of which blacks are disproportionately often
arrested and prosecuted.
The second question is, Why? Possible answers range from deliberate
antiblack racism to inadvertence. Racism in its most blatant forms is not
the answer. Conscious racial discrimination is not so pervasive in the
early twenty-first century, nor was it in the last two decades of the twen-
tieth, that it is likely that policy makers and police officials were pri-
marily motivated by invidious aims or beliefs.
Nor is inadvertence believable—that policies were chosen and prac-
tices were followed in good faith, and it simply never occurred to anyone
that black Americans would disproportionately suffer. No credible case

can be made that gross racial disparities were unforeseeable. Everyone,
we know, sees the world through filters shaped by personal values and
ideologies, and reasonable people accordingly differ in their assess-
ments of the scientific evidence about the effectiveness of drug and
crime control policies. Reasonable people, however, cannot have failed
to recognize that policies adopted since the mid-1980s would produce
foreseeable undesirable side effects.
No informed person could have failed, for example, to foresee that
unprecedentedly harsh penalties for crack offenses would hit black drug
dealers especially hard. Nor, since black arrest rates for serious violent
crimes have long been higher than white rates, could any informed
person have failed to understand that three-strikes laws, lengthy
mandatory minimum sentences, truth-in-sentencing laws, and sen-
tences of life without the possibility of parole would disproportionately
send black offenders to prison and keep them there.
One possible explanation is uncomfortably close to racism: officials
knew blacks would disproportionately suffer but did not care. For rea-
sons of political self-interest, ideology, or partisanship they enacted
disparity-causing policies anyway. At least for some policy makers this
is what happened. They acted as if it were more important to score
political and ideological points than to worry about the effects on
individual human beings of the policies they promoted. Similar
choices were made in many policy realms in recent decades, and there
is little reason to doubt that this was the choice in relation to drugs
and crime.
Americans have lived through three decades in which many conser-
vative politicians at the federal level—and in some states, most notably
California and Texas—adopted scorched earth political strategies in
which ideological purity, frustrating Democratic policy initiatives, or
obeisance to key constituencies have been more important to them than
formulating sensible public policies. Examples outside the criminal jus-
tice system include the decision to shut down the federal government in
the early 1990s rather than negotiate budget reforms, uncompromising
opposition to health care reform during the early years of the Obama
administration, and refusal over many years to support meaningful gun
RACE, BIAS, AND POLITICS • 79
control legislation despite heavy public support for it. Examples inside
the justice system are countless.
One stark example was the persistent refusal of federal policy makers
for 24 years to amend or repeal the 100-to-1 law for sentencing of cocaine
offenders.1 No one questioned that the law produced unwarranted racial
disparities, and almost everyone agreed that it was unjust. Three
Republican administrations and Bill Clinton’s, however, refused to
change it. In 2008 former President Clinton called the law a “cancer” and
said, “I regret more than I can say that we didn’t do more on it” (Wickham
2008). However, his administration was unwilling to act, fearing to open
itself to Republican accusations of softness. The Clinton White House
rejected proposals by the U.S. Sentencing Commission, endorsed by
Attorney General Janet Reno and “drug czar” Barry McCaffrey, to elimi-
nate the 100-to-1 difference. Congress passed legislation to reject the
commission proposal; Clinton signed it. That was more than fifteen years
ago. The Obama administration reduced the differential to 18-to-1. The
new law remains fundamentally unjust but will do slightly less damage.2
The challenge is to understand why for a quarter century most urban
police leaders and many state and federal policy makers adopted and
supported disparity-causing policies and practices. The answer is not
uncomplicated, but it is becoming clearer. Three powerful forces inter-
acted. The first is a psychology of American race relations characterized
by stereotypes of black criminals, unconscious preferences for white-
ness over blackness, and lack of empathy among whites for black
offenders and their families. The second, which shaped the first, is a
three-centuries-old pattern of economic, political, and social domi-
nance of blacks by whites. The third, enabled by the first two, is the
Republican Southern Strategy of appealing to racial enmities and anxi-
eties by use of seemingly neutral code words.
Research on social stratification shows how contemporary drug and
crime control policies helped sustain a historic pattern of white political
and economic dominance. Few police officials and other policy makers
have been consciously motivated by that goal. Instead they have viewed
the world through what might be called white eyes. The minds behind
the eyes, we know better than we once did, were influenced by stereo-
types of black street criminals and drug dealers and saw disparities as
chips falling where they may. Some, in a more melancholy mood, may
have thought, “Life is unjust, but there is nothing we can do about it.” The
minds behind the eyes, we also now know better than before, often lacked
empathy for black offenders, largely because of social distance and lack
of personal contact, and partly because of widely held white resentments
of black people in the aftermath of the civil rights movement.
A half dozen intertwined literatures on the psychology of race rela-
tions show that insensitivity to the interests of black people became a
theme of crime and drug control policy. One demonstrates that the
mass media—news and entertainment both—regularly portray crimi-
nals as black and victims as white and that those stereotypes seep into
people’s thinking. A second literature shows that, when asked to envi-
sion a drug addict or a violent criminal, most white people assume the
typical offender to be black. Because these findings have long been
known, and no doubt contribute to conscious and unconscious biases,
I do not discuss them in detail. A third literature on “implicit bias”
shows that most people, when asked to associate black and white with
such qualities as pleasant and unpleasant, or dangerous and safe,
associate black with unpleasant and dangerous, and white with pleasant
and safe. These reactions are nearly instantaneous and unconscious but
influence what people think and do. A fourth literature, on “colorism,”
shows that the darker the skin tone of a black suspect, the likelier vic-
tims and others are to believe him to be a criminal, and the more severely
he is likely to be punished. A fifth, on “Afro-American feature bias,” pro-
vides parallel findings concerning people whose facial features match
prevailing African American stereotypes. Observers associate stereo-
typically black faces with crime and criminals. People with such faces
get punished more severely, even unto death. Finally, a sixth literature
on public attitudes and opinions shows that whites have much harsher
attitudes toward offenders and that racial animus and resentment are
the strongest predictors of those attitudes.
More important, however, than unconscious processes, though made
easier by them, was the deliberate decision of Republican political strat-
egists beginning in the 1960s to use stereotypes of black criminals and
proposals for tough crime policies as devices to appeal to white voters.
Kevin Phillips, the author of The Emerging Republican Majority and an
architect of the Republican Southern Strategy, observed that liberalism

and Democrats in the South “lost the support of poor whites” as the civil
rights movement progressed: “The Negro socioeconomic revolution
gave conservatism a degree of access to poor southern white support
which it had not enjoyed since the somewhat comparable Reconstruction
era” (1969, 206). In the social turbulence associated with the 1960s in
general, and the civil rights movement in particular, conservative
Republican politicians saw an opportunity to appeal to southern and
working-class white voters who traditionally voted Democratic, a group
referred to later on as “Reagan Democrats.” They did so by focusing on
issues—states’ rights, crime, welfare fraud, “forced” busing, affirmative
action—that served as proxies for race, “wedge issues” as they have since
become known (Edsall and Edsall 1991).
Elaborating on the logic of the Southern Strategy in an interview
published in the New York Times in 1970, Phillips observed:
From now on, the Republicans are never going to get more than
10 to 20 percent of the Negro vote and they don’t need any more
than that . . . but Republicans would be shortsighted if they weak-
ened enforcement of the Voting Rights Act. The more Negroes
who register as Democrats in the South, the sooner the Negrophobe
whites will quit the Democrats and become Republicans. That’s
where the votes are. (Boyd 1970, 106)
In a 1981 interview Lee Atwater, the first President Bush’s Karl Rove and
the developer of the Willie Horton ads used in the 1988 presidential
campaign against Michael Dukakis, told a blunter story:
You start out in 1954 by saying, “Nigger, nigger, nigger.” By 1968

you can’t say “nigger”—that hurts you. Backfires. So you say stuff
like forced busing, states’ rights and all that stuff. You’re getting so
abstract now [that] you’re talking about cutting taxes, and all
these things you’re talking about are totally economic things and
a byproduct of them is [that] blacks get hurt worse than whites.
And subconsciously maybe that is part of it. I’m not saying
that. But I’m saying that if it is getting that abstract, and that
coded, that we are doing away with the racial problem one way or
the other. You follow me—because obviously sitting around

saying, “We want to cut this,” is much more abstract than even the
busing thing, and a hell of a lot more abstract than “Nigger, nigger.”
(quoted in Herbert 2005; Lamis 1999, 8)
The Southern Strategy is no longer official Republican Party policy,

but it need not be. It achieved its short-term aim—winning elections. In
the long term, however, it helped shape and reinforced prevailing nega-
tive white attitudes toward black people. As time passed, most white
people abandoned ideas about black racial inferiority but replaced them
with racial resentments: that disadvantaged black people have received
too much support from the state and are responsible for the adverse
social and economic conditions of their lives.
The rest of this chapter tells those stories. The first part examines
recent writing on the social psychology of American race relations in
connection with crime and punishment. It documents mental processes
that lead officials and others to engage in “statistical discrimination,”
and to treat black people more severely on the basis of skin tone and
distinctive African American facial characteristics. A literature on public
opinion and attitudes examines the causes and correlates of racial dif-
ferences in attitudes toward punishment. The key findings are that much
larger percentages of whites than blacks support harsh punishments,
including the death penalty, for reasons that include widely held resent-
ments toward and stereotypes about black criminals.
The second part examines the history of American race relations.
Scholars who study social stratification and racial hierarchy have
shown that American social, economic, and legal institutions have
evolved in ways that maintained white dominance and protected the
interests of whites as a class. When one mechanism for maintaining
white domination broke up, another replaced it. Slavery did the job for
centuries, until the Civil War. Within decades after the war Jim Crow
laws restored overwhelming white predominance. Millions of blacks
moved north to escape Jim Crow; the big-city ghettos, housing and
employment discrimination, and racial bias kept them in their subor-
dinate place. Contemporary wars on drugs and crime took over more
recently.
The third part says a bit more about the Republican Southern
Strategy. Some of its most influential designers and practitioners in
retrospect repudiated it and expressed regret for the roles they played. It
has, alas, done lasting damage. The appeals to overt racism made by the
George Wallaces and Lester Maddoxes in the 1960s were followed by
the appeals to racial animus made by Richard Nixon, Ronald Reagan,
and George H. W. Bush. Beliefs in the inferiority of black people were
succeeded by beliefs that unfair efforts were made to help blacks over-
come the legacies of slavery and racial discrimination, and that blacks
failed to take advantage of them. Ideological battles over affirmative
action, busing, quotas, and reverse racism shaped many white people’s
beliefs that the time for remediation is past and that further efforts to
help disadvantaged black people unfairly deny jobs, school admissions,
opportunities, and resources to whites. Those racial resentments are a
principal reason why so many whites support drug and crime control
policies that do so much damage to black people.
THE SOCIAL PSYCHOLOGY OF AMERICAN

RACE RELATIONS
Some Americans, including no doubt some public officials and practi-

tioners, are racists and are biased against blacks. Larger numbers are
affected by conscious stereotypes (“Many young black men are dan-
gerous, and this young black man probably is also”). Almost everyone,
black Americans included, is influenced by subconscious negative asso-
ciations of black people with crime and criminality. Different terms are
used to describe those influences—colorism, Afro-American feature bias,
implicit bias—and different groups of researchers study them. In the end
they come to the same conclusion: Americans, especially white Americans,
are predisposed to associate blackness with crime and dangerousness
and are prepared to treat black offenders especially harshly as a result.
Sociologists use the term statistical discrimination to describe one
outcome of those predispositions. Statistical discrimination is the attri-
bution to individuals of traits that characterize groups of which they are
members. In The Truly Disadvantaged: The Inner City, the Underclass,
and Public Policy (1987), the Harvard sociologist William Julius Wilson
showed how this operates in employment. Many young black inner-city
men have not been socialized into habits that employers want: coming
to work on time, sticking with monotonous jobs, dressing in main-
stream ways, speaking in mainstream English, observing conventional
forms of politeness. As a consequence employers are skeptical about
hiring young black men. They may be correct that young minority men
who dress in trousers with drooping crotches and affect stereotypical
ghetto behaviors are on average more likely than other people to be
unreliable workers. However, those preconceptions in many cases lead
them to reject job applicants who would be reliable workers. Extensive
subsequent research, most prominently by sociologist Devah Pager
(2007), has confirmed Wilson’s assertions. Pager conducted a series of
projects in which black and white applicants sought the same jobs and
presented identical résumés and submitted identical applications. The
white applicants were much more likely to be hired.
The novelist Tom Wolfe in Bonfire of the Vanities describes the power
of statistical discrimination in the criminal courts. Stereotypes matter.
The lawyer for a young black defendant has tried, with some success, to
persuade the judge that his client is a nice kid, young, impressionable,
and salvageable; he played a minor role in a street robbery, and deserves
a break. Then the defendant appears:
He had the same pumping swagger that practically every young
defendant in the Bronx affected, the Pimp Roll. Such stupid
self-destructive macho egos, thought Kramer [a prosecutor]. They
never failed to show up with the black jackets and the sneakers
and the Pimp Roll. They never failed to look every inch the young
felon before judges, juries, probation officers, psychiatrists, before
every single soul who had any say in whether they went to
prison. . . . The defendant’s comrades always arrived in court in
their shiny black thermal jackets and go-to-hell sneakers. That
was very bright too. That immediately established the fact that the
defendant was not a poor defenseless victim of life in the ghetto
but part of a pack of remorseless young felons. (1987, 13–14)
The defendant doesn’t get the break.
Statistical discrimination is a central problem in racial profiling by

the police. If many young black men in particular neighborhoods, who
adopt a particular style of dress are involved in gang activities or drug
dealing, police seeing a young man in that neighborhood who fits that
pattern may believe it likely that he is a gang member or drug dealer and
stop him, even if the individualized basis for a stop that the law requires
does not exist.
The situation with court officials is somewhat different. Judges worry
about the possibility that cultural differences and stereotypos will
influence their decisions. They discuss it often among themselves and
with others. Judges, however, are no doubt affected by unconscious
stereotyping.
N EGATIVE STEREOTYPES
It is not surprising that the racial profiling literature documents exces-
sive and poorly justified stops of black people. Two decades of research
document that the media commonly portray a world of black offenders
and white victims and that, when asked to describe typical violent
criminals and drug dealers, white Americans describe black offenders
(e.g., Entman 1992; Reeves and Campbell 1994; Beckett and Sasson
2004). Psychological processes much subtler than the crude stereo-
types Tom Wolfe describes, however, are also at work. Research on the
influence of skin tone and African American features shows that neg-
ative stereotypes are deeply embedded in American culture, and
operate to the detriment of blacks in the criminal justice system. They
cause black offenders to be punished more severely than whites, and
among blacks they cause dark-skinned people, and people with dis-
tinctively African American facial features, to be punished more
severely than light-skinned people and people with more European
features.
Colorism is the “tendency to perceive or behave toward members
of a racial category based on the lightness or darkness of their skin
tone” (Maddox and Gray 2002, 250). The research field is compara-
tively new, but the phenomenon is old. More than sixty years ago
Gunnar Myrdal observed in An American Dilemma: The Negro Problem
and Modern Democracy, “Without any doubt a Negro with light skin
and other European features has in the North an advantage with white
people” (1944, 697). A few years earlier an American Council on
Education report observed, “What is really crucial behind the color
point is class; the implication that light color goes with higher status,
and Negroid appearance with lower status, is what makes these char-
acteristics so important” (A. Davis, Dollard, and American Youth
Commission 1946, 137).
Among American black people, dark-skinned people are at a com-
parative disadvantage. Jennifer Hochschild, a political scientist at
Harvard and one of the leading scholars on the subject, offered this
summary: “Relative to their lighter-skinned contemporaries, dark-
skinned blacks have lower levels of education, income, and job status.
They are less likely to own homes, or to marry; and dark-skinned blacks’
prison sentences are longer. Dark-skin discrimination occurs within as
well as across races” (Hochschild and Weaver 2007, 644).
There has not been much research on the effects of colorism on peo-
ple suspected or accused of crimes, but what there is suggests that dark-
skinned people are more likely to be suspected and are punished more
severely. Dark skin evokes fears of criminality (Dasgupta, Banaji, and
Abelson 1999) and is a more easily remembered characteristic of a pur-
portedly criminal face (Dixon and Maddox 2005).
An analysis of more than 67,000 male felons incarcerated in Georgia
for their first offense from 1995 through 2002 showed that dark skinned
blacks received longer sentences than light-skinned blacks. Overall
white sentences averaged 2,689 days. The black average was 378 days
longer. When the figures for blacks were broken down, however, light-
skinned black people received sentences three and a half months longer
than the white average, medium-skinned blacks received a year longer,
and dark-skinned blacks a year and a half longer. Controlling for type of
offense, socioeconomic characteristics, and demographic factors, light-
skinned black defendants received sentences indistinguishable from
those of whites. Medium- and dark-skinned black defendants received
longer sentences (Hochschild and Weaver 2007, 649).
Scholars of Afrocentric feature bias take the analysis one step further
(Blair, Judd, and Chapleau 2004). If skin tone affects stereotypes about
crime and criminals, analysts hypothesized that stereotypically African

American facial features (e.g., dark skin, wide nose, full lips) would also
influence decision makers’ judgments. The evidence confirms the hypo-
thesis. One study found that the larger the number of Afrocentric fea-
tures an individual possessed, the more criminal that individual
appeared to be in the eyes of observers (Eberhardt et al. 2004).
Several important studies have tried to assess the significance of
Afrocentric feature bias. Blair et al. (2002) found that individuals with
more Afrocentric features were judged by college undergraduates to
have stereotypical African American traits. Blair, Chapleau, and Judd
(2005) found that observers believed individuals with more Afrocentric
features were more likely than others to behave aggressively.
Jennifer Eberhardt and three colleagues asked 182 police officers to
examine photographs of male students and employees at Stanford
University. Half were shown white faces and half were shown black
faces. One third of the officers were asked to rate the stereotypicality of
each face on a scale, that is, how stereotypical each face was of members
of that person’s race. Another third, told that some of the faces might be
of criminals, were asked to indicate whether the person “looked
criminal.” The last third were asked to rate attractiveness on a scale.
Each officer completed only one of the three measures.
More black than white faces were thought to look criminal. Black
faces rated above the median for stereotypical black features were
judged as criminal significantly more often than were black faces rated
below the median. The authors concluded that the police officers
thought black faces looked more criminal and that “the more black, the
more criminal” (Eberhardt et al. 2004, 889).
Blair, Judd, and Chapleau (2004) analyzed the faces of inmates in the
Florida Department of Corrections to learn whether facial features were
associated with longer sentences. They asked undergraduates to rate the
faces of a randomly selected sample of 100 black and 116 white inmates
in terms of the “degree to which each face had features that are typical
of African Americans” (676). After controlling for race and criminal his-
tory, stereotypical facial features were a significant predictor of sentence
length. Within each race more stereotypical black features were associ-
ated with longer sentences. Even those whites who had facial features
that “looked black” had received longer sentences than other white
prisoners.
Pizzi, Blair, and Judd (2005) also investigated the effect of facial fea-
tures on sentencing, starting from the presupposition that conscious
bias is not likely to be a significant cause of disparities. They reasoned
that judges and prosecutors have learned to be sensitive to the possi-
bility that they treat blacks differently and have become sensitive to
some stereotypical differences. They concluded, however, that practi-
tioners treat offenders differently on the basis of Afrocentric features:
“Racial stereotyping in sentencing decisions still persists. But it is not a
function of the racial category of the individual; instead, there seems to
be an equally pernicious and less controllable process at work. Racial
stereotyping in sentencing still occurs based on the facial appearance of
the offender. Be they white or African American, those offenders who
possess stronger Afrocentric features receive harsher sentences for the
same crimes” (351).
Even the chance that offenders will be sentenced to death is influ-
enced by facial features. Looking at cases in Philadelphia in which
death had been a possible sentence, Eberhardt et al. “examined the
extent to which perceived stereotypicality of black defendants influ-
enced jurors’ death-sentencing decisions in cases with both white and
black victims” (2006, 383). Stanford undergraduates were shown pho-
tographs of forty-four defendants who were eligible for the death pen-
alty. The photos were presented randomly and edited for uniformity,
and the students were asked to rate the stereotypicality of each black
defendant’s appearance. With stereotypicality as the only independent
variable, 24.4 percent of black defendants rated below the median had
been sentenced to death, compared with 57.5 percent of black defen-
dants rated above the median.
Yet another source of evidence comes from the Implicit Association
Test (IAT), which was developed by psychologists to assess people’s
implicit attitudes toward different groups. The IAT, which by 2008 had
been taken by 4.5 million people on the Internet and elsewhere, asks
individuals to categorize a series of words or pictures into groups.3 Two
of the groups are racial, “black” and “white,” and two of the groups are
characterizations of words as “good” or “pleasant” (e.g., joy, laugh, happy)
or “bad” or “unpleasant” (e.g., terrible, agony, nasty). To test for implicit

bias one version of the IAT asks respondents to press one key on the
computer for either “black” or “unpleasant” words or pictures and a dif-
ferent key for “white” or “pleasant” words or pictures. In another version
respondents are asked to press one key for “black” or “pleasant” and
another key for “white” or “unpleasant.” Implicit bias is defined as faster
responses when “black” and “unpleasant” are paired than when “black”
and “pleasant” are.
The results have consistently shown that implicit bias against blacks
is “extremely widespread” (Jolls and Sunstein 2006, 971). The consensus
view is that the IAT results demonstrate the existence of unconscious
bias by whites against blacks (Rachlinski et al. 2009). Almost all demo-
graphic groups show a significant implicit preference for whites over
blacks. The major exception is blacks: equal proportions show implicit
preferences for blacks and for whites, but, unlike whites, do not show a
preference for their own group.
The consensus view of the existence of implicit racial bias is based on
the results of millions of tests of every imaginable group in the
population. It would be remarkable if criminal justice practitioners were
not affected by it. As a consequence much recent research investigates
the effectiveness of possible ways to alert officials to their implicit biases
so that they can attempt to reduce the biases’ influence in the same ways
that practitioners have learned to be sensitive to cruder stereotypes
based on dress or hair styles (e.g., Levinson 2007).
Some research has explicitly examined practitioners’ possible biases.
Jeffrey Rachlinski and his colleagues (2009) recruited 133 judges from
three jurisdictions to take implicit bias tests and to sentence hypothet-
ical cases in which the defendant’s race varied. The bias test, as expected,
revealed implicit biases against blacks among white judges and no clear
pattern among black judges. The sentencing exercise also showed a sta-
tistically significant (though not large) relationship between individual
judges’ biases and the sentences they said they would impose.
Other research has focused on police. In one study participants
were shown pictures of black and white criminal suspects who were
and were not carrying guns. Participants were told to imagine they were
police officers and that they should shoot suspects holding guns. The
findings strongly confirmed hypotheses about implicit bias. Among

suspects carrying guns, whites were less likely than blacks to be “shot;”
among suspects not carrying firearms, blacks were more likely to be
shot (Plant, Peruch, and Butz 2005).
When George H. W. Bush used images of Willie Horton to symbolize
Michael Dukakis’s softness on crime in the 1988 presidential election he
was pushing a button that was waiting to be pushed, one that manipu-
lated deeply engrained predispositions among whites to associate black-
ness with criminality.
RACIAL RESENTMENTS AND P UBLIC O PINION

