Friday, July 28, 2017



Reshaad Shirazi, It's High Time to Dump the High-crime Area Factor, 21 Berkeley Journal of Criminal Law 76 -118 (Fall, 2016) (285 Footnotes Omitted) (FULL ARTICLE)


Judges consider whether an area is high crime when determining if reasonable suspicion exists. The Supreme Court's jurisprudence allows police officers to assume that a person is more likely to be engaged in criminal activity if it occurs in a "high-crime area." The main problem is that high-crime areas have disproportionately high African American populations. In a 2013 empirical study on race and crime in the United States, former Republican candidate for United State Senate, Ron Unz, argues that urban crime rates are almost entirely explained by racial distribution. Specifically, he argues that these rates can be explained by examining the distribution of African Americans in urban communities. Unz focuses his study on violent crime rates in large urban cities. His findings reveal that the size of the African American population in large urban areas is strongly correlated with higher incidents of violent crime. Unz begins by analyzing data relative to three main socioeconomic explanations for crime in major cities of at least 500,000 people: (1) urban density, (2) the size of police forces, and (3) poverty rates. Surprisingly, crime rates and urban density have a small or insignificant correlation. Unsurprisingly, the size of the local police force is fairly strongly correlated with crime. But perhaps most unexpectedly, there is only a moderate correlation between crime rates and poverty rates. In fact, "the race/crime correlation so substantially exceeds the poverty/crime relationship that much of the latter may simply be a statistical artifact due to most urban blacks being poor." Unz focuses exclusively on violent crime rates in large urban cities; nonetheless, the results of his study are stunning. The "black connection to local crime has been so strong as to almost eliminate the possible role of any other variable." This point is illustrated in the comparison of crime rates of major cities with substantial poverty rates and small black populations, to major cities with substantial poverty rates and large black populations. For example, "El Paso and Atlanta are comparable in size and have similar poverty rates, but [Atlanta] has eight times the robbery rate and over ten times the homicide rate." Comparing cities in California: "Oakland approximately matches Santa Ana in size and poverty, but has several times the rate of crime." The data show that "major cities with substantial poverty but few blacks tend to have far lower level of crime." This Note will explain why this is caused by the racist underpinnings of our society--not due to a greater propensity for African Americans to commit more crime than other races.

Institutional racism, societal racism, law enforcement racism, political racism, and racist jurisprudence are the main reasons African Americans offend at disproportionately high rates. Black offenders are accused of committing roughly 25 percent of violent crime in the United States. This is a high rate considering that African Americans account for about 14 percent of the population. Crime is mostly concentrated in central urban areas. African Americans live disproportionately in those central urban areas with the highest crime rates. In the following section, this Note extrapolates that this is due to systemic racism.

A. The Disproportionate Rate of Violent Black Offenders is Caused By Systemic Racism

While African Americans are more likely to be arrested for violent offenses, they are far more likely than whites to be victims of violent crime. "The overall likelihood of being the victim of a violent crime is 27 percent higher for blacks relative to whites." The racial difference in victimization rates is even larger for homicides. In the year 2000, "blacks were 6.2 times more likely to be murdered than whites." In 1991, at the peak of black homicide rates, "blacks were 7.2 times more likely to be murdered than whites." This is mostly attributed to black-on-black killings: "Roughly 94 percent of black homicide victims are murdered by a black offender." The main causes of these homicides are gang activity and drug abuse. The single largest predictor of violence is drug abuse, but this is related to gang violence. Gang violence accounts for nearly half of all violent crime in America. "Gang violence is interconnected with other underlying causes of violence stemming from drug abuse ... and concentrated urban poverty." Before erroneously assuming that African Americans have a greater propensity to engage in violence, it is vital to understand the broader social context from which these statistics originated.

