My journey of exploration for a United-States-I-never-knew took a new turn following a movie in North Seattle just before the pandemic hit. Tammy and I along with four other couples from one of our church’s small group fellowships were there to see Just Mercy. After the movie we gathered at a nearby coffee shop to download and process our reactions.
Many of us were still in shock. The story we had just experienced was infuriating, devastating, and damning. Things we sort of knew, but only in an abstract, clinical way, became visible in living color and imprinted upon both our mind and spirit. I teared up at several points, something I never do in movies, moved by not only the enormity of the story, but with a disquieting sense about the scale of this issue throughout an aspect of American history still largely unknown to me.
Just Mercy is a true story about one young man’s extraordinary efforts to free an innocent man on death’s row. Bryan Stevenson, fresh out of Harvard Law, travels to Alabama and finds a deeply racialized society with the justice system and political power all stacked against African American community. The blindfolded Lady Justice as represented on the steps of the U.S. Supreme Court doesn’t exist here. Instead, her scales are rigged and the blindfold ripped off even though it’s been decades since the landmark civil rights legislation of the 1960s.
Stevenson eventually succeeds in overturning his client’s conviction, but only with great difficulty, skill, and personal cost. He then goes on to create the non-profit Equal Justice Initiative (EJI) which provides legal representation to those who have been denied a fair trial, wrongly convicted, or without sufficient funds to hire effective representation.
Stevenson declares “My faith influences and shapes everything I do.” He quotes Micah 6:8 as his calling: ‘What does the Lord require of you? To act justly, and to love mercy and to walk humbly with your God.’ He sees this calling as non-negotiable given the estimated 1 – 5% of those incarcerated to be innocent.
Thumb on the scale: Racial Disparity in a One-of-a-Kind Criminal Justice System
The U.S. has 5% of the world’s population but 25% of its prisoners. U.S. incarceration rates in 2008 exceeded that of the Soviet Union during its infamous Gulag system. Today about 7 million adults representing 3% of the U.S. population are under some sort of prison control.
War on Drugs
Thirty years ago, the story was much different. Then Nixon’s War on Drugs was launched and in less than 30 years, the U.S. prison population rose from around 300,000 to 2,000,00 with most of the increase arising from drug convictions.
The soaring arrest and incarceration rates came from disproportionately targeted African Americans. Despite roughly similar rates of drug usage between the races, drug-related imprison rates for blacks became 6 times greater than whites. Even though 5% of illicit drug users are Blacks, Blacks who represent 14% of the U.S. population have made up 29% of those arrested and 33% of those incarcerated for drug offenses.
Compounded Selectivity
Such disparities don’t happen by chance. They are the outcome of sequential inequalities against blacks at every stage along the criminal justice system. Like interest in the bank, these inequalities compound stage after stage until the disparities reach improbable levels. Here’s how this works.
It starts with selective targeting by police, focusing efforts according to racial composition rather than actual crime likelihood. Even when crime is not at issue, such as in highway stops, racial targeting remains extensive. Not only do multiple studies bear this out, so do the personal experiences of many African American such as Senator Tim Scott from North Carolina who has been personally stopped 18 times for “driving while Black.”
These targeted searches mixed with police discretion too often yield a fishing expedition composed of pretend traffic stops and bullied consent. Plus, there’s financial incentives too, from federal arrest incentives to liberal forfeiture laws which then feed back into the targeting strategies.
Selective sentencing then piles onto selective targeting. Race matters whether a person is sentenced to incarceration or community “supervision.” Young, male, or unemployed Black and Hispanic offenders are more likely than whites to be sentenced to prison for the same crime. This disparity deepens when considering sentence length with Blacks receiving a 20% longer sentencing period than whites for the same crime.
A vicious feedback loop develops when prior criminal records carry substantial weight in sentencing. Inequalities (e.g., the initial 6:1 disparity in arrest likelihood per crime event) get amplified again and again increasing racially disparate justice. A study of Minnesota’s imprisonment rates show that two thirds of the racial disparities were due to criminal history factors imposed at sentencing.
The severity of the sentencing can also be racially disparate. The historic (but now modified) 100-to-1 rule for crack versus powdered cocaine possession is one of the best known examples. Under the old “War on Drugs” inspired law passed in 1970, it took 500 grams of cocaine to receive the same 5-year mandated sentence for 5 grams of crack. So why the difference in severity as both drugs are chemically similar? The most telling difference was in user profiles with crack used primarily by impoverished minority users and powdered by more upscale users.
But the disparity has only begun. You can serve your time and pay your debt to society, but life after incarceration brings its own form of prison. Convicted felons lose rights and face a world much different than before their “time spent.” It varies state by state but for many, their ability to vote, own firearms, and be a juror is taken away. Employment becomes restricted along with access to federal or state grants, public housing, and many federal benefits. Their unalienable Rights, such as Life, Liberty, and the Pursuit of Happiness have now become alienable, unprotected from the whims of the majority.
