Race Crime and PunishmenT EditEd by Keith O. Lawrence Essays by Michelle Alexander•Eric Cadora•Blake Emerson•Ian Haney López Marc Mauer•Alan Mobley•Alice O’Connor•Jonathan Simon•Phil Thompson Roundtable on Community Change Race Crime and Punishment EditEd by Keith O. Lawrence Essays by michelle alexander•eric cadora•Blake emerson•ian haney López marc mauer•alan mobley•alice O’connor•Jonathan simon•Phil thompson Copyright © 2011 by The Aspen Institute The Aspen Institute One Dupont Circle, NW Washington, D.C. 20036 All rights reserved. ISBN: 0-89843-550-1 Pub No.: 11/011 Chapters 1 and 6 appear in Michelle Alexander’s The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: The New Press, 2011), reprinted with the permission of the editors of The New Press. An expanded version of chapter 2 appeared in California Law Review 98, no. 3 (2010): 1023–73. To purchase additional copies of this report, please contact: The Aspen Institute Fulfillment Office P.O. Box 222 109 Houghton Lab Lane Queenstown, MD 21658 Phone: (410) 820-5338 Fax: (410) 827-9174 E-mail: [email protected] Cite as: Keith O. Lawrence, ed., Race, Crime, and Punishment: Breaking the Connection in America (Washington, D.C.: Aspen Institute, 2011). contents Overview by Keith O. Lawrence . v introduction by Keith O. Lawrence . 1 PaRt i. changing Public Perceptions of Race, crime, and Punishment . 21 Chapter 1. The New Jim Crow: Mass Incarceration in the Age of Colorblindness by Michelle Alexander . 23 Chapter 2. Structural Racism and Crime Control by Ian Haney López . 39 Chapter 3. Criminal Justice and the Ideology of Individual Responsibility by Blake Emerson . 65 Chapter 4. Changing the Conversation by Alice O’Connor . 79 PaRt ii. alternative Visions, Opportunities, and challenges for Justice Reformers . 101 Chapter 5. Resuscitating Justice through the Human Security Framework: Are We Ready to Listen? by Alan Mobley . 103 Chapter 6. Affirmative Action: A Barrier to Racially Equitable Justice? by Michelle Alexander . 121 Chapter 7. Drugs Are Not the (Only) Problem: Structural Racism, Mass Imprisonment, and the Overpunishment of Violent Crime by Jonathan Simon . 133 Chapter 8. Resisting Justice: Opportunities to Build a New Public Safety Agenda Founded in Civil Society by Eric Cadora . 149 Chapter 9. Advocacy for Racial Justice: Prospects for Criminal Justice Reform by Marc Mauer . 163 Chapter 10. Mass Incarceration and Green Cities by Phil Thompson . 175 PaRt iii. toward a new Deal for twenty-First-century criminal Justice in america . 187 Chapter 11. Changing the Public Common Sense about Crime and Punishment by Keith O. Lawrence . 189 Chapter 12. Targeting Strategic Institutions and Movements for Intervention by Keith O. Lawrence . 197 Chapter 13. A New Deal for Twenty-First-Century American Criminal Justice . 203 appendix . 208 Overview Keith O. LawRence More than 2.3 million people in america are in jail or prison.1 sixty percent are african american and Latino. Of all the statistics portraying racial inequity in our country, this is the most alarming: it indicates the failure of so many of our soci- ety’s institutions; it predicts dire consequences for millions of children and families of color who are already at socioeconomic disadvantage; and it challenges the very definition of our democracy. As our national story goes, the U.S. criminal justice system ensures fairness and equality to all under the law. In reality, the system fails to deliver on that demo- cratic ideal. Although generations of policy makers, analysts, practitioners, advo- cates, and ordinary citizens have worked to “fix” the criminal justice process and correct its most egregious injustices, the system continues to produce negative and inequitable outcomes for too many people of color. Why? What should we be doing differently? To paraphrase Albert Einstein, we cannot solve the problems of the criminal justice system with the same thinking that created them; we need to approach the issue from a new perspective. This means that we need to take a step back and reflect on how our criminal justice system reflects, and even perpetuates, inequities that underlie all of our social institutions. the starting point of this book is that these inequities reflect the fact that the opportunity to succeed or fail in america has always been and continues to be structured differently for whites and people of color. Therefore, we cannot solve the problems in the criminal justice system without bringing in a clear, forceful recognition of the role that race plays in our most basic assumptions about the definition of crime and about who, what, and how we punish. This may seem counterintuitive, knowing how difficult it has been for this nation to confront its racial history and resolve the legacy of inequality that every new generation OVeRVIEw v of Americans is born into. Trying to make headway on one difficult issue (crimi- nal justice reform) through the entry point of another seemingly intractable