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July 25, 2022

Spotlighting the "unheard-of decline in Black incarceration"

Keith Humphreys and Ekow Yankah have this notable new Chicago Tribune commentary headlined "The unheard-of decline in Black incarceration." This piece should be read in full, and here are excerpts:

Two years after George Floyd’s murder, protest-filled streets and countless invocations of a “racial reckoning,” public backlash and boredom have led many people to despair that the criminal justice system will never change.  But that dispiriting illusion is false, maybe even dangerous.  After generations of soul-crushing mass incarceration, African Americans have cause for hope: The Black imprisonment rate is at a 33-year low, having fallen to about half its level of a generation ago. But an inadvertent collaboration of ideological adversaries makes the decline of Black incarceration unspeakable.

On the one hand, the good news is hidden by racism. The narrative of inherent Black violence and immorality has been used to terrify white people and justify the oppression of Black people for centuries. As a Media Matters study demonstrated, if a criminal suspect is Black, the case is more likely to be covered on television news. Social media platforms greatly magnify the distortion. Within the narrative of inherent Black criminality, the decline in Black incarceration seems an impossibility: Black people must be in prison because that is where they belong. And even the racists who are aware of the decline in Black imprisonment may decide to keep silent — the truth is less important than the social or political gain offered by continual whispers of the Black boogeyman.

Anti-racist advocates oppose this narrative, emphasizing instead the structural forces that use fear of Black Americans to feed the fire of mass incarceration. But anti-racists may share racists’ unawareness or discomfort with declining Black incarceration. Black hopes have been dashed too many times to trust a change in their oppressor’s character. Other anti-racists are aware of the change but have fears of acknowledging it. White concern for racial justice has a history of evaporating. Two years after police murdered George Floyd, it is disheartening to see how quickly earnest proclamations of a “racial reckoning” withered into a commitment to abolish a pancake mix logo.

To be sure, the disproportionate incarceration of Black Americans remains a national tragedy that cannot be consigned to history if white people become complacent. Reformers understandably fear that focusing on the decline in Black incarceration (or positive comparison with white people) will further slow the dismantling of a system that still destroys countless lives. Still, assuming American racism is intractable creates a narrative that also cannot account for the decline in Black imprisonment.

Despite their competing premises, the racist and anti-racist narratives accidentally reinforce each other. They share a code of silence about Black de-incarceration that misleads Americans about the current racial realities of mass incarceration. In the absence of corrective information from journalists and activists, most people assume incorrectly that prisons continue to gobble up the lives of an increasing number of African Americans.

No matter our politics, we should care about what is true — the Black imprisonment rate has been dropping for a generation.  Hundreds of thousands of African Americans who would have been behind bars are now free.  Callous actors will claim this is too many, and anti-racists will argue it’s too few.  But would anyone argue with a straight face that such a dramatic change in the fate of hundreds of thousands of people warrants no discussion at all?...

In a country where so many — particularly people of color — long to see images of Black excellence celebrated, stories of Black progress should be highlighted rather than buried. Without ever forgetting the work still to be done, Americans of all races should be told of the progress that has and can be won.

I am always glad to see important data about modern incarceration emphasized, though I think op-eds could be written about all sorts of data realities going largely ignored or being misunderstood in many era.  There was precious little public discourse about mass increases in US incarceration for decades, and still very few talk about the remarkable increases and decreases in federal incarceration (and caseloads) over the last 25 years.  Though there is often discourse around private prisons, relatively few highlight what a small part they play in the national incarceration map.  Demographics such as gender and age and class (often combining with racial dynamics) can vary dramatically in incarcerated populations depending on crimes and jurisdictions, and dynamic recent modern changes in urban and rural incarceration rates have also often been overlooked or underexamined.  And, of course, data lags and other factors make it hard to even know how profoundly the COVID pandemic has reshaped our incarceration levels or whether any changes brought by COVID may prove enduring.

