Heather MacDonald, the Thomas W. Smith fellow at the Manhattan Institute for Policy Research, recently testified before the Senate Judiciary Committee. The second last sentence of her closing paragraph gives the gist of her message:
In closing, let me say that the committee would provide an enormous public service if it could rebut the myth that the criminal justice system is racist.
Ms. MacDonald knows way more than I'll ever know about crime and the criminal justice system. So I don't want to argue with her main point. She may well be right. Indeed, she writes:
The most dangerous misconception about our criminal justice system is that it is pervaded by racial bias. For decades, criminologists have tried to find evidence proving that the overrepresentation of blacks in prison is due to systemic racial inequity. That effort has always come up short. In fact, racial differences in offending account for the disproportionate representation of blacks in prison. A 1994 Justice Department survey of felony cases from the country's 75 largest urban areas found that blacks actually had a lower chance of prosecution following a felony than whites. Following conviction, blacks were more likely to be sentenced to prison, however, due to their more extensive criminal histories and the gravity of their current offense.
I have no reason or evidence to contradict her.
I do want to point out, however, some pretty important flaws in her testimony.
Ms. MacDonald says:
We are in the midst of a national movement for deincarceration and decriminalization. That movement rests on the following narrative: America's criminal justice system, it is said, has become irrationally draconian, ushering in an era of so-called "mass incarceration." The driving force behind "mass incarceration," the story goes, is a misconceived war on drugs. As President Barack Obama said in July in Philadelphia: "The real reason our prison population is so high" is that we have "locked up more and more nonviolent drug offenders than ever before, for longer than ever before." In popular understanding, prisons and jails are filled with harmless pot smokers.
Notice that she goes from President Obama's statement about nonviolent drug offenders to her summary of the popular understanding. It seems that her goal is to leave the listener or reader thinking that President Obama is making the claim about harmless pot smokers. But certainly that's not in his statement. He focused on nonviolent drug offenders. Who, besides pot smokers, are nonviolent drug offenders? Drug sellers. Some are violent. But many are not. And you don't have to follow the criminal justice much to know that you can go to prison for a long time for selling illegal drugs, even if you have never committed violence.
She later says/writes:
Today, only 16 percent of state prisoners are serving time for drug offenses--nearly all of them for trafficking. Drug possession accounts for only 3.6 percent of state prisoners. Drug offenders make up a larger portion of the federal prison caseload--about 50 percent--but only 13 percent of the nation's prisoners are under federal control. In 2014, less than 1 percent of sentenced drug offenders in federal court were convicted of simple drug possession; the rest were convicted of trafficking.
Ok. But 16 percent is a large number. Even if all 16 percent of state prisoners--and state prisoners are the lion's share of prisoners--are there for drug trafficking, how many of them were charged with violent crime? Inquiring minds want to know. Ms. MacDonald doesn't tell us.
The drug war was not a war on blacks. It was the Congressional Black Caucus that demanded a federal response to the 1980s crack epidemic, including more severe penalties for crack trafficking. The Rockefeller drug laws in New York State were also an outgrowth of black political pressure to eradicate open-air drug markets.
So her evidence that the drug war is not a war on black people is that various black people have pushed (pun not intended) for the drug war. But that is evidence only that the drug war is not a war on most black people. If black people are disproportionately involved in selling drugs, as I suspect they are, then the drug war is indeed a war on those black people, even if that war is demanded by other black people.
This local demand for suppression of the drug trade continues today. Go to any police-community meeting in Harlem, South-Central Los Angeles, or Anacostia in Washington, D.C., and you will hear some variant of the following plea: "We want the dealers off the streets, you arrest them and they are back the next day."
I bet she's right. But what she doesn't tell you is why the dealers are on the streets. Why aren't some of these drugs sold in pharmacies? Everyone knows why. They're illegal. So we're back to the drug war, which she advocates, causing a problem that she decries.
Final non sequitur:
Incarceration is not destroying the black family. Family breakdown is in fact the country's most serious social problem, and it is most acute in black communities. But the black marriage rate was collapsing long before incarceration started rising at the end of the 1970s, as my colleague Kay Hymowitz has shown.
She's right that the black marriage rate was falling long before incarcerating was rising. But how could it possibly follow that incarceration is not destroying the black family? Would Ms. MacDonald say that when one member of a family goes to prison, that doesn't badly hurt the family? All she has done is point correctly to other causes, but that doesn't mean that incarceration is not a cause.