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September 25, 2016
"The Under-Policed"
The title of this post is the title of this interesting and provocative new essay authored by I. Bennett Capers now available via SSRN. Here is the abstract:
While there is much to be said about the problem of mass incarceration and strategies for de-incarceration, the goal of this essay is to bring two things to the conversation. The first is to bring attention to the complex role misdemeanors play in compounding the problem of mass incarceration. The second is to call attention to race, but not in the usual way.
Usually, when we think of race and criminal justice, we think of racialized policing and the overrepresentation of racial minorities in jails and prisons. But what happens when we consider criminal justice not only as an issue of overcriminalization and overenforcement vis-à-vis racial minorities, but also as an issue of undercriminalization and underenforcement vis-à-vis non-minorities?
Put differently, in this time when we are again discussing white privilege and the hashtag #Crimingwhilewhite has become a phenomenon, are there advantages to talking about white privilege — or more generally, privilege — and criminal justice? If there exists what Randall Kennedy calls a “racial tax,” are there benefits to asking who gets a “racial pass”? Are there advantages to talking about the under-policed? Finally, how might those conversations impact the issue du jour, mass incarceration? This essay concludes by offering some suggestions for reducing mass incarceration.
September 25, 2016 at 02:40 PM | Permalink
Comments
"but also as an issue of undercriminalization and underenforcement vis-à-vis non-minorities?"
Yes. I've thought for more than a decade that framing the problem as racism against minorities is disingenuous. Framing the debate that way allows those in positions of privilege to get "credit" for solving a problem that affects the "other". There is an inherent aspect of white-knight syndrome in framing the debate in racial terms.
On the other hand, if we view the problem as a lack of self-accountability, a problem with the elites refusing to hold the their fellow elites accountable for the same actions that minorities suffer for then the entire debate takes on a different light. The difficulty with framing the debate as a debate about self-accountability, however, is that it cuts against a key American value viz. that we are all just temporarily embarrassed millionaires. Americans don't really and truly object to the notion of privilege; Americans are working hard to get privilege so they can get away with rape and murder too.
Posted by: Daniel | Sep 25, 2016 7:17:47 PM
Daniel,
Except that while the evidence is that most murders (perhaps 2/3, although it varies a great deal by jurisdiction) are solved the clearance rates for other crimes is far lower. White, black, brown or green most rapists do in fact get away with it (as do burglars). It is only the fact that most criminals do not stop at one offense that allows as many to be caught as are.
Posted by: Soronel Haetir | Sep 25, 2016 7:50:16 PM
There are a hell of a lot of crimes committed by African-Americans during the riots in various places that aren't getting prosecuted at all. Of course, no one talks about that/
Posted by: federalist | Sep 25, 2016 8:30:20 PM
Re: privilege, Kris Kime could not be reached for comment.
Posted by: federalist | Sep 26, 2016 10:09:33 AM
Federalists own tactics can be used against him. The fact that we have a victim with a name, a name that Federalist remembers, a name that can be Googled and located because there is a wikipedia page on his killing, these things alone are a sign of privilege. Even in death Kime could not escape his good fortune, the good fortune of being remembered. The good fortune of family who fought for justice.
For there are many killing that go unknown, or unsolved, or unacknowledged. That is what happens to the underprivileged. They are lost, uncared for... forgotten. Mostly. Occasionally they are remembered when they are shot down by those sworn to protect them. James Boyd anyone? But Boyd is the exception to what happens to homeless people in this country.
I wonder if Federalist remember the name James Boyd or whether he had to Google it.
Posted by: Daniel | Sep 26, 2016 11:07:11 AM
Federalists own tactics can be used against him. The fact that we have a victim with a name, a name that Federalist remembers, a name that can be Googled and located because there is a wikipedia page on his killing, these things alone are a sign of privilege. Even in death Kime could not escape his good fortune, the good fortune of being remembered. The good fortune of family who fought for justice.
For there are many killing that go unknown, or unsolved, or unacknowledged. That is what happens to the underprivileged. They are lost, uncared for... forgotten. Mostly. Occasionally they are remembered when they are shot down by those sworn to protect them. James Boyd anyone? But Boyd is the exception to what happens to homeless people in this country.
I wonder if Federalist remember the name James Boyd or whether he had to Google it.
Posted by: Daniel | Sep 26, 2016 11:07:11 AM
Federalist remembers, a name that can be Googled and located because there is a wikipedia page on his killing, these things alone are a sign of privilege. Even in death Kime could not escape his good fortune, the good fortune of being remembered. The good fortune of family who fought for justice.
For there are many killing that go unknown, or unsolved, or unacknowledged. That is what happens to the underprivileged. They are lost, uncared for... forgotten. Mostly. Occasionally they are remembered when they are shot down by those sworn to protect them. James Boyd anyone? But Boyd is the exception to what happens to homeless people in this country.
I wonder if Federalist remember the name James Boyd or whether he had to Google it.
Posted by: Daniel | Sep 26, 2016 11:07:25 AM
"The fact that we have a victim with a name, a name that Federalist remembers, a name that can be Googled and located because there is a wikipedia page on his killing, these things alone are a sign of privilege."
By that rationale, Emmitt Till was super-privileged.
James Boyd--tbh I had to check my memory, but I was right--the homeless guy in Albuquerque.
So Daniel, is it ok that rioters get a free pass to victimize, and if we're going to have a racial ledger, shouldn't that be part of it?
