1.09 Race and Incarceration

In other essays, I discuss the alarming increase in the rate of incarceration. Bryan Stevenson and James Farmer, Jr. have written excellent books dealing, among other things, with that critical issue.  I have suggested that the increase in the rate of incarceration signifies that criminal law is not working very well: it would be working well if there were fewer crimes. Ironically, the criminal justice system, particularly law enforcement officers and prosecutors, seems to take pride in the number of cases processed, and the number of convictions.  But law is working well when people obey the law.

Now we turn to an alarming demographic fact about incarceration in these United States.  The rate of incarceration of members of the black race is greatly disproportionate to the percentage of members of the black race in the total population. This fact is often cited by civil rights advocates to show that the legal system is discriminatory, prejudiced, unjust and unfair to black people. Occasionally that contention is countered with the suggestion that it simply shows that blacks commit more crimes than others. It is not the purpose of this article to pit those two contentions against each other. Both statements may be true. This is not to suggest that profiling doesn’t exist or that race cannot produce prejudicial reactions in law enforcement.  The simple explanation is that 400 years of slavery and segregation for African Americans did not instill into the sub-culture a natural tendency to turn to the law, derived from European culture and history, for the solution to its problems. Slavery and segregation caused the evolution of a unique cultural system for African in America, particularly in the South, that differs from the historically dominant culture. Often people in the black culture best protect their interest and their population by distancing themselves as far from legal system as possible. The advantages of distance created black solidarity that came to be firmly established in the mores of the culture. It was the best way to survive. The black cultural system has its way of dealing with conflict, and it not centered in the Euro-American legal system. A cultural system 400 years in the making did not disappear overnight. It is embedded in family, church, and community relations.  Self-help and tolerance are important internal factors in the system. 

Other factors contributing to the rate of incarceration that I discuss in other essays also affect members of the black race in the same way that they affect anyone else.   Lack of education and skills improves the possibility of incarceration.  Those factors contribute to the rate of incarceration of black individuals in the same way that they contribute to the incarceration of others. In fact, these factors probably have a disproportionate impact on the black population.  Given the fact that the criminal justice system is not working extremely well to begin with in bringing about desired behavior, there is not a great deal of inducement to the black community to alter its cultural defenses against the criminal justice system.   But the “self-help” remedies lead to incarceration.

Our legal system has attempted to deal with the cultural problems that arise from conflicts between cultures by applying individual rights and remedies. Cultural differences are social differences.  A cultural system is a social system.  Individual remedies will never resolve problems arising from differences that arise from cultural differences in social systems. A broader, systemic solution is needed. 

In our other essays, I suggest early intervention.  Making certain that every young person, regardless of race, has the opportunity to develop social instincts and moral insight that is necessary in order to have the opportunity to do well in the modern world is essential. That is the beginning point for solving the problem. Family values need to be emphasized. Families are the beginning point for moral formation.  Schools need to continue to do everything that they can to foster moral development, but that task is difficult where cultural differences are involved.  Churches need to become much more aggressively involved. Community building organizations need to work for community solidarity, to erase the cultural disadvantages arising from cultural differences, while at the same time recognizing and promoting all of the advantages of a pluralistic society.  Communities need to intercept problems long before they result in criminal activity. We need to develop community spirit that includes everyone.  The Criminal Justice System needs to become effective as a system that produces non-criminal behavior. Incarceration in a central system should be used, as I have suggested, only as a last resort. In a another essay, I provide a brief description of a concept that I call “Probation Sponsorship.” That is a program that I attempted to implement at a Circuit Court Judge in Alabama’s Fifth Judicial Circuit.

 

1.10 Probation Sponsorship

Four hundred years of slavery and segregation created a cultural system in our black communities. That system did not disappear just because the Civil Rights Movement adjusted the legal system in an attempt to treat all persons equally. The cultural system that had evolved appears to still has notable influence in many ways.  A “self-help” system for enforcing cultural norms is a factor in the higher rate of incarceration of blacks in the criminal justice system.

Programs can be implemented to help alleviate the problems arising from cultural differences. During my tenure as a circuit judge, I created a program that I called “Probation Sponsorship.”  The idea of Probation is to give persons who find themselves caught up in the criminal justice system an opportunity to display a willingness to correct their behavior instead of going to the penitentiary. Traditional probation does not seem to be very effective, and needs to be supported by efforts that provide the natural forces of moral formation. That was the purpose of my Probation Sponsorship Program.