issue (race) may seem a fool’s errand. Indeed, race itself is hugely complicated by class, gender, and other intersecting social constructs.2 With those caveats in mind, we adopt a structural racism approach as an alterna- tive way to organize thinking about an institutional domain in which, today, race is sharply outlined. A structural racism lens focuses on the public policies, institu- tional practices, cultural representations, and other norms that work in mutually reinforcing ways to perpetuate racial group inequity. It refers to dimensions of this nation’s history and culture that have allowed privileges associated with “white- ness” and disadvantages associated with “color” to endure and adapt over time.3 Applying a structural racism lens to crime and punishment causes us to ask, “If we were not such a racially stratified society, would we have a criminal justice system that operates the way that it does? Would eliminating the dramatic racial inequity in the criminal justice system lead to greater fair- ness and justice for everyone, regardless of race? What would a criminal justice and social system not structured by race look like?” about thE RacE, Crime, and Punishment PRojEct In 2006, the Aspen Institute Roundtable on Community Change and the Open Society Foundations’ Justice Fund set out together to spark a shift in how Ameri- cans understand, discuss, and address crime and punishment in our society. We wanted to give leaders working on criminal justice reform the opportunity to step back and reconsider the guiding values, assumptions, context, and evidence for their work. We invited a diverse group of criminal justice reformers, social sci- entists, legal scholars, and human rights advocates4 to imagine another system of justice that starts with the acknowledgment of America’s living legacy of racial inequity and recognizes how that legacy constructs present-day justice norms, and then ask how to extricate our dominant justice frame from its grip. We explored philosophical and structural questions in the search for new insights on the prac- tical challenges of sentencing, rehabilitation, community reintegration, and the like. For instance: How have our definitions of crime changed over time, and how do they relate to changes in our racial history? 5 vi Race, cRime, anD Punishment: BReaKing the cOnnectiOn in ameRica Why do we punish the social conduct that we do, in the manner that we do, and in the social strata that we do? Indeed, why in the twenty-first century do we still rely so heavily on punishment as the appropriate re- sponse to so many categories of behavior deemed inimical to community interests? What social control goals does our contemporary criminal justice para- digm serve? What social control values might better serve our aspirations for multiracial democracy? How can we repair the harm caused to individuals, communities, and the nation by a racially structured criminal justice system, and how can we extricate ourselves from it? What would a criminal justice system not structured by racism—one con- sistent with a more expansive view of equity and justice—look like, and how can we make such values and ideals operational? What do these questions and the answers say about the role of the criminal justice system vis-à-vis other civil society institutions, and vice versa? The Aspen Roundtable on Community Change and the Open Society Founda- tions held two important convenings, in 2007 and 2009, with more than a hun- dred leading scholars, policy makers, practitioners, and advocates to explore new, more equitable conceptions of crime and punishment, and the strategic directions suggested by these new frames. We sought clarity about where current criminal justice reform efforts might be reoriented or complemented, where new oppor- tunities for racial justice may exist, and where the two could complement and fortify each other. At the end, we wanted this project to produce and publicize a new vision of criminal justice—the terms to describe it, its social purpose, its institutional sites, and its effective implementation—and to rekindle awareness of opportunities for cross-sectoral collaboration and movement building across the social justice reform community. about this voLume Nine scholars contributed the papers to ground our discussion, challenge our think- ing, and propose new directions and strategies. The papers addressed two core themes: (1) changing public perceptions of race, crime, and punishment; and (2) OVeRVIEw vii alternative visions of justice and strategic opportunities and challenges for reformers to realize them. this volume is organized around those two themes in an attempt to shed further light on the connections among race, crime, and punishment and to articulate an alternative vision for criminal justice reform—a vision that connects criminal justice to trends and movements in sectors that aim to improve social, economic, and political opportunities for everyone.