White Americans, especially political conservatives and fundamentalist
Protestants, tend to support harsh punishments, including the death pen-
alty. Black people tend to support harsh punishments at much lower rates.
Whites have substantially greater confidence in the justice system and its
practitioners than do blacks. Researchers repeatedly find that racial
animus and resentment are strong influences on whites’ punitive atti-
tudes. Reciprocally, low levels of confidence in the fairness of the justice
system are a major influence on blacks’ attitudes. Most black Americans
believe the criminal justice system is racially biased and that black sus-
pects and defendants are treated unfairly. Most whites disagree.
A substantial literature on racial differences in attitudes toward and
opinions about crime control policy shows that whites have rationalized
a criminal justice system that is disparately severe toward blacks. Early
research on the influence of race on attitudes toward the criminal jus-
tice system found that racial prejudice (measured by support for racial
segregation and belief in black inferiority) was associated with whites’
support for harsh sentencing (Cohn, Barkan, and Halteman 1991), as
were negative racial stereotypes (Hurwitz and Peffley 1997), and racial
antipathy (a preference for maintaining social distance from blacks;
Gilliam and Iyengar 2000).
More recent work has tried to disentangle the influence of
racial beliefs and attitudes, distinguishing among racial bigotry,
racial resentments, and negative racial stereotyping. Findings con-
sistently show that whites’ belief in inherent black inferiority has
almost disappeared. Encouraging as that is, however, findings also

demonstrate widely shared white resentments of post–civil rights
era efforts to integrate blacks into mainstream American society,
and a powerful association between those resentments and support
for the crime control and drug policies that have ensnared so many
black Americans.
The relevant literature has grown rapidly. The initial focus was on
racial differences in support for harsh sentencing policies and for the
death penalty. The death penalty literature began to develop after the
U.S. Supreme Court decided Furman v. Georgia, 408 U.S. 228 (1972),
which suspended use of capital punishment in the United States, and
Gregg v. Georgia, 428 U.S. 153 (1976), which reinstituted it. Researchers
examined a wide range of issues, including characteristics of death
penalty supporters and opponents, whether people’s views changed if
they learned more about the subject (sometimes), whether the avail-
ability of sentences of life without possibility of parole changed opin-
ions (sometimes), and whether blacks and whites had different views
(yes, very).
The most comprehensive survey of that literature shows that there
was a racial gap of 30 points in support for capital punishment in 2004
(whites, 72.5 percent; blacks, 41.7 percent). That gap had not changed
since 1974 (whites, 69.8 percent; blacks, 39.9 percent), and held steady in
between. The obvious question is, What explains the gap? The strongest
predictor of whites’ support for capital punishment in our time is racial
resentment: “Taken together, the extant studies reach remarkably con-
sistent results: negative views toward African Americans—what scholars
in this area have called ‘racism’ or ‘racial animus’—predict a range of
political attitudes, including greater support for capital punishment”
(Unnever, Cullen, and Lero Jonson 2008, 53).
Efforts have been made to see whether people’s attitudes change
when they learn that blacks disproportionately occupy death row cells
and that the race of the victim is a primary determinant of whether a
murderer is sentenced to death. The most sophisticated study of racial
attitudes about the criminal justice system, the National Race and Crime
Survey, interviewed a representative sample of 600 white and 600 black
Americans (Peffley and Hurwitz 2010). Randomly selected subgroups
of the respondents were asked in three different ways whether they

favor or oppose capital punishment for persons convicted for murder
and whether they held their views strongly. In the first version of the
question, they were simply asked their views. Sixty-five percent of whites
said they strongly or somewhat favored capital punishment compared
with 50 percent of blacks.
In the second version of the question, respondents were first told
“Some people say that the death penalty is unfair because most of the
people who are executed are African Americans” and were then asked
whether and how strongly they favor capital punishment. The
percentage of black respondents favoring capital punishment fell to 38
percent, but the white percentage in favor increased to 77 percent. In
the third version, before being asked their views respondents were
told that some people “say the death penalty is unfair because too
many innocent people are being executed.” The white percentage was
strongly or somewhat in favor (64 percent) and was unchanged
from whites’ answer to the first version. Black support fell further,
to 34 percent (see table 5.1).
Summarizing those patterns of response, the white percentage was
unchanged when reminded that some innocent people are believed to
be executed, and it increased substantially when reminded that blacks
make up a disproportionate share of those executed. Blacks’ overall
support of the death penalty was lower to begin with and fell when
respondents were reminded of racial disparities and risks of executing
innocent people.
The explanations for those discordant patterns were teased out from
analyses of a large number of other variables relating to respondents’
characteristics. Blacks’ lower levels of support are related to the wide-
spread belief that the criminal justice system treats black defendants
unfairly; being reminded of problems of racial disparities and possible
executions of innocents heightened those anxieties and led to lower
levels of support. Few whites, however, believe that the system treats
blacks unfairly. Instead, when whites are confronted with an argument
about racial bias, “they reject it with such force that they end up express-
ing more support for the death penalty than when no argument is
presented at all” (Peffley and Hurwitz 2010, 175).
In an earlier study, Lawrence Bobo and Devon Johnson (2004) exam-

ined blacks’ and whites’ support for capital punishment and the crack
cocaine 100-to-1 law and the extent to which opinions changed in light of
information about the racial dimensions of those problems (e.g., the dis-
proportionate presence of blacks on death rows; that killers of whites are
much more likely to be sentenced to death than killers of blacks; that
most crack dealers are black). In general, except concerning the 100-to-1
law, information did not significantly affect whites’ opinions. Racial
resentment was strongly related to whites’ support for the death penalty:
The most consistent predictor of criminal justice policy attitudes
is, in fact, a form of racial prejudice. While racial resentment does
not ever explain a large share of the variation in any of the atti-
tudes we have measured, it is the most consistently influential of
the variables outside of race classification itself. This pattern has
at least two implications. It further buttresses the concern that
some of the major elements of public support for punitive criminal
justice policies are heavily tinged with racial animus and thus
quite likely to be resistant to change based on suasion and infor-
mation-based appeals. (171–72)
James Unnever and colleagues have tried to isolate the influence of
racial resentments on other issues. One analysis examined data from
the 2006 African American Survey undertaken for the Washington Post,
the Henry J. Kaiser Foundation, and Harvard University to explore peo-
ple’s explanations for racial disparities in imprisonment. This is a huge
survey of 1,328 African American men, 507 African American women,
and 1,029 members of other racial and ethnic groups. Blacks were sub-
stantially likelier than whites to cite denial of jobs and bad schools as
“big reasons” for the disparity, but the largest differences concerned bias
in the legal system. Seventy-one percent of blacks, but only 37 percent of
whites, believed police bias was a primary cause of disparities. Similarly,
67 percent of blacks blamed “unfair courts,” but only 28 percent of
whites (Unnever 2008, table 1). The degree to which black respondents
had personally experienced what they perceived as racial discrimination
“predicts whether African Americans believe that criminal injustices,
such as whether the police target black men and whether the courts are
more willing to convict African-American men, are reasons for the high
incarceration among black men” (527).
The racial difference in perceptions of bias in the justice system that
Unnever found is echoed in findings from many other projects. The
leading scholar of the subject, Lawrence Bobo, a Harvard sociologist,
organized two representative national surveys on race, crime, and public
opinion. The 2001 Race, Crime, and Public Opinion Study is a survey of
978 non-Hispanic whites and 1,010 non-Hispanic blacks living in
American households. Only 38 percent of whites said they believed the
criminal justice system is biased against blacks; 89 percent of blacks said
it was. Only 8 percent of blacks said that the justice system “gives blacks
fair treatment”; 56 percent of whites said it did. Seventy-nine percent of
whites expressed confidence that judges treat blacks and whites equally,
compared with only 28 percent of blacks. Concerning police the gap
was even bigger: 68 percent of whites expressed confidence in the police,
and only 18 percent of blacks did (Bobo and Thompson 2006, 456). The
findings of the Peffley and Hurwitz (2010) survey discussed above are
similar. Seventy percent of blacks but only 18 percent of whites believed
that police and courts treat blacks unfairly (189).
Approaching the same kinds of issues from another angle, Unnever,
Cullen, and Jones (2008) analyzed data from the 2000 National Election
Study to investigate racial differences in support for social policies to
address economic and social causes of crime. Respondents were asked
whether they thought “the best way to reduce crime is to address social
problems or to make sure criminals are caught, convicted, and pun-
ished, or something in between.” A series of follow-up questions asked
whether the preferred approach was a “much” or “somewhat” better way
to reduce crime. Their main aim was to investigate whether and how
people’s attachment to egalitarian beliefs influenced their attitudes
toward adoption of nonpunitive anticrime policies (yes, a lot). Their
premise was that people with strong commitments to equality are more
likely than others to support social policies aimed at preventing crime
by reducing the social and economic inequalities associated with it.
A variety of demographic (age, sex, race, education, place of residence)
and attitudinal (egalitarian beliefs, racial stereotypes, racial resentment)
variables were analyzed. Blacks were much more likely than whites to
support social policy approaches to crime reduction. Whites with racial

resentments toward blacks were much more likely to oppose social
policy approaches and to support criminal justice approaches. Here,
too, the findings reported by Peffley and Hurwitz (2010) are similar:
twice as large a percentage of whites as blacks preferred harsh punish-
ments over social welfare programs as a crime control strategy (162).
Devon Johnson (2008) carried out a particularly comprehensive anal-
ysis of the reasons for racial differences in attitudes toward punishment.
I describe it in considerable detail to show the basis of the conclusions
she drew. The data came from the 2001 Race, Crime, and Public Opinion
Study (Bobo and Thompson 2006). A “punitiveness index” was calcu-
lated on answers to four questions on a 1–4 scale (1 = “strongly disagree”;
4 =“strongly agree”): Do you favor life sentences for third-time felons?
Should parole boards be more strict, less strict, or continue current prac-
tices? Should fourteen- to seventeen-year-olds accused of violent crimes
be tried and sentenced in adult courts? Are current punishments for
violent crimes too harsh, too light, or just about right? Whites were much
more likely than blacks to favor three-strikes laws and trying young peo-
ple as adults, to believe parole boards should be more strict, and to believe
that punishments for violent crimes are too light.
To find out whether and how racial attitudes and beliefs influence
punitive attitudes, Johnson developed a measure of perceived racial bias
in the justice system and various measures of racial prejudice. Perceived
racial bias was calculated from responses to three questions about
confidence that the police, prosecutors, and judges treat blacks and
whites equally.
Racial prejudice was measured in three ways. To calculate “racial
resentment,” respondents were asked to agree or disagree with six prop-
ositions (shortened and paraphrased here):
1. Members of other ethnic groups have overcome

prejudice and succeeded; blacks should do the same
without special favors.
2. Blacks in recent years have gotten less than they deserve.
3. Government officials pay less attention to requests and
complaints from black than from white people.
4. Blacks who receive welfare could get along without it if they

tried.
5. If blacks would only try harder, they’d do as well as whites.
6. Generations of slavery and discrimination created conditions
that make it hard for blacks to work their way out of the
lower class.
To calculate “negative affect” in general attitudes to black people,

respondents were asked two questions: How often have you felt sympathy
for blacks? How often have you admired blacks?
Finally, to calculate “racial stereotypes,” respondents were asked to
characterize on a 1–10 scale as accurate or inaccurate four negative
descriptions of black people: as lazy, aggressive or violent, preferring to
live on welfare, and complaining.
The analysis took account of demographic characteristics of the
survey respondents, including age, sex, income, education, and place of
residence, and of other characteristics such as political beliefs, fear of
crime, and having a relative or friend imprisoned. When all these char-
acteristics were taken into account, two factors stood out. For blacks,
perceptions of racial bias in the system were the major distinguishing
characteristic. For whites, it was racial resentment. The other two mea-
sures of prejudice—negative affect and racial stereotypes—had discern-
ible effects that were dwarfed by the power of racial resentment.
It might in some sense seem encouraging that whites are less likely
than in earlier times to harbor beliefs about racial inferiority or about
race-based negative characterizations of laziness, violence, and queru-
lousness. Their displacement by racial resentment is no cause for celebra-
tion. The consequence in some ways is more pernicious, especially in
light of what we now know about statistical discrimination, colorism,
Afro American feature bias, and implicit bias. Widespread beliefs that
blacks are racially inferior have been replaced by beliefs that the condi-
tions of life that lead some black people to crime are their own fault and
they deserve whatever punishment they get. Put differently racial resent-
ments provide a powerful basis for lack of sympathy for people caught
up in the legal system. If disproportionate numbers of blacks are arrested
for drug dealing and for violent crimes, they’ve no cause to complain.
Devon Johnson summed up where things stand:

Given the association between race and crime in political
discourse, in media accounts, and in the minds of many whites, it
is probable that racial prejudice will continue to play a significant
role in whites’ support for punitive policies for some time.
Moreover, in light of the . . . inability of those in privileged posi-
tions to perceive racial discrimination in the administration of
justice (or their unwillingness to acknowledge it), it is unlikely
that blacks’ cynicism toward the criminal justice system will
markedly improve in the short term. (2008, 205)
That seems right. The explanation for whites’ attitudes can be found
in the history of American race relations.
THE HISTORY OF RACE RELATIONS
Ideas about statistical discrimination and social stereotyping, and about

the unconscious effects of colorism and Afrocentric facial features, may
be unfamiliar to some readers, but they are not difficult to grasp. Similarly
pernicious effects of social stereotypes and unrecognized biases about
women and gay and lesbian people were in due course recognized, and
social attitudes, actions, and policies changed as a result. Few people any
longer believe that menstruation makes women emotionally unstable
and unsuited for leadership positions or that women lack the physical
stamina and self-discipline to participate in physically demanding work
or sports. Likewise few people any longer believe that gays’ and lesbians’
lives are governed by their sexual appetites (or no more, anyway, than is
true of heterosexuals) or are incapable of being successful parents. No
similar changes have occurred concerning the experiences of black peo-
ple in the criminal justice system. Stereotypes about racial inferiority
may have been replaced by racial resentments, but to disproportionate
numbers of blacks on death row or in prisons, or to black defendants in
crack cocaine cases, that is a distinction without a difference.
So the question is, Why do the effects of racial resentments persist
and make many whites unsympathetic to the experiences of blacks in
the criminal justice system? The most likely explanation for adoption
of disparity-causing policies, and their continuation long after their
effects became known, and why racial resentments have such blind-
ing power, is the hardest and most uncomfortable to grasp. It is that
we white Americans as a class are so accustomed to seeing the world
from the perspective of our own self-interest that we unconsciously
support policies that ensure our social, political, and economic dom-
inance. Anti-immigrant policies are a vulgar recent example. People
hostile to immigrants may talk about the rule of law and illegal immi-
gration, but their real, underlying concerns relate to competition for
jobs, fear of social change, and worry that their own well-being will
suffer. Much can be said in favor of increased immigration. A country
with an aging population needs more young people to support a
growing economy and to pay taxes to support government spending,
including Social Security and Medicare for the elderly. A sizable body
of research shows that the popular belief that immigrants are an
economic burden is wrong: after only a few years in the country
immigrants add to national wealth. Rational analyses of economic
and social effects of immigration, however, are for many people
beside the point. Drug and criminal justice policies that destabilize
poor black communities and maintain white dominance are a subtler
instance of a similar phenomenon.
The stereotyping, resentments, and attributions discussed in the pre-
ceding section are unlikely by themselves to have produced and perpet-
uated racial profiling and 100-to-1, three-strikes, and similar laws. Police
officials and other policy makers are sometimes influenced by base
political considerations, but comparatively few are likely to be moti-
vated by invidious racial bias. Conscious stereotypes and statistical
discrimination no doubt play roles, especially in explaining police
decisions to stop citizens on the street and judges’ sentencing decisions
to send to prison people they believe (often wrongly) to be dangerous.
Unconscious stereotyping no doubt operates at the level of the individual
case, and people with typical black features suffer as a result. All of these
factors, however, are likely to be most important in individual cases.
They are unlikely to explain the passage of laws and policies that treat
black people especially severely.
A literature that has developed over the past twenty years explains
what happened. Contemporary drug and crime control policies are
in large part products of unconscious efforts by the white majority to
maintain political, social, and economic dominance over blacks.
American cultural practices and legal institutions have operated to
keep whites on top for three centuries. Until the Civil War slavery did
the job. Within thirty years after the war, the practices and legal forms
of discrimination known as Jim Crow laws restored white domi-
nance. In the Great Migration in the early twentieth century millions
of southern blacks moved north to escape Jim Crow; the big-city
ghettos, housing discrimination, and other forms of discrimination
kept blacks in their subordinate place (Lieberson 1980). Federal civil
rights laws and Supreme Court decisions in time outlawed Jim
Crow and forbade most forms of racial discrimination. For poor
and disadvantaged black people, the victories were short-lived.
Deindustrialization and the flight of jobs and the middle class to the
suburbs left disadvantaged blacks marooned in the urban ghettos;
the modern wars on drugs and crime took over and kept them there
(Wacquant 2002a, 2002b).
Wacquant has explained how that happened:
Unlike Jim Crow, then, the ghetto was not dismantled by forceful
government action. It was left to crumble onto itself, trapping
lower-class African-Americans in a vortex of unemployment,
poverty, and crime, abetted by the joint withdrawal of the wage-
labor market and the welfare state. . . . As the ghetto lost its
economic function and proved unable to ensure ethno-racial clo-
sure, the prison was called upon to help contain a population
widely viewed as deviant, destitute, and dangerous. (2008, 65)
Wacquant is not alone in suggesting that contemporary American
criminal justice practices are the latest in a series of social policies that
operate to keep poor blacks in their places. Douglas Massey, the author
(with Nancy Denton) of American Apartheid (1993), a widely praised
and decidedly nonpolemical account of housing discrimination, argued
in Categorically Unequal, his book on social stratification, that crime
policy supports white interests:
Whether whites care to admit it or not, they have a selfish interest

in maintaining the categorical mechanisms that perpetuate racial
stratification. As a result, when pushed by the federal government
to end overt discriminatory practices, they are likely to innovate
new and more subtle ways to maintain their privileged position in
society. If one discriminatory mechanism proves impossible to
sustain, whites have an incentive to develop alternatives that may
be associated only indirectly with race and are therefore not in
obvious violation of civil rights law. The specific mechanisms by
which racial stratification occurs can thus be expected to evolve
over time. . . .
[The] new emphasis on retribution and punishment . . . was
achieved through the deliberate racialization of crime and violence
in public consciousness by political entrepreneurs. (2007, 54, 94)
Glenn C. Loury, a Brown University economist who was in the 1980s

and early 1990s generally regarded as one of America’s preeminent con-
servative black intellectuals, observed in The Anatomy of Racial
Inequality that “the deeper truth is that, for some three centuries now,
political, social, and economic institutions that by any measure must be
seen as racially oppressive have distorted the communal experience of
the slaves and their descendants” (2002, 104). Later, in introducing his
2007 Tanner Lectures at Stanford, he elaborated:
We have embraced what criminologist Michael Tonry (1995)

calls a policy of “malign neglect,” and in doing so we, as a
society, have stumbled more or less wittingly into a God-awful
cul de sac. . . . The connection of this apparatus to the history
of racial degradation and subordination in our country (lynch-
ing, minstrelsy, segregation, ghettoization) is virtually self-
evident. . . . The racial subtext of our law and order political
discourse over the last three decades has been palpable. (2007;
references omitted)
More recently Loury has written, “Mass incarceration has now

become a principal vehicle for the reproduction of racial hierarchy in
our society” (2008, 36–37). The finding, discussed earlier, that racial
resentment is the strongest predictor of whites’ support for severe pun-

ishment policies, led Bobo and Johnson to conclude, “This pattern rein-
forces the claim . . . that one major function of the criminal justice system
is the regulation and control of marginalized social groups such as
African Americans” (2004, 171–72).
These are functionalist arguments about what criminal justice pol-
icies and practices do, rather than political ones about what they are
intended to do. The argument is not that a self-perpetuating cabal of
racist whites consciously acts to favor white interests, but that deeper
social forces collude, almost as if directed by an invisible hand, to for-
mulate laws, policies, and social practices that serve the interests of
white Americans. Thought of that way, it is hard not to see that the
machinery of the criminal justice system produces devastatingly
reduced life chances for poor black Americans. If its aims were to reduce
black men’s chances of earning a decent living, or being successfully
married and a good father, or being socialized into prosocial values, it
has been successful (Western 2006). There has to be a reason why the
criminal justice system treats American blacks so badly, why its foresee-
able disparate impacts on blacks and whites are disregarded. Wacquant’s
and the others’ analyses provide a better explanation than any other that
has been offered.
Once the analysis of racial hierarchy and status anxiety that Wacquant,
Massey, Loury, and Bobo and Johnson offer is recognized, much else
falls into place. David Garland, in his writing on lynchings in America
during their 1890–1930 heyday, observes, “The penal excess of the lynch-
ing spectacle said things that a modernized legal process could not. . . . It
reestablished the correlative status of the troublesome black man, which
was as nothing, with no rights, no protectors, no personal dignity, and
no human worth” (2005, 817).
There are plenty of other policy realms in which similar things hap-
pened. Housing policy offers an example. Federal policies of the 1950s
and 1960s, though proposed and explained in neutral terms of credit
risk and sound stewardship of federal dollars, blocked blacks from
moving into newly developing white suburbs and, through red-lining
“risky neighborhoods,” denied federally insured mortgages to residents
of urban minority neighborhoods. The effect was to lock black people
into deteriorated inner-city areas. In retrospect those federal policies

have been discredited and are widely recognized to have been a
significant contributor to perpetuation of racially segregated housing
(Massey and Denton 1993).
Nineteenth-century temperance and prohibition movements pro-
vide another example of a conflict over crime and drug policy that
appeared to be about one thing (the dangers of alcohol) but was really
about status conflicts between ethnic groups. Proponents claimed that
they were motivated to address the problems precipitated by and asso-
ciated with alcohol use. In retrospect nineteenth century prohibition
was in large part a proxy for social and status conflicts between
Protestant descendants of earlier waves of British and German set-
tlers, anxious to protect their newly acquired social status and political
power, and newly arrived Irish Catholics. Many of the earlier settlers
were teetotalers; many of the bibulous Irish were enthusiastic drinkers.
Moralistic crusades against alcohol served as devices for expressing
disapproval and social distance from newcomers that was sometimes
unacknowledged or unrecognized by the prohibitionists themselves.
Attacking drinking as immoral was a way to assert the moral
superiority of the attackers, and the moral inferiority of the attacked
(Gusfield 1963).
Criminalization of particular substances reflected similar ethnic
group dynamics each time it happened in the twentieth century.
When heroin and cocaine were criminalized by the federal Harrison
Act in 1914, the prevailing images of the immorality of drug use were
provided by groups other than the white majority: Chinese users of
opiates and black users of cocaine (Courtwright 1982; Musto 1999).
The Marijuana Tax Act, the first federal criminalization of marijuana,
was aimed at pot-smoking Mexican laborers whose migration into
western states in search of work precipitated hostile reactions from
whites not unlike those occurring early in the twenty-first century
(Whitebread and Bonnie 1974). In the 1980s the targets of unprece-
dentedly tough laws aimed at crack cocaine were inner-city blacks
(Massing 1998, chap. 14)
A similar dynamic, though between generations rather than bet-
ween ethnic groups, characterized recent drug wars. The first was
announced by President Nixon on July 14, 1969, in his “Special Message

to the Congress on Control of Narcotics and Dangerous Drugs.” The
primary status conflict of the time concerning drugs was not between
whites and blacks or between members of other ethnic minorities, but
between generations. The alcohol-using and -abusing generations that
moved in the corridors of power in the 1960s were befuddled by a trou-
bling and disrupted world and threatened by challenges to their
political and moral authority. Marijuana and hard drug use by young
people encapsulated those challenges. Marijuana was widely available
and widely used. LSD and cocaine had visible, influential, and out-
spoken proponents. Officials said, and probably believed, that they
wanted to protect young people from the ravages of drug use, and in
any case that drug use is irresponsible and immoral. Young people
believed the dangers were slight and that the choice should be theirs,
not the state’s, to make. As was true of nineteenth-century prohibition,
recent disagreements about legal enforcement of important moral
standards can as readily be understood as conflicts over whose moral
standards are to be preferred, and expressed in the criminal law. The
words of the planners of successive modern drug wars may have been
about safety and responsibility, but the music was about protection of
their views of the world and of the places in it of people like them
(Musto and Korsmeyer 2002, 60).
Harvard philosopher Tommie Shelby has observed, “It is a truism
about human nature—one emphasized by Max Weber—that the privileged
want to believe that they merit their advantages and that the disadvan-
taged deserve all their hardships” (2008, 80). Concerning the criminal
justice system, whites can take comfort in racial stereotypes, such as that
black Americans are especially criminal or that blacks more often than
whites freely choose to behave in immoral ways that violate the criminal
law. So of course huge numbers of black people are in prison.
At some level, however, most people understand that black human
beings are not inherently morally weaker and worse than whites. At
some level, everyone understands that discrimination and disadvantage
play at least some role in explaining why human beings become involved
in ordinary crimes and drug dealing. A simple test of this is to think of
someone you know well—your child, or a friend’s or neighbor’s—who
has gotten into trouble, and to think about how you explain it. The
explanation almost always will include something other than only will-
fully immoral choices. Family circumstances, drug or alcohol problems,
mental health issues, and depression are the kinds of things you would
probably think about. If in playing this mental game, you imagine that
you are black and poor, you would think about the social and economic
disadvantages and discrimination your or another’s child has experi-
enced. In real life, black people do think about such things. That is why,
as the research discussed earlier shows, blacks distrust the criminal jus-
tice system and especially police officers, and it is why they favor social
welfare over punishment approaches for preventing crime.
Large majorities of whites, however, are unable to step back from
problems of racial disparity in the justice system and try to think about
it as they would were they black parents. The reasons for that are well
understood. The problems seem intractable and they make people
uncomfortable. When thought of empathetically, they are hard to rec-
oncile with many white people’s political ideology.
A number of psychological devices enable human beings to ratio-
nalize awkward realities. The best known is the psychological concept of
cognitive dissonance. The psychologist Leon Festinger, who invented
the term, observed that people are uncomfortable in situations in which
part of the mind wants something and another part knows it is a bad
idea. Smokers know lighting up is bad for their health and the health of
those around them. What to do? The options are to give up smoking or
find a way to explain why you are not quitting. Typical rationalizations
are that it is not really dangerous or is only a little dangerous if only a
few cigarettes are smoked each day, or the damage will reverse if smokers
stop when they reach fifty, or the damage is already done and there’s no
point stopping now. When we find ourselves in situations of dissonance,
Festinger said, our choices are to change the situation, or to rationalize
it. By coincidence, here is the first example he gives in the opening sen-
tences of what became a landmark book:
It has frequently been implied, and sometimes even pointed out,

that the individual strives toward consistency within himself. His
opinions and attitudes, for example, tend to exist in clusters that
are internally consistent. Certainly one may find exceptions.