Put slightly differently, in this context, I do not see all that many thought-out "narratives" seeking to hide or obscure key data.  Instead, I see many advocates and media with relatively little interest in data combining with a general paucity of clear and effective data resources.  That said, given the considerable attention given to racial issues in broader criminal justice narratives and elsewhere in policy debates, I am still eager to praise Professors Humphreys and Yankah for this important commentary.  But, for me, it is just one small part of a much bigger story of political rhetoric often having little interest in complicated policy data.

A few of many older and newer related prior posts:

July 25, 2022 at 10:57 AM | Permalink


Is it sensible to assume that a large factor in the decrease in incarceration is the decrease in arrests, cash bail, and other anti-law enforcement measures? If so, how is that a good thing worthy of “praise?”

FWIW, I know this isn’t an academic paper, but citing Media Matters (or SPLC) is a bad joke.

Posted by: TarlsQtr | Jul 25, 2022 1:16:14 PM

These are long-term trends, Tarls, that largely include "tough-on-crime" periods (Bush/Trump years) and also jurisdictions with relatively high overall incarceration rates. I think changes in drug war emphasis (from crack and marijuana to meth and opioids) and in regional law enforcement/incarceration patterns (less in cities, more in suburban and rural) mostly accounts for the trends. Moreover, according to Sentencing Project data, bluer states tend to have the worst incarceration disparities by race: "Seven states maintain a Black/white disparity larger than 9 to 1: California, Connecticut, Iowa, Maine, Minnesota, New Jersey, and Wisconsin."

Posted by: Doug Berman | Jul 25, 2022 1:51:17 PM

I wonder if anyone is interested in the number of black victims of violent crime? Well, I am even if the "reform" movement isn't. A look at what's happened to the rate of black victimization in one of our major cities is here: https://ringsideatthereckoning.substack.com/p/the-klan-was-never-this-effective

It's a tragedy and a scandal, but who winds up in the morgue is irrelevant to liberals as long as fewer people wind up in the slammer. As long as there's less accountability for criminals, everything's cool.

Posted by: Bill Otis | Jul 25, 2022 3:18:15 PM


Black victims of crime are only important when the perp is white. I wonder how many black kids died in Chicago last weekend? Media and “legal academia”: Yawn

Posted by: TarlsQtr | Jul 27, 2022 9:44:58 AM

In 2022, the data on homicides in Chicago are right now actually quite improved relative to 2021 and 2020 (though still way too high): https://home.chicagopolice.org/wp-content/uploads/1_PDFsam_CompStat-Public-2022-Week-30.pdf

Posted by: Doug B. | Jul 27, 2022 11:08:53 AM


Thanks for the info, although it doesn’t change or rebut my point at all. Black on black crime is the scourge of this country, yet all the media and your colleagues can talk about is racist cops, the racist CJS, racism, racism, and racism. Oh, yeah, transphobia and racism too. Some questions.

1. Do you believe that black on black crime is one of the main driving forces behind, as you would say, “mass incarceration?”

2. Do you believe black on black crime is a larger problem and more prevalent than “racist cops” and a “racist system?” If so, by a little? A lot?

3. Do you believe the problem of black on black crime draws enough interest from the media and your colleagues in legal academia?

4. What do you believe the ratio of academic writings about the racist system compared to black on black crime is?

With all due respect, your response that the murder rate in Chicago is down exemplifies my point beautifully. You are trying to plant a flower in a turd because we aren’t supposed to notice those things, especially in legal academia and the media. Ignore it all you want. It’s still a turd though.

Posted by: TarlsQtr | Jul 27, 2022 4:12:21 PM

Tarls, can you explain precisely what you mean by "black on black crime"? Are you talking about just homicides? sexual offenses? assaults? property crimes? drug offenses? public order offenses? Homicides account for less than 10% of our incarceration numbers, so those crimes alone are not the main driving force behind modern mass incarceration. Maybe you mean more than homicides; even if focused on all homicides, sexual offenses and assaults, those crimes account for only about 25% of our total incarceration numbers.

