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CEO Testifies on Racial Disparities in Incarceration Rates

Statement of CEO President Roger Clegg before the Maryland State Advisory Committee  to the U.S. Commission on Civil Rights

May 31, 2012
To:       Maryland State Advisory Committee, U.S. Commission on Civil Rights
From:  Roger Clegg, President and General Counsel, Center for Equal Opportunity
Re:       Racial Disparities in Incarceration Rates


If the racial makeup of Maryland’s prisons differs from the racial makeup of Maryland’s general population, the two obvious explanations are that the different racial groups commit crimes at different rates and, therefore, are convicted of and sentenced for crimes at different rates; or that this is not true but that in some way the criminal justice system catches, convicts, and sentences people of some racial backgrounds more than it does people of other racial backgrounds.

Of course, no one would deny that, to some extent, both factors are at work.  That is, no one would deny that there are some racial disparities in crime rates and that there are some racial disparities in the way the criminal justice system works (e.g., biased police, prosecutors, or judges; or disparate access to good lawyers since different groups have different amounts of wealth).  The main point of my statement is just to point out that there is overwhelming evidence that the former is much more of a factor than the latter, and that it would be big mistake to conclude that the racial disparities in incarceration rates are evidence of widespread discrimination in the criminal justice system.

Racial Disparities in Crime Rates

It cannot be plausibly denied that there are large racial disparities in the rates at which crime is committed.  On this point, your Committee might be interested in these sources (and the citations therein):  James Q. Wilson, “Crime,” in Beyond the Color Line (2002);Randall Kennedy,  Race, Crime, and the Law (1997), esp. pp.  19-24, 145; John J. DiLulio, Jr., “My Black Crime Problem, and Ours,” City Journal (Spring 1996); Race and the Criminal Justice System (Center for Equal Opportunity anthology, 1996); Harry Stein,  No Matter What They’ll Call This Book Racist (2012) (chapter titled, “Let’s Pretend No. 3:  Crime Has Nothing To Do with Race”); and  Roger Clegg, “Race and Crime,” Legal Times, July 17, 2000, at 62.

Recently I testified before a Senate Judiciary Committee subcommittee with regard to racial profiling (which, by the way, I oppose in non-terrorism contexts):   Your Committee here might find the work of  Heather Mac Donald of the Manhattan Institute that I cited to be particularly useful (pp. 3-4): ; ;“Race Wars,” The Weekly Standard, Feb. 4, 2002, at 6-7; ; ; ; ; see also ; cf.  And here is the most recent discussion by Ms. Mac Donald:  Once again, much of this material discusses racial disparities in the criminal justice system and why they cannot be explained as simply a result of racism in that system. 

There is, indeed, “almost no reliable evidence of racial bias in the criminal justice system’s handling of ordinary violent and non-violent offenses.”  Amy Wax, Race, Wrongs, and Remedies 91 (2009). It would, in all events, be a big mistake to conclude that racial disparities somehow “prove” racial discrimination.  I have criticized the “disparate impact” approach to civil-rights enforcement in many places; my longest (though somewhat dated) criticism is here:   Also, appendix A of this testimony discusses why the disparate-impact approach is ultra vires if undertaken through Title VI of the 1964 Civil Rights Act:

Lawmakers and law-enforcers should decide what laws are necessary and what our enforcement priorities should be –  ignoring considerations of race and ethnicity, whether politically correct or politically incorrect – and then let the chips fall where they may.  As W.E.B. DuBois wrote a hundred years ago, “Draw lines of crime, of incompetency, of vice, as tightly and uncompromisingly as you will, for these things must be proscribed.”

A Special Note on Drug-Related Crime

Much of the discussion of racial disparities in incarceration rates these days focuses on drug-related crime (by the way, even if there were a problem in this area, it would not explain the racial disparities that exists for other crimes as well).  It is often asserted that different racial groups all use drugs at the same rate, so that there is something wrong if a disproportionate number of drug convictions are of, say, African Americans.

I have never seen this assertion of equal drug abuse persuasively documented, but, in any event, there are a variety of ways in which a statement like “whites are as likely as blacks [or some other combination of races] to use drugs, so absent racism we should expect drug imprisonment rates to be the same” would be a non sequitur. (1) Not all drugs are illegal (alcohol, nicotine, tobacco).  (2) The abuse of some drugs may be difficult to prosecute, whether illegal or not (sniffing glue). (3) Frequency of use matters, as well as (4) the most recent use (maybe the percentage of whites who have ever smoked marijuana is the same as the percentage of blacks who have ever smoked marijuana, but someone who smoked occasionally during college is less likely to be arrested that someone who smokes all the time now). (5) Some controlled substances are targeted more by law-enforcement officials than others (for nonracial reasons: cocaine versus Viagra). (6) Not all drug offenses are viewed as equally serious, again for nonracial reasons (that is, simple possession of small amounts is less likely to result in imprisonment, if one is caught, than selling large amounts). And (7) some means of selling are more likely to catch the eye of the police than others (selling on the street versus more discrete transactions – the former is not only easier for the police to interdict, but it is more likely to be viewed by the police and law-abiding citizens in that community as offensive).

Here’s another important point:  Even if there is a disparity in arrests and convictions, the problem for the African American community won’t be fixed by arresting more whites.  So the focus, instead, should be on getting fewer individuals to use and sell drugs.   Note that there is never any suggestion that the principal reason for the disparities is that the people who are arrested and sentenced are innocent.