A person may think Negroes are just as good as whites but
would not want any living in his neighborhood. (Festinger 1957, 1)
Two more recent psychological theories offer fuller explanations.

Proponents of “just world theory” assert that “people need to believe
that the world is a just place in which individuals get what they deserve”
(Hafer and Bègue 2005, 128). A socially concerned mother is run over by
a motorist while picketing to support a local cause. One observer
demands harsh punishment for the driver. Another blames the victim
because she was blocking traffic and interfering with the driver’s “free-
dom of movement.” Both are fitting the events into personal—but irrec-
oncilable—scripts in which the driver and the dead picketer get what
they deserved.
System justification theory “posits a general human tendency to
support and defend the social status quo, broadly defined” (Blasi and
Jost 2006, 1123). Regardless of their situation, people try to rationalize
the injustices and inequities they see. Stereotypes (such as that the rich
are smart, the poor are lazy, and blacks are criminal) are often employed
to demonstrate that all members of society deserve their status. People
who can reconcile discordant features of their lives and come to believe
in a world that is just by and large experience more positive emotions
than people who believe it unjust. For example, poor people who blame
themselves for their own poverty are happier and more satisfied with
life in general.
These several theories help explain why and how white Americans
rationalize stark racial inequities in the American criminal justice
system. Many white Americans unthinkingly assume, or persuade
themselves, that the problem is not in the policies they and people like
them set and enforce, but in social forces over which they have no con-
trol or in the irresponsibility of individual offenders.
That is not good enough. Current crime and drug control policies
were not written by an invisible hand. They were enacted and
implemented by human beings influenced by mixed motives, some ide-
alistic, some cynical, some self-serving. Insofar as they were enacted as
fruits of the Republican Southern Strategy they represented deliberate
manipulations of racist biases and fears, and racial stereotypes and

attributions, to achieve partisan political aims.
THE SOUTHERN STRATEGY
The Republican Southern Strategy is commonly said to date from the

1960s and Kevin Phillips’s The Emerging Republican Majority (1969) is
generally described as its basic text. Both things are true. The term of art
was used to characterize Republican Barry Goldwater’s 1964 presidential
campaign, and Phillips was a strategist in Nixon’s 1968 campaign who
later published a book making a case for it. Both statements, however,
are oversimplications. The foundations were laid two decades earlier.
Proposals that southern segregationist Democrats combine with
Republican conservatives were first seriously promoted in the 1940s,
when civil rights advocates began to win legal and political victories
and white supremacists began to worry. On June 25, 1941, Democratic
President Franklin Delano Roosevelt signed Executive Order 8802,
which established the Federal Employment Practices Commission. The
order forbade racial discrimination by federal contractors and empow-
ered the FEPC to investigate complaints. After Roosevelt’s death segre-
gationists hoped Harry S. Truman would be more sympathetic. Truman
had been a U.S. senator from Missouri, a border state with an almost
Southern history of troubled race relations. Many southerners hoped he
would be more sensitive to segregationist concerns than Rossevelt had
been. Instead, within two months of taking office, he proposed legisla-
tion to make the FEPC permanent. Truman later appointed a biracial
Committee on Civil Rights which, in To Secure These Rights (1947),
recommended enactment of antilynching, anti–poll tax, and fair
employment legislation. The Committee also proposed prohibition of
discrimination in interstate transportation and desegregation of the
armed forces. In his January 7, 1948, State of the Union address Truman
announced his intention to carry out the Committee’s proposals
(Lowndes 2008, chap. 2).
Segregationist southern Democrats were stunned. Senator James
Eastland of Mississippi declared, “The South we know is being swept to
its destruction.” Southern governors convened to denounce Truman’s

desegregation effort and approved a resolution mostly written by
Governor Strom Thurmond of South Carolina warning that the South
would not “stand idle and let all of this happen” (Lowndes 2008, 27).
Among the results were opposition to Truman’s bid for reelection and
the nomination of Thurmond as the “Dixiecrat” candidate for president
in 1948. He received 20 percent of the southern vote and carried
Alabama, Mississippi, Louisiana, and South Carolina.
I stop retelling the story at that point and skip to the 1960s. A number
of fine books tell it in detail and carry it forward from the 1940s (Carter
1996; Black and Black 2002; Murakawa 2005; Lowndes 2008). My aim in
going back to the 1940s is to show that what became widely known as
the Southern Strategy had its roots in earlier efforts by segregationists to
maintain white supremacy in the South.
Barry Goldwater’s 1964 campaigns first for the Republican nomina-
tion and then for the presidency were the first national campaigns in
which Republicans openly played the race card. The Republican National
Committee since 1961 had been pouring money into “Operation Dixie,”
an effort to reach out to conservative and segregationist southern
Democrats, and recruiting segregationist candidates. Goldwater trod a
fine line. He condemned President John F. Kennedy for sending troops
to the University of Mississippi in 1962 to assure admission of the first
black students. He supported voting rights for black people, but also
insisted on southerners’ right to control their own destiny. The historian
Joseph Lowndes observes, “As long as Goldwater held high the banner
of states’ rights, he could appear to split real questions of racial domina-
tion from an abstract commitment to the Tenth Amendment, and allow
conservatives to show clean hands while building a segregationist party
in the South” (2008, 67).
Other Republicans knew what was going on, and objected loudly.
New York’s Republican senator Jacob Javits accused Operation Dixie
“and what was now being called the ‘southern strategy’ of wrecking the
party by appealing to the worst in southern racial sentiment” (Lowndes
2008, 63). At the Republican Convention the young Republicans’ Ripon
Society declared that the party had to choose “whether or not to adopt
a strategy that must inevitably exploit the ‘white backlash’ to the Civil
Rights Movement in the South and the suburbs of the North” (New York
Times 1964, 31).
The historical accounts make it clear that Goldwater meant to appeal
to white supremacist voters. Conservative scholars Stephan and Abigail
Thernstrom, for example, refer to use of race-coded issues as “rhetorical
winks” that allowed “a variety of candidates—for instance, Barry
Goldwater, with his talk of states rights—to play on white racial resent-
ment” (1997, 309).
Goldwater lost dismally, winning only 38.5 percent of the vote and
six states (Arizona, Louisiana, Mississippi, Alabama, Georgia, and South
Carolina), but the pattern was set. In 1968 George Wallace ran as a third
party candidate appealing openly to antiblack sentiments. Nixon ceded
the segregationist Deep South to Wallace. Goldwater showed that con-
servative Republicans could win elections in the Deep South by use of
veiled appeals to race. However, he also showed that the ugliness of
open racism could alienate voters elsewhere. Former President Richard
Nixon, in a 1988 interview, observed of Goldwater that he “ran as a racist
candidate . . . and he won the wrong [southern] states” (Lowndes 2008,
p. 115). By this Nixon meant that openly or barely disguised racist appeals
that were successful in the Deep South would not win elsewhere unless
made more subtly.
Goldwater, however, had cast the die, and conservative Republicans
continued to cast them for another twenty-five years. Nixon’s code
words were law and order and busing. The historical accounts make it
clear that in 1968 he tried to walk a fine line between repudiating the
vulgar, overtly racist appeals of Wallace while appealing to whites’ racial
resentments and animus. One of the gentler critiques observes that sup-
porters of the Southern Strategy, “including southern politicians and
Richard Nixon and his aides, seem to have been quite conscious of the
fact that the voters they targeted for mobilization were white and had
racial concerns” (Mendelberg 2001, 11).
Racial appeals did not play a big role in the 1972 (Nixon and
McGovern) or 1976 presidential campaigns, but reappeared promi-
nently in the 1980 campaign between Ronald Reagan and Jimmy Carter.
Reagan’s campaign was launched in Philadelphia, Mississippi, a town
notorious in the history of the civil rights movement for the 1964
murders of civil rights workers James Cheney, Michael Schwerber, and

Andrew Goodman. Reagan assured those present of his adamant
support for states’ rights, a term then widely understood to refer to
white segregationists’ resistance to civil rights pressures coming from
the federal government. Lowndes observes, “Reagan could now seam-
lessly combine conservatism, racism, and antigovernment populism in
a majoritarian discourse—and with it founded the modern Republican
regime” (2008, 160).
Reagan staked out a similar position on welfare. In his unsuccessful
1976 campaign against Gerald Ford for the Republican presidential
nomination, and again in his successful 1980 campaign, Reagan regu-
larly referred to the “welfare queen” who was said to exemplify all the
problems of welfare. The person caricatured was Linda Taylor, a black
Chicago woman who reportedly received benefits under several aliases
and, as mythology has it, traveled to the welfare office in a rented
limousine to collect her checks (Tonry 1995, 10).
The low point in race-coded political symbolism occurred in the
Bush I–Dukakis presidential campaign in 1988 and centered on Willie
Horton.4 Horton had been convicted of a particularly gruesome murder
in Massachusetts in 1974. He was released under a Massachusetts prison
furlough program that had been signed into law in 1972 by Republican
Governor Francis W. Sargent. He did not return to the prison. Months
later he broke into a Maryland couple’s suburban home where he raped
the woman and assaulted and tied up the man before stealing their car.
A photograph of the bleary-eyed, unshaven, and disheveled Horton,
taken shortly after his arrest, was repeatedly used in the campaign to
symbolize Dukakis’s softness on crime (Anderson 1995).
Lee Atwater, the creator of the Willie Horton strategy and others
later denied they were playing a race card, but subsequent reconstruc-
tions make it clear that they were. A focus group of thirty people who
had voted for Reagan in 1984 but planned to vote for Dukakis was con-
vened in Paramus, New Jersey in late May 1988, a time when Bush was
running far behind Dukakis in the polls. Small numbers of participants
reacted negatively to Dukakis when they learned that he opposed capital
punishment and as governor of Massachusetts had vetoed legislation
permitting prayers in schools. And then, “pay dirt,” as historian Dan
Carter describes it. On learning the Willie Horton story “fifteen of the
thirty voters said they had changed their minds. They would never vote
for Dukakis. Lee Atwater had found his silver bullet” (1996, 72–73).
A few days later, on Memorial Day 1988, Atwater showed films of the
focus group’s discussions at a campaign strategy meeting at Bush’s
summer home in Kennebunkport, Maine, and proposed a campaign
strategy. Within ten days, first in Texas, then elsewhere, Bush began
mentioning Horton in his campaign speeches.5 The campaign arranged
for Reader’s Digest to run a July story on Horton, and Atwater under the
aegis of the Bush Re-election Committee developed and released a
hard-hitting television commercial. Another Republican group,
Americans for Bush, blanketed CNN with Bush campaign advertise-
ments showing a picture of Horton staring dully into the camera.
Dukakis never recovered.
The Republican Southern Strategy, and its more subtly coded succes-
sors, cynically manipulated the anxieties of southern and working-class
whites by focusing on issues like crime and welfare fraud that served as
code words for race. The times were ripe in the decades after enactment
of the Civil Rights Act of 1964. Life in the United States was turbulent.
The civil rights movement continued; busing to integrate schools,
aggressive legal efforts to assure employment and housing opportu-
nities for black people, and political developments like the emergence of
the Black Panthers and Elijah Muhammad’s Nation of Islam followed in
its wake. Riots broke out in black areas of cities across the country in the
late 1960s. The Vietnam War ripened, provoked years of demonstrations
and resistance, and ended ignominiously. Robert Kennedy and Martin
Luther King were assassinated in 1968, and George Wallace was perma-
nently crippled in an assassination attempt in 1972. The women’s and
gay liberation movements became newly assertive and challenged
long-standing social practices and norms. OPEC declared its first
embargo in the 1970s, and the first major modern economic restructur-
ing, disproportionately affecting unionized and low-level white-collar
workers, took place.
People were on edge and ready to look for scapegoats. It was a time
when virtuous political leaders should have tried to reassure people, to
develop practical solutions to troubling problems, and to foster improved
race relations. Conservative politicians instead fostered racial conflict. It

worked. David R. Roediger, a leading historian of American race rela-
tions, recently observed that “Reagan’s sure command of divisive code
words such as ‘state’s rights,’ ‘welfare moms,’ ‘quotas,’ and ‘reverse racism’
came to be seen as key to his success at winning over ‘Reagan Democrats’
via racial appeals” (2008, 207).
In our time politicians must tread a fine line. Appeals to race can
mobilize white voters but, as Nixon understood, they will fail if they are
seen as overtly racist. Most Americans no longer believe in the racial
inferiority of black people, and most believe racial discrimination is
wrong. Reflecting the conclusions of most scholars who study race rela-
tions, Thernstrom and Thernstrom (1997, 498–501) report that from the
1970s onward large majorities of whites favor integrated schools, do not
object to having blacks of their own social class as neighbors, and believe
that blacks are of equal intelligence.
The most thoughtful and detailed analysis of the role of racial issues
in American politics surveys the research on racial attitudes and con-
cludes that Americans’ endorsement of norms of racial equality are
nearly universal:
In the age of equality, neither citizens nor politicians want to be
perceived or to perceive themselves as racist. The norm of racial
equality has become descriptive and injunctive, endorsed by
nearly every American. For most white Americans, it is a
personal norm as well. Whites do not simply pay lip service to
equality and continue to derogate blacks in private. Almost all
whites genuinely disavow the sentiments that have come to be
most closely associated with the ideology of white supremacy—
the immutable inferiority of blacks, the desirability of segrega-
tion, and the just nature of discrimination in favor of whites. In
this sense, nearly every white person today has a genuine com-
mitment to basic racial equality in the public sphere. (Mendelberg
2001, 18–19)
If it is true, as I believe it is, and as Mendelberg and the Thernstroms
conclude, that most Americans believe in racial equality and that base
forms of invidious racism are no longer commonplace in American life,
how is it possible that coded allusions to race and racial resentment so

long remained so common and so effective? Part of the answer can be
found in the psychology of race relations that I discussed earlier. White
Americans are influenced by stereotypes of black criminals, as the
research on colorism, Afro American feature bias, and implicit bias
shows. And, as the research on public opinions and attitudes shows,
overtly racist attitudes have been replaced by racial resentments, which
are the most powerful explanation for why many more whites than
blacks support harsh criminal justice policies.
Coded racial appeals have long been effective in American politics
precisely because they are coded, as Mendelberg (2001) shows in an
exhaustive analysis of the media’s handling of the Willie Horton adver-
tisement in the 1988 presidential campaign and afterward. The key dis-
tinction is between explicit and implicit appeals to race. Because of
Americans’ commitment to norms of racial equality, explicit appeals
no longer work. They backfire, and their practitioners are widely dis-
paraged. The successive campaigns for Louisiana governor and U.S.
senator by a former Ku Klux Klansman, David Duke, provide a vivid
illustration.
Implicit appeals, however, can work:
White voters respond to implicitly racial messages [such as Willie
Horton and Reagan’s “welfare queen”] because they do not recog-
nize these messages as racial and do not believe that their favor-
able response is motivated by racism. In fact, the racial reference
in an implicit message, while subtle, is recognizable and works
most powerfully through white voters’ racial stereotypes, fears,
and resentments. (Mendelberg 2001, 7)
Appeals to racial issues in modern American politics, once explicit,
became implicit. White segregationists in the 1960s and 1970s, who were
not reconciled to the success of the civil rights movement, were moti-
vated by invidious considerations and made explicit racial appeals when
they could. Opponents of the civil rights movement, rather than con-
tinue openly to fight battles they had lost, and whose loss made open
appeals to bigotry no longer politically acceptable, “shifted attention to
a seemingly race-neutral concern over crime” (Loury 2008, 13). A
historian of law-and-order politics in the 1960s similarly observed, “For

conservatives, black crime would become the means by which to mount
a flank attack on the civil rights movement when it was too popular to
assault directly” (Flamm 2005, 22). Vesla Weaver explains: “Much of the
legislative activity on crime came out of the same hand that fed the early
opposition to civil rights. . . . Through a frontlash, rivals of civil rights
progress defined racial discord as criminal and argued that crime legis-
lation would be a panacea to racial unrest” (2007, 265).
Other activists, influenced by the history and social psychology of
American race relations, and blinded by political opportunism, were
unable fully to appreciate the implications of what they were doing.
Some, especially in hindsight, recognized those implications and
expressed regret for their earlier actions and blindness. The most
striking refutation came from Lee Atwater, creator of the Willie Horton
campaign. On his death bed Atwater apologized for the “naked cruelty”
of the attacks on democratic candidate Michael Dukakis: “In 1988,
fighting Dukakis, I said I would ‘strip the bark off the little bastard’ and
‘make Willie Horton his running mate.’ I am sorry for both statements”
(Associated Press 1991, 16).
At the end of an article on racial attitudes toward the justice system,
Unnever, Cullen, and Jones offered an assessment of the consequences
of the Southern Strategy:
The disturbing part of our research is that we found not only that
Americans with racial resentments were more likely to endorse
the punitive approach to resolving the problem of crime, but also
that racial animus was the most robust predictor. . . . We did not
find any evidence that having negative stereotypes of African
Americans was predictive of how individuals perceive solutions to
reducing crime. . . . Together, these findings are suggestive that the
Republican political elites’ southern strategy “worked.” (2008,
25–26)
There are no easy paths out of the racial dead end in which American
criminal justice policy finds itself. The damage has been done to living
black Americans: lives have been blighted, life chances diminished,
families fractured, communities undermined. Even radical changes in
American crime policies cannot undo the damage. Chapter 6, however,

shows how that unnecessary damage can in the short term be reduced
and in the long term prevented.
First, though, chapter 5 goes one level deeper into American history
and culture to explore the still bewildering questions of how and why
the racial politics of the past half-century unfolded as they did.
5
IDEOLOGY, MORALISM,
AND GOVERNMENT
In trying to understand the American criminal justice

system, race matters. It helps explain why imprisonment rates are so
high, why profiling by the police continues, and why the federal 100-to-1
law so long endured. Race relations, however, do not explain why
American drug and crime control policies are so severe. The damage
done to black Americans would be much less if the criminal justice
system were not so harsh. If the American imprisonment rate were the
same as the average of other developed countries, around 100 per
100,000 people, rather than approaching 800, the absolute numbers of
black Americans entangled in the arms of the law would be vastly lower.
There would be many fewer devastated lives, fatherless children, and
fractured families. Many more young black offenders would have had
the chance to do what most other young offenders do: put their mis-
takes behind them and get on with living normal lives.
Crime has always been preponderantly a young man’s game, every-
where and at every time, and most young men age out of it. They find
love, or God, or a decent job, and realize that’s what they really want.
Many hundreds of thousands of young black American men have
been unable to do that. When—if—they leave prison, many face obsta-
cles that make living a conventional, satisfying life an impossible
dream.
The history of American race relations, the social psychology of race

and crime, and the politics of racial resentment explain much that is
wrong with the American criminal justice system and why it does such
disproportionate damage to black people. They do not, however, explain
why it is so harsh. Nor can they explain why the American justice system
is so much harsher than those of other countries with which the United
States might ordinarily be compared.
Deeper forces are at work. One is a historical tendency in American
life to political extremism. It has appeared time and again in popular
political movements aimed at immigrants, ethnic minorities, commu-
nists, and foreign enemies. It appeared in the Red Scares of the 1920s,
isolationism and xenophobia in the 1930s, Japanese internment in the
1940s, McCarthyism in the 1950s, and backlash to the civil rights
movement in the 1960s, 1970s, and 1980s. It reappeared in the Tea Party
movement in 2009.
A second is a tendency toward moralistic excess predicated on reli-
gious certainties, particularly of the fundamentalist Protestant kind.
A wide range of recurring hotly contested political issues—abortion,
school prayer, capital punishment, governmental support of religion—
are distinctively, almost uniquely American. Those issues prompt dis-
agreements everywhere, but only in the United States have they
produced powerful, enduring single-issue interest groups, nonnego-
tiable politics, and long-term gridlock. Only in the United States have
they resulted in adamant refusal to accept unfavorable court decisions
and, in the cases of abortion and school prayer, decades-long campaigns
to change constitutional doctrines. They are intelligible to outsiders
only when the force of religious beliefs in American life is understood.
A third is a structure of government that makes U.S. jurisdictions
uniquely vulnerable to influence by extreme emotions and political pas-
sions. Only in America and Switzerland are judges and prosecutors
elected. Only in America are they chosen in partisan elections or selected
according to openly political criteria. And only in America have drug
and crime control policies been enduring and central political issues in
national politics for nearly fifty years. If political extremism, religion-
based beliefs, or short-term emotion make Americans excited, the
structure of American government gives elected officials powerful
IDEOLOGY, MORALISM, AND GOVERNMENT • 117
incentives to respond. If drug use and crime are seen as raising pri-
marily moral issues, and drug users and criminals are conceived of pri-
marily as moral reprobates, it should not be surprising that governmental
policies lack moderation and balance. Only the United States, as a result,
has “wars” on drugs and crime, capital punishment, three-strikes-and-
you’re-out laws, life sentences without the possibility of parole, truth in
sentencing laws, and Megan’s laws that are at least as important for the
moral messages they express and the political concerns they symbolize
as for any effects they might have.
The self-righteousness, emotionalism, and lack of empathy and pro-
portionality that characterize America’s metaphorical wars on drugs and
crime also characterize the “War on Terror.” Many Americans are
ashamed of things their national government has done, or has permitted
to be done, in the name of protecting national security. If we understood
better the underlying causes of inhumane excesses in the War on Terror,
we would better understand why American drug and crime control pol-
icies are so severe. Seeing ourselves through others’ eyes might help.
For most of my adult life I’ve had the good fortune to spend part or
all of each year in small towns on the coast of Maine. European friends
often come to visit. In recent years each in one way or another has asked
the same question. They are bewildered by the contrast between the
friendliness, openness, and decency of the people they meet on the
street, in stores, and on front porches, and the inhumane values, dishon-
esties, and brutalities of the national governments those people repeat-
edly elected. In recent years what they’ve had in mind are Guantánamo,
Abu Ghraib, rendition, and torture.1 “How does that happen?” they
wonder.
What they don’t at first understand is that many American drug
and crime control policies, of which typically they know little, are as
oblivious of basic decencies and human rights as are many elements
of the American War on Terror. At its most populated, for example,
Guantánamo housed 680 inmates. In 2009 more than 30,000 souls lived
in American super maximum-security prisons under conditions in
many instances bordering on sensory deprivation. Every country has
high-security prisons, but they hold tens or hundreds of inmates and
under far less harsh conditions.
In the Bush II administration’s plans Guantánamo inmates were to

