The US has been on a self-destructive, four-decade-old mass incarceration binge, and Attorney General Eric Holder is doing the right thing by taking us on the first steps to national sobriety by turning the spotlight on mandatory minimum sentencing. So too is federal judge Shira A. Scheindlin with her finding that the New York Police Department violated the constitutional rights of minorities in New York with its stop-and-frisk program.
Legal scholars and rights advocates have long pointed out that mandatory minumums, “three strikes” laws, stops and searches by police based on racial profiling, and other forms of coercive social control that came into vogue with the “War on Drugs” were hugely inequitable — not to mention expensive and counterproductive. Yet they have been politically popular in a nation long enamored of what Berkeley law professor Jonathan Simon calls “crime governance” — a fondness for framing many of our social problems as crimes, and for emphasizing law enforcement strategies in addressing them.
The Attorney General has been careful to frame his sentencing reform campaign in terms of the unnecessary dollar costs we bear as a nation to over-incarcerate non-violent, low-level drug offenders, and more broadly, as part of an effort to break the “vicious cycle of poverty, criminality, and incarceration” that “traps too many Americans and weakens too many communities.” But this neutral language can mask the continuing linkage of crime and race in the public common sense. Polling data shows that many Americans continue to believe that blacks and Latinos are inherently more dangerous than other races. So too does the wide gulf in racial attitudes toward the kind of racial profiling that Judge Scheindlin found unconstitutional.
Our sense of race shapes a lot of what we criminalize, and the disproportionate contact of people of color with the criminal justice system reconfirms beliefs about the “innate tendencies” of blacks and Latinos. Criminalization was one of the many tools white Americans used to limit the social inclusion of people of color during the eras of slavery and Jim Crow, since recognition of their full humanity would have significantly undermined the racial order. The criminalization we have been witnessing in recent decades has been more sophisticated but its racial outcomes are the same: the establishment of a visible and psychological connection between racial identity, crime, and place.
Changing law enforcement and criminal justice practices that victimize individuals and communities of color so disproportionately is obviously important. But we know that changing laws and rules can take us only part of the way. As a society we will remain at risk of the racial inequity binges that undermine American democracy if we do not accompany those changes with key shifts in our belief systems about race and darker skinned people.
To do so is to upgrade our hardware without also upgrading the software on which it runs. Like the segregated lunch counters of old, institutional policies and practices like mandatory minimums and “stop-and-frisk” are symptoms of our ongoing race problem. The bigger task before our political and civic leaders is facilitating ideological change — helping Americans change their deep beliefs about the social significance of racial identity.
Reducing the excesses of black and brown incarceration and the primacy of criminal justice institutions in the daily lives of communities of color will contribute hugely in this respect. However, more intentional, direct strategies to change how we all imagine and represent people and places of color are also required and it will take creative and courageous leadership like the Attorney General’s and Judge Scheindlin’s at other levels, to finally rid our society of its racial habits.