In a new book, Punishing Race, Michael Tonry, Professor of Law and Public Policy at the University of Minnesota, examines the disproportionate impact of anti-crime policies on African Americans.
The Crime Report: Why did you decide to write about race and the criminal justice system, an issue that has been discussed for many years?
Michael Tonry: I remain perplexed that after 30 years of people understanding the racial effects of lots of crime policies, nothing seems to happen in terms of policy changes. I finally realized that I could tell a story about race and politics and crime policies that flows together and helps everyone understand what is happening. I do lots of comparative work trying to understand why different countries have different kinds of policies on crime. In many other countries, the legitimacy of government is high, the policies are less punitive, and the prisons are less crowded than in the U.S., but that doesn’t tell you why particular countries have the policies they have. In every country, cultural characteristics make things understandable.
TCR: You say that the U.S. has not made much progress reducing the disproportional impact of anti-crime policies on blacks. How did we develop such a poor reputation among progressive nations on this issue?
Tonry: Once you look at the background, the story leaps out. It started crystallizing in the 1940s: racist white people and conservative Republicans realized they had a common interest in “playing the race card.” Kevin Phillips wrote about this in “The Emerging Republican Majority” in 1969. This political strategy changed the way people think about criminal justice.
TCR: You write that most of the effects you’re talking about are not due to overt racism.
Tonry: Yes, much of it is unconscious stereotypes and beliefs, such as one that black people do a lot more bad things than whites, and don’t lift themselves by their bootstraps. Appearance plays a part. I cite psychology research showing that even whites with distinctive African-American features are punished more severely than other whites. One reason the nation seems unable to back off of harsh policies enacted 15 or 20 years ago is that the issue remains one of race, and American public opinion is not exercised about racial disparities in criminal justice.
Crack Cocaine Sentencing
TCR: What are some examples of the continuing racial disparities in the criminal justice system?
Tonry: A classic example is the federal so-called “100-to-1” law of 1986, which punished sales of crack cocaine, mostly by blacks, as severely as sales 100 times larger, mostly by whites, of powder cocaine. Last year, Congress reduced that ratio to 18-1. That is some progress, but the result was a decision that Congress knew would still affect black people more harshly than whites.
Another example is that there are relatively low penalties for possession of marijuana, partly because a lot of white people’s kids were being arrested for it. We don’t react that way to the effect of crack cocaine laws. For the last two decades, imprisonment rates for blacks have been five to seven times those for whites. In most years between 1991 and 2002, there were more black prisoners than whites in the U.S.
TCR: What are major factors explaining these numbers?
Tonry: There is a fundamental lack of empathy between the white majority and disadvantaged blacks that makes the political process extraordinarily unsympathetic to black people who are caught up in the system. Other countries have similar issues but they recognize that it is a big problem if, say, many minority kids are treated badly by police officers. It’s cultural blindness in the United States. Allowing criminal justice policies that you know have racial impacts is a moral problem. I don’t believe our blindness is driven by a wish to do bad to black people, but rather a lack of empathy.
TCR: How important a role does our drug policy play in encouraging racial bias?
Tonry: Drug policy does play a significant part although, 10 years ago, a higher percentage of prisoners were there on drug charges than is the case now. Still, it has been a huge contributing factor. The emphasis on street arrests and on crack cocaine has sent more black kids into the criminal justice system.
Drug dealing by whites takes place mostly in safe places; black drug dealing is mostly in places where police will see you. Many whites are troubled by street drug dealing in the inner city, and that is reflected in how police make strategic decisions to allocate their scarce resources. They usually don’t target drug transactions on university campuses, where they probably could do it easier but for political reasons, they don’t
TCR: What about the argument that blacks as a group commit crimes more than whites, so that is why more of them are in the justice system?
Tonry: Data once showed over-involvement of black people in violent crimes such as homicide, robbery and aggravated assault; but the black percentage of arrests for violent crimes has been declining since the 1980s. Racial disparities in the prison population have not declined.
TCR: How do you account for that?
Tonry: Longer sentences are given under laws on repeat offenses, “three strikes,” and life without parole for offenses for which blacks are disproportionately arrested.
Blaming the Media
TCR: You blame the media—both news and entertainment—for encouraging some of the racial disparities.
Tonry: The media can reflect public opinion, and ordinary people believe wrongly that judges are much too lenient. People tend to generalize from things they read about in the newspaper or see on television in in films. The media make strategic choices in what they cover and how they cover it that feed people’s impressions. The media tend to look at things that will attract attention, which is true of reality police shows. Entertainment media use stereotypes. I assume they do it consciously unless it’s just the lack of producers’ imagination. I’m talking about things like the archetypal good vs.evil story in which people are more likely to see the black guy with bloodshot eye as the robber. This helps produce social harms in the interest of making money.
TCR: Wouldn’t it be logical to think that by 2010, with the U.S. having elected a black president, it would be possible to eliminate racial disparity in a law like the federal crack-powder law?
Tonry: We had a black president with high approval ratings, and a black Attorney General, but it didn’t happen. The law that passed didn’t make the penalty changes retroactive, and the votes in both houses of Congress were arranged so that they were not recorded, because people were so nervous about taking responsibility for their actions. There was incredible nervousness and apprehension about pulling back on a 25-year-old policy. Politicians still are risk averse about doing anything that could be seen as not being tough on crime.
TCR: Isn’t the trend now to be enacting less-punitive policies that also may reduce racial disparities?
Tonry: Yes, but this is being done in dollars-and-sense terms, not by arguing that what we have done is immoral. The right, by contrast, has said that we were morally wrong to be too lenient. Serious policy reformers now are not arguing in terms of right and wrong.
TCR: Are you disappointed that President Obama has not made more of an issue of the racial disparities in criminal justice?
Tonry: I’m somewhat disappointed. With so many other fish to fry, he won’t do anything that will make himself vulnerable to side attacks on crime issues. He clearly could be doing more, but with issues like the war on Iraq and the recession, he doesn’t want to risk spending capital on crime issues.
TCR: Does that mean we should be pessimistic that change will come in this area?
Tonry: There are grounds for optimism in some recent developments. When a monolithic set of beliefs crumble, they crumble quickly. It could happen in a tidal wave. There are signs that the monolithic tough-on-crime era could be ending, but we are not there yet.
Ted Gest is President of Criminal Justice Journalists and a Contributing Editor of The Crime Report.