Meanwhile, I see lots of connections between criminality and social conditions, including trust in legal institutions. (This is a big theme of Tom Tyler's groundbreaking work.) Thus, simply the perception of an unjust system can be a driver of criminality. Ergo, I think folks can and should be concerned a lot about structural racism and about disparate patterns of criminal offending. But, I also understand -- and see insight in -- criticism that many in the academy and elsewhere are always looking to blame "the system" for crimes that are ultimately committed by individuals.

As a general matter, I tend to think the media, advocates on both sides of the aisle, politicians, and folks in academia spend far too much time on "hot" topics --- which these days tend to be race and identity issues --- and too little time focused on how best to collectively problem-solve to improve lots of people's lives and freedoms. One "hot" topic for the media seems to be increases in homicides and other crimes, but very little context is often given. Traffic deaths hits a 16-year high in 2021 and total roadway deaths are double homicides, but these (likely more preventable) deaths garner almost no discussion while all sorts of folks debate different variations of (likely ineffectual) gun restrictions.

You mentioned Chicago, and I mentioned the good news that homicides are down in that location so far this year. I was not trying to rebut your point nor am I eager to ignore anything; I run this blog hoping to share all sort of information from all sorts of perspectives while allowing all sorts of commenters to share their views as well. I just think it notable that few are talking about homicides being down in big cities so far this year, though that positive development does not undercut your valid point that both the victims and the perpetrators of homicide in this country are disproportionately black individuals.

Posted by: Doug B. | Jul 27, 2022 9:03:07 PM

I am certainly glad to see Chicago homicides dropping. However, 2020 and 2021 were both extraordinarily high . . . and, coincidentally or not, were the time of the COVID lockdowns, which are now largely history. I wouldn't be too impressed that we are now below 2020-21 levels. If we can get below pre-COVID levels, that would be more persuasive evidence that something is getting better.

Posted by: William C Jockusch | Jul 27, 2022 11:09:38 PM

Fair and important point, William, though I fear various COVID disruptions and other criminogenic factors are surely lingering in some areas. Even with modest declines in homicides in 2022, our homicide rate is higher now than in the 2000s or 2010a.

Notably, this is not mostly an urban phenomenon. Over at C&C, Elizabeth Berger has this lengthy post titled "Rural America surging worse in homicides." I recommend the full post, which concludes this way:

"The dramatic homicide increase that occurred from 2019-2020 was noteworthy both in urban and rural areas. However, when looking at urban versus rural areas separately, rural areas have been hit relatively harder by the homicide increase. While more research is needed to better understand why this is the case, the current theories include disproportionate increases in domestic violence, drug use, and gang activity that have occurred in rural versus urban areas. Further, reductions in police activity appear to have affected homicides in both urban and rural areas, but the impact is worse in rural areas with fewer resources."

Posted by: Doug B. | Jul 28, 2022 7:44:35 AM


Thanks for the, um, “lawyerly” answer.

“Black on black crime” is exactly that. Or, we could discuss “black on Asian crime” or “black on Jewish crime.” It would still be ugly whether or not we discussed only homicide.

You: “…unjust system can be a driver of criminality…”

Is the system any more racist or “unjust” than it was in the 1950’s? I’ll call that a rhetorical question because you answering honestly would end up on Twitter and you would get cancelled. We both know the truth, that you gave the politically correct answer rather than the correct answer.

“I think folks can and should be concerned a lot about structural racism and about disparate patterns of criminal offending…”

Again, was there more or less structural racism in the 1950’s? Sure, we should look at disparate patterns of criminal offending. Key word, offending, not incarceration. “Structural racism” has cratered since 1950 and criminal offending in black communities has skyrocketed. If structural racism is a part of it at all, it’s a drop of water in the ocean.