The driving force behind America's support for getting "tough on crime" was conservative politics, which began a media campaign to sensationalize a fabricated "crime epidemic" in response to white people's fear of the civil rights' movement. "Capitalizing on an overwhelming public opinion in favor of more rigid crime control, conservative politicians at the national and state level stoked their constituents' fear of crime waves and endorsed policies designed to put more offenders in prison for longer periods of time." The general conservative reaction against the civil rights movement allowed Richard Nixon to capitalize on white voters' anxieties about racial issues, catapulting him to the top of the polls in the 1968 Presidential Election. "A deep unease with the virulence of some black activists and the extent of the changes taking place, coupled with an entrenched culture of outright racism in the lives of less progressive whites, led to a general reaction against the movement towards rapid racial equality." From the initial roots of Goldwater and Nixon's "law and order" rhetoric to Reagan's ability to ride his "tough on crime" reputation all the way to the presidency, the turmoil of the late-1960s was a key catalyst for the reorientation of national and state campaigning and policymaking toward criminal justice reform programs like mandatory minimum sentences that would be the driving forces behind the incarceration explosion. The politically driven "tough on crime" campaigns continued from the 1970s to the early 2000s--though this time, it was coined as the "War on Drugs." Despite decreasing levels of crime, the media created a false portrayal of an increase in violent crime rates and drug abuse. The War on Drugs is the root cause of the significant increase in violent crime. In fact, the War on Drugs "predated the remarkable levels of violence that now impact poor communities of color so disproportionately." The violent crime rate more than tripled from 1965 to 1995. The last time we saw such high levels of gun violence was during the Prohibition. "Indeed, without the War on Drugs, the level of gun violence that plagues so many poor inner-city neighborhoods today simply would not exist." Much of this gun violence can be attributed to the astounding incarceration rates that followed the War on Drugs and the flowing consequences such as devastation to African American families. The War on Drugs increased the funding for anti-drug activities of police departments, it enhanced the arrest rates and prosecutions for drug offenses, and it skyrocketed the incarceration rates for drug crimes. "[E]xtraordinary levels of incarceration create the conditions for extraordinary levels of violence." To explain, we must understand the policy behind the War on Drugs and its intended targets. The War on Drugs "created a brand-new market for illegal drugs--an underground market that would be inherently dangerous and would necessarily be regulated by both guns and violence." This disparately affects African Americans. "[P]olice drug surveillance is concentrated on inner-city drug markets because these drug arrests are easier: drugs are sold on street corners, through neighborhood networks, and a stranger appearing to buy drugs is a commonplace occurrence." This type of foot peddling, drug trafficking is extremely dangerous. "Since drug dealers are likely to be carrying large sums of money, they are at serious risk of robbery. Since they cannot rely on the police for protection, they must, to survive, protect themselves." Oakland, California is a prime example for how the concentration of police drug surveillance in the inner-city regions lead to intensified violent crime rates in those areas, while at the same time, insulating the more prosperous neighborhoods from violence. In 2001, the national murder rate was 6.1 homicides per 100,000 residents. In Oakland, the 2001 murder rate was roughly 20 homicides per 100,000 residents. "Nearly all of the higher-income residential areas in the Oakland hills and the more middle-income communities of north Oakland were homicide free during 2001. Conversely, the poor, predominantly black and Latino residential areas in the flats of east and west Oakland accounted for nearly all of the city's homicide count." As white households are largely insulated from violent areas, whites tend to be shielded from law enforcement drug surveillance because it is less focused on the suburban drug market. This Note will explain that the focus of drug surveillance on inner-city neighborhoods accounts for not only more African Americans being arrested for drugs, it also accounts for more African Americans being entrapped in a cycle of violence.

White people account for a large majority of drug users in the United States. Whites account for roughly 82 percent of drug users in the country, blacks account for about 17 percent. "In most US metropolitan areas, racial and ethnic minorities reside in central urban communities, while white households tend to reside in metropolitan area suburbs." Since there are far more white drug users in the United States than black drug users, combined with the fact that more whites live in the suburbs, the suburban drug market is larger than the inner-city drug market.