In other essays I discuss the role of the peer group in moral formation. The idea of Probation Sponsorship is to have the person who might otherwise go to the penitentiary recruit reputable friends from his or her own community and have them work with that individual to assure good behavior. The probationer enlists a peer group to assist him or her successfully complete a period of probation.  That peer group is quite different from the “peers” in the central penitentiary. There should not be a wide cultural divide between the probation sponsors and the probationer. Churches can take an active role in providing probation sponsors. The probationers are much more likely to feel compelled to adhere to the standards expected by the sponsors. Sponsors should help make certain the probationer attends court when necessary, meets with the probation officer when necessary, seeks employment, takes advantage of educational opportunities, pays the required court costs, and avoids “friends” and places that are likely to get the probationer in trouble. All of those things are standard requirements of probation. The court should supervise the probation sponsorship and actually have the probationer and his sponsors appear periodically to make progress reports. Likewise, the probation officer should carry out the traditional functions of a probation officer.  If drugs are a part of the problem, the sponsors should make certain that the probationer adheres to the requirements of whatever treatment program is required by the court or needed by the individual. In some courts, officers known as “court referral officers” provide helpful services especially in dealing with drug addiction.

Although Probation Sponsorship provides an opportunity to solve some of the problems arising from cultural differences, it is not specifically a race-based program. It should be available to all prospective probationers. Solutions to cultural problems that are based on race, and require continued racial identification cannot ultimately solve the problems of cultural differences. But Probation Sponsorship provides a way for the local community and its organizations to take charge of its own problems. Central penitentiaries with revolving doors—especially with regard to non-violent crimes—are not a solution at all. They are graduate schools in criminal conduct. What I mean is that penitentiaries surround the person convicted of crime with a peer group that is not at all likely to instill the appropriate values that are required in order to bring about the required changes in the individual’s life.

To fully grasp the significance of the suggestions in this column requires an understanding of the function of law that differs from popular political perceptions.  Law is not what a court does, as suggested by Oliver Wendell Holmes, Jr.  Law establishes the parameters for acceptable human behavior, and courts become involved only after law, in that sense, has been violated.  Courts provide remedies for violations.  The rules for decision are not the rules for conduct in society.  In another essay, I suggest that the purpose of criminal law is to produce correct behavior, and that success cannot be measured by the number of people that are convicted of crimes and sent to the penitentiary. Probation Sponsorship offers a glimmer of hope for producing desirable, law-abiding, behavior.

One of the inevitable problems with all programs and with the criminal justice system itself is cost. While theorically the probation sponsors serve as sponsors simply as friends of the probationer, nevertheless, the court costs, court referral fees, probation fees, and other costs that are now imposed by the criminal justice system probably cause the system to produce exactly the opposite result needed.          

 

 

 

 

 

 

 

 

 

 

 

 

1.11 Economic Development in the Black Belt

In several essays, I discuss problems with the criminal justice system and incarceration. Our exploration of problems concerning the corrections system suggested that 400 years of slavery and segregation created a Black cultural system that understandably put distance between itself and the legal system. We pointed out that a self-help system evolved and that street justice in a self-help cultural system may be one of the causes for disproportionate incarceration of black citizens and suggested that a program called “Probation Sponsorship” might help bridge the cultural divide. The division between the black culture and the legal system also has important implications for economic development in predominantly black areas, such as Alabama’s Black Belt. These implications have not been carefully considered and it is time that we take a look.

First we should underscore the fact that slavery and segregation created a strong cultural barrier between the black population and the white culture and its legal system. The separation was actually reinforced by laws and the legal system itself.  Inevitably a separate black cultural system that was not closely aligned with the legal system evolved. The black cultural system has its own customs and ways of dealing with life. Cultural differences are reflected in church life, family life, musical taste, art, language and in numerous other ways. The removal of the legal barriers by the Civil Rights movement did not erase the cultural differences. Although it is important to recognize and preserve many beautiful aspects of black culture, it is also important that the cultural system itself not the stumbling block, preventing of full participation by Blacks in the mainstream of society, including the economic system.