A new class of Americans
- 1 of 3 Black, 1 of 6 Latino, and 1 of 17 white boys born today will likely be sentenced to prison;
- 1 of 8 Black men in their twenties are locked up on any given day;
- 3 or 4 black men in Washington DC can expect to serve time in prison
- 4 of 5 young black men in many cities have criminal records and face a lifetime of legal discrimination
- 50% of wrongly accused exonerations as documented by the National Registry of Exonerations were Black.
- Black defendants are 22% more likely to have convictions exonerated due to police misconduct
Thumb on the scale: Modern Day Wealth and Income Disparities as an Outcome of Legacy Discrimination
America’s racially disparate judicial system couldn’t have happened without the legacy impacts of past discriminatory policies and actions. The creation of dense, poverty-stricken, black neighborhoods throughout the 20th century happened through the force of law and the force of majority actions. Limited housing options absent the power of choice imposed a heavy toll upon much of black America. It led to urban crowding and rise of the urban ghetto. It amplified socioeconomic vulnerabilities as it shoehorned crime into small, easy to target, areas. It set the stage for wealth and income disparities that continue today though decades removed from the landmark civil rights legislation of the 1960s.
Wealth Disparities
In 2019, the median white household held $188,200 in wealth vs $24,500 for black households with 25.8% of blacks and 10.6% of whites having negative wealth. After controlling for education, median black household wealth remained substantially less (70%) of the median white household. Age-adjusted wealth of blacks nearing retirement is 10% of the wealth of whites. There is a 6-fold difference in per capita inheritance (30% of white households received an average inheritance of $195,500 compared to 10% of Black households with an average inheritance of $100,000). There is a 2.7 -fold difference in home value (73% of white versus 42% of Black families own homes with an average value of $230,000 for white versus $150,000 for Black families).
Underlying Causes?
There are many hypotheses explaining these inequalities and it is beyond the scope of this blogpost to fully adjudicate between them. I will say, however, that I spent most of my life in a world where folks like Walter Williams, Thomas Sowell and George Guilder associated racial inequalities to the breakdown in black family structure, the unintended consequences of welfare programs, and the harm of moral decay. Discrimination wasn’t a factor, racism wasn’t systemic, and the welfare program was government’s only enduring sin. The onus was on blacks and they held the key through the power of self-determination. Just as long as the government got out of the way and they were up to the task.
But are blacks truly up to the task? Now there’s an inflammatory question. But it’s a sad fact that a dominant answer throughout most of American history has been “no.” Prior to 1700, most whites viewed black slaves as not human and incapable of learning. Then came the notion of a simple-minded, docile black man as stereotyped by the Sambo image. The blackface stereotype became popular in the 19th century when white actors or singers darkened their faces with burnt cork, painted grotesquely exaggerated white mouths over their own, and wore woolly black wigs to create the “city dandy,” a northern counterpart to the southern “plantation darky” Sambo. A third stereotype saw African Americans as “shuffling and drawling, cracking and dancing, wisecracking and high stepping” buffoons. The 1915 released movie “Birth of a Nation” portrayed blacks (many of which were white actors in blackface) as stupid and sexually aggressive toward white women.
The belief that black Americans lacked motivation to work was also a dominant narrative. The Washington Post correspondent Henry West called “the typical black man of North Carolina to be a “thriftless, improvident, does not accumulate money, and is not accounted as desirable citizen.” Southern legislatures adopted black codes centered around vagrancy laws where it became a criminal offense to not have proof of a job, opening the door to convict laws which returned black labor to the plantations in a slave-like fashion. Those codes, rationalized through a disparaging narrative of the black character, were eventually overturned through federal legislation and constitutional amendments. But many of those sensibilities have remained.
The graph above measures racial resentment using Kinder and Sander’s metric of how much white Americans “attribute socioeconomic disparities of black and white Americans to racial discrimination or to a lack of hard work and perseverance by black Americans. The more one agrees with the general sentiment that black people’s lack of effort is the primary reason for racial disparities, the higher that individual’s racial resentment score.”
So, are the large and enduring wealth inequalities an outcome of poor work ethics?
The Cleveland Federal Reserve Bank disagrees. They see the current racial wealth gap as systemic, a legacy of our past with persistent staying power: “The current racial wealth gap is the consequence of many decades of racial inequality that imposed barriers to wealth accumulation either through explicit prohibition during slavery or unequal treatment after emancipation. Examples of post emancipation barriers include legally mandated segregation in schools and housing, discrimination in the labor market, and redlining, which reduced access to capital in black neighborhoods. And…it may be surprising how little the racial wealth gap has changed over the past half century, even after the passage of civil rights legislation. In fact, the 2016 wealth gap is roughly the same as it was in 1962.”