be held for indefinite periods, potentially until the end of the War on
Terror, without charges, access to courts, or opportunity even for
independent judicial review of whether there were adequate grounds to
hold them. In 2008 nearly 42,000 American prisoners were serving sen-
tences of life without the possibility of parole; that number will soon
reach 50,000. Few other Western countries authorize sentences that
require an offender to spend the rest of his life behind bars. In those that
do, the numbers of affected prisoners are in single or double digits.
One of many human rights objections to Abu Ghraib Prison in its
worst years was that it was grossly overcrowded. More than 7,000 pris-
oners were held in a facility designed for less than half that number
(Schlesinger et al. 2004, p. 60). California prisons in recent years have
continuously operated at 200 percent of capacity. On June 30, 2007,
California housed 166,277 inmates in prisons designed to accommodate
84,653 (California Department of Corrections 2008, tables 4, 5). Many
prisoners are held in open dormitories filled with bunk beds, often in
spaces previously used as cafeterias, gymnasiums, and corridors. Few
other developed countries house more inmates than their prisons are
built to hold, and many for human rights reasons forbid holding more
than one prisoner in a cell.
Add to those examples the American practices of prosecuting chil-
dren as adults (in many countries, the minimum age of criminal respon-
sibility is fifteen or higher), sentencing children to lifetime sentences
without parole (impossible in any European country), and executing
criminals (impossible in any other developed Western country). The
differences are stark, and they are not to America’s credit.
Nor are racial disparities to America’s credit. International organiza-
tions have repeatedly decried disparities in American prisons. Examples
can be found in several reports prepared by the Committee on the
Elimination of Racial Discrimination (CERD) of the United Nations, cre-
ated to review compliance with the International Convention on the
Elimination of All Forms of Racism. The United States has ratified the
convention and is obliged to file periodic reports on American compli-
ance with it. Twice, in 2001 and 2008, CERD reminded the United States
that the convention forbids discrimination in any form, including
as a result of practices not motivated by discriminatory intent. In 2008,
taking particular note of racial profiling and disparities in adult impris-

onment, youth confinement, and capital punishment, CERD reminded
the United States that ratifying states are required to “prohibit and elimi-
nate racial discrimination in all its forms, including practices and legisla-
tion that may not be discriminatory in purpose, but in effect” (2008, 2).2
Governments in the end can operate only within the “boundaries of
political permission” that citizens set (Yankelovich 1991). Governmental
actions and policies outside those boundaries lack legitimacy and are in
the long term unsustainable. America’s policies toward its foreign
enemies are thus possible only because American citizens support or at
least accept or tolerate them. Abu Ghraib, Guantánamo, rendition, and
water-boarding fell within the boundaries permitted by American
political culture in the first decade of the twenty-first century. No one
has ever suggested that the Bush administration was in danger of losing
the 2004 election because of them, or that government officials who
supported them were in political jeopardy. That is also true concerning
capital punishment, sentences of life without the possibility of parole,
three-strikes laws, decades-long mandatory minimums, and prosecu-
tion of children as if they were adults. Support for such policies has not
imperiled their supporters’ reelection. Opposition to them has.
All of these policies, foreign and domestic, operate as if on the
premise that the individual human beings they affect need not be
regarded with sympathy and respect. The German idealist philosopher
George Wilhelm Friedrich Hegel, writing about punishment, distin-
guished between treating criminals as human beings or as animals (1991,
126, 160). He meant by this that human beings are moral agents whose
capacity for moral choice should be respected and whose wrongs should
be addressed in moral terms. Animals, by contrast, lack moral agency
and may be dealt with instrumentally. If they are dangerous they may be
isolated or killed. If they do things people don’t want them to do they
may be retrained or restrained. Ethicists argue over whether particular
harms to animals can be justified—killing them for food or fur, factory
farming, removing their claws and voice boxes for human conve-
nience—but the objections do not relate to animals’ capacities for moral
choice. That is a uniquely human capacity.
In Hegel’s terms American policies directed at foreign and domestic
“enemies” treat people as if they are animals. Treating them as human
beings requires that we respect human rights and deal with them fairly.
It also requires that we deal with them in ways that are proportionate to
the moral character of their wrongdoing. To treat offenders or external
enemies as human beings requires that they be treated as individuals,
and that what is done to them be capable of justification by reference to
the moral character of their actions.
More recently, the American philosopher Ronald Dworkin (1986)
observed that the fundamental and irreducible requirement of the notion
of equality before the law is that legal institutions and practices accord equal
respect and concern to all people. This means that their individual stories
should be heard and given fair consideration, and that they should be
treated as others like them are. This test is no better satisfied by confinement
of citizens in prison for the rest of their natural lives than by confinement of
foreigners in Guantánamo for so long as the U.S. government chooses.
Modern Americans give their leaders political permission to operate
within much wider human rights boundaries than citizens of other coun-
tries allow their leaders. How come? The answers are becoming clear. Two
recurring features of American history—what the historian Richard
Hofstadter (1965) called the “paranoid style” in American politics and the
influence of Protestant fundamentalism—have in our time combined
with outmoded features of U.S. constitutional arrangements to produce
policies incomparably harsher than those in other Western countries.
And the peculiar history of American race relations has meant that the
burdens of those policies are disproportionately borne by disadvantaged
black Americans, which, to the white and middle-class majority, makes
them relatively easy to bear. As Stan C. Proband has often observed,
Americans have a remarkable capacity to endure the suffering of others.3
It may simply have been colossally bad luck for black Americans that
the success of the civil rights movement coincided with a period of
acute social anxiety. There were similar periods earlier in the twentieth
century. In the period 1920–40 the aftermath of World War I coincided
with the Roaring Twenties, Prohibition, the Great Depression, the
Russian Revolution, and the rise of Nazism and fascism. The Red Scares
of the 1920s and the xenophobia of the 1930s were among the results,
but blacks were not especially targeted (immigrants and foreigners
were), and the criminal justice system did not become vastly more
repressive. The period 1945–60 coincided with the end of World War II,
the descent of the Iron Curtain, nuclear war anxieties, and the breakup
of colonial empires. The McCarthy era and hysterical anticommunism
were among the results, but this time also blacks were not targeted
(foreign enemies and their purported sixth columns were), and the
criminal justice system was little affected.
The most recent period of heightened social anxiety is typified by
globalization and economic restructuring, political terrorism, increased
population diversity, and the social movements emblemized by civil
rights, women’s rights, and gay rights. Some refer to our time as “late
modernity,” a time characterized by rapid social change, economic dis-
ruption and uncertainty, and moral skepticism (Garland 2001).
In each of these periods the paranoid style has been manifest, exac-
erbated in the last two by the rigid moralism of Protestant fundamen-
talism. In each period the organization of American government has
meant that few devices existed to insulate government policies and
practices from the influence of political extremism, ideological excess,
and emotionalism. Legislative elections are frequent. Most judges and
prosecutors, almost uniquely among developed countries, are elected.
Many worry about how the media or interest groups will respond to
their decisions and, being human, sometimes make different—and
harsher—decisions than they otherwise would.
In recent decades some judges and many prosecutors have responded
to public passions and emotions with demagogic election campaigns.
Incumbents were often attacked for “leniency.” In the 1980s it was not
uncommon for judicial candidates to emphasize how punitive they
would be if elected, and for campaign advertisements to show candi-
dates standing before slamming jailhouse doors.
What has been different in recent decades, however, has been the
targeting of behaviors for which black Americans are disproportion-
ately arrested. Those criminal justice system policies and practices
provided enemies within—enemies with whom most white Americans
do not identify. Because of the history and social psychology of
American race relations white Americans do not extend the same
solicitude and sympathy to disadvantaged black people that they extend
to people like themselves.
This chapter develops the arguments and evidence on which the pre-
ceding observations are based. The first two sections briefly demonstrate
that American crime and drug control policies, like American practices in
the War on Terror, are incomparably harsher than those of other Western
countries, and that the explanations for why that is so must be sought in
American history and culture. The third section finds those explanations
in the paranoid streak of American political culture, the moralism of
evangelical Protestantism, and the structure of American government.
INCOMPARABLE AMERICAN CRIME

CONTROL POLICIES
Most people with even superficial knowledge of American crime con-

trol policies know that only the United States among Western countries
retains capital punishment and that American imprisonment rates are
four to ten times higher than those of comparable countries. Table 5.1,
offering those comparisons and others, shows that American criminal
justice policies are incomparably more severe than those elsewhere.
I MPRISONMENT R ATES
When American imprisonment rates began their unprecedented climb
in 1973 they were around 160 per 100,000 population, jail inmates
included, not much different from those in other Western countries and
lower than some, as they had been for most of the twentieth century.4
In 2010 American rates were around 780 per 100,000, four to five
times higher than those in Spain, England, and New Zealand (150 to 200
per 100,000) and seven to ten times higher than those in most other
Western countries (70 to 110 per 100,000; International Centre for
Prison Studies 2010).
CAPITAL P UNISHMENT
America has capital punishment; no other Western country does
(Hood and Hoyle 2008, 2009). The 3,270 residents of American death
table 5.1 American Crime Control Policies Compared with Those of Other Countries
Subject United States Western Countries*
Imprisonment rate (2009) 780 per 100,000 70 to 150 per 100,000
Capital punishment Yes No
On death row (July 1, 2009) 3,297 None
Average, 2000–2010 70 killed per year None
Life without parole Yes No
How many (2008) 41,000 100 est.
Three-strikes, etc. Yes, 26 states No (minor qualifications)
Age of responsibility Varies, 10–12 Varies, 10–18
Juvenile waiver Yes Varies
Breadth Wide Mostly none or narrow
How many per year 30,000 per year Tiny numbers
War on drugs Yes, since 1970 No; policies vary
Procedural protections Weakening since 1970 Strengthening since 1960s
* Western Europe: fifteen original European Union countries plus Australia, Canada, and
New Zealand.
rows at the beginning of 2010 had no equivalents in other developed

Western countries. The differences are starker, however. Only in the
past decade, in hotly contested decisions with spirited dissents, has the
Supreme Court declared unconstitutional the execution of people
who are mentally handicapped or who were younger than 18 when
their offenses were committed (respectively, Atkins v. Virginia, 536 U.S.
304 [2002]; Roper v. Simmons, 543 U.S. 551 [2005]).
L IFE WITHOUT THE P OSSIBILITY OF PAROLE

Here too America has it and few other countries do. Few prisoners in
other developed countries correspond to the 42,000 poor souls in
prison in 2008 who were doomed to spend the rest of their lives there
(Nellis and King 2009). Children as young as twelve have been sen-
tenced to lifetime without parole (Canedy 2001; Liptak 2007a); until
recently there were no limits. In Graham v. Florida, 130 S. Ct. 2011 (2010).
the U.S. Supreme Court held that life without the possibility of parole
for offenses other than homicide committed by juveniles violates the

Eighth Amendment’s prohibition of cruel and unusual punishments.
This does not mean that people sentenced for crimes committed as a
juvenile will not be held until they die. All that is required is that there
be a possibility of release. LWOP sentences for juveniles convicted of
homicide remain constitutional.
In many European countries the longest sentence that may be imposed
for a single offense, including murder, is fourteen years (and that’s usu-
ally before automatic time off for good behavior). When the German
Parliament enacted a law authorizing real life sentences, the Federal
Constitutional Court struck it down (van Zyl Smit 2002). The court rea-
soned that hope for the future, belief in the possibility of a better life, is a
basic human right. It ruled that a meaningful review of the need for
continued confinement, affording a realistic possibility of release, must
be afforded every inmate within fourteen years following confinement.
German law was changed accordingly. The other Anglo-Saxon countries
tend to be tougher than that but are in no way comparable to the United
States. Statutes in a few other countries call for real-life sentences under
narrowly specified conditions, and a few people are serving them, but no
other country’s practices are even vaguely comparable to American life
sentences without parole (Appleton and Grøver 2007).
T HREE -STRIKES AND M ANDATORY M INIMUM S ENTENCE LAWS

More than half the states have three-strikes laws, including, most noto-
riously, the California law that applies to tens of thousands of cases and
requires twenty-five-year sentences, or longer, following conviction for
any third felony, no matter how minor, and for some misdemeanors.
Classic cases, which were unsuccessfully appealed to the U.S. Supreme
Court, involved robbery of several slices of pizza (Associated Press
1995), theft of a couple of DVDs from K-Mart (Lockyer v. Andrade, 538
U.S. 63 [2002]), and theft of three golf clubs (Ewing v. California, 538 U.S.
11 [2003]). Every American state has mandatory minimum sentence
laws, many calling for sentences measured in decades. With a few minor
exceptions in other English-speaking countries, other Western coun-
tries do not have such laws (Tonry 2009).
THE A GE OF R ESPONSIBILITY
In the United States, the age of criminal responsibility, the age at which
a person is deemed developmentally capable of committing a crime, is
generally ten to twelve. In most of continental Europe that age is higher.
In the Netherlands it is twelve; in Germany fourteen; in the Scandinavian
countries fifteen; in Belgium eighteen. No matter what they do, twelve-
and thirteen-year-olds in most countries, and fourteen-year-olds in
many, cannot be criminally prosecuted. The state must find other, more
constructive ways to respond to its most troubled young people (Tonry
and Doob 2004).
JUVENILE WAIVERS
It is very rare in most countries that have juvenile courts for juveniles to be
prosecuted and punished in adult courts. Most Western countries forbid it.
That happens to tens of thousands of young Americans each year. Some
states, such as New York, do it by dropping the top age of juvenile court
jurisdiction to fifteen, well below the developmental ages of emotional and
cognitive maturity. Others do it by making all serious violent crimes triable
in adult courts. Still others do it by giving prosecutors and judges wide dis-
cretion to transfer young people to adult courts (Tonry and Doob 2004).
There are thus stark differences between American criminal justice sys-
tems and those of other Western countries in their absolute severity and
in the importance they attach to the human rights of individual citizens.
Cross-national criminal justice comparisons usually focus on impris-
onment rates. As these differences demonstrate, the gap is far wider.
WHY ARE AMERICAN PENAL POLICIES

SO HARSH?
The question usually asked is narrower than that: How can we explain
national differences in imprisonment rates? None of the commonly
offered answers provides much illumination.
Crime rates and trends are not the explanation. Crime trends have
been much the same throughout the Western world since 1970: rises
through the early or mid-1990s and declines since. There is no relation-
ship, however, between crime rates and imprisonment rates. Since 1973,
in the face of similar crime rate trends in most Western countries,
imprisonment rates increased five-fold in the United States and dou-
bled in England and Spain, but declined by more than half in Finland,
held steady in the rest of Scandinavia, Germany, Switzerland, Austria,
and Belgium, and zigzagged in France and Italy (Tonry 2007). In Canada,
where since 1980 crime trends have closely paralleled those in the
United States, the imprisonment rate has fluctuated around 100 per
100,000 for fifty years (Webster and Doob 2007).
Nor is public opinion the answer. In the English-speaking countries
at least, penal policies and imprisonment rates vary enormously, but
public opinion has stayed much the same. Majorities of the public
believe crime rates are rising when they are falling. Large majorities
believe judges are too lenient, on the basis of mistaken underestimates
of the severity of punishments. The sentences citizens say they believe
are appropriate are typically less severe than those judges actually
impose. When citizens are asked whether they prefer more punitive
policies or increased investment in rehabilitative programs, majorities
usually prefer rehabilitation (Roberts et al. 2003).
David Garland in his 2001 book, The Culture of Control, attributes
toughened penal policies in England and America to a number of con-
ditions of “late modernity.” These include the limited capacities of gov-
ernments to affect crime rates, the destabilizing effects of economic
globalization, increasing population diversity, increased sensitivity to
risks of all kinds, and increased vulnerability to crime of privileged seg-
ments of the population. The result, he suggests, is a proliferation of
“expressive” policies meant more to reassure the public and show that
government is doing something, anything, than to reduce crime.
The insuperable difficulty for the analysis is that, if Garland is correct,
all Western countries should have experienced steeply rising imprison-
ment rates and steadily harshening penal policies. The developments he
describes happened everywhere; imprisonment rates and policy trends,
however, diverged dramatically.
Recent research looks deeper and tries to explain imprisonment

trends and penal policy differences in terms of such factors as income
inequality, citizens’ perceptions of the legitimacy of governmental insti-
tutions, citizens’ trust in each other and in government, the strength of
the welfare state, and the structure of government. All these things
matter. Moderate policies and low imprisonment rates are associated
with low levels of income inequality, high levels of trust and legitimacy,
strong welfare states, professionalized as opposed to politicized criminal
justice systems, and consensual rather than conflictual political cultures
(Lappi-Seppälä 2008). For each of those factors the United States falls at
the wrong end, the end associated with more punitive policies and prac-
tices, but that’s the beginning, not the end, of the search for explana-
tions. The question is, Why is the United States at the wrong end of
every distribution?
WHY ARE HUMAN RIGHTS CONCERNS SO WEAK

IN THE UNITED STATES?
That is the $64,000 question. American politicians, and therefore ulti-

mately American citizens en masse, do not much care about the human
rights of opponents in the War on Terror. And, as I demonstrated earlier,
Americans do not much care about the human rights of their domestic
enemies in the wars on drugs and crime.
If we Americans did care much about human rights we would want
to know that every human being accused of crime and threatened with
punishment is treated, in Dworkin’s terms, with equal respect and
concern. We would want to know that every human being accused of
crime and threatened with punishment is treated, in Hegel’s terms, as a
human being, not as an animal, in accord with his or her personal merits
and demerits. We would oppose ham-fisted, one-size-fits-all policies
that ignore offenders’ humanity and the circumstances of their offenses
and their lives. We would demonstrate the characteristics that Winston
Churchill, home secretary of England and Wales in 1910, said “are the
symbols which in the treatment of crime and criminals mark and mea-
sure the stored up strength of a nation, and are the sign and proof of the
living virtue in it.” These include “constant heart-searching by all charged

with the duty of punishment, a desire and eagerness to rehabilitate in
the world of industry all those who have paid their dues in the hard
coinage of punishment, tireless efforts towards the discovery of curative
and regenerating processes, and an unfaltering faith that there is a
treasure, if only you can find it, in the heart of every person” (quoted in
Gilbert 1992, 214).
There are four major reasons why American cultural attitudes and
political practices accord so little value in our time to basic human
rights even of our own citizens. Two—what has been called “the paranoid
style” in American politics and a Manichaean moralism associated
with fundamentalist religious views—are recurring characteristics of
American society. The third is the obsolescence of the U.S. Constitution
and a political culture that allows raw public emotion to drive govern-
mental action and policy. The fourth, aggravating and aggravated by the
first three, is the distinctive history of race relations in America.
P OLITICAL PARANOIA
Richard Hofstadter, the great mid-twentieth-century American
historian, described “the paranoid style” as a recurring characteristic of
American politics. What is deeply disapproved is seen as evil or immoral,
and few means are off-limits in pursuit of its eradication. Distinguishing
clinical definitions of paranoia from the paranoid style in politics,
Hofstadter wrote:
The clinical paranoid sees the hostile and conspiratorial world in
which he feels himself to be living as directed specifically against
him; whereas the spokesman of the paranoid style finds it directed
against a nation, a culture, a way of life whose fate affects not him
alone but millions of others. . . . His sense that his political pas-
sions are unselfish and patriotic, in fact, goes far to intensify his
feelings of righteousness and his moral indignation. (1965, 4,
emphasis in the original)
American political paranoia waxes and wanes and finds different tar-
gets at different times. It manifests itself on the left and the right, though
in recent decades mostly on the right. In the twentieth century it waxed

three times. The first was in the 1920s and 1930s and is exemplified by
Prohibition, the Red Scares of the 1920s, and the xenophobia of the entire
period. It wound down only when the onset of World War II gave people
more important things to worry about. The second was in the late 1940s
and 1950s and is exemplified by Senator Joseph McCarthy, the House
Un-American Activities Committee, and the John Birch Society. It waned
only when the optimism and idealism of the 1960s pushed it aside. The
third, still ongoing, dates from the late 1960s and is exemplified by the
recent decades’ wars on drugs, crime, welfare recipients, and illegal immi-
grants, and most recently by the Tea Party movement.
Hofstadter, and many other writers, most famously Daniel Bell (1963),
were trying in the 1950s and 1960s to explain the excesses of the
McCarthy era and what Hofstadter called the “pseudo-conservative
politics” of the emerging radical right wing of the Republican Party
associated with Barry Goldwater. Here is how he described the political
paranoid:
The paranoid is a militant leader. He does not see social conflict as
something to be mediated and compromised, in the manner of
the working politician. Since what is at stake is always a conflict
between absolute good and absolute evil, the quality needed is not
a willingness to compromise but the will to fight things out to a
finish. Nothing but complete victory will do. (1965, 31)
The National Rifle Association and major elements of both sides of
the abortion debate are contemporary single-issue examples, unwilling
ever to give an inch or to acknowledge even a trace of merit in their
opponents’ arguments and fearful that the slightest political loss will
lead to a slippery slope on which all will be lost. As seen from the right,
if banning or tighter regulation of semi-automatic weapons is
countenanced every heirloom hunting rifle will soon be confiscated. As
seen from the left, any tighter controls or additional conditions on sec-
ond- or third-term abortions will lead inexorably to the disappearance
of women’s “right to choose.”
Every political battle is crucial, Hofstadter observed. The proponents
of morality will fight to the end: “The central image [held by practi-
tioners of the paranoid style] is that of a vast and sinister conspiracy, a

gigantic and yet subtle machinery of influence set in motion to under-
mine and destroy a way of life” (1965, 29).
The right wing of the Republican Party deserves most of the blame
for the impoverishment of American criminal justice policy since the
1970s and the diminution of human rights values in it, just as it
deserves the blame for Abu Ghraib, Guantánamo, rendition, and the
“torture memo.” I can remember as a boy in the 1950s wondering what
the “Impeach Earl Warren” billboards were about. They were placed
beside American highways throughout the country by the John Birch
Society. Warren’s impeachable offenses, I much later came to under-
stand, related to Brown v. Board of Education, 347 U.S. 483 (1954), the
Supreme Court’s landmark decision declaring segregated schools
unconstitutional, and the Court’s early, halting efforts to strengthen
the procedural protections afforded criminal defendants.
In the 1950s the John Birch Society was widely seen as a radical fringe
group. By the 1960s many of its views had been adopted by Goldwater
and the (then) far right wing of the Republican Party. Hofstadter
observed that Goldwater “arrived at the position, far from conservative
in its implications, that the decisions of the Supreme Court are ‘not
necessarily’ the law of the land. . . . It is only in our time, and only in the
pseudo-conservative movement, that men have begun to hint that dis-
obedience to the court is not merely legitimate but the essence of con-
servatism” (1965, 99–100).
By the 1970s such views became mainstream Republican doctrine.
The John Birch Society’s effort to impugn the integrity of the courts and
to reduce their legitimacy in the eyes of the American people has
remained a prevailing theme of the American right, with pernicious
effects.
One consequence has been the declining legitimacy of the courts
and the legal system in the eyes of the American public, as the John
Birch Society and its successors wanted. “Impeach Earl Warren” was fol-
lowed by forty years of attacks on “activist” and “lenient” and “liberal”
judges who were said to be frustrating the will of the people. This is a bit
odd inasmuch as conservative Republican presidents have appointed
most sitting federal judges since 1968, and Democratic President Bill
Clinton never fought very hard to appoint liberal judges. Nor so far has
President Barack Obama. Republican presidential aspirants’ speeches
even in 2008 regularly decried “activist” “liberal” judges.
Research on public opinion about punishment tells a subtle story
about the effects of conservatives’ efforts to undermine the legitimacy of
the judicial system. Tom Tyler (2006) and others have demonstrated the
importance of the perceived legitimacy of legal institutions in the eyes
of people they affect. People who believe that police and judges treat
them impartially and fairly, consider their interests, and listen to their
stories are more likely to respect legal institutions and to accept adverse
decisions as appropriate than are people who believe they are treated
unfairly. Neither Hegel nor Dworkin would be surprised by this. A dif-
ferent conception of legitimacy instructs that citizens who believe insti-
tutions operate fairly and honestly are more likely to respect them in
general than are people who do not believe these things. Duhh!
The unhappy consequences of a half-century’s effort to undermine
the legitimacy of the courts can be seen when Americans’ attitudes are
compared with those of people in other countries. In both the United
States (Roberts et al. 2003) and the Netherlands (Elffers and de Keijser
2006), for example, public opinion research has examined whether
citizens believe judges sentence too severely, too leniently, or just right,
and what sentences citizens say they themselves would impose in
particular cases. The findings from English-speaking countries show
that large majorities of citizens believe judges sentence too leniently.
However, when the sentences citizens say they would impose are com-
pared with those judges do impose, the comparison almost always
shows that judges impose longer sentences than citizens say they would.
Citizens’ beliefs about sentences are not based on the ordinary
run-of-the-mill cases that make up the bulk of court dockets, but on
aberrant or special cases that are distinctive or sensational enough to
attract media attention. As a result most people systematically underes-
timate the sentences typical offenders receive.
A parallel but more nuanced body of research in the Netherlands
produces similar and also strikingly different findings. Do Dutch citi-
zens believe judges sentence too leniently? Yes. Do judges know that
citizens believe this? Yes.
So far the story is the same, but then it diverges. Do Dutch judges
impose sentences less severe than Dutch citizens would? Yes. Dutch cit-
izens, unlike American citizens, are right: judges are less severe than
citizens say they would be.
But now the corker: Do Dutch citizens believe judges should impose
harsher sentences in order to reflect citizens’ preferences? No. That last
finding is unimaginable in the United States. For decades voters have
been electing politicians who run against “lenient” judges.
How do Dutch citizens explain this finding, which to Americans is
bizarre? It’s easy. They trust their judges. They say that it is the judge’s job
to consider the facts of cases, consult the relevant laws, and then in good
faith make decisions he or she believes to be right. For a judge to do
anything else would be to make a decision he or she believed to be
wrong, and that’s incompatible with what an honest, conscientious judge
is supposed to do.
Why would Americans have such a different outlook? To a large
extent it is because conservative politicians’ efforts for fifty years to dele-
gitimize judges have sunken in. And partly it is because many American
judges and prosecutors are blatantly political. Dutch judges, like those of
most developed countries, are apolitical career civil servants who are
selected meritocratically. Most American judges are chosen in partisan
political elections, and for limited terms. Many run for office spending
campaign funds donated by lawyers who practice before them, and most
of the rest are appointed in partisan political ways. It doesn’t take a great
deal of cynicism for Americans to believe that what prosecutors and
judges do is influenced by their political self-interest and the possible
effects of their decisions on future electoral or other political prospects.
If judges cannot be trusted to handle cases brought against alleged
terrorists and criminals, then other agencies of government must do it.
If alleged terrorists and offenders and drug dealers and illegal immi-
grants and welfare recipients are evil, the embodiment of immoral
behavior, then of course their interests need not be taken into account
in deciding how to address the threats they represent.
All of us in our personal lives want to be treated with equal respect
and concern in proceedings that affect us and our interests and our
loved ones and their interests. The paranoid style, however, has too often
led policy makers to forget that their enemies are human beings and to
abandon the sympathy and mutual respect that distinguish human
beings from animals. From that forgetting come Guantánamo and Abu
Ghraib and three-strikes laws and life sentences without the possibility
of parole for children.
R ELIGION AND M ORAL I NTOLERANCE