Posted by: federalist | Sep 26, 2016 11:46:54 AM
Mayor Edward Koch had an op-ed once defending the death penalty & referenced the complaint that it was arbitrarily applied based on race etc. Put aside arguments that is bogus for the moment. His argument was that this just goes to show that it is not applied ENOUGH. After all, we are dealing with people who deserve it (again, let's not push against that for the moment). But, that isn't the only way to look at it.
In some cases, those not punished as much get what everyone should get. Society doesn't show much desire to have so much more executions that they are more evenly applied or something. And, it shouldn't be increased -- we are dealing with more than equal protection here. Equally applied bad things is not a grand improvement.
It also suggests what is REALLY being used all things being equal. And, the breakdown isn't just racial. It could be sex or class or whatever. Thus, the well off in various ways cause major harms and they get little penalty for it. Like Prof. Berman being concerned we focus too much on a relative few executions, e.g., the dangerous nature of business in various cases is much more lethal.
Posted by: Joe | Sep 26, 2016 12:19:45 PM
I have no idea why there are three posts in my response to Federalist or why one is garbled but if I had any role in such spam I apologize. Maybe Doug can delete this and those comments.
Posted by: Daniel | Sep 26, 2016 2:48:50 PM
Joe's comment is impenetrable triteness.
Thinking more about Daniel's comment, I am struck by its tone-deafness . . . . Kris Kime was "privileged"? Really? Politically correct policing got him killed, and he's privileged? And the guy who killed him got off pretty light . . . .
As for policing etc.--policing strategies are going to be different in different venues, and that's going to have an effect. That's not necessarily unfair. But it would be interesting if Mr. Capers looked at the lenience that goes on in big cities--day after day in Chicago and other major cities, serious violent crime doesn't earn a big sentence.
Posted by: federalist | Sep 26, 2016 2:53:13 PM
"Americans don't really and truly object to the notion of privilege; Americans are working hard to get privilege so they can get away with rape and murder too."
How effing stupid is this quote. Doug, you love to "examine the basis" for my opinions--why not trying that with Daniel?
Posted by: federalist | Sep 26, 2016 2:56:35 PM
"So Daniel, is it ok that rioters get a free pass to victimize, and if we're going to have a racial ledger, shouldn't that be part of it?"
As I suspect you know, your response is a response to an argument no one is making. Claims about privilege (however one defines that term based upon race, class, etc.) aren't claims about absolute immunity or absolute impunity. They are claims about averages and risks. People of privilege are *more likely* to get away with crimes because of their access to cultural capital and people without privilege are *less likely* to do so. People of privilege are less likely to be victims of crimes; no one is making the claim they will never be victims.
So to whatever ledger (your term) is out there of course Kime should be added. So what? The fact that there are causalities on the winning side doesn't change the fact it is the winning side.
Posted by: Daniel | Sep 26, 2016 2:58:42 PM
Sometimes it takes time to save a comment and I press "post" a second time & the result is you get a double of my impenetrable triteness [ymmv]
Posted by: Joe | Sep 26, 2016 3:22:55 PM
Doug,
I believe Federalist's comments are a fair response to actual situations we face and the argument that whites somehow get off for crimes committed.
With riots you often have significant evidence (video and otherwise) of who committed various acts yet absolutely no attempt made at enforcement.
Posted by: Soronel Haetir | Sep 26, 2016 9:34:23 PM
As I suspect you know, your response is a response to an argument no one is making. Claims about privilege (however one defines that term based upon race, class, etc.) aren't claims about absolute immunity or absolute impunity. They are claims about averages and risks. People of privilege are *more likely* to get away with crimes because of their access to cultural capital and people without privilege are *less likely* to do so. People of privilege are less likely to be victims of crimes; no one is making the claim they will never be victims.
Is it? If the idea that whites are somehow "getting away" with things that blacks aren't (and we'd need to account for local differences in enforcement--there is not a need for a heavy police presence where i currently live, so low-level criminal behavior may be ignored--but it's hard to argue that's unfair)--then examples found in the riots are significant facts that contradict the narrative.
I get it that those with money may be able to wriggle out of some wrongdoing that the poor would not---but does that counterbalance the urban lenience that we see--particularly since most jurisdictions with a lot of privileged people don't take kindly to serious criminality---try being a burglar in Will County Illinois ... . And what to make of interracial crime? Does the fact that victimization is overwhelmingly black on white versus the other way around when it comes to serious crime impact the analysis. (Of course, crime is an intra-racial phenomenon generally.)
Posted by: federalist | Sep 27, 2016 12:38:59 AM
Sorry to be slow to engage while busy on many other fronts. And while you are talking these interesting topics up, I just want to add not only that there is a VAST amount of under-enforcement of our criminal laws in all communities, but also that a great majority of our criminal laws are enacted and kept in place assuming there will be a VAST amount of under-enforcement in all communities. (Drug and underage drinking and traffic laws are the most obvious examples, but this is certainly also true for more "serious" criminal laws involving domestic violence and child porn and fraud and plenty of others.)
Whether focused on crimes/riots that emerge from protests OR underage drinking at frat parties (which unusually led to a bunch of arrests in Delaware recently), there are certain settings at certain times in which criminal laws are often going to be consistently under-enforced. Claims of "privilege" may be a useful part of this discourse, but so too would be a recognition that so much of our functioning criminal justice system depends on under-enforcement. (And just look at how folks get so work up by red-light camera that seek to more accurately and consistently enforce traffic laws.)
Posted by: Doug B. | Sep 27, 2016 5:26:34 PM
"under-enforced" is a term freighted with a value judgment. Prohibitions on underage drinking aren't enforced because (a) there are limits on what cops can do in a free society and (b) no one is complaining.
Posted by: federalist | Sep 28, 2016 9:42:22 AM