The events of the 1960’s did not erase a way of life that had evolved over 400 years. The Black culture has been understandably slow to turn to the mainstream of law for the solution to problems. The different cultural attitudes toward law are not limited to the criminal law. Remedies that have been adopted to create equal rights took the form of creation of individual rights and little, if any, attention has given to the cultural aspects of the problem. Any factors related to the culture that would have adversely affected progress by Blacks before the Civil Rights movement may still be in place.  The Black cultural system simply continued to evolve under the influence of changes wrought by the Civil Rights Movement.

Any textbook for any introductory course to economics will clearly indicate that a prerequisite for an economy to function and create wealth is a legal system. That is because the legal system must recognize and enforce property rights. And the legal system must recognize and enforce contractual obligations. It is important to distinguish between the function of the judiciary, and the actual function of law in society. The difference in legal results between predominately black counties and predominately white counties is quite obvious, but differences in the actual function of law in society are much more difficult to assess. The high verdicts in civil cases in Macon, Bullock, Lowndes and other Black Belt counties as opposed to low verdicts Elmore and Lee counties, is obvious. In fact that is part of the problem. Statistically, the “run-away” verdicts that transformed the Alabama legal system and brought an extreme right wing reaction in the entire state occurred mainly in the areas of predominantly black populations. But that is just a part of the problem. These results and the more subtle differences in the role of law in everyday activities tend to perpetuate the cultural distance between the black subculture and the mainstream.

Blaise Pascal, a French philosopher in the early ages of enlightenment, pointed out that it is a strange justice that changes with the crossing of a river. The different expectations that exist based on whether an automobile accident happens in Macon County or in Lee or Elmore County cannot be justified. That is not to say that the extremely conservative position taken by juries in the predominantly white counties is ideal.  Unfortunately the difference, and the attitudes that reinforce the difference, are strongly charged with emotions and feeling. Verdicts everywhere should be fair.

The point is that the function of law, both in the actions of courts and in the behavior of society, significantly impacts economic development. The attitude toward law that currently predominates in Alabama’s Black Belt counties adversely impacts on economic development in those counties. This essay is written in the belief that honest, open discussions of cultural differences can help to alleviate the obstacles to progress created by those differences. The open discussion is an important step toward economic progress for everyone. The historical distance between the Black culture in law and the legal system is one of the differences that needs discussion. 

In several essays, I discuss problems with the criminal justice system and incarceration. Our exploration of problems concerning the corrections system suggested that 400 years of slavery and segregation created a Black cultural system that understandably put distance between itself and the legal system. We pointed out that a self-help system evolved and that street justice in a self-help cultural system may be one of the causes for disproportionate incarceration of black citizens and suggested that a program called “Probation Sponsorship” might help bridge the cultural divide. The division between the black culture and the legal system also has important implications for economic development in predominantly black areas, such as Alabama’s Black Belt. These implications have not been carefully considered and it is time that we take a look.           

 

1.12 The “Melting Pot” Doesn’t Work

In several essays on this website, I deal with issues of law and race from a different and unique point of view. In the background of all of the articles is consideration of differing cultural systems. I note repeatedly that the 400 years of slavery and segregation that existed in the United States produced a unique black culture. One aspect of that culture has been the strained relationship between the black culture and the legal system.

The legal system obviously originated in Europe-not Africa. African-Americans are not Africans, they are Americans. African-American culture is a unique product that has been developing for over 400 years. The cultural difference is not embedded in genes that originated in Africa: it is a product of cultural evolution.

In another essay, I point out the possible adverse impact of the black cultural heritage on the possibilities for economic development. Law is a pre-requisite for economics, and full participation in and support for the legal system is a pre-requisite to economic development. But historically, the best interest of the black culture was not served by willing participation in and support of the legal system. Therefore, there is, and has always been, a distance between the legal system and the Black culture. In our Black belt counties that distancing from law may be a built-in cultural impediment to economic development because of continued lack of confidence in law. The legal system is not the primary way conflicts are solved in Black culture.