The War on Drugs was never concerned with the larger suburban drug market. "[T]o the extent that poor urban drug users consume drugs outdoors while wealthier suburban drug users consume in the privacy of their homes, police strategies that crack down on visible drug use will disproportionately net urban, poor, and largely minority drug users." Meanwhile, "[p]olice departments devote less effort in infiltrating the much larger suburban drug market because it is conducted by word of mouth, through stable workplace and social contacts, and therefore requires more intense investigatory effort." This partly explains why inner-city blacks are more likely to get caught up in violence than whites--including more assaults, robberies, and homicides. While many blacks are involved in the drug turf battle on the streets, most whites can sell drugs discreetly through safer, more stable markets.

Research Director Dave Kopel elaborates on the high risk of inner-city drug dealing culminating in violence:
When drug dealers engage in commercial transactions with each other, there is no Uniform Commercial Code and state district court for resolving disputes about the quality of goods sold. Disgruntled buyers, having no other means of redress, may resort to violence. Similarly, the addicts who sell drugs often end up consuming the drugs which should have been sold; because higher-level dealers have no legal means of handling salespersons who stole the merchandise with which they were entrusted, violence often results. Other drug users buy goods on credit, but fail to pay their debt. Since the seller has no lawful means of debt collection, violence again may result. In addition, when disputes are settled violently, they are often settled in the most vicious manner possible, for acquiring a reputation for being willing to "exert maximum force" may assist the resolution of future disputes. Why is it that so many poor African Americans live in inner-city neighborhoods? "In the 1950s, prosperity brought suburban growth, at the price of dilapidated inner-city neighborhoods." Inner-city ghettos were created by "two African-American migrations from the rural South and the abandonment of inner-city neighborhoods by new middle-class blacks for the more prosperous suburbs ..." This led to intensified segregation in inner cities. "With the absence of black-middle class center[s] for leadership, stability, and guidance, poor blacks found themselves stuck in the city ghettos without an effective political voice to address the problems of poverty, limited educational opportunity, single-parent families, unemployment, and--as a result higher crime rates." Subsequently, "large metropolitan areas have higher poverty rates, larger minority populations, and generally higher levels of black-white segregation." The high levels of segregation in inner-city communities are largely involuntary. Their causes stem from "three interrelated and mutually reinforcing forces in America: high levels of institutionalized discrimination in the real estate and banking industries; high levels of prejudice among whites against blacks as potential neighbors; and discriminatory public policies implemented by whites at all levels of government." Today, in most United States metropolitan areas, "racial and ethnic minorities reside in central urban communities, while white households tend to reside in metropolitan area suburbs." Additionally, "poverty rates tend to be higher in central urban-communities than in residential areas located on suburban fringes." The higher city-center crime rates imply that "minorities and [the] poor face higher neighborhood crime rates than do white households and nonpoor households." Stated differently, "black neighborhoods tend to have the highest crime rates, ..." Crime is more severe in predominately poor neighborhoods of urban areas, where blacks are more likely to reside than whites. What follows is an "ever-increasing number of police officers in inner-city neighborhoods." Where there are more police, there is more incarceration. Police target inner-city drug offenses, which are committed in areas where blacks are more likely to reside. This leads to extraordinary levels of incarceration in these inner cities, which create the conditions for extraordinary levels of violence. Thus, there is a perpetual cycle of inner-city violence.