Or look at it this way:  There is a descriptive issue and a prescriptive issue.  As to the former, it is dubious that the drug laws had racist origins and are enforced with overwhelming racism (do the police turn a blind eye, for example, to “white” drugs like meth and oxycontin?).  But, in any event, the issue now is what to do with these laws and the way they are enforced.  It is unrealistic to suppose that the drug laws will be repealed and replaced with a laissez-faire model along the lines of Vancouver or some European cities.  And were this to happen, drug-gang-related violence and prison time might decline but there would almost certainlybe more lives and neighborhoods ruined.  When that happened, a new group of leftwing legal scholars would condemn that.  That is, if drug dealers weren’t being arrested, the same people would say, “White people invent these drugs and sell them and they don’t arrest anyone because it is all part of a conspiracy to destroy black people.”

Reason for Crime Racial Disparities

It would actually be surprising if there were no racial disparities in incarceration rates, since there are marked racial disparities in illegitimacy rates and there is a high correlation between getting into trouble with the law (and other bad social outcomes) and growing up in a home without a father.  See generally .

The federal government released its latest figures on births(“Preliminary Data for 2010”: last fall, and the illegitimacy numbers by race and ethnicity remain basically where they have been for some time. More than 7 out of 10 African Americans (72.5 percent) are born out of wedlock, along with more than 6 out of 10 American Indians and Alaska Natives (65.6 percent), and more than 5 out of 10 Hispanics (53.3 percent) — versus fewer than 3 out of 10 whites (29.0 percent) and fewer than 2 out of 10 Asians and Pacific Islanders (17.0 percent).    There is an obvious connection between these numbers and how well individuals in the different groups are doing – which ones are getting into the more selective universities, and which ones are going to prison.

As Isabel Sawhill of the Brookings Institution wrote just this month, “[A] wealth of research strongly suggests that marriage is good for children. Those who live with their biological parents do better in school and are less likely to get pregnant or arrested. … Meanwhile, children who spend time in single-parent families are more likely to misbehave, get sick, drop out of high school and be unemployed.” [link: ]  See also Ron Haskins & Isabel Sawhill, Creating an Opportunity Society 207-208 (Brookings Institution Press, 2009).  Likewise, Heather Mac Donald of the Manhattan Institute writes that “the driving factor behind such [criminal] mayhem [is] the disappearance of the black two-parent family.”  “Windy City Silence,” City Journal (Oct. 1, 2010).  Linda Chavez quotes President Obama himself “in his book The Audacity of Hope (2006), acknowledging that the breakdown of the black family ‘reflects a casualness toward sex and child-rearing among black men that renders black children more vulnerable—and for which there is simply no excuse.’”  “Let Us By All Means Have an Honest Conversation about Race,” Commentary, June 2008, at 15, 18.  See also Kay S. Hymowitz, Marriage and Caste in America:  Separate and Unequal Families in a Post-Marital Age (2006); and Bill Cosby & Alvin F. Poussaint, Come on People: On the Path from Victims to Victors (2007).

The late James Q. Wilson (“Crime,” in Beyond the Color Line (2002), at 120-121);   wrote:

"Consider families. Though for many years, some sociologists urged us to believe that single-parent families were an “alternative” to two-parent ones, hardly anybody believes that any more. The evidence shows that single-parent families are a major source of misconduct. A federal survey of the families of sixty thousand American children found that at every income level except the highest (over $50,000 a year) and for whites, blacks, and Hispanics, children living with a never-married or a divorced mother were much worse off than those living in two-parent families.  A survey of all the leading studies shows that both poverty and living in a singleparent family contribute to children’s problems. When William Comanor and Llad Phillips examined data in the National Longitudinal Survey of Youth (NLSY), they found that “the most critical factor affecting the prospect that a male youth will encounter the criminal justice system is the presence of his father in the home.” Another look at the NLSY data suggests that African American boys without fathers were 68 percent more likely to be in jail than those with a father. Fatherless Latino boys were nearly three times as likely to be in jail than those with fathers; fatherless white Anglo boys were over four times as likely to be in jail than those with fathers."

Frequently liberals have blamed crime on “root causes” like poverty; well, there is more poverty among African Americans, so it should come as no surprise to liberals that there is more crime, too.  And the disparities come as no surprise to conservatives either, though they blame both crime and illegitimacy on a common cultural “tangle of pathology,” to use Daniel Patrick Moynihan’s (another liberal’s) phrase.See also Juan Williams, Enough: The Phony Leaders, Dead-End Movements, and Culture of Failure That Are Undermining Black America—and What We Can Do about It 122 (2006) (“The explosive mix [resulting in violent crime] can be boiled down to absent parents, dropping out of school, and acceptance of criminal behavior that results in jail time.”).


If the laws on the books are less vigorously enforced, it is the vast majority of African Americans – those who are law-abiding – who will suffer, since African Americans are disproportionately likely to be the victims of crime. 

Many on the left would like to believe that racial disparities in incarceration rates are explained by – indeed prove – the fact that the criminal justice system is racist.  That is because, if the criminal justice system is racist, then they have a more pleasant explanation for why the prisons are filled, not exclusively but disproportionately, with black men. More pleasant, that is, than the truth: That a disproportionate number of criminals are black men.  And the reason for this, as more and more African Americans are fessing up, is: Seven out of 10 African Americans are born out of wedlock, and it is hard to raise children–especially little boys – in environments already filled with drugs and crimein homes that have no father. They grow up, and they make bad, irresponsible, criminal choices.

But again, rather than face these unpleasant truths, why not blame the racist criminal justice system? Well, that may be more pleasant in the short run, but in the longer run it just means that the real problems will not be addressed. And to pretend that racism explains the racial disparities in incarceration rates, is just that: Pretending that reality is something different from what it really is.