Differences in culture and cultural institutions came to the forefront of the Civil Rights Movement. The legal system, in many instances, particularly in the South, actually supported segregation, and provided separate institutions. Segregation was an obvious barrier to full participation of blacks in the good-life of the culture of America. In Brown v. Topeka, the Supreme Court of the United States recognized that separate is not equal. The application of a concept of equality to various social aspects of complex of human cultural systems is very problematic. Equality is not nearly as exact or easy to identify as it might sound when applied to matters social. The Brown decision recognized that separate is not equal. It would have done well to recognize, however, that separate is still separate. I remember extremely well 7th grade Civics at Shorter High School, a segregated 12 year school in the 1950’s. We were introduced to the idea that America is the “great Melting Pot”. What that was supposed to mean is that people from Europe and all parts of the world coming into America were blended into the complex American culture. The Statue of Liberty was the iconic image. But that was not the point of entry for slaves. While the “melting pot” that had worked reasonably well for certain Europeans, it did not work universally. Nevertheless, that was a part of the mentality of that era. Another part of the mentality of the era was that proper education can solve everything. Those questionable beliefs were deeply embedded in the answers to the problems of segregation presented in the Civil Rights movement and Voting Rights Act.

The difference between desegregation (i.e. elimination of racial legal barriers) to integration (i.e. assimilation of the culture) is a subtle difference. I learned that difference from the late Professor Frank Toland of Tuskegee University, while working with him on the Foundations in Pluralism project that I discuss elsewhere on this website. The primary objective of the Civil Rights movement, according to Toland, should have been desegregation: elimination of the segregated bathrooms, segregated water fountains, segregated eating establishments, etc.  Integration is a much more complicated matter, on which opinions in the black culture itself are much more divided, as evidenced but the works of Marcus Garvey, Malcolm X, Countee Cullen, and many others.

1.13 A Proposal for Fairer Juries

Several of the essays on this website are devoted to concerns about the impact of cultural differences on the effectiveness of law. Those essays recognize that the legal system as it existed, particularly in the South, was a factor in our creating different cultural systems based on race. Unfortunately, the legal system itself discouraged, or did not even allow, black participation. The exclusion of blacks from the legal system and mistreatment of blacks by the system resulted in lack of support for the legal system in the black culture. The legal system itself necessitated totally different cultural and institutional structures and reinforced the cultural differences. The segregated institutions included schools, businesses, churches and other community organizations. We point out in other essays that because a working legal system is a prerequisite for economics, the cultural differences can have an adverse impact on economic development.

Desegregation did not eliminate the cultural differences. The remedies provided by the Voting Rights Act created a quilt pattern of segregation in which predominantly black counties came to be governed by the cultural system that evolved because of slavery and segregation. There was continuity of the cultural institutions that existed during segregation in those counties, and large scale elimination of influence of the white culture. This development did not usher the black population into the good life of America. Nowhere is the impact greater than in the court system itself. The differences that exist between predominantly black counties in Alabama and predominantly white counties with the regard to the prospects of jury verdicts in trials are extremely significant.

Forum shopping—choosing the county in which to file litigation-

has become a way of life with the legal profession. A docket call in rural Macon County almost looks like a meeting of Alabama Bar Association. Litigation that can be filed in Macon, Bullock, and Lowndes counties has a far greater prospect of success for the plaintiff than if filed in Lee, Elmore, or Autauga counties. These significant differences are very difficult to justify in a country that prides itself on providing equal justice for all. To again paraphrase the French enlightenment philosopher Pascal, it is a strange justice that changes with the crossing of a river (or traveling a few miles on the interstate).

As a practical matter, modern means of transportation and communication probably would justify redrawing county lines and eliminating a large number of counties. That action could promote efficiency and save a lot of money. It would likely be politically impossible to revamp the configuration of counties, but that drastic step might not be necessary to solve the problem described here. It would be relatively simple to make much larger districts from which jury panels are chosen. Once the legal framework has been established, a computer program would do the rest. Modern transportation and communication could make the task easy. The State could be divided into ten or fifteen judicial districts and jury panels could be drawn from the entire district. District lines could be drawn to create proportional racial make-up. Jury panels, convened in the present court houses from such districts would provide a much more uniform jury for every case—whether civil of criminal. That solution would be much more effective than the present system of evaluating every jury based on the Batson Case which requires race neutral reasons for jury strikes.

Revamping the system of jury selection for uniform results in jury trials is important, in and of itself. It would help assure equal justice for all. However, the secondary effects would likely be even more important. As previously mentioned the adverse economic impact of lack of uniformity in application of the law is significant. Law is a prerequisite of economics. By taking steps to assure a more uniformity in the black/white ratio on juries throughout the state could contribute materially to economic development in the state. It could help promote economic development in every county.