Unfair by Design: The War on Drugs, Race, and the Legitimacy of the Criminal Justice System

Lawrence D. Bobo and Victor Thompson Unfair by Design: The War on Drugs, Race, and the Legitimacy of the Criminal Justice System INTRODUCTION A COMMON ELEMENT IN DISCUSSIONS OF WHAT MAKES THE UNITED States unique is readily conveyed by the phrase “the American Dream.” While an exact definition ofthis concept eludes us, widely accepted ways of thinking about it make reference to notions of freedom, opportunity, and equality. Lurking not far beneath the surface of these lofty notions is an idea about the good society—about what is just and what is fair. As Gunnar Myrdal’s An American Dilemma (1944), one of the canon­ ical texts of the American Dream, put it, we are bound together by an “American Creed.”This creed contains ideas and values that Americans of almost any station in life can articulate, namely “inalienable rights to freedom, justice, and a fair opportunity.” These rights were rooted in a belief in Enlightenment notions of the moral dignity, worth, and value of each individual. Such reverence for the worth of the individual demanded a sort of equality of treatment, at least before the hands of government and the authority of the state. Among other things, then, this creed calls for and is understood as requiring that we all stand equal before the law. social research Vol 73 : No 2 : Summer 2006 445 What we wish to suggest in this paper is that this ideal, this great American promise of freedom, opportunity, and equality—of a truly fair and just society where citizens stand equal before the law—is in trouble. This source of deep unquiet and anxiety about the American promise of fairness concerns the gradual but profoundly punitive transformation of the crime response complex in the United States.1 Legal scholar Michael Tonry opened a 1999 UCLA Law Review article by suggesting that: We live in a repressive era when punishment policies that would be unthinkable in other times and places are not only commonplace but also are enthusiastically supported by public officials, policy intellectuals, and much of the general public (Tonry 1999:1752). He closed by declaring that, “For a civil society, the United States has adopted justice policies that reflective people should abhor and that informed observers from other Western countries do abhor” (1789). We very much share these sentiments, especially with regard to one major facet of this era o f “unthinkable punishment,” as Tonry put it; namely, the radically disproportionate impact this repressive era has had on African Americans and African-American communities across this country. More concretely, we maintain that over the past two to three decades the United States has enacted a series of policies that have effectively reforged a historically troubled linkage between race, crime, and the functioning o f the legal system. Among the effects of these changes are a deep crisis of legitimacy for the legal system in the eyes of black America and a real threat to the promise of equality before the law. In general, we seek to render the current rates of black incar­ ceration both more politically visible and problematic. We make three empirical claims in pursuing this agenda. First, and least controver­ sially, we argue that the United States has enacted policy changes that have created an extraordinary—indeed, truly world-historic—rise in 4 4 6 social research the use of incarceration for purposes of social control. These actions have had sharply disproportionate effects on African Americans, though we hasten to add that the mechanisms of such systematic racial disproportion are more indirect, covert, and implicit than the mech­ anisms of racial bias evident in the past. Second, African Americans directly experience and are very much aware of these changes. Yet, so far, the black community is neither of one mind nor acutely politicized about these trends. Black Americans are, however, by overwhelming margins deeply disillusioned with the current situation. They regard the current situation of inequality before the law as a signal failure of progress in civil rights and o f the promise of fairness at the heart of the American Creed. Finally, this disillusionment is contributing to a crisis of legitimacy, a crisis that will have effects on how...