Income Disparities
In 1962, black households earned 52% that of white households. Little has changed since then with the percentage increasing to 58% in 2007 and then falling steeply after the recession of 2007 – 2009. The black unemployment rate roughly doubles that of white unemployment. Whites seeking employment receive about 36% more callbacks than blacks given similar qualifications.
Does the blame for the large and enduring income inequalities reside with deficiencies in black communities?
The Federal Reserve Bank of San Francisco says no: “a significant portion of the wage gap between blacks and whites is not traceable to differences in easily measured characteristics [demographic, education, job type, socioeconomic, etc}, but rather is unexplained…the consistency of the black-white wage gap across the full spectrum of subgroups in our data indicates that the forces contributing to the wage gap apply to the entire population of black workers.”
The Cleveland Federal Reserve Bank agrees, calling us to look elsewhere: “closing the racial income gap…leads to another broad set of questions…such as racial discrimination in the labor market, incarceration policies, and skills…the role of factors such as deindustrialization, neighborhoods, and schools…the intergenerational transmission of income is lower for blacks than for their white counterparts at all levels of income.”
Synthesis
In my old job, “they” made me take a course in the National Environmental Policy Act (NEPA) of 1970. This law saturated our agency’s business and although my work never directly required this expertise, employees I supervised did and someone upstairs determined that folks like me needed to know. Mostly likely to feel their pain, but in any event, to at least understand how this legislative act was important within our agency and hence connected to our mission.
I intentionally left the textbook upon retirement. I’ll never used it nor will I ever need to use it. And if that black swan event ever arises and NEPA enters my life, I’ll invoke the famous “I don’t recall” line of criminals/politicians and then run and duck for cover.
I did, however, learn one useful concept in my training. Though many development activities may be individually minor in effect, over time the cumulative effect can often be highly significant. Even exceeding the severity in impact of a major direct effect. Because it’s the cumulative effects that make the biggest difference.
One way to “see” the impact of the many legacy creating cumulative effects is to borrow the following language from our Declaration of Independence: “The history of the present King of Great Britain [insert United States] is a history of repeated injuries and usurpations…To prove this, let Facts be submitted to a candid world.” The United States government:
- chose to build racially separate public housing in cities without a segregation history.
- gave developers FHA guarantees for building segregated housing.
- urged suburbs to adopt exclusionary zoning laws enabling white flight.
- allowed State courts to evict black homeowners in neighborhoods with racially restrictive covenants
- allowed churches, universities, and hospitals restrictive covenants while keeping their tax-exempt status.
- allowed police to support leaders of mob violence when blacks tried to move into white neighborhoods.
- allowed state real estate commissions to ignore brokers who imposed segregation in neighborhoods.
- allowed school boards to place schools and attendance boundaries to separate black from white students.
- allowed highway planners to run new highways through black neighborhoods helping create urban ghettos.
- denied equal labor rights to black workers, helping to trap them in low-income neighborhoods.
- provided tax breaks to the suburbs while neglecting giving support to the inner city.
All of these actions by state, federal and local officials fueled the division of our country by race. It gave cover to the majority white population to do the same through their own discriminatory actions such as redlining. It led to the creation of ghettos and the restriction of wealth building by black families. It created an acute sensitivity to inner-city employment dynamics.
Then as they were forced to live packed together in confined urban areas while being shut out of the suburbs, globalization and de-industrialization brought the perfect storm to black America. More than 70% of inner-city blacks held blue-collar jobs in 1970. By 1987, however, industrial employment of black men dropped to 28%. Many of the jobs had moved to the suburbs or overseas, but the legacy housing policies kept blacks hemmed in the city. A whole generation of inner-city black men became isolated, jobless and only 18% of them had access to a car.
Crime rates rose but rather than addressing root causes, the War of Drugs became a war on symptoms. Enforcement agencies placed a target on urban communities where they could get the most “bang for the buck.” And then through feedback mechanisms of selectivity begetting selectivity, the war on symptoms created a new caste of Americans: young black men with criminal records permanently sidelined in society.
Final Thoughts
Throughout my journey I found truth in the old maxim “where you stand depends upon where you sit.” And the longer my travels, the more my “standing” changed – as long as I made space for people’s stories and the analytics of racial disparities. I refused to let past narratives, formed in cultural echo chambers, cancel new discoveries. I needed, in Galef’s language, to adopt a scout rather than a soldier mindset. Soldiers prioritize defending themselves and their tribal narratives. Scouts prioritize discovering the truth independent of those narratives. In doing this, scouts prioritize listening to others, heeding Baldwin’s words. “If one really wishes to know how justice is administered in a country, one does not question the policemen, the lawyers, the judges, or the protected members of the middle class. One goes to the unprotected — those, precisely, who need the law’s protection most! — and listens to their testimony.”
Isn’t it time we hold in abeyance our hypotheses and preconceived notions and just begin to listen? Intentional about becoming a scout, able to change where we stand as a posture of listening changes where we sit.