Hillary Clinton repeated her incessant lie last night that the criminal justice system is infected with “systemic racism.” Race “determines” how people are “treated in the criminal justice system,” she said. Blacks are “more likely [than whites] to be arrested, charged, convicted and incarcerated” for “doing the same thing.” Such a dangerous falsehood, should Clinton act on it as president, would result not just in misguided policies but in the continued delegitimation of the criminal justice system. That delegitimation, with its attendant hostility and aggression toward police officers, has already produced the largest one-year surge in homicides in urban areas in nearly a half-century.
Criminologists have tried for decades to prove that the overrepresentation of blacks in prison is due to criminal-justice racism. They have always come up short. They have been forced to the same conclusion as Michael Tonry in his book, Malign Neglect: “Racial differences in patterns of offending, not racial bias by police and other officials, are the principal reason that such greater proportions of blacks than whites are arrested, prosecuted, convicted and imprisoned,” Tonry wrote. In 1997, criminologists Robert Sampson and Janet Lauritsen reviewed the massive literature on charging and sentencing. They found overwhelming evidence establishing that “large racial differences in criminal offending,” not racism, explained why more blacks were in prison proportionately than whites and for longer terms.
To say, as Clinton did last night, that blacks are more likely to be incarcerated for doing the same thing as whites ignores the relevance of a defendant’s criminal history in determining his sentence, among other crucial sentencing factors. Just last week, an analysis of Delaware’s prison population presented to the Delaware Access to Justice Commission’s Committee on Fairness in the Criminal Justice System revealed that when juvenile and adult criminal records are taken into account, along with arrest charges and age, racial disparities in sentencing decisions are negligible to nonexistent.
Clinton also complained that “too many young African-American and Latino men end . . . up in jail for non-violent offenses.” In fact, the majority of prisoners in the U.S. are serving time for violent felonies. The enforcement of low-level public order offenses in New York City during the mayoralties of Rudolph Giuliani and Michael Bloomberg actually lowered New York State’s prison population by intervening in criminal behavior early, before it ripened into a serious felony. Even as misdemeanor arrests increased in the city, felony arrests and felony incarcerations dropped. The number of jail inmates and convicts under parole and probation supervision in New York City dropped as well. Hillary Clinton may think that low-level public-order enforcement (otherwise known as “broken windows” policing) is racist, but law-abiding residents of high-crime communities beg the police to enforce public-order laws because they know that out of street disorder erupts gun violence and other forms of predation.
Clinton reiterated her call for “implicit-bias” training for officers. The premise of such training is that police officers are shooting black males out of such bias. Yet, four studies have come out this year alone that demolish this charge. They show that if there is bias among police officers in their shooting decisions, it works in favor of blacks and against whites. “Implicit-bias” training, based on a lie, is a grotesque waste of resources at a time when officers are desperate for more hands-on tactical training that will help them make those crucial shoot/don’t shoot decisions in the field, or avoid being put into such an excruciating situation in the first place.
Clinton claimed that “stop-and-frisk was found to be unconstitutional.” No federal judge would have the power to declare pedestrian stops unconstitutional, because the Supreme Court put its constitutional imprimatur on the practice in 1965. Stop-and-frisk remains a lawful and essential police tactic. Criminologist David Weisburd examined the practice in New York City and found that it reduced crime in shooting hot spots. Federal district court judge Shira Scheindlin did rule that the New York Police Department’s practice of stops was racially biased, but her ruling applied only to the New York Police Department. That ruling was wholly unjustified and would likely have been reversed on appeal, had newly elected New York City mayor Bill de Blasio not dropped the appeal. Judge Scheindlin used a population benchmark for measuring the lawfulness of police actions: if police stops didn’t match population ratios, they were unconstitutional, in Scheindlin’s view. Such a methodology ignores the massive disparities in criminal offending in New York City. Blacks commit over three-quarters of all shootings, though they are 23 percent of the city’s population. Add Hispanic shootings to black shootings and you account for 98 percent of all shootings in New York City. Whites are 34 percent of the city’s population; they commit less than 2 percent of all shootings. Such disparities in gun violence mean that virtually every time the police are called out on a gun run—meaning that someone has been shot—they are called to minority neighborhoods on behalf of minority victims, and, if any witness or victim is cooperating with the police, being given a description of a minority suspect. The reality of crime, not phantom police racism, determines the incidence of police activity, including pedestrian stops.
Clinton claimed that stop-and-frisk was “ineffective” and “did not do what it needed to do.” Felony crime dropped 85 percent from the early 1990s to the mid-2010s in New York City; more than 10,000 minority males were spared the violent death that they would have experienced had homicides remained at their early 1990s levels. Stop-and-frisk was a crucial part of that crime drop, the longest and steepest on record; it’s hard to imagine anything more effective than New York’s proactive policing revolution. Stop-and-frisk deterred criminals from carrying guns. Equally importantly, it intervened in a range of other criminal behaviors. If an officer saw someone casing a store on a boulevard plagued with burglaries, or saw someone walking quickly behind an elderly lady in a neighborhood plagued with robberies, he would stop that person and ask a few questions. That stop may not have resulted in an arrest, but it could have averted the commission of a crime.
Homicides and shootings in New York City rose 20 percent in the first half of 2015, thanks to the Scheindlin-induced drop in pedestrian stops. Then-police commissioner William Bratton responded with a massive deployment of overtime manpower to high-crime corners; officers used “command presence”—i.e., their mere presence on the street—to deter criminal behavior. This roll-out of manpower resources quelled the shooting spike and New York City ended 2015 with a 6 percent homicide increase. Other departments do not have the personnel available to them to make up for a drop in proactive policing.
Donald Trump is right to warn about depolicing and what I have called the Ferguson Effect. “Right now, our police, in many cases, are afraid to do anything,” he said. The result is a massive loss of black lives in places like Chicago and Baltimore. Law and order are breaking down in inner cities; officers are surrounded by hostile, jeering crowds when they get out of their squad cars to conduct an investigation. Resistance to arrest is up, increasing the chances of an officer’s own use of force. And race riots are returning to American cities. The current mendacious narrative about policing and race has to change or we can expect to see further violent-crime increases and further racial violence. It is clear, however, that Hillary Clinton will continue to enflame racial tensions through a set of lies about the criminal-justice system.
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