Princeton Sociology Professor Douglas Massey argues that the perpetual cycle of inner-city black violence is unlikely to end as long as high levels of black segregation continue to exist in central metropolitan areas. He "links high rates of black crime to two features of U.S. urban society: high rates of black poverty and high levels of black segregation." He argues that this link exists because "segregation simultaneously victimizes blacks while giving whites greater incentive to maintain the residential status quo, leading to a vicious cycle whereby segregation promotes poverty among blacks, leading to behavior that hardens white prejudice and discrimination, which in turn promotes further socioeconomic damage to the black community, which leads to continued segregation." Professor Massey explains further that a major reason for the lack of change is that most Americans, particularly, whites, perceive themselves as benefitting from the social arrangements that produce racial segregation. If poverty rates are higher for blacks and if crime is associated with poverty, then, by isolating blacks in segregated neighborhoods, the rest of society insulates itself from the crime and other social problems that stem from the higher rates of black poverty. In short, he argues, "racial segregation persists in the United States because whites benefit from it." Due to the extremely high victimization rates faced by people who are entrapped in inner-city ghettos, many inner-city residents resort to violence themselves. "The cultivation of respect through the strategic use of violence represents a logical, instrumental strategy pursued by rational individuals as a means of adapting to the harsh conditions of daily life created by structural arrangements in American society that are beyond individual control." Not only do inhabitants of poor, inner-city neighborhoods pursue rational individual tactics to reduce their victimization--they also, quite rationally, resort to gangs. Gangs provide self-protection in the form of deterrence against victimization, while also providing benefits to their neighborhoods by controlling violence, deflecting it away from their own territories. "Gangs are more able to deter crime in their community than the police because gang members are distributed throughout the community and are able to identify strangers." While gangs, of course, do not eliminate violence, their formations are a rational response to the high victimization rates and poverty faced by people in inner-city neighborhoods. "The wave of crime in urban black America is not simply a product of individual moral failings; it is an inevitable outgrowth of social conditions created by the coincidence of racial segregation and high rates of black poverty."

B. African Americans Disproportionately Live in High-Crime Areas

Thus far, this Note has demonstrated that the strongest correlation to violent crime rates in major urban cities is the size of the African American population. It has also shown that African Americans commit more violent crime in central urban areas as an inevitable and rational response to the so-called War on Drugs. Due to institutional and political racism, poor African Americans are more likely to reside in inner-city neighborhoods than whites. Because of the high levels of black-white segregation in these areas in conjunction with high rates of poverty police practices that target these regions, and mass incarceration, there is far more violent crime in central metropolitan areas.

However, there are additional inferences required to conclude that high-crime areas are predominately high-black areas: (1) more crime generally occurs in inner-city urban areas than suburban and rural areas; and (2) in addition to violent crimes, African Americans are also disproportionately targeted for drug offenses.

First, "crime is particularly high in poor, minority neighborhoods." In addition, "[c]rime rates are generally higher in the central city of a metropolitan statistical area ... than in the suburbs." Urban violent crime rates are 1.49 times higher than rates of suburban neighborhoods and 1.57 times higher than rates of rural areas. Likewise, "property crime rates in urban areas are 1.36 times the comparable rate for suburban areas, and 1.61 times the comparable rate for rural areas." Generally, "large cities have higher crime rates than smaller cities, urban areas have higher crime rates than suburb and rural areas, and poor, largely minority neighborhoods have higher crime rates than more affluent white neighborhoods." Second, in addition to being disproportionately arrested for violent crimes, African Americans are far more likely to be arrested for drug offenses. Blacks make up roughly 14 percent of the United States population. Whites make up 64 percent. "While African-Americans account for only 17 percent of drug users nationwide, they represent 37 percent of those arrested for drug use." To make matters worse, 46 percent of all defendants convicted for drug offenses are black. Meanwhile, whites "account for 82 percent of drug users yet only 62 percent of drug arrests." For marijuana specifically, "black people and white people smoke marijuana at similar rates, yet black people are 3.7 times as likely to be arrested for marijuana possession." Although whites are up to 32 percent more likely to sell marijuana, blacks are four times as likely to be arrested for distribution. To top it all off, racist policy changes made it easier to lock up African Americans behind bars for longer periods of time. "The disproportionate representation of blacks among drug arrests is linked to the increased law enforcement focus [during the 1980s and 1990s] on fighting the use of crack cocaine." Under the infamous 100:1 ratio, a drug offender apprehended with five grams of crack cocaine used to face the same mandatory sentence as a drug offender with 500 grams of powder cocaine. This "was driven nearly in its entirety by the fact that blacks consume crack at a higher rate than whites." In addition to the arbitrary mandatory minimum sentences, the increased funding of police departments for anti-drug activities during the War on Drugs skyrocketed the federal prison rates for drug offenses "from 23 percent in 1980 to about 60 percent in 2000." Blacks bore the majority of this increase. The bottom line is that the single most significant variable in accounting for urban crime rates is the size of the African American population. Unsurprisingly, crime is a particularly severe problem in predominately poor neighborhoods of urban areas, where African Americans are more likely to reside. In other words, high-crime areas are usually high-black areas.

