Wednesday, October 23, 2019

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IV. Obscuring Black Support for Punitive Crime Policy

The Harlem NAACP's push for tougher crime laws raises an important question: If many black citizens supported the policies that produced mass imprisonment, how can it be regarded as the New Jim Crow? The Old Jim Crow, after all, was a series of legal restrictions, backed by state and private violence, imposed on black people by the white majority. When given the opportunity, blacks rejected it. Three states--Mississippi, Louisiana, and South Carolina--had black voting majorities during Reconstruction, and all three banned racial segregation in public schools and accommodations. The Jim Crow analogy encourages us to understand mass incarceration as another policy enacted by whites and helplessly suffered by blacks. But today, blacks are much more than subjects; they are actors in determining the policies that sustain mass incarceration in ways simply unimaginable to past generations.

So what do African Americans think? Various writers have addressed the question of black attitudes toward crime policy, typically through opinion polling. But the question yet to be asked is: What sort of crime policies do black-majority jurisdictions enact? After all, if mass incarceration constitutes the New Jim Crow, presumably a black-majority jurisdiction today would rapidly move to reduce its reliance on prisons.

Of course, one reason no one has asked this question is that, unlike during Reconstruction, there are no states today with black voting majorities. Still, one jurisdiction warrants scrutiny. Washington, D.C., is the nation's only majority-black jurisdiction that controls sentencing policy. The District is 51% African American. Since home rule was established in 1973, all six of its mayors have been black, and the D.C. Council has been majority-black for most of that time. The police are locally controlled, and the mayor appoints the police chief. African Americans are overrepresented in the police force: African Americans make up 66% of the Metropolitan Police Department (MPD), and the MPD has the highest percentage of black officers in supervisory positions of any large majority-black city in the country. Because of its unique status, the city assumes both state and municipal functions in many aspects of the criminal process. Most important for purposes of this analysis, the D.C. Council and the mayor operate like a state government in terms of sentencing policy; they determine statutory maximums for all offenses, decide whether to impose mandatory minimums, and so on. Similarly, because the mayor appoints--and the Council confirms--the police chief, local officials exercise significant control over policing practices. This control is important because policing practices are a significant source of racial disparity in incarceration rates.

I acknowledge that in a number of important ways, D.C. has less autonomy than a state. For example, while the process for selecting judges for D.C. courts includes significant input from a local commission and from the office of D.C.'s elected representative to Congress (currently Eleanor Holmes Norton ), the White House ultimately makes judicial appointments. In addition, although local officials prosecute juvenile offenses, the United States Attorney's Office prosecutes most crimes by adults.

And yet, despite these external forces, local black elected officials exert considerable power over crime policy and have the ability to push back against federal actors. For example, if the mayor and the Council think that federal prosecutors are targeting too many low-level drug offenders, or that federally-appointed judges are imposing excessive sentences for drug offenses, they can lower the maximum penalties for these offenses. The D.C. Council has sometimes pushed for sentencing leniency. In 1982, by a vote of 72% to 28%, D.C. residents adopted an initiative providing for mandatory minimum penalties for defendants who distributed controlled substances or who possessed such substances with the intent to distribute them. Twelve years later, in December 1994, the D.C. Council voted to abolish mandatory minimums for nonviolent drug offenses. Councilmembers defended the move as a recognition that mandatory minimums had failed to deter drug use and drug sales.

If the mayor and Council stray too far from what Congress deems appropriate, Congress retains the authority to overrule them. However, Congress has generally respected D.C. autonomy in matters of criminal law. When Congress has interfered, its interventions have typically related to hot-button issues such as medical marijuana and needle exchanges for drug addicts. In addition, although D.C. officials cannot veto congressional actions, they retain the right to protest, if only symbolically, against those with whom they disagree. In certain areas (most notably the denial of voting rights to D.C. residents) they have done exactly that. Former Mayors Sharon Pratt Kelly, Anthony Williams, and Adrian Fenty, and current Mayor Vincent Gray have all led protests--almost always with Congresswoman Norton--to demand representation or to object to congressional proposals that threaten home rule. Mayor Kelly and Councilmember Kevin Chavous were arrested in 1993 as part of a pro-statehood rally. In 2011, Mayor Gray and five councilmembers were arrested on Capitol Hill while protesting riders to the federal spending bill restricting how D.C. may spend its tax dollars.

