Race and Incarceration

In the past couple of articles we have discussed the alarming increase in the rate of incarceration. We have pointed to the fact that an increase in the rate of incarceration signifies that criminal law is not working very well. Ironically, the criminal justice system seems to take pride in the number of cases processed, and the number of convictions. But law works well when people obey the law. Now we turn to an alarming demographic fact about incarceration in these United States.

The rate of incarceration of members of the black race is greatly disproportionate to the percentage of members of the black race in the total population. This fact is often cited by civil rights advocates to show that the legal system is discriminatory, prejudiced, unjust and unfair to black people.

Occasionally that contention is countered with the suggestion that it simply shows that blacks commit more crimes than whites. It is not the purpose of this article to pit those two contentions against each other. There is a simple explanation as to why both statements may be true. (This is not to suggest that profiling doesn’t exist or that race cannot produce prejudicial reactions in law enforcement.) The simple explanation is that 400 years of slavery and segregation for African Americans did not instill into the sub-culture a natural tendency to turn to the law, derived from European models, for the solution to its problems. Slavery and segregation brought about the evolution of a cultural system for African Americans, particularly in the South, that differs from the historically dominant culture. Often people in the black culture best protect their interest and their population by distancing themselves as far from legal system as possible. The advantages of distance created a black solidarity came to be firmly established in the culture. It was the best way to survive. The cultural system has its way of dealing with conflict that is not factors centered in the Euro-American legal system. A cultural system 400 years in the making did not disappear overnight. It is embedded in family, church, and community relations. Self-help and tolerance are important factors in the system.

Other factors contributing to the rate of incarceration that we have discussed in previous columns also affect members of the black race just as much as they affect anyone else. Lack of education and skills improves the possibility of incarceration. Those factors contribute to the rate of black individuals just as they contribute for others. In fact, these factors that make individual candidates for incarceration probably have a disproportionate impact on the black population. Given the fact that the criminal justice system is not working extremely well to begin with, in bringing about desired behavior, there is not a great deal of inducement to the black community to alter its cultural defenses against the criminal justice system. “Self-help” remedies lead to incarceration.

Our legal system has attempted to deal with the cultural problems by applying individual remedies. Cultural differences are social differences. A cultural system is a social system. Individual remedies will never resolve problems arising from differences that arise from differences in social systems. A broader systemic solution is needed.

In our previous columns we suggested that early intervention. Making certain that every young person, regardless of race, has the opportunity to develop social instincts and moral insight that is necessary in order to have the opportunity to do well in the modern world is essential. That is the beginning point for solving the problem. Family values also need to be emphasized. Families are the beginning point for moral formation. Schools need to continue to do everything that they can to foster moral development, but the task is difficult for the very reasons mentioned above. Churches need to become much more aggressively involved. Community building organizations need to arise to erase the cultural disadvantages arising from cultural differences, while at the same time promoting all of the advantages of a pluralistic society. Communities need to intercept problems long before they result in criminal activity. We need to develop a community spirit that includes everyone. The Criminal Justice System needs to become effective as a system that produces non-criminal behavior. Incarceration in a central system should be used, as I have suggested, only as a last resort. In a subsequent column we will provide a brief description of a concept that I called “Probation Sponsorship” and attempted to implement at a Circuit Court Judge in Alabama’s Fifth Judicial Circuit.