Several of the British colonies in America were established by people
fleeing religious intolerance—the Puritans in Massachusetts Bay, the
Quakers in Pennsylvania, and Roger Williams’s nonconformists in
Rhode Island are the classic examples. Even so, within a half century
people were being killed for religious reasons. Kai Erikson’s Wayward
Puritans (1966) is most famous for its account of the Salem witch trials.
It also describes, however, a gradual descent into intolerance in
Massachusetts that led to the maiming and execution of Quaker mis-
sionaries who dared express divergent religious views. And, lest we
forget, the “witches” in Salem were executed because they were adjudged
to be heretics.
A sizable historical literature on nineteenth-century America
recounts recurring episodes of religion-based intolerance (e.g., Myers
1943; D. B. Davis 1960). Usually these were related to the status anxieties
and xenophobia of established groups triggered by the in-migration of
new ethnic groups, often bringing their own religions and worldviews.
The temperance movements in the middle and again in the late
nineteenth century, for example, usually involved status conflicts bet-
ween abstemious descendants of earlier Protestant settlers and newly
arrived, more bibulous Catholics (Gusfield 1963). In much the same way
moralistic crusades against drugs and crime in our time have provided
devices for fundamentalist Protestants to express disapproval of and
social distance from people different from them, including black
Americans.
Similar patterns existed in other times. David Garland (2005) has
demonstrated that lynchings in America during their peak period,
1890–1930, were in significant part the product of status anxieties among
southern white Protestants. In the 1920s the Ku Klux Klan defined itself
primarily as a campaign to preserve Christian values: “The Klan drew

heavily on white evangelical Protestants for its mass membership, and
evangelical clergy were disproportionately prominent among the lead-
ership” (Wald and Calhoun-Brown 2007, 208).
When Hofstadter wrote in the 1960s it was apparent that the funda-
mentalist Protestant groups, which were rapidly expanding and
becoming prosperous, made up one important strand of the paranoid
style of his era. He observed, “Most prophetic of the future of the right
wing was [McCarthy’s] strong appeal for fundamentalist-oriented
Protestants” (1965, 70).
In our time it is clear that some (though definitely not all) funda-
mentalist Protestant groups are among the strongest proponents of the
paranoid style of contemporary politics concerning issues ranging from
the war in Iraq, support for Israel against the Palestinians, and opposi-
tion to abortion and gay rights to support for capital punishment and
severe criminal justice policies. The notion that these are issues of good
versus evil, of absolute right and absolute wrong, helps explain the reli-
gious right’s fervor and its intolerance. When added to the resurgence in
recent decades of the paranoid style in American politics it is small
wonder that the interests of people seen as enemies or threats typically
receive short shrift.
Taken together these events and ideas make the success of the
Republican Southern Strategy, and its effects on crime control policy
and black Americans, more understandable. The civil rights movement
produced status anxiety among white southerners, worried about main-
taining their traditional higher status than that of blacks, and among
working-class white voters, worried about economic and social threats
newly empowered blacks might pose. Because politicians after 1970 no
longer could openly appeal to antiblack sentiments they used code
words, one of which was crime. The wars on drugs and crime rapidly
expanded as politicians kept their promises. Because it was dispropor-
tionately black people who went to prison white voters felt able com-
fortably to pay that price, especially since it perpetuated the economic
and social tradition of white dominance over a socially disorganized
black underclass.
The sizable political science and religion literatures on religion and

politics in the United States are silent, except in passing, on the influence
of Protestant fundamentalism on American crime policy generally.
They focus on abortion, women’s and gay rights, and separation of
church and state. None of the major recent works includes the terms
crime or capital punishment in its index (e.g., Layman 2001; Green 2007).
One leading work, however, Religion and Politics in the United States
(Wald and Calhoun-Brown 2007), explains how and why Protestant
fundamentalism shaped American crime control and punishment pol-
icies for three decades. Whereas Catholics and mainstream Protestants
espouse a commitment to social welfare consonant with their belief in
“a warm, caring god,” the fundamentalist “image of a cold and authori-
tative deity lends support to government’s role in securing order and
property” (121). Richard Snyder, a former dean at New York Theological
Seminary, explains the fundamentalist vision this way: “If we believe
that all persons are essentially corrupt save for the extraordinary inter-
vention of God’s grace in their lives, it is a simple step to think that those
who are poor, or sick, or in trouble with the law, or different from us in
any way are somehow evil. The redeemed are God’s children; the unre-
pentant are children of Satan” (2001, 14).
Fundamentalists are “characterized by a quest for certainty, exclu-
siveness, and unambiguous boundaries” and attempt “to chart a morally
black and white path out of the gray zones of intimidating cultural and
religious complexity” (Nagata 2001, 481). In its 1995 Contract with the
American Family Pat Robertson’s Christian Coalition accordingly called
for increased penalties for convicted criminals (Wald and Calhoun-
Brown 2007, 351). A year later Bennett, DiIulio, and Walters (1996) pro-
duced the fullest elaboration of fundamentalist crime control policy
analysis ever published.
The near absence of crime control and punishment from the politics
and religion literature is odd. The nexus seems self-evident. The
Republican resurgence of the past forty years is attributable in large part
to the Southern Strategy. The political influence of the religious right on
Republican politics is well known (e.g., Green 2007). As one major
review of the literature on fundamentalism and conservative politics
observed, “The [religious right] enjoys something like a veto power in

the Republican Party” (Woodberry and Smith 1998, 48).
By contrast the criminology literature, though small, has ferreted out
the connection. Unnever, Cullen, and Applegate’s examination of atti-
tudes toward capital punishment concludes that those fundamentalists
“who have a rigid and moralistic approach to religion and who imagine
God as a dispassionate, powerful figure who dispenses justice are more
likely to harbor punitive sentiments toward offenders” (2005, 304). A
slight but fascinating article based on a representative survey of
Oklahoma City residents showed that Protestant conservatives viewed
nearly all crimes as “very wrong” and thus did not differentiate among
them in terms of seriousness (Curry 1996, 462). This finding goes a long
way toward explaining why traditional ideas about proportionality in
punishment are irreconcilable with many modern three-strikes,
mandatory minimum, and life without the possibility of parole laws.
CONSTITUTIONAL S TRUCTURE
“It can be argued, of course,” Hofstadter observed, “that certain features
of our history have given the paranoid style more scope and force
among us than it has had in many other countries of the western world”
(1965, 7). Outmoded constitutional arrangements are among the most
important of those explanatory features. Those arrangements provide
little insulation from the influence of paranoid politics, fundamentalist
moralism, and short-term emotionalism when they arise.
Major elements of the U.S. constitutional system are designed to
address eighteenth-century problems. They make the United States
almost uniquely vulnerable to the policy excesses associated with the
paranoid style and religious fundamentalism.
Extreme politicization of criminal justice policy is directly related to
whether prosecutors and judges are selected politically or meritocrati-
cally, whether they are career professionals or political opportunists,
and whether political and constitutional conventions allow elected
politicians to participate in decision making about individual cases.
These three considerations fundamentally differentiate the United States
from most other Western countries. Almost nowhere else are judges
or prosecutors politically selected; usually they are career civil servants

who begin specialized training in law school. And almost nowhere do
prevailing conventions justify a direct political voice in punishment
decisions (Tonry 2007).
The U.S. Constitution was written to address eighteenth-century
problems and reflects eighteenth-century ideas. The colonists were
angered by governance by a distant British Parliament in which they
were not represented (remember from elementary school the revolu-
tionary-era slogan “No Taxation without Representation”?); capricious
actions by imperious local representatives; and the inability of citizens
to seek redress for grievances. The principal solutions centered on pro-
tection of individual liberty and insulation of citizens from the power of
an overweening government. Protection of individual liberty was
addressed by adoption of the Bill of Rights, creating fundamental
personal rights (speech, religion, redress for grievances) and entitle-
ments (jury trials, representation by counsel, no unreasonable searches
and seizures, no cruel and unusual punishments).
Protection from an overweening government was sought in two
ways. First, complicated systems of checks and balances were created to
fragment governmental power, principally by creating a strong
horizontal separation of powers among the three branches of the federal
government, and by a vertical differentiation of the spheres of interest
of the federal and state governments (which in turn have their own sys-
tems of horizontal and vertical separations of power). Second, provi-
sions in the federal Constitution calling for frequent elections to the
House of Representatives (two years) and presidency (four years), and
in state constitutions for frequent elections at county levels for state leg-
islators, judges, and prosecutors, were meant to push major elections to
local levels, to require them at short intervals, and thereby to make offi-
cials accountable to local opinion.
The results more than two hundred years later include in many states
partisan elections of judges and prosecutors who run for office on the
basis of emotive appeals. If the public is anxious about crime or angry at
criminals, or if particular cases become notorious, there is nothing to
stop prosecutors from seeking personal political benefit by posturing
before public opinion or handling cases in particular ways only because
they have become notorious. Because local prosecutors are accountable

through elections and are in the executive branch of government, the
U.S. Supreme Court has held that their discretionary decisions are effec-
tively immune from judicial review (allegations of corruption are the
principal exception; Bordenkircher v. Hayes, 434 U.S. 357 [1982]). Judges
also are elected in most states and know that decisions that are highly
unpopular with much of the public can lead to their defeat.
Most chief prosecutors and many judges aspire to be elected or
appointed to higher political or judicial office, which means that they
worry about controversies that might diminish their future professional
prospects, and no doubt sometimes deal with particular cases in
particular ways to curry popular approbation or avoid popular con-
demnation. Criminal justice issues are openly politicized and polemi-
cized in local elections of judges and prosecutors. It is not surprising
that candidates for state and federal legislatures and governor and
president do likewise, even though they have no direct roles to play in
handling individual cases.
Constitutional arrangements place the United States at one end of a
continuum distinguishing consensual from conflictual political systems
(e.g., Lijphart 1999). Consensual political systems are usually character-
ized by more than two major political parties, coalition governments,
proportional representation, and multiseat electoral districts. Major
policy decisions are based on broad consultation within and outside the
coalition government. Even after elections resulting in changes of
government, major policy decisions are seldom altered abruptly. This is
partly because a new coalition government is likely to contain parties
from the old coalition, and partly because parties newly in power are
likely to have been involved in the development of policies of the former
government.
Conflictual political systems are typically characterized by two major
parties, single-party governments, first-past-the-post electoral systems,
and single-member districts. Elections are winner-take-all events.
Parties that are out of power often define their positions in opposition
to those of the government of the day and, not having played a major
role in developing existing policies, have no particular reason to main-
tain them. Dramatic changes in direction are much more common in
conflictual than in consensual systems, partly because the newly elected

government campaigned against existing policies and feels obligated to
change them.
Its eighteenth-century governmental institutions have made the
United States the paradigm case of a conflictual system. Most European
constitutions by contrast took shape in the twentieth century and aimed
to assure broad-based political representation. They diffused rather
than concentrated political power and provided for parliamentary rep-
resentation of any party receiving votes above a designated minimum,
often 5 percent.
No other Western country has a constitution primarily designed to
address eighteenth century problems. All except that of England and
Wales include entrenched bills of rights. Most were designed to address
the challenges of pluralistic societies and call for electoral systems of
proportional representation. Most are generally governed by multiparty
coalitions. Policy making on important subjects is generally based on
wide consultation within the coalition, with other political parties,
criminal justice professionals, NGOs, and interest groups. This takes
time. Several years often elapse between initial proposals for changes
and their eventual enactment. Changes based primarily on political
impulses, overwrought emotions, and short-term political consider-
ations happen, but they are not common.
The constitutional features of American government, by contrast,
make the United States uniquely susceptible to the wholesale politiciza-
tion of criminal justice policy. The structure of American government
was meant to tie officials closely to community needs and beliefs, and
democratic ideology celebrated the importance and influence of public
opinion, even if it was ill-informed, mercurial, or mean-spirited.
Constitutional draftsmen worried about the dangers that passing pas-
sions would sometimes produce unjust laws. If public emotions become
generally inflamed, as happened after the events of September 11, the
inflammation is likely to be widespread. James Madison, in Federalist
Paper No. 10, observed, “The form of public government . . . enables it to
sacrifice to its ruling passion or interest both the public good and the
rights of other citizens. . . . A common passion or interest will, in almost
every case, be felt by a majority of the whole; a communication and
concert result from the form of government itself; and there is nothing
to check the inducements” to adopt rash, unwise, or unjust policies
(Hamilton, Madison, and Jay 2006 [1818]).
Democracies ultimately have no protection against majorities’
oppression of minorities, Madison admitted, but he took solace in the
protections offered by the dispersion of political power: “The influence
of factious leaders may kindle a flame within their particular States, but
will be unable to spread a general conflagration through the other
States.” Unjust laws might be enacted in Illinois, but that does not mean
they will be enacted anywhere else. When Madison wrote and for nearly
two centuries later, he was right. Travel across the United States took
time, there were no electronic media, newspapers dealt mostly in local
news, and advocacy groups could not develop the infrastructure to be
active throughout the country.
The problems Madison worried about did not fully take shape until
late in the twentieth century, when ubiquitous electronic and broadcast
media meant that detailed reports of horrible incidents anywhere, and
ensuing emotionalism could sweep across an entire continent. Most
Americans, probably most citizens of the world, saw pictures of airplanes
hitting the World Trade Center. Most Americans quickly learned of the
tragedies of Polly Klaas and Megan Kamka, and of the villainies of Willie
Horton. A form of government that is designed to respond quickly to
changes in public opinion is not well placed to resist emotional calls to
enact harsh laws to punish bad people or to protect good ones.
Crime rates rose throughout the United States for twenty-five years
beginning in the 1960s. The Republican Southern Strategy placed crime
at the center of the political agenda. Conservative politicians cam-
paigned repeatedly for tougher laws and longer sentences. Small wonder
that nearly every American state enacted harsher laws and experienced
sharp rises in the number of people in its prisons.
R ACE
The history, psychology, and sociology of American race relations, dis-
cussed in chapter 4, combine into the fourth explanation. Unlike the
first three its logic applies more to domestic than to foreign enemies,
unless lack of empathy for the minority enemies in the wars on drugs
and crime, people who look and seem different from the majority white
population, is extended by analogy to the enemies in Iraq and
Afghanistan and elsewhere, who also seldom look much like the white
American middle class.
American political culture has still not come to grips with the legacy
of slavery and Jim Crow. I used to get a bit impatient with people who
seemed to see the half-empty glass of American racial progress rather
than the half-full one of enduring injustice, but I am now convinced
that I was wrong.
Obliviousness to the interests of black Americans continues to char-
acterize American drug and crime control policies. Racial disparities in
imprisonment continue to be driven by policy choices that should have
been foreseen when enacted, and are indubitably recognized now, to
affect disadvantaged black Americans disproportionately.
These sad patterns of racial insensitivity, however, make sense in
light of the other three explanations. If crime and drugs are matters of
good and evil, and criminals and drug users are evil, then there is little
reason to expect sympathy or solicitude toward them from the holders
of those views. If many whites harbor racial resentments of black peo-
ple and are affected by unconscious stereotypes of black criminals
there is little reason to expect them to sympathize with black suspects,
defendants, or prisoners. People on death row or serving lifetime
without the possibility of parole or decades-long prison terms deserve
what they get, and once they get it there is no reason to think further
about them.
Analyses of social stratification and racial hierarchy discussed in
chapter 4 make it clear how and why the race card was played, as
Hofstadter predicted more than forty years ago. Although, he observed,
Republicans historically had sympathy with the plight of blacks in the
South,
By adopting “the Southern strategy,” the Goldwater men aban-

doned this inheritance. They committed themselves not merely to
a drive for a core of Southern states in the electoral college but to
a strategic counterpart in the North which required the search for
racist votes. They thought they saw a good mass issue in the white
backlash which they could indirectly exploit by talking of violence
in the streets, crime, juvenile delinquency, and the dangers faced
by our mothers and daughters. (, )
What is distinctive about our time, compared with the 1950s and 1960s
about which Hofstadter wrote, and compared with earlier periods of
American history, is that the paranoid style of American politics moved
from the fringes to the center and has for much of the past thirty years
set the tone for policies concerning internal and external enemies. The
only way the paranoid style will lose its power is if Americans stop elect-
ing its practitioners and thereby show that the boundaries of political
permission within which government may operate have narrowed. Thus
the answer to the question I asked at the outset—“How does it happen
that American governments routinely violate the human rights of their
enemies, domestic and foreign?”—is that majorities of American voters
have allowed them to do so.
One of the things most people know about Socrates is the aphorism
“The unexamined life is not worth living.” Among the things the apho-
rism means is that we should know who we are and how and why we are
and what we believe, and that knowing those things we will want to
make ourselves better. The same should be true of countries, and for
some countries it is. After World War II, Europeans learned the dangers
of the too-powerful state and the importance of protecting individuals
from it. That’s one reason why European governments and institutions
have been reluctant to deny procedural protections to people alleged to
be terrorists and why most European governments loudly condemn
Abu Ghraib, Guantánamo, rendition, and the use of torture. And it’s a
reason why other Western countries have abolished capital punishment
and why they have not followed the American lead in adopting life
without the possibility of parole, three-strikes laws, and prison sen-
tences measured in decades, and why they refuse to treat children as if
they were adults. Other Western countries have decided that human
rights matter and, using a metaphor long ago proposed by Ronald
Dworkin (1977), should be treated as trumps when they conflict with
what governments want to do.
Winston Churchill also observed, “The mood and temper of the

public in regard to the treatment of crime and criminals is one of the
most unfailing tests of the civilisation of any country” (quoted in Gilbert
1992, 214). The United States fails by a huge margin to pass Churchill’s
test, and more than anyone else, black Americans bear the burdens of
that failure.
6
DOING LESS HARM
From a race relations perspective the election of

Barack Obama as president of the United States was a wonderful thing.
It occurred, however, in a country in which a third of black baby boys
are bound for prison, and a third of black men in their twenties are in
prison or jail or on probation or parole—more than a half century after
the U.S. Supreme Court decided Brown v. Board of Education, declaring
segregated public education unconstitutional, and more than four
decades after passage of the Civil Rights Act of 1964.
Whether Obama’s election portends changes in American social
policy that will distribute the fruits of the civil rights movement more
widely and changes in American criminal justice policy that will reduce
the damage it does to poor black Americans remains to be seen. It would
be Pollyannaish to assume that the election as president of a smart,
articulate, and transparently decent black man, a graduate of Columbia
College and Harvard Law School, means there will be wider empathy
for poor black people who have been left behind.
Winston Churchill observed that the ways a society deals with crime
and the criminal are symbols of the “stored-up strength of a nation” and
proof of the “living virtue within it” (quoted in Gilbert 1992, 214). Turned
around, that is a bleak view. It implies that little can be done to make the
American criminal justice system, which offers few signs of “living
virtue,” less cruel and destructive in general or in relation to black
Americans. It is on this account as it is precisely because it reflects and
DOING LESS HARM • 145
results from predominant social values. Swiss, Scandinavian, and