C. Shedding Light on Donald Trump's Inaccurate Assertions of African Americans in Inner Cities

Throughout the course of the 2016 presidential debates, Donald Trump repeatedly used the word "inner city" as a synonym for African Americans. Until now, this article also seems to conflate the two. Clarification is necessary.

During the second presidential debate on October 9, 2016, Donald Trump remarked: "I would be a president for all the people--African Americans, the inner cities." He said, "You go to the inner cities and you see it's 45 percent poverty, African Americans now 45 percent poverty in the inner cities [sic]." This is not the case.

By 1970, more than 80 percent of African Americans lived in cities. In recent decades, however, America's large cities have experienced a major exodus of black residents to the suburbs. This shift has been called the "black flight." "About nine million African Americans moved to suburban areas between 1960 and 2000." Black suburbanites now outnumber those living in inner cities. "[S]uburban black Americans made up 37 percent of those in metro areas in 1990. Today, they make up 51 percent." Further, poverty is generally higher in rural areas. "About 37 percent of rural black residents live below the poverty line ...." More inaccurately, Trump misunderstands where a majority of black Americans live. "When he equates black' with inner city,' he relies on a racial stereotype that ignores more than half of the country's black residents." The section of the rural south called the "Black Belt" remains home to the most concentrated populations of African Americans in the country. So how is that high-crime areas are still more concentrated in inner cities? More importantly, how is that these areas still disparately impact African Americans?

In the large urban cities of the northern United States, "African American populations remain mostly in the neighborhoods that were left to them as a result of "white flight" that took place after the civil rights movements and the riots of the 1960s." As African Americans moved into these neighborhoods, "whites moved further away to avoid forced school integration and the threat of dropping property values." High rates of black crime continue to exist despite nationally declining crime rates nationally partially because many African Americans still live in highly segregated and deeply impoverished neighborhoods. Throughout the twentieth century racially segregated communities have been the norm. Until now, "none of these segregated spaces experienced sustained rates of violence so completely out of step with national trends." Although violent crime remains at an all-time low nationally, it rose slightly in 2016 with half of the increase driven by Los Angeles (up 13.3 percent) and Chicago (up 16.2 percent). The murder rate rose about 13.1 percent in 2016--nearly half of the increase is attributable to Chicago alone. Chicago is an outlier. "There were 762 murders in Chicago in 2016." Homicides in Chicago "are concentrated in the segregated and poorest areas of the city, such as the South Side and the Austin vicinity." Today, the entire south side is majority African American. Thus, in 2016, Chicago "were concentrated in highly segregated pockets that are predominately black." How did this come about?

Chicago has the third largest urban Black population in the nation mostly the result of the huge influx of African Americans during both of the "Great Black Migrations" north. African Americans were attracted to the northern cities railway companies, steel mills, and meatpacking industries. "The Black newspaper, The Chicago Defender,' [s]pread the news to African Americans that there was a better life and plenty of jobs in Chicago." The majority of blacks that moved to Chicago settled in the city's south side where these major industries were located. "Chicago's black belt consisted of a 30 block long stretch of neighborhoods on the south side of old and dilapidated housing. Much like Harlem, NY, [b]lacks were over-crowded in apartment buildings that lacked plum[b]ing and healthy sanitary conditions." These are the types of inner-city areas that this Note refers to; where disproportionately high rates of African Americans live, and where there are disproportionately high rates of crime.

