Free Radical

A State Representative once asked me if there are racial disparities in the criminal justice system. I took a moment to think about it, because there are so many ways to answer that question.  I chose the more academic answer: “African Americans and Latinos are disproportionately represented at every level of our criminal justice system.”  I left it at that. By using the academic term, “disproportionality,” however, I failed to convey a reality far more disturbing than most people fully comprehend. 

The term merely states that one particular group is over represented in relation to its share of an overall population.  For instance, African Americans comprise about 12 percent of the Texas population, yet make up more than 34 percent of the state prison population. If such a statement didn’t make the listener’s eyes glaze over, the fact could easily be dismissed as a sad statement about higher crime rates in certain communities. 

We’re not talking about “disproportionality.” At 34 percent, African Americans represent the majority of people doing time in state prison.  Latinos represent 33 percent of state prisoners; and Whites represent only 31 percent of the TDCJ population, despite being the largest racial group in the state.

Incarceration rates give an even more stark illustration.  The state prison incarceration rate is about 557 people out of 100,000. This rate puts Texas near the top in terms of the percentage of the overall population in prison.  The rate does not include people in federal prison, county jail, and other detention facilities.  

That rate is closer to 800 out of 100,000, which places Texas on par with the incarceration rate in the USSR under Stalin. 

But, it is only when you break down the incarceration rates by race that you see the real driver of mass incarceration.  The state prison incarceration rate for Whites in Texas is 407 out of 100,000.  It’s 478 out of 100,000 for Latinos.  For African Americans in Texas, the incarceration rate is 1547 out of 100,000; nearly four times the rate for Whites, three times the state rate, and twice the rate compared to the most oppressive regime in the 20^th century.  When you add in the people in county jail and federal prison, the inequality becomes even more pronounced, approaching 3000 for every 100,000. 

Let’s be clear – the incarceration rate for Whites, 407 out of 100,000, is obscenely high.  I would never suggest that we should correct the problem of mass incarceration by bringing the incarceration rates of racial minorities down to the level of Whites.  Most countries in the world consider a rate of 100 out of 100,000 to be extremely high, so we have to reform our overall approach to criminal justice.  

However, the staggering difference between White and African American incarceration rates in Texas tells us of something far more insidious.

 You don’t achieve a state prison incarceration rate of 1547 out of 100,000 by accident.  Crime rates do not account for the disparity.  So many things would have to happen at every level to ensure that such an inordinately high percentage of a particular group’s population is placed behind bars.

You would have to actively target that population with aggressive and militarized tactics, and abandon any commitment to community policing.  This would ensure a greater number of arrests within one community versus another, especially for low-level offenses that don’t require arrest.  In fact, those same offenses would have to be designated as felonies, so that criminal justice system involvement is prolonged.  You would have to establish a bonding system to preclude low income individuals from getting out of jail to deal with the charges without losing jobs or housing, guaranteeing that people will take a plea deal instead of defending themselves in court.

You would then have to restrict employment and housing opportunities due to criminal justice involvement, so that people become frequent flyers in jails and prison. Then you would have to create enhanced penalties for frequent arrests, leading to lifelong criminal justice system involvement. 

But, all of that effort would only yield an incarceration rate on par with the USSR under Stalin. To double that rate, you would have to compound economic disadvantage by taking those institutions and programs that were intended to build a bridge of opportunity into the larger economy, and turn them into vehicles that funnel people into the criminal justice system.  In fact, you would have to ensure that the most vulnerable members of a particular community actually come out worse by virtue of having touched those same institutions. 

Most people would be outraged by such a system.  Historians would talk about a system like that hundreds of years from now, using it as a case example of an unjust and merciless culture. 

To keep the populace from demanding a new, more just and equitable system, you would have to characterize anyone who opposed the system as “extreme.”  In fact, those who dared to be honest about racial injustice would be discredited outright. You would have to remove voting rights from the victims of this system, keeping them voiceless. 

To create a system like the one we have in Texas, one would have to be truly radical.  

For more information, check out the interactive map developed by the Sentencing Project.