German criminal justice systems by contrast are more respectful of
offenders’ human rights, punishments are less severe, and prisons are
relatively decent places because they reflect those countries’ strong
social welfare and human rights values (e.g., Whitman 2003). The
American justice system is incomparably severe among Western nations,
and its prisons are pretty awful places because they reflect punitive,
moralistic, and racially insensitive American social values.
In this chapter I discuss ways that the American justice system can
be made less punitive, less destructive, and less harmful to the interests
of black Americans. Those aims are inextricably connected. It is the
severity of the American justice system that makes it so destructive. The
severity affects everyone it touches. Because relatively so many more
black people are touched it does special damage to them. Reducing
severity is the single most effective way to diminish that damage.
Here is a thought experiment that shows why. If the United States
locked up its citizens at the same rate Canada locks up its citizens,
around 100 per 100,000 consistently for the past forty years, the number
of black prisoners would decline by 70 to 90 percent, even if current
racial disparities in imprisonment were unchanged. This is not so
far-fetched as it may seem to some. In 1973, when American crime rates
were higher than they were in 2010, the American imprisonment rate
was only a little higher than Canada’s. Black Americans would remain
six to seven times likelier than whites to be in prison, but the absolute
number of blacks in prison would be a tiny fraction of what it is now.
That is a chastening realization. The causes of extreme levels of racial
disparity in American prisons—racial profiling by police, police drug
arrest priorities, unprecedentedly long prison sentences for offenses for
which blacks are disproportionately arrested, the force of stereotypes of
black criminals—are unjust and objectionable in themselves, but it is
severity, not disparity, that does most of the damage.
American imprisonment rates are unlikely to match Canada’s in my
lifetime. The thought experiment, however, demonstrates that the
unjust burdens the criminal justice system places on black people, and
the damage it does to the national aspiration of racial equality, cannot
be eliminated or substantially ameliorated unless the severity of
American sentencing is reduced and the causes of racial disparities are

addressed.
This chapter shows how those goals can be pursued. Because the
greatest benefits will come from reducing the justice system’s overall
severity, I begin there. The things that need to be done include reduction
in the use of prison sentences and in the lengths of sentences; repeal of
most three-strikes, mandatory minimum sentence, truth-in-sentencing,
and life-without-the-possibility-of-parole laws; creation of emergency
mechanisms for shortening sentences of many currently imprisoned
offenders; and reconstitution of permanent institutions to oversee
release of offenders whose continued confinement serves no valid
public purpose. These proposals inexorably raise the question of
whether, if adopted, they would significantly diminish public safety. The
answer is no. To show why that is so, I survey current knowledge about
the effectiveness of contemporary drug law enforcement strategies and
about the crime prevention effectiveness of severe penalties in deterring
crime and incapacitating offenders.
Only after that has been done do I turn to changes that need to be
made to reduce racial disparities per se. These include elimination of
racial profiling by the police, abandonment of police departments’
emphasis on street-level drug arrests, repeal and amendment of laws
that punish offenses for which black people are disproportionately often
arrested especially severely, reduction of the influence of previous con-
victions on the lengths of prison sentences, expansion of current efforts
to educate and sensitize practitioners about the power of racial stereo-
types, and development of racial disparity impact analyses and audits as
an indispensable part of policy-making processes.
I should say something about public opinion before I discuss those
proposals. Substantial evidence exists that public anxiety about crime
and support for severe policies in the late twentieth century was shaped
by politicians’ and media preoccupation with crime, rather than vice
versa (e.g., Beckett 1997). Politicians and the media in the 1970s through
the 1990s often did not respond to public anxiety, but provoked it in
order to win elections, sell papers, and attract viewers and listeners.
Table 6.1 summarizes survey results of Americans’ views about the most
important problems facing the country over a quarter century beginning
table 6.1 Most Important Problems Facing the Country, Percentages of Respondents Based on Gallup Polls, 1984–2008 (even years)
1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 2004 2006 2008
High living cost 10 4 2 2 8 4 11 7 15 2 10 8 22
Unemployment 29 23 9 3 25 18 13 5 2 8 13 8 5
Crime, violence 4 3 2 1 5 37 25 20 13 1 2 2 under
DOING LESS HARM

0.5
Terrorism N/A N/A N/A N/A N/A N/A N/A N/A N/A 12 27 20 15
Government 12 13 12 21 8 5 15 5 4 1 3 4 2
spending
• 147
Poverty N/A 6 7 7 15 11 7 12 5 4 3 4 2
Drugs N/A 6 7 7 15 11 7 10 5 3 1 1 N/A
Quality of N/A N/A 2 2 8 7 13 13 16 7 4 6 3
education
Health care N/A N/A N/A N/A 12 20 10 6 8 6 6 8 7
Source: Bureau of Justice Statistics (various years-d, table 2.1).

in 1984. Crime ranked high only during the mid-1990s, when candidates
competed to endorse the toughest anticrime policies and legislatures
rushed to enact three-strikes, truth-in-sentencing, mandatory minimum,
and Megan’s laws. After the anticrime politicking stopped, crime dropped
to the bottom of citizens’ concerns. A similar pattern appears for drugs.
The bigger picture, however, is that for a time the public did become
concerned, whatever its reasons for doing so. As a result it is commonly
said that current policies are as they are because the public demanded
them. If that were true in the early and mid-1990s, it is true no longer.
Contemporary public opinion cannot be invoked as justification for
the injustices of the American justice system. Crime and drugs no
longer rank high as matters of public concern. Between 2002 and 2008
only 1 to 3 percent of Americans named crime or drugs the most impor-
tant problem facing the nation. In the twenty-first century concerns
about crime or drugs rank far below the economy, unemployment,
terrorism, health care, and education.
Crime has not featured prominently in an American presidential
election since 1988, and in recent years has only occasionally been a major
element in state and local elections. The flurry of adoptions of unpre-
cedentedly severe sentencing laws ended in the mid-1990s. Many states
have since enacted amendments mitigating some effects of these laws.
If policy making were animated primarily by rational and humane
values the second decade of the twenty-first century would be an auspi-
cious time to remake American criminal justice and drug policies.
Racial justice in the American criminal justice system can be improved,
though it will not be easy. Americans continue to be influenced by
unconscious associations of blackness with crime. The cynicism that
underlay the Republican Southern Strategy, and the related willingness
to deal unjustly with black offenders in order to appeal to white voters,
have not disappeared. Nor has the risk averseness of many Democratic
politicians to any action that might be characterized by Republicans as
soft on crime. The Clinton administration notoriously supported a fed-
eral three-strikes law, new mandatory sentencing laws, and fifty-eight
new death penalty provisions in the mid-1990s, and did only by stealth
such few good things as it did in relation to crime policy. At the time of
this writing the Obama administration and Congress have done nothing
significant to roll back the policy excesses of the 1980s and 1990s, so it
is not clear whether the Democratic Party even now has set aside its
unwillingness to stand up for what is right.
Nonetheless if counsels of despair are allowed to dominate our
thinking nothing will change, and there are many historical exam-
ples of successful against-all-odds social and political changes
concerning other subjects. Franklin Roosevelt’s New Deal, which
created the Social Security System, the Tennessee Valley Authority,
and many other still surviving governmental programs and institu-
tions, and revived the American economy after the Great Depression,
is one. The civil rights movement is another. Lyndon Johnson’s Great
Society, which in the aftermath of John F. Kennedy’s assassination
produced Medicare and Medicaid and much of the major civil rights
legislation, is yet another. Barack Obama’s successful effort to create
a national system of medical insurance and medical care is a histor-
ical accomplishment. Compared with changes of those magnitudes
the criminal justice system is small potatoes. Here is what needs to
be done.
RADICALLY REDUCE THE USE OF IMPRISONMENT
Efforts to reduce the influence of bias and stereotyping in official

decision making are being made throughout the United States and
should continue. Unfortunately, even if they were completely successful
they could have only modest effects. Table 6.2 shows why. Prison dispar-
ities do not result primarily from biased or unconsciously stereotyped
decisions. The top row of Part A shows black and white non-Hispanic
imprisonment rates per 100,000 population for jail and prison combined
in 2006. The second row shows what would happen if black rates were
decreased by 10 percent—a high estimate of the degree to which bias
and stereotyping enhance disparities—while white rates were left
unchanged. The black imprisonment rate would fall from approximately
2,661 per 100,000 to 2,395, and the ratio of black-to-white imprison-
ment rates would fall from 5.5:1 to 5.0:1. The number of black people
locked up would fall by about 100,000.
If instead, as Part B shows, the prison population were cut by half
across the board, disparities would not be reduced, but the black
table 6.2 Hypothetical Reduction in Incarceration Rates

Black White Ratio
A. Disparity Reduced 10
Imprisonment rate, 2006 2,661 483 5.5:1
10 less disparity 2,395 483 5.0:1
Reduction in prison per 100,000 266 0
Reduction in black prisoners 101,000
B. Use of Imprisonment Halved
Imprisonment rate, 2006 2,661 483 5.5:1
Imprisonment halved 1,330 241 5.5:1
Reduction in prison per 100,000 1,330 241
C. Return to 1980 Imprisonment Rates
Imprisonment rate, 1980 827 134 6.2:1
Reduction in prison per 100,000 1,834 349
Source: Tonry and Melewski (2008, table 5).
imprisonment rate would fall from 2,661 to 1,330. Or if, as Part C

shows, imprisonment rates were cut to 1980 levels, disparities
would not be reduced and the black imprisonment rate would be
827 per 100,000.
The differences in the projected effects of these alternative approaches
are enormous. The U.S. Census Bureau estimated that 38.34 million U.S.
residents in 2006 were black. If the number of people in prison were
halved, but nothing else changed, the black imprisonment rate would
fall from 26,613 per million to 13,306. More than 500,000 fewer black
Americans would be in prison or jail. Returning to the 1980 level would
mean 700,000 fewer black Americans behind bars.
Of course every effort should be made to eliminate bias and stereo-
typing. Their diminution will reduce injustices, disparities, and the
absolute size of the bite prisons take out of the black population. In
absolute terms, though, that will only nibble at the problem. Only rad-
ical reduction in the scale of imprisonment can make a big difference.
To attempt to limit damage done to people now entangled in the arms
of the criminal justice system, devices need to be created for reducing

the lengths of prison sentences and releasing hundreds of thousands of
people serving unnecessarily long terms. Sentencing laws and guide-
lines need to be changed to reduce the emphasis on imprisonment, and
new programs need to be created to divert many people from prison or
jail into community correctional programs. New systems of parole,
pardon, and commutation need to be developed, as do programs of
social welfare and support to ease people’s transitions back into the free
community.
None of these changes need be focused on black offenders or on black
prisoners. Although disparities are largely the result of contemporary
drug and sentencing policies, black imprisonment rates are so absolutely
high because American imprisonment rates are so absolutely high.
The prison population cannot be substantially reduced overnight or
in a year, but it can be reduced relatively quickly and in ways that do not
significantly impair public safety. The imprisonment rate in 1980, after
all, was 221 per 100,000, and the violent crime rate was a third higher
than it was in 2008. The imprisonment rate in 1970, when violent crime
rates were not much lower than in 2010, was 161 per 100,000. All of
these rates are significantly higher than those of any other country with
which American citizens would ordinarily want their country to be
compared. To return to 1980 rates would mean that U.S. rates would
continue to be three times those of the Scandinavian countries,
twice those in Canada, Germany, and France, and significantly higher
than those in England and Wales, Spain, and New Zealand.
There is no good reason to believe that ambitious reduction in the
scale of imprisonment would worsen American drug and crime prob-
lems. Much of what is done now is counterproductive. The mistaken
belief that current drug and crime policies can achieve their aims has
impoverished searches for other, more effective approaches.
R EPEAL INEFFECTIVE C RIME AND D RUG CONTROL POLICIES

Repeal or fundamental alteration of ineffective crime control and drug
policies will benefit Americans of every race. The 100-to-1 federal law for
sentencing crack cocaine offenses and its 18-to-1 successor are classic—
and extreme—examples. No one has ever made a credible case for that
law’s effectiveness at reducing drug use or trafficking. However, there
are other laws and policies that do as great damage and that also cannot
be shown to produce more than offsetting benefits. Three-strikes,
mandatory minimum sentence, and truth-in-sentencing laws and the
drug war’s emphasis on inner-city drug dealing are examples.
DRUG WARS
Police emphasis on inner-city drug markets, the 100-to-1 law, and

mandatory minimum sentence laws for drug crimes were all premised
on the idea that aggressive law enforcement will reduce drug use or traf-
ficking. A quarter-century’s work by drug policy specialists makes it
clear that this premise is wrong. Three recent articles by Peter Reuter,
Mark Kleiman, Jonathan Caulkins, and Robert MacCoun, America’s
four most preeminent drug policy scholars, explain why (MacCoun and
Martin 2009; Caulkins and Reuter 2010; Caulkins and Kleiman
forthcoming).
Drug law enforcement is unusual among anticrime policies in
that a single metric of its effectiveness is available: changes in the
street prices of drugs. The Drug Enforcement Agency for decades
has systematically purchased drugs in street markets in order to
assess changes in their purity and price. In calculating prices adjust-
ments are made for purity: one gram of pure heroin packs the same
punch as two grams that include an equal amount of another sub-
stance and as four grams that contain three grams of another
substance. As figure 6.1 shows, cocaine prices have fallen for nearly
three decades. They have never risen for an extended period. The
lesson to be drawn comes straight from Economics 101: if drug law
enforcement were making drugs harder to find or purchase the
resulting scarcity would cause prices to rise. Because prices have
been falling continuously only the opposite conclusion can be drawn:
the drug wars have had no effect on prices and therefore on avail-
ability and potential use.
The reasons are straightforward. Some illicit substances are so widely
used, and therefore distributed, that a dealer’s or user’s chances of
punishment are small. Caulkins and Reuter (2010) estimate that a
700
Price Per Pure Gram in 2007 Dollars
600
500
400
300
200
100
0
1981
1982
1983
1984
1985
1986
1987
1988
1989
1990
1991
1992
1993
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
Year
0.1 g <= AMT <= 2 g, evaluated at 0.75 g 10 g < AMT <= 50 g, evaluated at 27 g
2 g < AMT <= 10 g, evaluated at 5 g AMT > 50 g, evaluated at 108 g
figure 6.1 The price of cocaine, 1981–2007.

Source: Caulkins and Reuter (2010, figure 3, based on data from Office of National Drug
Control Policy 2008).
marijuana user faces a risk of one hour of imprisonment for each year
of use. This should not be surprising. According to the National Survey
on Drug Use and Health, by 2008 46 percent of Americans aged twelve
and over had used illicit drugs in their lifetimes and 14 percent in the
preceding year. Nearly 41 percent had used marijuana at some time and
14 percent had used each of cocaine and hallucinogens (Office of
Applied Studies 2010, table 1.1B). Police are not inclined to invest sub-
stantial resources in attacking middle-class drug use or cocaine and
marijuana dealing behind closed doors, so people engaged in those
trades face little risk.
By contrast crack cocaine dealers face significant chances of appre-
hension, conviction, and punishment, but that has little effect on the
availability or prices of drugs. The potential profits of drug dealing,
modest though they are in reality for most dealers, look awfully good
to disadvantaged young people in the inner city who have few realistic
legitimate opportunities for improving their lives. With only modest

time lags, arrested dealers are quickly replaced by willing successors.
On one notorious street corner in Milwaukee, for example, police in
one three-month period arrested ninety-four drug dealers. That had
enormous implications for criminal court dockets and correctional
budgets, but none at all for the availability of drugs at the corner of
Ninth and Concordia. A police officer observed, “These arrests were
easy to prosecute to conviction. But despite the 2-year prison terms
routinely handed down by the sentencing judges, the drug market
continued to thrive at the intersection” (Smith and Dickey 1999, 8).
Caulkins and Kleiman observe, “The incarceration of a drug dealer
generally creates a niche for another dealer to enter the trade. . . . The
key observation is that dealers have to compete for customers, thus
making the demand side of the market the determining factor in drug
volume” (forthcoming).
The realities just summarized have been widely recognized and have
not changed for at least twenty years. In 1990 James Q. Wilson, then and
now America’s most influential conservative crime scholar, admitted,
“Significant reductions in drug abuse will come only from reducing the
demand for those drugs. The marginal product of further investment
in supply reduction is likely to be small. . . . I know of no serious law
enforcement executive who disagrees with this conclusion. Typically
police officials tell interviewers that they are fighting either a losing war
or, at best, a holding action” (534). Senator Daniel Patrick Moynihan,
another of the leading neoconservatives of the late twentieth century,
similarly wrote, “Interdiction and ‘drug busts’ are probably necessary
symbolic acts, but nothing more” (1993, 362).
Jack Lawn was head of the Drug Enforcement Agency during the
Reagan and Bush I administrations. Asked by then Senator Joseph Biden
whether he was happy with that year’s budget, Lawn replied, “Well
I have enough for this year, but we will have to build more jails because
we’re going to arrest more people, we’re going to convict more peo-
ple, we’re going to seize more drugs, we’re going to seize more assets.
But until someone gets serious about education, prevention, and treat-
ment, we’re the last line of resistance.” When Biden responded, “Jack,
that’s heresy coming from a law enforcement officer,” Lawn replied, “No,
ask law enforcement people. The other components are indeed missing”
(Whitford and Yates 2009, 97–98).
Robert Stutman (2008), special agent for the DEA during the Reagan
and Bush I administrations, more recently observed, “Dollars we spend
on treatment and prevention give us a far greater return than dollars we
spend on enforcement. The general point is that we have never adopted
the strategy that a lot of people think is truly a winning strategy. No one
has yet demonstrated that enforcement will ever win the war on
drugs.”
The observations made here are not ones about which reasonable,
informed people disagree. Conservative and liberal academics, techno-
cratic specialists like the drug policy scholars quoted, and experienced
practitioners agree: current antidrug policies focusing on street arrests
of inner-city drug dealers and lengthy prison sentences for drug
offenders do not reduce drug trafficking, use, or prices. That being so,
police practices that have resulted in millions of arrests of street-level
drug dealers make no drug policy sense and in the past twenty years
have resulted in millions of young black people being sent to prison.
Likewise lengthy mandatory minimum sentences for street-level
drug dealers make no sense. A case for significant punishments can be
made concerning large-scale importers and the Mr. Bigs who head
major distribution networks. For the small fry who deal in small quan-
tities, often to support their own drug dependence, the deterrent logic
underlying such laws is wrong. The threat of long prison sentences does
not dissuade disadvantaged or desperate people from trying to make
money selling small quantities of drugs.
DETERRENCE
The situation with three-strikes, truth-in-sentencing, and mandatory

minimum sentence laws for other crimes is the same. The logic behind
them is that they make the United States a safer place by deterring peo-
ple from selling drugs and committing crimes, and in some cases by
holding them behind bars so they cannot commit crimes outside.
However, the clear weight of the evidence for more than thirty years is
that harsh punishments, compared with lesser punishments, have few
if any deterrent effects, and that lengthy prison terms are at best an
inefficient and inhumane way to prevent crimes through incapacitation.

Accumulating evidence shows that, all else being equal, sending people
to prison makes them more likely to commit new crimes than if they
were punished in some other way. Some people find God in prison, a
few are rehabilitated, and some would have ceased offending whether or
not they were sent to prison. For many others the experience of prison
makes them more likely to reoffend. Young prisoners are exposed to
antisocial role models and are immersed in a culture in which many of
the people they see every day are chronic offenders. The time in prison
effectively stops their lives in terms of education and developing a work
record. Most on exiting find they are legally barred from many jobs
and experience discrimination because they are ex-convicts. Minority
ex-convicts experience even greater discrimination as they look for
work (Pager 2007).
The most recent assessment of research on the crime-preventive
effects of imprisonment, and much the most exhaustive and authorita-
tive, concludes, “Most studies of the impact of imprisonment on
subsequent criminality find no effect or a criminogenic effect. . . . Existing
research is not nearly sufficient for making firm evidence-based conclu-
sions about the effectiveness of prison at reducing ex-prisoners’
subsequent offending” (Nagin, Cullen, and Jonson 2009, 121). Sending
people to prison makes them more likely to commit crimes after they
are released, not less.
No one doubts that society is safer having some criminal penalties
rather than none, but that choice is not at issue. The practical question
is whether increases in penalties, or having more rather than less severe
penalties, significantly reduces the incidence of serious crimes. The
answer is no.
There are three main sources of authoritative evidence on those sub-
jects. First, countries have asked advisory committees or national com-
missions to survey knowledge of the deterrent effects of criminal
penalties in general. Second, a sizable number of surveys of the findings
from the research literature on deterrence have been published. Third,
evaluations have been conducted of the deterrent effects of newly
enacted mandatory penalty laws.
Governmental advisory bodies are unanimous in expressing doubts.

The U.S. National Academy of Sciences Panel on Research on Deterrent
and Incapacitative Effects, after carrying out the most exhaustive exami-
nation of the evidence ever undertaken, concluded, “We cannot assert
yet that the evidence warrants an affirmative conclusion regarding deter-
rence” (Blumstein, Cohen, and Nagin 1978, 7). Daniel Nagin, a principal
draftsman, was less qualified: “The evidence is woefully inadequate for
providing a good estimate of the magnitude of whatever effect may
exist. . . . Policymakers in the criminal justice system are done a disservice
if they are left with the impression that the empirical evidence . . . strongly
supports the deterrence hypothesis” (Nagin 1978, 135–36).
Fifteen years later another National Academy of Sciences panel, this
one on violence, reached the same conclusion. After showing that the
average prison sentence per violent crime tripled between 1975 and 1989
the panel asked, “What effect has increasing the prison population had
on levels of violent crime?” Its answer: “Apparently very little” (Reiss and
Roth 1993, 6). Average lengths of prison sentences for violent crimes
have doubled again since then.
Similar bodies in other countries reached similar conclusions.
A British Home Office white paper is a statement explaining why the
government proposes to enact new laws. One issued by Prime Minister
Margaret Thatcher’s government expressed extreme skepticism:
Deterrence is a principle with much immediate appeal. . . . But

much crime is committed on impulse, given the opportunity
presented by an open window or unlocked door, and it is com-
mitted by offenders who live from moment to moment; their
crimes are as impulsive as the rest of their feckless, sad, or pathetic
lives. It is unrealistic to construct sentencing arrangements on the
assumption that most offenders will weigh up the possibilities
in advance and base their conduct on rational calculation. (Home
Office 1990, 6)
Likewise elsewhere. The Canadian Sentencing Commission:

“Evidence does not support the notion that variations in sanctions
(within a range that reasonably could be contemplated) affect the
deterrent value of sentences. In other words, deterrence cannot be used

with empirical justification to guide the imposition of sentences” (1987,
xxvii). The director of the Finnish Ministry of Justice’s National Research
Institute of Legal Policy arrived at the same conclusion: “Can our long
prison sentences be defended on the basis of a cost/benefit assessment
of their general preventative effect? The answer of the criminological
expertise was no” (Törnudd 1993).
Alfred Blumstein, chairman of National Academy of Sciences panels
on deterrence and incapacitation (Blumstein, Cohen, and Nagin 1978),
sentencing research (Blumstein et al. 1983), and criminal careers (Blumstein
et al. 1986), and long America’s leading authority on crime control research,
explained why three-strikes and similar laws (and by implication all
mandatory penalties) are misconceived even for serious crimes:
However hard it is for rational folks to conceive of it, there are

some people who simply do not respond to whatever threat is
presented to them. . . . For people who see no attractive options in
the legitimate economy, and who are doubtful that they will live
another ten years in any event, the threat of an extended prison
stay is likely to be far less threatening than it would be to a well-
employed person with a family. (Blumstein 1995, 415)
The literature surveys reach similar conclusions. Philip J. Cook, one

of a handful of American economists who has specialized on crime
topics, surveyed the literature in 1980. He concluded that existing studies
“do not demonstrate that all types of crimes are potentially deterrable,
and certainly they provide little help in predicting the effects of any
specific governmental action” (215, emphasis in original). Daniel Nagin,
revisiting the subject twenty years after his work for the National
Academy of Sciences panel on deterrence and incapacitation, observed
that “a number of studies have credibly identified marginal deterrent
effects,” but that it is “difficult to generalize from the findings of a specific
study because knowledge about the factors that affect the efficacy of
policy is so limited” (1998, 4). In a report commissioned by the British
Home Office of Tony Blair’s government, Andrew von Hirsch and his
colleagues concluded, “There is as yet no firm evidence regarding the
extent to which raising the severity of punishment would enhance

deterrence of crime” (1999, 52).
And so on. The Canadian scholars Anthony Doob and Cheryl Webster
concluded, “There is no plausible body of evidence that supports policies
based on this premise [that increased penalties reduce crime]” (2003, 146).
A meta-analysis by Travis Pratt and his colleagues concluded in more
technical language, “The effects of severity estimates and deterrence/
sanction composites, even when statistically significant, are too weak to be
of substantive significance (consistently below –.1)” (2006, 379). The latest
survey of the deterrence literature, at the time of this writing not yet pub-
lished, concludes, “There is little evidence that increases in the severity of
punishment yield general deterrent effects that are sufficiently large to jus-
tify their social and economic costs” (Apel and Nagin forthcoming).
Evaluations of the effects of mandatory minimum sentencing laws also
conclude that deterrent effects cannot be shown. Most evaluations were
done between the mid-1970s and the mid-1990s. The findings are strong
and consistent. Because the question has been answered decisively, there
has been little research on it since. The evaluators of New York’s Rockefeller
Drug Laws, the first major modern mandatory minimum penalty law in
the United States—and one of the toughest—tried to establish effects on
drug use or drug-related crime. They found none (Joint Committee on
New York Drug Law Evaluation 1978).
A number of studies were made of the crime-preventive effects of a
Massachusetts law requiring a one-year minimum sentence for people
convicted of possession of an unregistered firearm. They concluded that
it had either no deterrent effect on the use of firearms in violent crimes
(Beha 1977; Rossman et al. 1979; Carlson 1982) or a small short-term
effect that quickly disappeared (Pierce and Bowers 1981). An evaluation
of a mandatory sentencing law for firearms offenses in Detroit con-
cluded that the mandatory sentencing law “did not have a discernible
effect on the level or the pattern of violent crime” (Loftin, Heumann,
and McDowall 1983, 309–10). Assessments of the deterrent effects of
mandatory penalty laws in Tampa, Jacksonville, and Miami, Florida,
“concluded that the results did not support a preventive effect model”
(Loftin and McDowall 1984, 256–57). The results of evaluations of the
crime-preventive effects of mandatory penalty laws in operation in
Pittsburgh and Philadelphia “do not strongly challenge the conclusion

that the statutes have no preventive effect” (McDowall, Loftin, and
Wiersema 1992, 382).
The most notorious modern sentencing law is California’s three-
strikes law, which requires mandatory minimum sentences of twenty-
five years to life for third felony convictions. Table 6.3 summarizes the
findings of fifteen empirical assessments of California’s and other states’
three-strikes laws. Only two concluded that crime rate were reduced.
Three concluded that enactment of three-strikes laws led to increases in
homicide rates. Of the two studies concluding that the three-strikes law
had reduced crime rates, Chen’s findings were weak and her conclusions
were hedged.1 Shepherd produced the only assessment purporting to
find significant effects.
The fundamental problem with Shepherd’s (2002) work, however,
and that of some other but by no means all economists who study deter-
rence, is that it assumes what other social scientists investigate: that
increased penalties reduce crime rates. Shepherd, for example, observes
that her “model predicts that the offenses covered by two- and three-
strikes legislation will be deterred” (174, emphasis added). Ronald Coase,
a Nobel Prize winner and one of the founders of the law and economics
movement, long ago wrote, “Punishment . . . can be regarded as the price
of crime. An economist will not debate whether increased punishment
will reduce crime; he will merely try to answer the question, by how
much?” (1978, 210, emphasis added). Isaac Ehrlich, one of the few econ-
omists to work on deterrence issues throughout his career, observed
that the “ ‘market model’ . . . builds on the assumption that offenders, as
members of the human race, respond to incentives. . . . At least in the
economic literature, there has been little controversy concerning this
approach” (1996, 43–44, emphasis added).
In the case of California’s three-strikes law, however, even among
economists, Shepherd is the exception. Other economists concur with
the conclusions of noneconomists that such laws have no deterrent
effects (Marvell and Moody 2001; Kovandzic, Sloan, and Vieraitis 2002;
Moody, Marvell, and Kaminski 2003). Many economists’ minds are just
not open. One economist, for example, commenting on a conclusion by
three other economists that econometric studies provide no credible
table 6.3 California’s Three-Strikes Law: Effects on Reduced Crime Rates

