“Re-thinking Criminal Justice”


While unrelated, two legal decisions this past Monday have a common heritage. One was Attorney General Eric Holder’s announcement that federal prosecutors will no longer pursue mandatory sentencing “for certain low-level, non-violent drug offenders, without ties to big gangs or cartels.”
The other was Federal District Court Judge Shira Scheindlin’s rule that the tactics underlying New York City’s stop-and-frisk program violated the constitutional rights of minority citizens. Both invoke race and neither addresses the root cause of minority crime – the breakdown of the family, and a welfare system that represses individual self-esteem.
Mr. Holder noted that while the population has increased in size by a third since 1980, the federal prison population had grown by 800% [1] , and that in 2010 the cost to American taxpayers was $80 billion. He added that he wants to embrace steps to do away with “shameful” racial disparities in sentencing. He called harsher punishments for “people of color” “unacceptable”, “shameful” and “unworthy.” Judge Scheindlin concluded: “The City’s highest officials have turned a blind eye to the evidence that officers are conducting stops in a racially discriminatory manner.”
At year-end 2009, with 743 jailed adults per 100,000 people (2,229,000 prisoners), the United States had the highest documented incarceration rate in the world. In 2011, with just under seven million people in jail, probation or on parole, almost 3% of the population was under some form of correctional supervision. Additionally, another 71,000 juveniles were in juvenile detention. The increase in prison population is not due to violent crimes, which have been stable or declining over the past few decades. On the other hand, the number of incarcerated drug offenders has increased twelvefold since 1980.

Race is a factor in terms of prison population, in that they represent an inordinate percent of the population. The question is: is it deserved? According to the U.S. Bureau of Justice Statistics, non-Hispanic blacks accounted for 39.4% of the total prison population in 2009, while they make up 13.6% of the U.S. population. Hispanics were 20.6% of the imprisoned population, while representing 16.3% of the population. Nevertheless, black-majority cities have similar crime statistics for African-Americans as do cities where the majority of the population is white. Wikipedia cites white-majority San Diego having a slightly lower crime rate for blacks than does Atlanta, a black-majority city in terms of population and government.

Judge Scheindlin, in her ruling, was clear that she was not striking down the program, but requiring the city to use the tool in a way that does not discriminate against African-Americans and Hispanics. The tragedy, though, is that her ruling is unlikely to affect the upper Eastside, a bastion of Leftism, but could have a negative consequence in what the Wall Street Journal calls the “barrios and housing projects,” where stop-and-frisk has actually helped New York’s most vulnerable citizens. Regardless, should our sympathies lie with the perpetrators or the victims?

In his ruling, Eric Holder front-ran work being done by bi-partisan groups in Congress. The unlikely combination of Senators Patrick Leahy of Vermont and Rand Paul of Kentucky have been working to amend rules requiring mandatory minimum sentences, as have Senators Richard Durbin of Illinois and Mike Lee of Utah. Even though the rules requiring mandatory sentencing originated with legislation in Congress, the Obama Administration feels free to ignore or amend them through executive decree. In an interview with CNN, Michael Mukasey, attorney general under George W. Bush, said, “I generally agree with the goal of getting rid of mandatory minimums. But the way to do that is to pass a law.”

It is the unintended consequences of both decisions that I believe are cause for concern. Decriminalizing possession of small amounts of marijuana, and making it legal to purchase, would serve two purposes: It would lessen the influence and power of drug cartels operating along the U.S. – Mexico border, while reducing the prison population. However, for an Administration that has already invoked executive authority more than any other, to do so again is the height of hubris, as well as dangerous to our concept of democracy. Mr. Mukasey, in this regard and in my opinion, is correct.

As for Judge Scheindlin’s decision, I agree with Mayor Bloomberg. While people do have a right to walk down the street protected by the Fourth Amendment, “people also have a right to walk down the street without being killed or mugged”. The judge’s decision was based on a class-action suit brought by nineteen plaintiffs who were seeking a change in policy, not monetary damages. As the Wall Street Journal noted Tuesday: “If the class-action lawyers chose only 19 out of 4.4 million (the number of “stops” between January 2004 and June 2012) to prove their claims, presumably these incidents were the most egregious.” But, of those 19 “stop and frisks,” five were deemed constitutional both in terms of the “stop” and the “frisk”. In another five, the “stop” was constitutional, but not the “frisk.” To have only ten incidences declared unconstitutional in terms of “stop and frisk” out of 4.4 million is a record of which to be proud – not to be condemned.

The real shame in both stories is that both blamed racism and neither addressed the root causes of crime – broken families and declining self-esteem. Most academic and empirical research suggest a close link between broken homes and crime. A study two years ago of the 27 industrialized countries conducted by the OECD (Organization for Economic Cooperation and Development) found that 25.8% of U.S. children were being raised by a single parent. That compares to 14.9% across the other country members. Seventy-two percent of children in the African-American community are being raised by a single parent, more than twice as high as fifty years ago. A 1994 study by the University of Minnesota showed that the percentage of Black children living with a single parent remained steady at 30% for the eighty years between 1880 and 1960. Mr. Obama would do far more for the African-American community by extolling the success of his own family, rather than providing more hand-outs.

Work and self-respect go together. In the 2012 election, Mitt Romney said, “People from both political parties have long recognized that welfare without work creates negative incentives that lead to permanent poverty. It robs people of self-esteem.” A hundred and fifty years ago, Thomas Carlyle wrote, “Nothing builds self-esteem and self-confidence like accomplishment.” An unemployed, healthy young man picking up a disability check does not create a sense of accomplishment. Admittedly, the employment situation is out of the hands of the impoverished and those most vulnerable to crime or criminality. But, while Congress and the President have been negligent in promoting tax and regulatory reform that would help build business confidence, two years of unemployment insurance and the easier requirements to qualify for disability insurance have lessened the need to seek work. Being on welfare of whatever type does little for one’s self-esteem, provides too much free time, making one more susceptible to criminality. It creates a vicious cycle, from which it becomes increasingly difficult to dismount.

In both judicial instances, it is the failure to address the causes, along with the focus on race that I find troubling. With African-Americans as President and Attorney General, we should be moving toward a post-racial world. Instead, racial tensions have worsened. While Mr. Holder cites statistics suggesting that incarceration rates for African-Americans, at 39.4%, are almost three times their percentage of the population, h
e fails to mention that 38.3% of all violent crimes in the U.S. were committed by African-Americans. It is the intellectual dishonesty that I find disheartening, along with neglect as to the root causes – declining family structures and a refusal to acknowledge that work is necessary for self-esteem.


The views expressed on austriancenter.com are not necessarily those of the Austrian Economics Center.

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