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.
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