Posted by: TarlsQtr | Jul 28, 2022 11:04:15 AM

Tarls, in the 1950s, there were roughly 200,000 persons in state and federal prisons, now there are well over 1.2 million. Similarly, the drug arrest rates in the 1950s were a tiny percentage of what they are today. Structural inequalities in our criminal justice systems cash out in various ways that can be more far reaching and consequential in modern "mass incarceration/collateral consequences" times. (In addition, in our TV/digital age, many more people see the beating of Rodney King and the killing of George Floyd than knew about the killing of, say, Roman Ducksworth Jr.)

Meanwhile, you still have not defined what you mean by "black on black crime," and in this latest comment you reference "criminal offending in black communities." Are you now eager to talk about drug offenses and public order offenses? My sense is that criminality in these arenas are as great or greater in other communities, but those communities are not comparably policed. (But, of course, it is hard to gather reliable data on illegal drug involvement and illegal gun possession outside of arrest data.)

We can and should be concerned both with our system's structural inequalities and with individual offenders. I think it fair for you and others to be concerned that advocates and academics focus too much on the former and not enough on the latter. But I believe we can and should seek to address both and can reasonably hope we can improve on both fronts by giving attention to both issues (eg, when we notice how homicide clearance rates reflect growing racial disparities: https://www.cbsnews.com/newyork/news/crime-without-punishment-new-york/). Based on polling and other sources, I surmise that black communities often embrace leaders and government structures that seek to address structural inequalities and individual offending.

Posted by: Doug B. | Jul 28, 2022 11:18:54 PM


Im host sue why you bring up stats regarding drug use and increased incarceration. They seem to buttress my point, not yours. Yes there will be more African-Americans in prison by sheer numbers, but what about the percentage of their population was in prison then compared to now? Compared to whites? Asians?

Why does the incarceration rate of Asians remain lower than any other race? Does the system favor them?

I’m happy talking crime in general or murder/violent crime. Roughly half of US counties see no murders in a year. 2% of counties see half of the murders annually. Even among them, it is concentrated in specific neighborhoods. Which neighborhoods do you think those are? Want to bet they correlate nicely with the neighborhoods with the largest gang problems? Yet you question why the police may concentrate more in those areas than a rural county with zero murders? When I said “black on black crime,” I meant all crime but let’s not pretend that my suburb of Lexington has the same crime problem (both total numbers and seriousness of the offenses) as sections of Louisville.

Posted by: TarlsQtr | Jul 29, 2022 11:02:52 AM

Lol I wish you had an edit feature!

Posted by: TarlsQtr | Jul 29, 2022 11:03:27 AM

You started by asking my views on "black on black crime," Tarls, but you seem to really just want to talk about criminal offending and incarceration by race. That's fine, but then we should note different realities for different crimes. For example, USSC data show that those sentenced for federal child pornography offenses and for federal securities offenses are disproportionately white:

These are serious offenses disproportionately committed by whites, but only a small percentage are prosecuted federally. (E.g., Only about 1200 are federally prosecuted each year for CP, whereas the FBI identified over 100,000 unique users who accessed a single CP website in a two-week sting. The number of securities frauds are harder to assess, but it is thought most go undetected and unprosecuted even though millions of dollar may be lost, far more than most thefts/robberies.)

If more law enforcement efforts were focused on going after more (mostly white) CP offenders, our prisons would be much whiter. Same for certain frauds. To focus on neighborhoods, I suspect your suburb of Lexington may have more CP offenders that others, especially it has fast internet. Other crimes committed more often by the relatively more affluent (e.g., DUI, arson) also generally reflect certain racial skews because of economic/social realities that shape the activities and criminality of various communities.

I say all this to highlight that I readily recognize that we can identify lots of racialized patterns in lots of criminal offending. But enforcement choices/efforts then shape who gets detected and punished with prison. In the drug context, most data indicate comparable drug activity among races (though with different drugs of choice at different times), followed by very different patterns of enforcement. The crack/powder/meth stories in the federal system reflects some of these realities, but the particular are intricate.

