An Excerpt from Race, Incarceration, and American Values

Editors’ Note: Professor Loury suggested that we include the following excerpt from pp. 32-35 of his book Race, Incarceration and American Values. He writes, “Feel free to post this and let your readers decide whether or not they think I am advocating in this passage the promulgation of discriminatory criminal penalties favoring black offenders. Clearly, I am not so advocating.” We’ve taken his suggestion.

So put yourself in John Rawls’s original position and imagine that you could occupy any rank in the social hierarchy. Let me be more concrete: imagine that you could be born a black American male outcast shuffling between prison and the labor market on his way to an early death to the chorus of “nigger” or “criminal” or “dummy.” Suppose we had to stop thinking of us and them. What social rules would we pick if we actually thought that they could be us? I expect that we would still pick some set of punishment institutions to contain bad behavior and protect society. But wouldn’t we pick arrangements that respected the humanity of each individual and of those they are connected to through bonds of social and psychic affiliation?

If any one of us had a real chance of being one of those faces looking up from the bottom of the well — of being the least among us — then how would we talk publicly about those who break our laws? What would we do with juveniles who go awry, who roam the streets with guns and sometimes commit acts of violence? What weight would we give to various elements in the deterrence-retribution-incapacitation-rehabilitation calculus, if we thought that calculus could end up being applied to our own children, or to us? How would we apportion blame and affix responsibility for the cultural and social pathologies evident in some quarters of our society if we envisioned that we ourselves might well have been born into the social margins where such pathology flourishes?

If we were to take these questions as seriously as we should, then we would, I expect, reject a pure ethic of personal responsibility as the basis for distributing punishment. Issues about responsibility are complex, and involve a kind of division of labor — what Rawls called a “social division of responsibility” between “citizens as a collective body” and individuals: when we hold a person responsible for his or her conduct — by establishing laws, investing in their enforcement, and consigning some persons to prisons — we need also to think about whether we have done our share in ensuring that each person faces a decent set of opportunities for a good life. We need to ask whether we as a society have fulfilled our collective responsibility to ensure fair conditions for each person — for each life that might turn out to be our life.

We would, in short, recognize a kind of social responsibility, even for the wrongful acts freely chosen by individual persons. I am not arguing that people commit crimes because they have no choices, and that in this sense the “root causes” of crime are social; individuals always have choices. My point is that responsibility is a matter of ethics, not social science. Society at large is implicated in an individual person’s choices because we have acquiesced in — perhaps actively supported, through our taxes and votes, words and deeds — social arrangements that work to our benefit and his detriment, and which shape his consciousness and sense of identity in such a way that the choices he makes, which we may condemn, are nevertheless compelling to him — an entirely understandable response to circumstance. Closed and bounded social structures — like racially homogeneous urban ghettos — create contexts where “pathological” and “dysfunctional” cultural forms emerge, but these forms are neither intrinsic to the people caught in these structures nor independent of the behavior of people who stand outside them.

Also from this issue

Lead Essay

  • A Nation of Jailers by Glenn Loury

    In this month’s lead essay, Brown University’s Glenn Loury, author of Race, Incarceration, and American Values, points out that the United States imprisons more of its population than any country on the planet. America’s incaceration policies, Loury observes, fall disproportionately on black men. Loury is disturbed that we seem rarely to consider whether these policies make sense. He argues that they do not make sense, but that “the racially disparate incidence of punishment in the United States is a morally troubling residual effect of the nation’s history of enslavement, disenfranchisement, segregation, and discrimination.” Loury contends that the American ethos of individual responsibility has largely blinded us to the fact that “society at large is implicated in [the criminal’s] choices because we have acquiesced in structural arrangements which work to our benefit and his detriment.” Loury concludes: “What the brutal facts about punishment in today’s America show is that [the] American project of civic inclusion remains incomplete.”

Response Essays

  • Reforms that Ignore the Black Victims of Crime by John R. Lott Jr

    In his reply to this month’s lead essay, the University of Maryland’s John R. Lott, Jr. criticizes Loury for a selective presentation of facts about race and the American criminal justice system. Lott points out that blacks are the primary victims of crimes committed by other blacks. “If we punish black criminals a lot, isn’t it possible that the reason we are doing it is because we care about the black victims?” he asks. Lott argues that while the United States does have the world’s highest rates of incarceration, the evidence shows that the policies behind this fact have been effective in deterring crime. Additionally, Lott maintains that there is little evidence that other criminal penalties disproportionately burden blacks or the poor, and that well-intended policies meant to bring more blacks into law enforcement have actually increased crime rates in minority areas by lowering the average quality of new police recruits of all backgrounds.

  • Addressing the Problems that Lead to Prison by James Q. Wilson

    James Q. Wilson sympathizes with Glenn Loury’s “impassioned cry from the heart,” yet ultimately finds that it comes up short in substance. A more programmatic approach is in order, he argues. Although imprisonment has costs, it also has benefits, including decreased risk from several types of crimes. Yet programs that attempt to reduce criminality and recidivism must start outside the penal system and address broken families, neighborhoods, and educational systems.

  • Race, Crime, and Punishment by Bruce Western

    Harvard sociologist Bruce Western, author of Punishment and Inequality in America argues that although the growth of mass imprisonment in recent years has caused a modest reduction in crime, this reduction may not have been worth the costs. Not only did we spend billions on new prisons, we interrupted millions of lives and families. We lost the economic output of prisoners and alienated them from society at large. We further ran the risk of recidivism, because past imprisonment is strongly associated with future crime. Western characterizes the public safety provided by mass imprisonment as “short-term, expensive, and vulnerable to reversal.” Worse, there are other ways to reduce crime that do not rely on imprisonment. Today’s state legislators and governors are no longer as invested in the prison system and do not see more prisons as the solution to social ills, and this, to him, is a welcome development.

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