Excerpted From: Angela J. Davis, Benign Neglect of Racism in the Criminal Justice System, 94 Michigan Law Review 1660 (May 1996) (100 Footnotes) (Full Document)
Book Review: Malign Neglect: Race, Crime, And Punishment in America. By Michael Tonry. New York: Oxford University Press. 1995. pp. xii, 233. $25.
In October 1995, two black male teenagers were shopping in a clothing store in Prince George's County, Maryland. A white security guard, who was also an off-duty police officer, approached one of the teens and questioned him about the shirt that he was wearing. The youth explained that he had bought the shirt in that same store the previous week. Even though a black cashier in the store tried to convince the guard that she remembered the teen buying the shirt the previous week, the guard demanded to see the receipt. After the youth told the officer that the receipt was at home, the guard insisted that the boy remove the shirt, leave it in the store, and go home to retrieve the receipt. The humiliated teen removed his shirt in the store, went home without a shirt, and found the receipt. The shirt was eventually returned to him.
Just two months later, in December 1995, members of the same Prince George's County Police Department observed three adults sitting in a car smoking crack cocaine. The scene would not have been particularly unusual but for the presence of an infant in the car. However, the response of the police officers proved even more shocking than the presence of the baby. The officers went over to the car, escorted the adults and the child to a local substation, talked with them, and allowed them to go home. No arrest was made, and no charges were filed. The officers were white and so were the crack smokers.
On January 8, 1996, a young black nursing student was driving her car on Interstate 95 in South Carolina when a white South Carolina State Trooper pulled her over. The trooper approached her car with his gun drawn, yanked the door open, dragged her out, and threw her onto the ground face down, while constantly cursing and screaming at her. He eventually handcuffed her and placed her under arrest. Her crime? Driving fifteen miles per hour above the speed limit.
Each incident, in its own way, illustrates race discrimination in the criminal justice system. Few people would doubt that the black skin of the teenager in the clothing store played a significant role in the officer's decision to stop and question him. Although the incident did not result in an arrest, one wonders what would have happened if the innocent youth had declined to obey the security guard's demands. Would the officer have verbally or physically abused him? Would he have arrested him? What if the boy had failed to produce the receipt? Would the officer have stopped a similarly clothed white youth?
The second example involved actual criminality, but the police officers exercised their discretion not to arrest the white perpetrators, even though they routinely arrest blacks merely suspected of drug activity. When a black officer on Prince George County's police force learned of the incident and questioned the responsible officers, a white officer who supervised the incident said that he did not arrest the crack smokers because they were white. The third example resulted in an arrest for speeding, an offense for which police officers can use the arrest power at their discretion. Even if the officer had stopped a white motorist for speeding, would he have arrested her? Would he have verbally and physically abused her?
These examples also illustrate the impropriety and inaccuracy of relying on arrest statistics as evidence of criminality. Because the arrest process involves so much discretion, arrest statistics may both overestimate and underestimate actual criminal behavior. Furthermore, because no uniform method of documenting an officer's decision not to arrest exists, we cannot know the extent to which such decisions skew the arrest statistics currently used as evidence of criminality within particular racial groups. Despite these concerns, Professor Michael Tonry relies on arrest statistics to support his conclusion that racial bias in the criminal justice system can explain only a relatively small part of the problem of the overrepresentation of black men in the U.S. prison system (p. 3). In his book, Malign Neglect: Race, Crime, and Punishment in America, Tonry argues that the disproportionate incarceration of African Americans was caused primarily by the crime policies of the Reagan and Bush administrations. He seeks to “demonstrate why American crime control policies from 1980 onward did so little good at such great cost and how policies in coming years can do more good at less cost and with much less racial disparity” (p. viii). In so doing, he makes only passing reference to the significance of police discretion (p. 56) and no mention at all of the effect of prosecutorial discretion on racial disparities in the criminal justice system.
Tonry persuasively argues that the crime policies of the last two decades have contributed to the disproportionate incarceration of African American men. Instead of seeing these policies as one component of the conundrum of race and crime, however, he identifies them as the primary cause of this complex problem. As a result, he trivializes the role that racial bias plays in the overrepresentation of African-American men in the criminal justice system. Although Tonry acknowledges the existence of discrimination in housing, education, and employment (p. 133), he all but absolves police and other criminal justice officials of discrimination against African Americans (p. 50). He makes an exception in the area of drug arrests -- but even here he maintains that police targeting of minority neighborhoods is “tactical” rather than intentionally discriminatory (pp. 105 - 07). Although he bemoans the dearth of literature explaining these police tactics, he does not express similar concerns about the absence of proof in support of his theories about the motives of the “white -shirted-and-suspendered officials of the Office of National Drug Control Policy.”
Tonry's scathing indictment of unnamed crime policy officials in the Bush and Reagan administrations contrasts curiously with his benign treatment and vindication of police and other criminal justice officials. His charge that Reagan and Bush administration officials malignly neglected the effect of the War on Drugs on African Americans suggests that these officials consciously promulgated policies that they knew would result in the incarceration of disproportionate numbers of African Americans. Indeed, one can hardly imagine a harsher criticism of these policies than Tonry's description of the War on Drugs as a “calculated effort foreordained to increase [the] percentages” of African American prisoners (p. 82). His discussion of the motives of the architects of the War on Drugs comes close to agreeing with the theories promulgated by those who believe that U.S. crime policies and laws make up part of a conspiracy or genocidal plot to eliminate African Americans.
Despite his failure to acknowledge the significance of day-to-day racial bias in the criminal process, Tonry's analyses of the discriminatory impact of the crime policies of the Reagan and Bush administrations (pp. 3 - 47), and particularly of the War on Drugs (pp. 81-123), are important contributions to the literature on race and crime. Tonry also sets forth thoughtful proposals for changing current policies to ameliorate the disproportionately adverse treatment of African Americans in the criminal justice system (pp. 181-209). Had Tonry confined the scope of his book to demonstrating how the crime policies of the 1980s failed and how they affected black Americans, it would have been more focused and effective.
Part I of this review describes Tonry's analysis of the crime policies of the Reagan and Bush administrations.
Part II discusses Tonry's indictment of the War on Drugs and criticizes his failure to acknowledge the effects of discriminatory prosecutorial practices and sentencing laws.
Part III critiques Tonry's trivialization of the significance of race discrimination in the criminal justice system more generally.
Part IV summarizes Tonry's proposals for change and stresses the importance of documenting, examining, and eliminating racial bias in the criminal justice system.
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The important question is not whether racial bias is a “major” or “minor” cause of the disproportionate imprisonment of African Americans. The focus should be on how to discover and eliminate racial bias in the criminal justice system, wherever and whenever it exists. Law enforcement experts and criminologists should examine and propose solutions to the problem of racial bias in the discretionary arrest decisions of police officers. We should consider monitoring both police and prosecutor conduct. The monitoring of police conduct alone could have an effect on racially biased conduct. The discovery of discriminatory practices and policies will help us to formulate policies which protect all citizens without discriminating against some.
Visiting Associate Professor of Law, George Washington University. B.A. 1978, Howard University; J.D. 1981, Harvard. Former Director, Deputy Director, and staff attorney of the Public Defender Service for the District of Columbia.