That all said, the high rate of black involvement in homicides is a unique and uniquely important story because of the seriousness of the crime and the statistical disproportions. But, as Elizabeth Berger over at C&C has noted, rural areas are seeing homicide increases in recent years which may change the historical racial homicide dynamics. And whatever the data show going forward, I continue to believe we can and should be concerned both with our system's structural inequalities and with individual offenders.

Posted by: Doug B. | Jul 29, 2022 10:33:06 PM


Nice shift, very lawyerly.

There is a difference between “structural racism” (your original phrase), and “structural inequality.”

Is it fair that pedos and frauds are much more likely to get away with it?

Of course not, but it has nothing to do with racism. A black pedo will often get away with it too. A body in the street drives people. It’s also easier to see that a crime has been committed. Fraud is difficult to detect and CP even more difficult with the advent of VPNs, etc. They happen in the home (or office) out of public sight. You can multiply CP enforcement resources by ten and it would still be like drinking from a firehose.

Posted by: TarlsQtr | Jul 30, 2022 11:36:07 AM

Tarls, you are right that even, say, 20,000 CP prosecutions at the federal level yearly might not make a huge dent in a huge problem. But, of course, the exact same point is true for federal drug prosecutions. And yet we have had roughly 20,000 federal drug prosecutions yearly (involving mostly people of color, including 1000 just for marijuana) for the last two decades and only about 1000 federal yearly CP prosecutions (involving mostly whites). Why is that the priority for federal prosecutors and federal tax dollars? Which crimes have more direct victims -- federal marijuana offenses or federal CP offenses?

This is what I mean by structural racism and structural inequality -- the structures of our criminal justice system have over the last two decades brought a lot more people of color into federal courts/prisons without actual harms being the explanation for the choices. (I use the broader term inequality because there is also gender and class component: relatively more women and poorer folks are more involved in drugs; relatively more men and less poor folks are more involved in CP.) If we flipped the numbers, with 20,000 federal CP prosecutions and only 1000 drug prosecutions each year for the last two decades, our prisons would be much, much more full of white people and we would all might have a very different sense of what people and "neighborhoods" have serious federal crime problems.

Murders are different and more tangible, though your statement about "a body in the street" is perhaps a useful reminder that drunk driving leads to many, many deaths in the streets (roughly 10,000 to 15,000 each year and recently rising). And these deaths (both victims and perps) are spread more evenly among races and more evenly throughout regions in the US. And yet those killing are NOT regularly included in the ways in which we think about serious deadly crimes (both victims and perps). That is yet another reminder that even when criminal activity leads to "a body in the street," we culturally and legally and structurally respond in varied (and often inequitable) ways.

Again, my point is that your own conceptions and understanding of "crime" and "mass incarceration" and "criminal offending in black communities" and "neighborhoods" are all socially and structurally constructed (as is mine and everyone else, as well). Importantly, I do not think it proper or helpful to call most or even many of our social and structural constructions of crime and punishment "racist." (Eg, I do not think there are primarily racist elements to our social and structural decision to NOT call millions of abortions the biggest homicide problem in the US, though you might have a different view of how we social and structural construct the termination of pregnancies.) But I do think it proper and helpful for everyone to see how subjective choices about justice systems, not objective realities about harms and punishment, are driving forces behind our assessments and perceptions of "crime" and "mass incarceration." And so this is a driving force behind my belief we can and should be concerned both with our system's structural inequalities and with individual offenders.

Posted by: Doug B. | Jul 30, 2022 12:23:22 PM

I read the op-ed, and its leadoff assertion that the rate of Black incarceration is at a 33-year low, half of what it was a generation ago. And yet I saw no link or citation to any supporting data. How is that rate measured? Over what geographic reach? For what crimes? State? Federal? For what time period? (what is the data lag?) What was the comparison set a generation ago?

I understand the point being addressed in the authors' op-ed and Doug's summary. But it's hard to think about it critically without any idea of the data underlying the commentary.

Posted by: Def. Atty. | Aug 5, 2022 12:19:29 PM

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