Authors Method Deterrent Effect
Schiraldi and Ambrosio (1997) Yes/no three-strike state None
comparisons
Stolzenberg and D’Alessio (1997) Time series: 10 largest None
California cities
Males and Macallair (1999) California age-group None
comparisons
— California county comparisons None
E. Y. Chen (2000, 2008) Time series: 50 states None
— Time series: California Not significant
Austin et al. (2000) California county comparisons None
— Yes/no three-strike state None
comparisons
Caulkins (2001) National econometric model None
Marvell and Moody (2001) Time series: 50 states None: increased
murder rates
Moody, Marvell, and Kaminski Time series: 50 states None: increased
(2003) murder rates
Zimring, Hawkins, and Kamin California county comparisons None
(2001)
— California age-group None
comparisons
Shepherd (2002) California econometric model Yes
Ehlers, Schiraldi, and Ziedenberg California county comparisons None
(2004)
— Yes/no three-strike state None
comparisons
Kovandzic, Sloan, and Vieraitis Model U.S. cities None: increased
(2004) murder rates
Justice Policy Institute (2004) Yes/no three-strike state None
comparisons
Tonry (2004) Time series: 10 populous states None
Legislative Analyst’s Office, California county comparisons None
California (2005)
Source: Tonry (2009).

evidence of the deterrent effect of capital punishment, plaintively

observed, “It would be incredible and a violation of the law of demand
if the chance of execution did not deter” (Rubin 2009, 858).
INCAPACITATION
The evidence concerning incapacitation is little stronger. No one ques-

tions that some crimes in the community are avoided because would-be
offenders are locked up, but that is not the issue. There would be no
crime in the community if everyone were in prison, and relatively little
if all males aged fifteen to thirty-five were. Those are not options. The
question is whether enough crimes are averted by current practices to
justify having so many people in prison. The answer is no.
There are five good reasons to conclude that there are too many peo-
ple in prison from an incapacitative perspective. First, crime is a young
man’s game. Most who commit crimes in their teenage years or early
twenties will soon stop because they get tired of it or realize they have
too much to lose: a wife or girlfriend, a family, a job. Imprisoning people
at times in their lives when they are unlikely to offend prevents few
crimes. If recent research findings are correct, and imprisonment
increases later offending, then holding people past their criminally
active age increases, not reduces, crime.
Second, crime is seldom an old man’s game. This is not simply a
restatement of the first point. Research on criminal careers shows that
most offenders stop committing crimes at an early age (Blumstein
et al. 1986). Most stop in their teens or early twenties. Very few remain
criminally active after their mid-thirties. Almost by definition, with
only a few exceptions, confinement of people older than thirty-five is
irrelevant from a crime-prevention perspective. Yet at the end of 2008,
American state and federal prisons held 150,000 men and 8,700
women aged 50 and over. Some states were operating geriatric prisons,
and many prisons had geriatric wings. This is particularly a waste
concerning the many people serving decades-long sentences for
minor offenses.
Third, for many behaviors locking up a single offender is unlikely to
prevent crimes. The “replacement problem” concerning drug dealers is
the clearest reason: drug markets provide sufficient incentives to wan-
nabes that filling an open street corner is seldom difficult. In recent

years a quarter to a third of state prisoners and more than half of federal
prisoners, have been convicted of drug offenses. The evidence of
declining drug prices since 1980 means that the billions of dollars spent
on their confinement have contributed little or nothing to the reduction
of drug problems in the United States.
There are other circumstances in which removal of an offender from
the community is unlikely to reduce crime rates. Where youth gangs are
active new recruits are generally available to replace those who have
been immobilized, unless the gang itself has disbanded. Kids generally
do things in groups, including committing crimes, so locking up one or
some will not change that reality and is unlikely to alter the group
dynamic.
Fourth, among the quarter to a third of prisoners who were con-
victed of drug crimes, many were convicted of street-level dealing or
possession. Most do not present significant risk of other forms of crim-
inality. Especially in light of the high probability of their replacement in
drug-trafficking roles, confining them serves little public purpose.
There is a fifth, not separate but supplemental reason why incapacita-
tive considerations cannot justify current imprisonment levels. In every
Western legal system, including generally in American systems, it is con-
sidered a requirement of justice that convicted offenders receive punish-
ments that are proportionate to the seriousness of their crime. This
means that offenders convicted of the same or comparable offenses
should generally receive comparable punishments and that offenders
convicted of serious offenses should receive severer punishments than
people convicted of less serious crimes. Armed robbers should receive
severer punishments than unarmed robbers; unarmed robbers should
receive severer punishments than burglars; burglars should receive
severer punishment than shoplifters, and so on. Every American sen-
tencing guideline system respects that idea and apportions punishments
to the seriousness of crimes. Most three-strikes and mandatory minimum
sentence laws do not. As a result sellers of tiny amounts of drugs are sen-
tenced more severely than many people convicted of burglaries, rob-
beries, and sexual assaults. Similarly, as earlier examples demonstrate,
three-strikes laws require prison terms for people convicted of minor
crimes that are much longer than are served by most people convicted of
rape, robbery, or murder. Simple justice requires that people not receive,
or be expected to complete, disproportionately severe punishments.
Some people deserve to be sent to prison for serious crimes, but not
for so long as many are now sent. Some people pose meaningful risks to
public safety; from that perspective it is not unreasonable to confine
them. There are, however, few such people, and very few of them remain
dangerous past their mid-thirties. A large percentage of prisoners could
safely be sent home.
From a crime prevention perspective, little would be lost if prisons
held many fewer inmates. The savings in money and human suffering
would be substantial, and the benefits for black Americans would be
enormous.
TARGETING THE CAUSES OF RACIAL DISPARITIES
A wide range of contemporary criminal justice policies do unnecessary

damage to black Americans. Some can be addressed by the police; others
require administrative or legislative changes.
Years ago Alfred Blumstein (1993) showed that American practi-
tioners and policy makers can respond quickly to racial disparity prob-
lems when they are motivated to do so. He observed that from 1965 to
1969 white and nonwhite arrest rates for young offenders were indistin-
guishable, that during the 1970s white rates exceeded nonwhite rates,
and that thereafter until 1989 nonwhite rates nearly tripled and white
rates halved, leaving nonwhite rates nearly four times higher. Figure 6.2
tells the story. Here is what Blumstein surmises happened:
The decline [in white arrest rates] after the 1974 peak was
undoubtedly a consequence of the general trend toward decrim-
inalization of marijuana in the United States. A major factor con-
tributing to that decriminalization was probably a realization
that the arrestees were much too often the children of individ-
uals, usually white, in positions of power and influence. These
parents certainly did not want the consequences of a drug arrest
500
400
Arrests per 100,000
300
200
100
0
1965 1970 1975 1980 1985 1990 1995 2000
White Nonwhite
figure 6.2 Juvenile arrest rates for drug offenses, by race, 1965–2000.
Source: Blumstein (1993); Blumstein and Wallman (2006).
to be visited on their children, and so they used their leverage to

achieve a significant degree of decriminalization. Following the
peak, arrest rates for both racial groups declined, and continued
to decline for whites. On the other hand, for non-whites, the
decline leveled out in the early 1980s and then began to accel-
erate at a rate of between twenty and twenty-five percent per
year, until the peak in 1989. This clearly reflects the fact that drug
enforcement is a result of policy choices. (758)
It is not completely cynical to wonder why soaring arrest rates for

nonwhite kids in the 1980s and 1990s did not provoke the kinds of
reactions that Blumstein attributes to soaring arrest rates of white kids
in the 1970s and did not lead to a comparable policy adjustment. To the
contrary, as economist Glenn Loury points out, so many black kids were
sent to prison in order to dissuade white kids from drug use:
Significantly, throughout the period 1979–2000, white high school

seniors reported using drugs at a significantly higher rate than
black high school seniors. High drug-usage rates in white, mid-

dle-class American communities in the early 1980s account for
the urgency many citizens felt to mount a national attack on the
problem. But how successful has the effort been, and at what cost?
Think of the cost this way: to save middle-class kids from the
threat of a drug epidemic that might not have even existed by the
time drug offense-fueled incarceration began its rapid increase in
the 1980s, we criminalized underclass kids. (2008, 16–17)
Major policy improvements that do not require legislation could be

made by police executives if they wished. These concern arrest pol-
icies for young people, police profiling, and drug arrest practices in
the inner city. It has long been clear that police arrest young black
people in circumstances when they do not arrest young whites, and
that as a result young blacks accumulate criminal records from
younger ages than whites do (Feld 1999). The earlier arrest records are
stigmatizing, often unnecessarily interrupt young black people’s
educational careers, and reduce their chances of living conventional
law-abiding lives later on. Convictions resulting from such arrests
sometimes remove them from school altogether and always make it
harder for them ever to get decent jobs.
R ACIAL P ROFILING
Racial profiling is per se unfair and puts black people at greater risk
than whites of being arrested for reasons that would otherwise not come
to the attention of the police. Some might say that the police should
arrest people whenever there is evidence they have committed a crime,
but sometimes not doing do so is a price free societies pay to protect
liberty. Police could no doubt arrest many more white drug dealers if
they were allowed to enter private houses without warrants, but few
people believe that would be a good idea. Protection of privacy is why
issuance of arrest and search warrants is tightly controlled and why they
must, except in emergencies, be approved in advance by a judge. When
an arrest results from an unlawful search or seizure the criminal charges
must be tossed out.
Criminal charges resulting from arrests based on racial profiling

should be dealt with in the same way. Because profiling arrests generally
are made in public spaces and the police claim to have legitimate
grounds for the stop, warrant requirements do not apply. Police incen-
tives to engage in profiling would change substantially if after the fact
every arrest arguably resulting from profiling were subject to the same
degree of judicial scrutiny that warrants before the fact require.
D RUG A RRESTS
Drug arrests are the second source of disparity that is within the power
of police executives to alter. Police focus attention on inner-city drug
markets for three reasons: arrests of dealers are relatively easy to make,
street markets are visible so citizens complain about them, and police
officials (and politicians who put pressure on them) like to be seen as
“doing something” about drugs. However, we know that those policies
have produced racial disparities between blacks and whites in drug
arrest rates as high as 6 to 1 in some years, that arrested inner-city
dealers are replaced by willing successors within days, and that whole-
sale arrests have no effect on the price or availability of drugs. Police
forces that retargeted their efforts to focus equally on white drug
dealers would make an important symbolic statement about racial
fairness, reduce racial disparities, and pursue the aims of drug law
enforcement no less effectively. They would reduce racial disparities in
arrests, convictions, and imprisonment in a stroke. They would free up
large amounts of police resources to be redeployed in more socially
constructive ways. They would also probably greatly reduce police
emphasis on arrests of drug dealers. As happened with young whites
arrested and convicted of marijuana offenses in the 1970s, white citi-
zens would probably not tolerate substantial increases in the number
of low-level white dealers who would be sent to prison. People
sympathetic to young black drug dealers and worried about the damage
done to them by recent arrest policies have had insufficient political
influence to persuade police to deemphasize arrests in the inner city.
People sympathetic to the interests of low-level white drug dealers do
have that kind of influence.
C RIMINAL RECORDS
At the sentencing stage the damage-doing policies include heavy reli-
ance on prior criminal records to aggravate punishments for new crimes
and the effects of mandatory minimum sentences, life-without-possi-
bility-of-parole sentences, and truth-in-sentencing laws. Heavy reliance
on prior convictions in setting sentences means that convicted offenders
receive much harsher punishments and longer prison terms than they
otherwise would. Reducing the weight given previous convictions in
sentencing would alleviate a major contributor to racial disparities in
imprisonment.
Most of us share an intuition that people who have committed a
previous crime should be punished more severely for a subsequent one,
and most legal systems respect that intuition. In most other countries,
legal doctrines tightly limit how much a punishment can be increased
because of a previous conviction (sometimes they forbid any increase).
The increases allowed are usually measured in months. In the United
States, however, punitive increments to a punishment for a new crime
imposed in respect of a criminal record are often measured in years or
decades. Because black offenders are arrested more often and at younger
ages than whites, they are more often affected by prior-record incre-
ments. And because they are more often sentenced for drug and violent
crimes, they receive the longest increments.
Even in states with relatively low imprisonment rates, prior
criminal records are a major cause of racial disparities in prison.
Richard Frase has shown that Minnesota sentencing guidelines call
for prison sentences for 39 percent of black convicted offenders but
only 25 percent of whites: “The principal source of the increase in
racial disproportionality from conviction to sentencing appears to be
racial differences in average criminal history scores, combined with
the heavy weight these scores have in determining which offenders
are recommended to receive [prison terms]” (2009, 254). Differences
in criminal records account for “about two-thirds of the black/white
difference” (250).
An argument can be made, and often is made, that the book should
be closed on an offense when an offender completes his sentence:
Did the crime, did the time (Fletcher 1978; Singer 1979; Tonry 2010).
The basic argument parallels the logic of the double jeopardy rule
that forbids retrying a defendant who was acquitted at the first trial. If
you cannot be tried twice for the same crime, you should not be pun-
ished twice. Increasing the punishment for a new conviction because
of an old conviction is, in effect, an additional punishment for the
first crime.
A recent book of essays shows that no one has yet managed to pro-
vide a principled justification for why a person who has previously been
convicted deserves a harsher punishment for a new crime (Roberts and
von Hirsch 2010). Nonetheless the intuition that criminal records matter
is strong, and I assume the practice will continue. But it should not
result in vastly harsher punishments.
Other countries’ legal systems limit the influence of criminal
records. Sometimes they allow criminal records to be used to aggra-
vate sentences only for designated crimes, as, for example, when the
string of convictions shows a long-term pattern of specialization in
a particular offense. In some countries criminal records are allowed
to be used to justify longer sentences, but subject to a strict outer
limit, often that the sentence may never be lengthened beyond what
would be appropriate for the most serious version of the current
offense.
American jurisdictions could also allow but limit the influence of
prior convictions. One of the most important steps is to repeal three-
strikes and other laws that predicate vastly longer sentences on prior
convictions. A second is to establish caps, such as that a prior violent
conviction can justify extension of a sentence up to but never beyond
six months, and a prior nonviolent conviction can justify up to but not
more than some shorter extension. Jurisdictions that operate sentencing
guideline systems have an obvious and principled approach readily at
hand: prior convictions could justify an aggregate sentence up to but
not beyond the top of the applicable guideline range for the offense
being sentenced.
The precise method used to limit the influence of prior convictions
is not so important. What is important is recognition that current
approaches greatly worsen racial disparities in imprisonment and that
means must be found to lessen that effect.
LENGTHY P RISON S ENTENCES

Mandatory minimum, LWOP, and truth-in-sentencing laws are a major
contributor to racial disparities in prison. They mostly affect drug and
violent crimes and so disproportionately affect black and other minority
offenders. Most such laws were adopted primarily for symbolic or
expressive purposes rather than, as my survey of the deterrent and inca-
pacitative effects of severe punishments and punishment increases
demonstrated, with any reasonable basis for believing they would sig-
nificantly affect crime rates and patterns. They should be repealed, and
no new ones should be enacted.
To address current overimprisonment, American jurisdictions need
to establish principled new systems of sentencing guidelines that pre-
scribe proportionate sentences for most crimes measured mostly in
months, as in most other Western countries, and in years only for the
very serious.
American jurisdictions also need to develop new mechanisms for
shortening unduly, disparately, or disproportionately long prison sen-
tences. Parole boards long performed that function. Many have been
abolished. They should be reestablished. Most surviving parole boards
became much more cautious. Often they do not release most eligible
prisoners even though they have authority to do so, and they hold many
prisoners far longer than is necessary. Half a century ago the Model
Penal Code, the most influential criminal law document of the twen-
tieth century, recommended a legal presumption that prisoners should
ordinarily be released the first time they become eligible, and should be
held longer only rarely and for very good reasons (American Law
Institute 1962). Modern parole boards should adopt that policy.
R ACIAL BIAS AND S TEREOTYPING

Criminal justice executives have been working for decades to reduce
racially biased and discriminatory patterns of decision making. Except
at the police stage, where racial profiling remains rife and drug enforce-
ment policy still targets inner-city drug markets, substantial progress
has been made.
Many states in the 1990s and since have created racial equity task
forces in their court systems. Innovative prosecutors’ offices have
established research programs to help them identify racial differences
in case processing and to change them (Miller and Wright 2008).
Continuing education programs attempt to sensitize judges and court
and correctional personnel about the ubiquity and perniciousness of
unconscious stereotyping and attribution. Programs such as these are as
important for the normative messages they send—about the injustice of
racial stereotyping, and the importance of treating people as equals—as
for the improvements they produce in the quality of American justice.
They need to continue and to be expanded to address subtler problems
of unconscious bias against black offenders resulting from their skin
tone or distinctively African American facial features. By itself, however,
consciousness raising can make only a marginal contribution to the
reduction of racial disparities in prison and to the damage American
criminal justice does to its black citizens as a class. Larger changes are
needed if major improvements are to be achieved.
P ROPHYLACTIC MEASURES
U.S. governments have long used prophylactic measures to guard against
unwanted effects of governmental decisions. To protect the public purse
legislatures routinely require that legislative proposals be accompanied by
or trigger fiscal impact statements. Some legislatures require that the
assessment show that a proposed law’s effects will be revenue-neutral before
it can be considered. Others require that any proposal for a new law that
would increase public expenditure contain within it provisions for raising
the additional money required. Federal and state laws routinely require the
preparation of environmental impact statements before building and other
permits may be issued, and most states require archaeological impact
assessments. Projects cannot go forward until the assessment has been
completed and the proposed project’s effects are shown to be benign. If that
cannot be shown, the project must be reconsidered and either abandoned
or made subject to amelioration or mitigation requirements.
Similar laws should be enacted concerning racial and other dis-
parities in the criminal justice system (Tonry 1995, 2004; Mauer
2007). Proposals calling for the development of racial disparity audits

and impact projections should be relatively uncontroversial. When
differences are documented the next question is whether they can be
justified, whether racial or ethnic disparities are a price appropriately
to be paid to achieve, and are outweighed by, some greater public
purpose.
If current or proposed policies create racially disparate effects, they
should be considered inherently suspect. In most policy areas that prop-
osition is self-evident. In employment law, for instance, the showing of
a disparate effect of a hiring or promotion practice on minority groups
or women creates a prima facie case of discrimination. The burden of
showing that the practice is justifiable and that the disparity cannot be
reduced is placed on the employer. Criminal justice policies should be
subjected to similar scrutiny. Many would not survive.
The interests of people accused and convicted of crimes are no less
important than those of people who apply for or are fired from jobs.
Their interests are greater. What is at stake is not a livelihood but in the
short term liberty and in the long term stigma and reduced chances of
living a satisfying life. The standards for assessing racial and other dis-
parities in the justice system should be no less demanding than those
concerning disparities in employment.
Criminal justice system policy makers should be required to declare
and justify disparate racial effects. Proposed new laws or policies should
be accompanied by racial and ethnic impact projections that seek to
identify foreseeable disparities and determine whether they can be jus-
tified. There should be strong presumptions against the law’s or policy’s
adoption if it will disproportionately adversely affect members of
minority groups. When disparities would be caused or worsened, the
proposal should be abandoned or revised.
Current policies and practices should likewise be closely scrutinized
by disparity audits to determine whether they operate in racially dispa-
rate ways. Clear and convincing evidence should be required that their
other effects are substantially more important than the damage they do
to the causes of racial neutrality in American law and racial justice in
American society. When they cannot be justified, they should be revised
or abandoned.
For many current policies the evidence has long been clear. Massive
evidence documents the existence of racial profiling by the police, that
they stop black people more often in cars and on the streets than they
do whites, and for less cause. Police arrest policies in drug cases have
long been known to target black and other minority drug dealers dis-
proportionately and to place much less emphasis on white drug dealers.
Sentencing laws for drug and some violent crimes have long been
known to hit black offenders especially hard. Sentencing policies that
make punishments much more severe for people with previous convic-
tions are a significant contributor to racial disparities in prison. All of
these policies should be reexamined.
The idea that proposed new laws affecting the criminal justice system
should be accompanied by racial impact statements is no longer novel.
Iowa has enacted such a law. Many criminal justice agencies now con-
duct disparity audits. The second edition of the Model Penal Code
(American Law Institute 2007) requires them.
ARE MEANINGFUL CHANGES POSSIBLE?
Proposals for substantial reduction in America’s prison population,

abandonment of racially unfair practices, repeal of punitive but ineffec-
tive legislation, and the requirement of race and ethnicity impact state-
ments may strike some readers as audacious. That is as it should be.
Racial disparities and the damage they have done to millions of
individual black Americans and their families, and to black Americans
as a group, are pressing social problems. Audacity is called for.
There are pessimistic and optimistic ways to contemplate the
future. The pessimistic way is to note the evolution of patterns of
white dominance in American history and the succession of mecha-
nisms by which it has been maintained. If slavery was succeeded by
Jim Crow, which was succeeded by the racially segregated northern
ghettoes, which was succeeded by mass imprisonment, it is hard not
to wonder what will substitute for mass imprisonment or whether
mass imprisonment will endure to keep patterns of racial hierarchy
as they now are.
Likewise the psychology and history of American race relations pre-