In matters of criminal law, however, they have largely remained silent. There is little evidence that D.C. officials have sought more lenient criminal policies, only to be overruled by Congress. To the contrary, local elected officials have recently pushed for tougher criminal penalties. In 2008, for example, Mayor Fenty introduced an omnibus crime bill that included a variety of provisions sought by prosecutors. As Fenty argued, [w]e are giving the police and the U.S. [A]ttorney more resources to put more people in jail. The D.C. Council passed the law with few modifications.

So what do incarceration rates look like in this majority-black city with substantial local control over who goes to prison and for how long? They mirror the rates of other cities where African Americans have substantially less control over sentencing policy. Washington, D.C. (a majority-black jurisdiction), and Baltimore (a majority-black city within a majority-white state) have similar percentages of young African American men under criminal justice supervision. Detroit, an overwhelmingly African American city in a majority-white state, has a smaller proportion of adults under criminal justice supervision than Washington, D.C. One in twenty-five Detroit adults are in jail or prison, on probation, or on parole, compared to one in twenty-one adults in D.C.

These data indicate the limits of the Jim Crow analogy, which attributes mass incarceration entirely to the animus or indifference of white voters and public officials toward black communities. While racial animus or indifference might explain the sky-high African American incarceration rates in Baltimore and Detroit, they do not explain those in Washington, D.C. And just as the analogy fails to explain why a majority-black jurisdiction would lock up so many of its own, it says little about blacks who embrace a tough-on-crime position as a matter of racial justice.

When I was a public defender in D.C., my African American counterparts in the U.S. Attorney's Office often informed me that they had become prosecutors in order to protect the community. Since I started teaching, I have met many students with prosecutorial ambitions who feel the same way. And they have a point: If stark racial disparities within the prison system motivate mass incarceration's critics, stark racial disparities among crime victims motivate tough-on-crime African Americans. Young black men suffer a disproportionate amount of both fatal and nonfatal violence. In 2006, the homicide rate for young black men was nineteen times higher than the rate for young white men. Most crime is intra-racial; more than 90% of black homicide victims are killed by blacks, and more than 75% of all crimes against black victims are committed by blacks. Many of the black prosecutors I know are very much like Paul Butler, who, though now a critic of American crime policy, originally became a prosecutor to help low-income black communities. As Butler recounts:

My friends from law school thought it was kind of wack that I was a prosecutor. I had been the down-for-the-cause brother who they had expected to work for Legal Aid or as a public defender. I told them I was helping people in the most immediate way--delivering the protection of the law to communities that needed it most, making the streets safer, and restoring to victims some measure of the dignity that a punk criminal had tried to steal.

Butler, writing before his conversion, speaks for people who care deeply about other blacks, and see tough-on-crime policies as pro-black. I disagree with them because I view mass incarceration as doing much more harm than good, and I would opt for a radically different approach to combating violence. However, their numbers and their passion have no analogue in the Jim Crow era.

The New Jim Crow writers are not oblivious to the fact that some blacks support tough-on-crime policies. The standard response is to argue that blacks do not support the policies that sustain mass incarceration, but are simply complicit with them:

In the era of mass incarceration, poor African Americans are not given the option of great schools, community investment, and job training. Instead, they are offered police and prisons. If the only choice that is offered blacks is rampant crime or more prisons, the predictable (and understandable) answer will be more prisons.

This answer compellingly demonstrates how choice is constrained for residents of the ghetto. But it is not a complete response to the black prosecutor phenomenon. Prosecutors like Paul Butler do not live in a world of constrained choices. They studied at prestigious law schools and received appellate clerkships. They could work to promote alternatives that the New Jim Crow writers and I believe will combat crime more effectively than locking up more black men. Instead, they choose--in the most robust and unfettered sense of that word--a different path. And the fact that they make this choice, combined with their (at least in some cases) racial justice orientation, raises an important question about whether the ends they seek can be fairly analogized to Jim Crow.

The Washington, D.C. phenomenon raises a similar challenge. Admittedly, the District's mayor and Council do not have unlimited options in deciding how to fight crime; their choices are not as unconstrained as Paul Butler's choice to become a prosecutor when he graduated from Harvard Law School. Yet they have real choices around criminal justice policy. I know this in part because my former colleagues at the Public Defender Service (PDS) regularly testify against tough-on-crime legislation before the D.C. Council, and they regularly present less punitive alternatives--sometimes including the education, community investment, and job training programs that Alexander hypothesizes blacks will choose over prison if given the option. Yet, PDS often fails to persuade the black-majority legislative body.

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