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January/ February 2013 A New Role for Parole

African Americans suffer from high rates of incarceration and crime. Here’s how to drastically reduce both.

By Mark A. R. Kleiman

American crime rates, especially violent crime rates, and American incarceration rates are twin national disgraces. We have five times the homicide rate and five times the incarceration rate of other economically advanced countries. Both crime and incarceration are appallingly concentrated among poor African Americans; in the same neighborhoods where homicide is the leading cause of death for young men, more than half of those men will do prison time before they turn thirty.

The concentration of incarceration by race is by now a well-worn topic. Some activists and scholars allege a concerted effort to replace older forms of racial oppression with the penitentiary. The concentration of incarceration by social class is less well known, but no less worrisome.

What that critique leaves out is the concentration of crime. Violent crime has fallen 67 percent from its peak in the early 1980s and early ’90s, but remains more than twice as common as it was before the great crime wave of the ’60s. And crime is just as concentrated as incarceration: blacks are about six times as likely as whites to be imprisoned, and also about six times as likely to be murdered. Almost all of those homicides are intraracial. The Crips and the Bloods killed more African Americans in the last quarter of the twentieth century than the Ku Klux Klan killed in its entire history. Homicide rates have fallen sharply over the past two decades, but that may have more to do with improved shock-trauma medicine than with reduced criminality; the rate of gunshot wounds has not fallen.

The actual bloodshed may not be the worst of it. The costs of crime are both enormous and underappreciated, because they consist primarily not of the direct losses to victims of crimes but of the costs people and businesses incur, and inflict on one another, in attempting to avoid victimization. Every store that moves away from a poor neighborhood for fear of robbery takes with it both services and jobs, leaving the neighborhood that much poorer and more socially isolated.

Crimes against African American victims and in poor African American neighborhoods tend to be underpunished. Historically, that reflected the broader society’s indifference to the lives and property of the descendants of slaves. Police on the beat today can still remember when their superiors on the force dismissed black-on-black killings as “NHI”—“no humans involved.” The continuation of underpunishment today reflects a variety of causes: the political weakness of poor black neighborhoods; the distrust between residents of those neighborhoods and the police, leading to “no-witnesses” killings in broad daylight; the sheer volume of cases in crowded urban courts, leading to cheap plea bargains; and the reluctance of prosecutors and judges to contribute further to disproportionate incarceration.

But whatever the causes, the result—as Randall Kennedy pointed out many years ago—is to deny poor African Americans the “equal protection of the laws” commanded by the Fourteenth Amendment. Their persons and goods are less safe from criminal victimization than those of richer people with lighter-colored skins. This is as serious a denial of social justice as the better-publicized—and shrinking—black-white educational gap.

It is also a self-reinforcing social trap. Growing up in a high-crime neighborhood is a major risk factor for becoming criminally active oneself. Living in such a neighborhood reduces the benefits of lawful activity by reducing economic opportunity and making lawfully acquired property less secure. It also reduces the costs of unlawful activity by surrounding a potential offender with people who are easy to victimize and either not inclined or not able to command the attention of the authorities. Growing up in such a neighborhood also means a higher likelihood of being a crime victim or witnessing violence, two more factors that make someone more likely to offend.

Moreover, a generally chaotic environment tends to reduce the ability of children who grow up in it to control their impulses in the service of long-term goals. And, as Glenn Loury notes in these pages (“Prison’s Dilemma,” page 46), the threat of a prison term tends to have less deterrent value in a high-crime neighborhood, because going to prison counts as a routine life incident rather than a shocking personal and family disgrace. The result is that underpunishment and overincarceration often coexist, working their joint devastation from generation to generation.

Is there a way out of this social trap? The conservative project of moral denunciation and harsh punishment, even if it were morally sustainable, has clearly passed the point of diminishing returns. The standard progressive approach of social services (such as drug courts, reentry programs, and “justice reinvestment”) has great surface appeal but little in the way of evidence of efficacy. Could reduced racial discrimination and greatly expended legitimate economic opportunity make a big difference? Perhaps. But even assuming that the plans were in hand and the votes available, it isn’t clear that it would be possible to generate many good jobs in places where workers and customers alike feel, and often are, unsafe. And while racial animus against African Americans has multiple sustaining causes, surely the crime-rate differential is important among them; it isn’t only white cab drivers who prefer not to respond to street hails from young black men.

The need to punish past offenses and control future offenses more effectively—and with much more sparing use of jails and prisons—could hardly be clearer. After a quarter century of explosive growth and almost two decades of decline, crime rates are nearly back to their 1965 levels. We should make it a national goal to keep those crime rates moving down, while getting back to the 1965 level of incarceration. That would merely put us back in line both with our own history and with incarceration rates in other advanced democracies, but it’s also an ambitious goal; it would represent an 80 percent decrease from our current incarceration rates.

The good news is that we already know how to do all of this, while spending less money and imposing vastly less suffering than we do today. The key is understanding how punishment works to change behavior among actual offenders, rather than among the rational economic actors imagined by some theorists of deterrence. The conservative goal of making sure that “crime does not pay” was achieved years ago; blue-collar offending—theft and retail drug dealing—offers a remarkably bad bargain to those who engage in it, even if the alternative is working at McDonald’s. Low-level crime, and the drug abuse that often accompanies it, derives more from ill-controlled shortsighted impulse than from rational calculation. If the problem were deterring perfectly rational offenders enticed into crime by inadequate punishments, continuing to ratchet up the severity of punishment while applying it only sporadically might work. But that’s not the problem we actually have: legions of poorly self-controlled offenders making a mess of their own lives and devastating their neighborhoods because they can’t shape their current behavior around their long-term plans, or don’t have long-term plans at all.

Mark A. R. Kleiman is professor of public policy at the UCLA Luskin School of Public Affairs and the author of "When Brute Force Fails: How to Have Less Crime and Less Punishment."