dispose white Americans to resent the progress black Americans have
made, to believe that black Americans with dark skin tone and stereo-
typically African American features are especially likely to be dangerous
criminals, and to favor harsh crime control policies. It is hard not to
wonder whether the goodwill and idealism exist to ameliorate the
avoidable damage contemporary policies do.
The optimistic way forward is to focus on the good things the civil
rights movement accomplished. Large numbers of black Americans
have moved into the middle class and into positions of wealth and
power. Some categories of black Americans—for example, young col-
lege-educated women—earn higher incomes than comparable white
Americans. Sixty years ago many white Americans, and most southern
white Americans, believed that blacks were inherently inferior; that is
no longer true. Today most white Americans, including most southern
white Americans, reject ideas about white supremacy and believe in
legal equality.
Fifty years ago, and for several decades thereafter, Republicans
shamelessly pursued the Southern Strategy. In 2005 Kenneth Mehlman,
chairman of the Republican National Committee, speaking before an
annual meeting of the National Association of Colored People, apolo-
gized for the Southern Strategy, saying, “Some Republicans gave up on
winning the African-American vote, looking the other way or trying to
benefit politically from racial polarization. I am here today as the
Republican chairman to tell you we were wrong” (quoted in Benedetto
2005).
Few Americans thirty years ago, whether liberal or conservative,
Democratic or Republican, would have chosen the criminal justice
system we now have. The social psychology, sociology, and politics of
American race relations have brought us to a place where no one should
want to be. There is no good reason to stay here.
notes
CHAPTER 1
1. The only significant partial exception is the replacement of the federal 100-
to-1 crack cocaine law with an 18-to-1 successor. The amendment was not
enacted because Congress accepted that the prior law was fundamentally
unfair on its face or because of its effects but because a new administration
with a black president and a black attorney general made a continuing issue
of it. Republicans were unwilling under those circumstances flatly to oppose
any amendment. They insisted, however, on a compromise that left the law’s
worst features intact. Most were also unwilling to go on record even in favor
of that half-a-loaf change. The House of Representatives adopted the change
unanimously and the Senate by a voice vote. No representative or senator
had to signal support in a way for which he or she could be held politically
accountable.
2. The psychology, sociology, and politics of American race relations are dis-
cussed in chapter 4; the paranoid streak, Evangelical Protestantism, and the
structure of American government in chapter 5.
3. The black:white ratio is not higher than 5.5:1 because the table uses U.S.
Bureau of Justice Statistics data that exclude Hispanics of either race and
because it contains combined data on men and women. The disparity ratio
for women in 2006 (3.8:1) was significantly lower that that for men (6.5:1;
Sabol, Minton, and Harrison 2007, table 14).
4. Table 6.2 and the accompanying text present this analysis in greater detail.
5. Figure 6.1 presents these data and parallel data for other quantities of crack.
The accompanying text discusses them in detail.
6. These literatures are discussed in detail in chapter 6.
176 • NOTES TO PAGES 33–88
CHAPTER 2
1. The method for redistributing Hispanics was determined by examining
1990 and 1995 data in which the Bureau of Justice Statistics reported black
and white figures including Hispanics and also reported Hispanics
separately. For 1995, for example, 17.6 percent of prisoners were classified
as Hispanic. Excluding Hispanics, 45.7 percent of prisoners were black
and 33.5 percent were white. Including Hispanics, 49.9 percent were
black and 47.7 percent were white. Simple math shows that approximately
25 percent of Hispanics were counted as black and 75 percent as white
(Tonry 2005, 1255 n. 99).
CHAPTER 3
1. Hispanics are not reported separately in these data; they are included
among whites and blacks.
CHAPTER 4
1. This refusal is the more striking because the 100-to-1 law was the one con-
temporary crime control policy that whites opposed when they become
aware of the racial disparities it causes. The level of whites’ support for
capital punishment does not significantly change when they learn that
blacks are much more likely to be sentenced to death than whites, or that
black killers of white victims are much more likely than any other killers to
be sentenced to death. White support for the 100-to-1 law plummets when
they learn of its racially skewed effects (Bobo and Johnson 2004).
2. The U.S. Sentencing Commission (2007) revised its crack and cocaine
guidelines in 2007. Twenty years earlier the Commission, then differently
constituted, made guideline sentences for crack offenses even more severe
than the legislation required; those earlier provisions were repealed. Those
changes, a New York Times article reported, merely nibble at the edges
because the federal statute continued in force unaltered: “The sentencing
commission’s striking move on Tuesday, meant to address the wildly
disproportionate punishments for crack and powder cocaine will have only
a minor impact. Unless Congress acts, many thousands of defendants will
continue to face vastly different sentences for possessing and selling differ-
ent types of the same thing” (Liptak 2007b).
3. The test, available since 1998, is offered by Project Implicit (2008), which
describes itself as combining “basic research and educational outreach in a
NOTES TO PAGES 109–117 • 177
virtual laboratory at which visitors can examine their own hidden biases.”
The test can be taken at implicit.harvard.edu.
4. Horton did not call himself Willie, but William. Bush’s campaign advisor
Lee Atwater chose to use “Willie,” which was more in keeping with the
southern white practice of Atwater’s childhood of “referring to black men
with overstated familiarity” (Mendelberg 2001, 142; Jamieson 1992).
5. Two of those in Kennebunkport later told a reporter, off the record, that
Bush never hesitated about adopting Atwood’s proposal. He expressed con-
cern that it might backfire, but that was all. “As far as I could tell, he had no
qualms about it,” one staff member recalled. “It was just the facts of life. He
realized that as far behind as he was it was the only way to win” (Schieffer
and Gates, 1989, 360).
CHAPTER 5
1. Rendition is the practice of seizing people without arrest warrants or
other judicial oversight and sending them for questioning to places such
as Syria, Saudi Arabia, and Egypt, which are known to use torture in inter-
rogations. In two well-documented cases Mahar Arar, a Canadian, and
Khaled Masri, a German, were detained by U.S. agents, flown to secret
prisons in Syria and Afghanistan, tortured, interrogated, and eventually
released when their captors realized they were innocent (Austen 2006;
Landler 2007). The Canadian and German governments investigated and
verified the victims’ claims; the U.S. government has refused to admit
wrongdoing, to apologize, or to pay damages. U.S. courts have refused to
allow the men to file suit against the U.S. government, even though in
Arar’s case the rendition occurred when he was changing planes in an
American airport.
The August 2002 U.S. Department of Justice “torture memo” advised that
interrogation methods do not count as torture unless they are “equivalent
in intensity to the pain accompanying serious physical injury, such as organ
failure, impairment of bodily function, or even death” (Allen and Priest
2004, A3; Goldsmith 2007). That memo was withdrawn but was replaced by
secret legal opinions that permitted use of the same or similar methods
(Shane, Johnston, and Risen 2007). “This government does not torture peo-
ple,” said President Bush in October 2007 (Stolberg 2007), a claim that was
possible (despite admission of water-boarding) only on the basis that the
secret opinions did not define water-boarding and similarly inhumane
practices as torture.
178 • NOTES TO PAGES 119–160
2. CERD lacks authority to enforce compliance with its recommendations.

The United States ratified the treaty subject to a number of understandings
and recommendations, including that ratification would not require
changes in U.S. law and that private lawsuits may not be based on treaty
provisions (Fellner 2009, 259).
3. Stan C. Proband, personal communication, December 27, 2007.
4. Readily available statistical data cited in this chapter, such as imprisonment
rates, are based on U.S. Bureau of Justice Statistics reports, available at the
Bureau’s website (www.ojp.usdoj.gov/bjs/).
CHAPTER 6
1. “The approach taken in California has not been dramatically more effective
at controlling crime than other states’ efforts. . . . [California’s law] is not
considerably more effective at crime reduction than alternative methods
that are narrower in scope” (E. Y. Chen 2008, 362, 365). Doob and Webster
(2003) have in any case demonstrated fundamental problems with her
analysis.
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INDEX
A Bellair, Paul E., 30

African American feature bias, 80, 82, 85, Bennett, William J., 135
87, 96, 112, 171, 174 Biden, Joseph, 154
African American Survey (2006), 93 Bill of Rights, 137
Afrocentric feature bias, 7, 87, 88 black arrest rates
age of criminal responsibility, 118, 125 for drug crimes, 70
alcohol, 10, 54–55, 60, 102, 103 serious violent crimes, 78
Alexander, Michelle, 6 black drug dealing, 58, 63, 68, 70–76, 167
American Apartheid, 6, 99 black-on-black crimes, 15
American Council on Education, 86 black people serving life sentences
American Dilemma, An: The Negro disparities, 37
Problem and Modern Democracy, 26, Blair, Irene V, 87–88
86 Blumstein, Alfred, 40–41, 43, 56, 70, 164–65
Anatomy of Racial Inequality, The, 100 objections, 42
anti-abortion debate, 129 Bobo, Lawrence, 92–93, 94, 101
antiblack racism, 77 Bonfire of the Vanities, 84
Applegate, Brandon K., 136 Bordenkircher v. Hayes, 138
Arar, Mahar, 177n1 Bork, Robert, 6
arrest rates for drug offenses Bourne, Peter, 76
racial differences, 67 Brown v. Board of Education, 130, 146
Atkins v. Virginia, 123 Bureau of Justice Statistics, 11, 70
Atwater, Lee, 81, 109–10, 113 Felony Defendants in Large Urban
Austria, 126 Counties, 72
National Corrections Reporting
B Program, 48
Belgium, 14, 36, 125–26 State Court Sentencing of Convicted
Bell, Daniel, 129 Felons, 72
200 • INDEX
Bush I administration, 109–10, 154, 155 exchange of, 65

Bush II administration, 118 offenses, 49
busing, 2, 81, 83, 108, 110 crime, 148
deterrence, 19, 155–62
C crime control policies, American
Canada, 35, 126, 145, 151 aspects of, 1
Canadian Sentencing Commission repeal of, 151–52
(1987), 19, 157 zero-sum game, 9
capital punishment, 107, 122–23 crime trends, 126
attitudes, 136 criminal justice policies, 2, 5, 22, 95
Carter, Dan, 110 criminal records, 168–69
Carter, Jimmy, 75, 108 Cullen, Francis T, 95, 113, 136
Categorically Unequal, 6, 99 Culture of Control, The, 126
Caulkins, Jonathan, 152
Center for Constitutional Rights D
(2009), 50 Dent, Harry, 13
Chapleau, Kristine M, 87 Denton, Nancy, 6, 99
Chen, Elsa Y, 160 DiIulio, John J, 135
Cheney, James, 109 disparity impact assessments, 24–25
Christian Coalition, 135 Doob, Anthony, 19, 159
Churchill, Winston, 127, 143–44 drug arrests, 22–23, 167
Civil Rights Act of 1964, 110, 144 Black rates, 59
civil rights movements, 2–3, 6, 15, 30, 82, Drug Enforcement Agency, 152
81, 108–10, 112–13, 120, 134, 144, drug law enforcement, 16, 17–18, 23, 75,
149, 174 146, 152, 167
Clinton, Bill, 79, 131 drug policy, 18, 55, 102, 152
Coase, Ronald, 160 drug transactions, 64–65, 66
coded racial appeals, 112 drug wars, 152–55
cognitive dissonance, 104 Du Bois, W. E. B, 26–27
colorism, 7, 80, 83, 85 Dukakis, Michael, 81, 90, 109, 113
Committee on Civil Rights, 106 Duke, David, 112
Committee on the Elimination of Racial Dworkin, Ronald, 120, 131, 142
Discrimination (CERD), 118–19
Conflictual political systems, 138 E
conscious stereotypes, 83 Eastland, James, 106
consensual political systems, 139 Eberhardt, Jennifer, 87–88
conspiracy theory, 4 Ehrlich, Isaac, 160
continuing education programs, 171 18-to-1 law, 4, 28, 50
“contraband,” seizures of, 69 Emerging Republican Majority,The, 2–3,
Cook, Philip J, 158 13, 80, 106
Crack cocaine, 1, 2, 4, 16, 18, 60, 77, 102–3, England, 14, 122, 126–27, 139, 151
153 Erickson, Kai, 133
INDEX • 201
Evangelical Protestantism, 9 “100-to-1 law,” 1, 4, 7, 11, 28, 75–76, 79, 93,

Ewing v. California, 124 151–52
Executive Order 8802, 106 Human Rights Watch (2008), 71
Human Rights Watch (2009), 69
F Hurwitz, Jon, 94–95
Fair Sentencing Act of 2010, 4
Federal Employment Practices I
Commission (FEPC), 106 Implicit Association Test (IAT),
Festinger, Leon, 104 8, 87–89
Finland, 126 implicit bias, 8, 80, 83
Finnish National Research Institute for California Law Review, 8
Legal Policy, 19 imprisonment rates, 13–15, 31–39,
Florida Department of Corrections, 87 122, 151
France, 14, 36, 126, 151 Blacks, 15, 17, 52
Frase, Richard, 23, 168 racial differences, 34
Furman v. Georgia, 91 imprisonments, 26, 70, 93, 141
police arrest policies, 28
G sentence lengths, 52
Garland, David, 101, 126, 133 inhalants, 60
Germany, 14, 36, 125–26, 151 inner-city drug markets,
Goldwater, Barry, 106–8, 129–30 22, 152
Goodman, Andrew, 109 International Convention on the
Graham v. Florida, 123 Elimination of All Forms of
Great Depression, 149 Racism, 118
Great Society, 149 Italy, 14, 126
Gregg v. Georgia, 91
J
H Javits, Jacob, 107
Hagedorn, John, 68 Jim Crow, 5, 25, 31, 82, 99
hallucinogens, 60, 153 John Birch Society, 129–30
Harrison Act, 102 Johnson, Devon, 92, 95, 97, 101
Harvard University, 8, 93 Johnson, Kevin R, 22
Hegel, George Wilhelm Freidrich, Johnson, Lyndon, 149
119, 131 Jones, James D, 95, 113
Henry J. Kaiser Foundation, 93 Judd, Charles M, 87–88
Hochschild, Jennifer, 86 justice system, problems of race
Hofstadter, Richard, 9, 120, 128, 130, 133, paranoid streak, 9–10
136, 142 politicization of the justice
Horton, Willie, 2, 81, 90, 109, 112–13 system, 9–10
House Un-American Activities religious moralism, 9–10
Committee, 129 just world theory, 105
housing policy, 101–2 juvenile waivers, 125
202 • INDEX
K McCarthy, Joseph, 129

King, Martin Luther, 3 McNulty,Thomas, 30
Kleiman, Mark, 152 Medicaid, 149
Ku Klux Klan, 133–34 Medicare, 149
Meese, Edwin, 53
L Megan’s laws, 144
Langan, Patrick, 43 Mehlman, Kenneth, 174
late modernity, 121, 126 Melewski, Matthew, 43, 56, 70
Lauritsen, Janet, 30 Mendelberg, Tali, 111–12
Law and order, 108 methamphetamine, 67
law-and-order movement, 9, 13 Model Penal Code, 170, 173
Lawn, Jack, 154 Moynihan, Daniel Patrick, 154
Levitt, Steven, 55 Murphy, Peter, 55
life without the possibility of parole Myrdal, Gunner, 26–27, 86
(LWOP), 37–38, 123–24, 170
Lockyer v. Andrade, 124 N
Loury, Glenn C, 6, 100, 165 Nagin, Daniel, 157–58
low-level drug sellers, 55 National Commission on Marihuana and
Lowndes, Joseph, 109 Drug Abuse, 76
LSD, 103 National Crime Victimization Survey
(NCVS), 30, 43, 46–47
M National Election Study (2000), 94
MacCoun, Robert, 55, 152 National Longitudinal Survey of
Madison, James, 139–40 Youth, 61–62
Malign Neglect: Race, Crime, and National Race and Crime Survey,
Punishment in America, 27 91–92
mandatory minimum sentence, 28, 50, 75, National Research Institute of Legal
77, 124, 144, 152, 163, 170 Policy, 158
effects of, 159 National Rifle Association, 129
mandatory penalty laws, 19–20 National Survey on Drug Use and
deterrent effects, 159 Health, 59, 153
mandatory sentencing law, 159 negative racial stereotypes, 85,
Manichaean moralism, 128 90–91
March on Selma, 3 Netherlands, the, 125, 131
marijuana, 4, 11, 23, 60, 64, 103, 153 New Deal, 149
decriminalization of, 76 New York City Police Department
purchase of, 65 data on police practices, 50–51
marijuana law enforcement, 11 New York Times, 177n2
Marijuana Tax Act, 102 New Zealand, 14, 123, 151
Masri, Khaled, 177n1 1986 federal law, 1
Massey, Douglas, 6, 99 Nixon, Richard, 83, 103, 108, 111
McCaffrey, Barry, General, 4, 79 nonincarcerative punishments, 49
INDEX • 203
O drug arrests, 67
Obama, Barack, 4, 131, 144, 149 racial disparity audits, 24–25, 172
Office of National Drug Control Policy racial equity task forces, 24
(ONDCP), 18, 65 racial impact assessment, 24–25
office of the drug czar, 65 racial insensitivity, 141
open-air street dealers, 66 racial polarization, 3
“Operation Dixie,” 107 racial prejudice, 90
calculation of, 95
P racial profiling, 12, 22, 28, 50, 166–67
Pager, Devah, 84 racial resentments, 91, 95, 97–98
paranoid style, 120–21, 128, 136, 141 racial stereotyping
parole, 24 calculation of, 96
Peffley, Mark, 94–95 sentencing decisions, 88
penalties racism, 91
deterrent effects of, 19 Reagan, Ronald, 108–9
perceived racial bias, 95 “Reagan Democrats,” 81
Phillips, Kevin, 3, 13, 80–81, 106 “recidivist premium,” 23
Pizzi, William T, 88 rehabilitation, 126
police arrest policies, studies of, 66–67 Religion and Politics in the United States,
Powder Cocaine, 1, 4, 10, 60 135
offenders, 50 religious fundamentalism, 136
purchase of, 65 rendition, 177n1
Pratt, Travis, 19, 159 Reno, Janet, Attorney General, 4, 79
prison population, 151 “replacement problem,” 162
Proband, Stan C, 120 Republicans’ Ripon Society, 107
Project Implicit (2008), 177n3 Reuter, Peter, 55, 152
prophylactic measures, 171–73 Robertson, Pat, 135
prosecutors and judges Rockefeller Drug Laws, New York, 19, 159
selection of, 136–38 Roediger, David R, 112
protestant fundamentalism, 120–21, 135 Roosevelt, Franklin Delano, 2, 106, 149
“pseudo-conservative politics,” 129 Roper v. Simmons, 123
punitiveness index, 95 Rove, Karl, 81
R S
Race, Crime, and Public Opinion Study Sargent, Francis W, 109
(2001), 94–95 Scandinavian Countries, 36, 125–26
Rachlinski, Jeffrey, 89 Schwerber, Michael, 109
racial animus, 91 Seattle, 66
racial antipathy, 90 sentencing research, 85
racial bigotry, 90 separation of powers, 137
racial disparities, 4, 6 Shelby, Tommie, 103
death row, 38 Shepherd, Joanna M, 160
204 • INDEX
Snyder, Richard, 135 U.S. Bureau of Justice Statistics,

social policy, 30, 95, 144 32–33
Social Security System, 149 U.S. National Academy of sciences,
social stratification, 79, 99 19
“Southern Strategy,” Republican, 2–3, 8–10, U.S. National Academy of Sciences Panel
79, 81–82, 106–14, 134–35, 140, 174 on Research on Deterrent and
“tough-on-crime” agenda, 3 Incapacitative Effects, 157
Spain, 14, 122, 126, 151 U.S. National Academy of Sciences Panel
Stanford University, 87 on Violence, 157
Statistical Abstract of the United States, U.S. Sentencing Commission
The, 2010 edition, 12–13 (2007), 176n2
statistical discrimination, 82–85 U.S. Sentencing Commission, 4
street-level arrests, 55 U.S. Supreme Court, 15, 22, 123–24
street-level dealers, 18, 54–55
street-level drug markets, studies V
of, 66–67 Venkatesh, Sudhir A, 55
Stutman, Robert, 155 Vera’s Prosecution and Racial Justice
Switzerland, 116, 126 Project, 71
system justification theory, 105 Vera Institute of Justice, New York
systems of checks and balances, 137 City, 71
violent crime, 45, 48
T Von Hirsch, Andrew, 158
Taylor, Linda, 109
Tea Party Movement, 116, 129 W
Tennessee Valley Authority, 149 Wacquant, Loïc, 99, 101
Thatcher, Margaret, 19, 157 Wallace, George, 3, 108
Thernstrom, Stephan and Abigail, 8, 108, 111 Walters, John P, 135
three-strikes law, California, 20–21, 28, 50, war on drugs, 11, 38, 53–54,
77, 124, 148, 160, 163–64 56–57, 75
Thurmond, Strom, 107 War on Terror, 117–18, 129
Tonry, Michael, 70 Washington Post, 93
torture memo, 177n1 water-boarding, 178n1
To Secure These Rights, 106 Wayward Puritans, 133
Truly Disadvantaged: The Inner City, the Weaver, Vesla, 113
Underclass, and Public Policy (1987), Webster, Cheryl, 19, 159
The, 83–84 wedge issues, 81
Truman, Harry S, 2, 106 welfare queen, 109
truth-in-sentencing, 75, 77, 148, 170 Western, Bruce, 5
Tyler, Tom, 131 white drug trafficking, 63
white eyes, 79
U Wilson, James Q., 154
undercover drug agents, 68 Wilson, William Julius, 84
Unnever, James, 93–94, 113, 136 Wolfe, Tom, 84–85

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PUNISHING

Saving Children from a Life of Crime: Early Risk

Imprisoning Communities: How Mass Incarceration

The Next Frontier:

The World Heroin Market: Can Supply Be Cut?

The Politics of Imprisonment: How the Democratic Process

Making Public Places Safer: Surveillance and Crime Prevention

Banished: The New Social Control in Urban America

Policing Problem Places: Crime Hot Spots and Eﬀective Prevention

The Policing Web

Oxford New York

Copyright © 2011 by Oxford University Press, Inc.

Published by Oxford University Press, Inc.

Library of Congress Cataloging-in-Publication Data

1: A Continuing American Dilemma 1

This book is about racial injustice in the American criminal justice

It would be easy to dismiss these people—many Americans under

system, the situation of black people in America is diﬀerent from those

Nonﬁction books are written by individuals and reﬂect their writers’

provides remarkably prompt, able, and good-spirited support to faculty.

A CONTINUING AMERICAN DILEMMA

Four aspects of American crime control policies stand

THE POLITICS OF RACE AND CRIME

The Republican “Southern Strategy” was a major precipitator of the

Majority, a book announcing and justifying the Southern Strategy, Kevin

imposed no special burdens on their white constituency. Tough sen-

THE SOCIOLOGY OF RACE AND CRIME

A second, subtler, harder-to-grasp explanation for unjustifiable racial

contact sports or heavy physical training; money spent on sport mostly

THE SOCIAL PSYCHOLOGY OF RACE AND CRIME

Yet another related literature examines “implicit bias.” Millions of

acknowledge that “the capacity to feel empathy across racial lines is in

MORALISM, JUDGMENTALISM, AND SEVERE

Other facets of American history and culture compound problems of

in only one direction: upward. Similar pressures operate on other

Ghetto black kids were a different matter. It is hard to identify or

THE EFFECTS ON BLACK AMERICANS

The litany of ways drug and crime control policies disproportionately

In 2007, 46.7 percent of blacks owned their own home, compared

If imprisonment rates for jail and prison together had remained at

The massive imprisonment of black men in twenty-first-century

1973. In 1960 blacks made up 36 percent of the prison population. The

Much of the damage done to disadvantaged black Americans and their

Efforts to reduce the influence of bias and stereotyping in official

table 1.1 Hypothetical Reductions in Imprisonment, Effects of Racial Makeup

Source: Tonry and Melewski (2008, table 5).

by racial bias and stereotyping. Ten percent is a high estimate of their

available. The second is that severe sentencing policies significantly

question is whether increases in penalties, or having more rather than

the toughest ( Joint Committee on New York Drug Law Evaluation

The evidence concerning incapacitation is little stronger. No one ques-

There is a fifth reason why incapacitative considerations cannot

T ARGETING THE C AUSES OF R ACIAL D ISPARITIES

drug law enforcement no less effectively. As a practical matter police

The United States is unique among Western countries in giving very