The more fortunate middle-class African Americans led the "black flight" to the suburbs. As explained by author Robert Wadman, the "black flight" has left those remaining poor African Americans in innercity areas without the voice and leadership of the more prosperous African American families. This absence of leadership has left a problem minority class in inner cities. In all inner-city neighborhood, "there is a problem minority that varies between about 12.1 percent (in San Diego, for example) and 28 percent (in Phoenix) that comes largely from the disconnected youth between ages 16 and 24." Most are out of school and many resort to crime and gangs. "This culture is reinforced by contemporary conditions like poverty, racial discrimination, chronic unemployment, single parenting, and a chemically toxic, neurologically injurious environments, such as the lead paint that poisoned Freddie Gray." Overly aggressive law enforcement has continued to profile all ghetto residents as criminals. Harvard professor and expert on crime trends, Dr. Robert Sampson, explains: "The cynicism and mistrust of legal institutions in poor black communities is longstanding, although recent conflicts with police have exacerbated underlying tensions." Thus, "[f]lare-ups and spikes in violence are occurring in predictable places." Dr. Sampson believes that the concentration of poverty and segregation in certain areas of cities relate to city-level differences in rates of violence. Princeton Sociology Professor Wadman theorizes that poverty and black-white segregation are the primary explanations for the disproportionately high rates of crime in urban black America. He has good reason to postulate this thesis.

Although many crime experts warn not to read too much into recent crime statistics, the statistics are hard to ignore. Out of the cities with the largest black-white segregation rates, Detroit is second highest, New York City is third, and Chicago ranks fourth highest in the country. When looking at the cities with the highest murder rates, Chicago ranks first, New York City ranks second, Detroit and Philadelphia are tied for fifth highest (Philadelphia has the thirteenth highest black-white segregation rate). While these statistics are eyebrow raising, the black-white segregation rates do not explain everything. Not all of the cities with the highest rates of black-white segregation have the highest crime rates. Historian and author Heather Ann Thompson argues that "neither racial segregation nor the racial poverty gap can account for the degree to which poor communities of color are traumatized today, ..." Racial segregation is largely ahistorical--it has long been persistent in the United States. "What is altogether new," she explains, "is the extent to which these communities are devastated by the working of our nation's criminal justice system in general and by mass incarceration in particular." As explained in the next section, the legal landscaped is stacked against African Americans.

. . .

There is nothing in the Constitution that stops police departments from deploying their limited resources to high-crime areas. There is no need, however, for courts to make it even easier than it already is for police officers to stop and frisk black people. Police officers are more likely to arbitrarily stop blacks in high-crime areas. This leads to further community-police tensions in high-crime neighborhoods, which leads to further crime.

High rates of black crime continue to exist despite nationally declining crime rates. President Donald Trump has said that crime is "out of control" and that decades of progress are now being reversed. Similar to how Richard Nixon capitalized on white voters' fear of the civil rights movement in the 1960s, Donald Trump successfully exploited white constituents' anger with eight years of having a black president and by creating a false portrayal of increasing crime rates--the need to "Make America Great Again."

When Colin Kaepernick, quarterback of the San Francisco 49ers, began an infamous protest by kneeling during the National Anthem before the start of each NFL game in 2016, it drew national ire as many Americans were appalled by his actions. How could someone disrespect the national anthem of this great country? Perhaps Colin Kaepernick recognizes that the racial caste system still exists in America today. It just operates in more discreet ways.


Deputy Public Defender, Office of the Colorado State Public Defender. J.D. 2016, University of California, Berkeley School of Law.


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