Race, Criminal Justice, and the War on Drugs

Michael Tonry’s book, Punishing Race, examines racial differences in the criminal justice system, such as the much greater rates at which black men are incarcerated, and argues that these are caused primarily by specific drug and crime policies we have adopted. He explains that the “war on drugs” has been pursued in a way that unjustly affects black men and black communities, creating racial disparities. To improve this situation, we should instead focus our efforts on drug prevention and treatment programs, change sentencing laws and allow more discretion to judges, and prevent racial profiling by law enforcement. 

John McWhorter at The New Republic recently reviewed Tonry’s book, accusing him of adopting a “paranoid style” that, “reduces a complex amalgam of good intentions, unintended consequences, and mission creep—in sum, history—to a Manichaean opposition between clueless, overfed white oppressors and powerless black subalterns.” However, McWhorter’s analysis of Tonry’s flaws seems a bit weak. For example, McWhorter points out that the Congressional Black Caucus supported the legislation creating the 100-to-1 federal sentencing disparity between crack and powder cocaine, back in 1986, because of the dangerous effect of the drug trade in black communities. As he argues, “there is a non-racist motivation for policing these corners rather than paneled basements in Scarsdale, where people buy and use hard drugs without gunnery as an accompaniment.” The fact that drug users in paneled basements might be better shielded from the direct effects of gun violence does not mean that their purchases don’t encourage such violence, though. It merely means that demand can remain higher among some groups who aren’t damaged by the drug trade or its policing in the same way that others are.

If McWhorter wants to argue against the charge of implicit racism presented by Tonry, he might do better to examine not only who supported the initial 100-to-1 legislation, but who fought to end such unjust policies. As a Nebraskan, I’m particularly pleased to note that Federal District Judge Lyle Strom of Nebraska was the first judge to depart from the sentencing guidelines because of the racial disparities. On July 27, 2003, according to the New York Times, he ruled “that blacks convicted in crack cases ‘are being treated unfairly in receiving substantially longer sentences than Caucasian males who traditionally deal in powder cocaine.'” Judge Strom is a Republican appointed by Reagan, with a sterling reputation for fair and conservative jurisprudence.

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