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Molly Townes O'Brien

Excerpted from: Molly Townes O'Brien, Criminal Law's Tribalism, 11 Connecticut Public Interest Law Journal 31 (Fall-Winter, 2011)(111 Footnotes)


Science advanced, knowledge grew, nature was mastered, but Reason did not conquer and tribalism did not go away.


In every country where the question has been studied, incarceration rates for members of some minority groups greatly exceed those for the majority population. Disproportionate incarceration is not a problem of a single ethnic group or one of a set of historical circumstances. It is a global problem that is fundamentally connected to social group identity. This Article explores the role that criminal law serves in group-identity formation. It suggests that although in-group bias is a deeply embedded aspect of criminal justice systems, it may have outlived its usefulness on an increasingly small planet. Building a common or super-group identity may be necessary to achieve greater justice in increasingly multi-ethnic and mobile societies.

From the available data on the race or ethnicity of the world's prisoners, it is possible to discern a global tendency of each population to imprison a disproportionate percentage of some minority groups. African-Americans and Hispanics are disproportionately represented in American prisons. Aboriginal Australians are incarcerated at fourteen times the rate of white Australians. In New Zealand, where Maori make up 15 percent of the population, they make up 51.2 percent of the prison population. Unequal imprisonment of minority groups has also been documented in the Czech Republic, Britain, France, Israel, Sweden, Canada, and Germany. As Michael Tonry points out,

What is most striking about [the data demonstrating overrepresentation of minorities in prison] is that they come from so many countries. They apply to many groups and many countries, suggesting that bias, disparities, and disparate impact policy dilemmas are not uniquely the characteristics and problems of any particular minority groups or countries but are endemic to heterogeneous developed countries in which some groups are substantially less successful economically and socially than the majority population.

Further, incarceration rates around the globe are rising, making the disproportionate impact of criminal punishment on minority groups a matter of growing importance.

Data demonstrating the disproportionate imprisonment of oppressed minority populations abounds as does empirical research that seeks to explain the data. Much of this research focuses on the issue of what has been described as the elevated rates of offending (according to official statistics) among oppressed racial minorities . . . In other words, for many researchers the question is: Why do minority group members commit more crimes? Pursuing the answer to this question has led researchers to explore the criminogenic influence of socioeconomic deprivation and social disorganization. Others have considered whether crime may have genetic or biological factors.

At the other end of the spectrum are researchers who question whether the official crime rate and imprisonment statistics are reflective of actual rates of criminal behavior. These scholars have considered whether discriminatory law enforcement, criminal justice processing, or sentencing patterns account for elevated levels of minority imprisonment. Similarly, researchers have also considered whether the law itself contributes to the disproportionate imprisonment of minority groups through the establishment of behavioral norms that do not reflect the values of the minority culture.

The debate, which has sometimes been characterized as polemical and sterile, has not ignored the possibility that the causes of disproportionate incarceration are not mutually exclusive-that is, that a variety of factors may all contribute to the overrepresentation of some minorities in prison. Much of the research, however, has focused predominantly on one nation or one criminal justice system. Studies therefore present findings that may appear to be limited to the particular racial groups or ethnic minorities studied. Each study, taken alone, may create a false perception that the problem of disproportionate incarceration is a characteristic of one minority group, one historical or political situation, or one kind of culture clash. The problem may therefore be falsely perceived as one of Aboriginal criminality or racism in the United States. Thus, a potential risk of looking at a single nation or criminal justice system is that the research itself may contribute to existing stereotypes, misconceptions and biases against the oppressed minority. This risk is not, of course, a sufficient reason not to perform the research; a significant body of work addresses the issues of racialized punishment without falling into the trap of stereotyping. Such work may be extremely useful, not only to improve understanding of the problem of over-incarceration of certain minority groups, but also to assist in formulating strategies for reducing minority imprisonment rates within one culture or country. It is limited, however, in scope and implication to the culture or cultures studied.

Some scholars advocate taking a comparative or cross-national approach to considering the problem of overrepresentation of certain ethnic minorities in prison, but do so only with great caution. There are good reasons to proceed with caution into the realm of making cross-national generalizations or undertaking studies of ethnic minority incarceration. Differences in the history of various minority groups and their relationships with majority cultures, differences in the economic and political structure of various societies, and differences in the criminal justice systems of each country, all undoubtedly play an important role in producing outcomes that are idiosyncratic and not susceptible to a single explanatory theory. Further, empirical research faces enormous difficulty in collecting and comparing data from sources that use differing definitions of minority or ethnic group status, and of criminal behavior, etc.

It is nevertheless important to explore the implication of what has been demonstrated in numerous single-nation studies: In every country where the question has been studied, the crime and incarceration rates for members of some minority groups greatly exceed those for the majority If disproportionate incarceration (or punishment) of some disfavored minorities is found everywhere, the obvious implication is that the problem is not particular to one ethnic group. Nor is it fundamentally a problem of one race or one historical racial conflict. The members of oppressed minority groups around the world include not only African Americans, Maori, Australian Aboriginals and other people of color, but also Turks (in Germany), Roma people, and Armenians, who are white. Disproportionate punishment impacts immigrant groups, but also extends to first peoples who have occupied the territory where they live for thousands of years, including Native Americans, Kurdish people, Australian Aboriginals, and Torres Strait Islanders. Neither is disproportionate imprisonment found only in the wake of capitalist post-industrialism or post-colonialism, as demonstrated by the high rate of incarceration of Uyghur people in China. The disproportionate imprisonment of some disfavored minorities appears to be a global phenomenon. While theories of disparate incarceration that focus on racism, immigration, capitalism and colonialism may have strong explanatory power at the level of a single legal system, they cannot explain the global phenomenon.

One may argue that any attempt to understand disparate punishment at a global level must founder on the rocks of particularized histories, individual cultural and legal differences, and varying economic and political circumstances. It would not be possible to gather appropriate data or test a global theory of disproportionate incarceration. Such a global theory would be vulnerable to the same critique that has been leveled at conflict theory: It would explain everything and predict nothing. On the other hand, it may be that criminology has already grasped the global nature of disproportionate punishment, but has not made it a point of emphasis because of the difficulties of studying global phenomena.

This Article does not attempt to create a grand theory for understanding disparate imprisonment in all of its various historical and cultural manifestations. Rather it suggests that by shifting focus from the particular to the global, from the cultural or racial to the human, it may be possible to gain new insights. Turning to some of the traditional and basic building blocks of criminology-anthropology and psychology-this paper draws attention to the fact that, although certain ethnic, racial and migrant groups are at the receiving end of disparate punishment, the problem is global. It may be beneficial to address the problem from a global or human, rather than jurisdictional perspective.