Let’s hope David Cole is right when he writes that “we are at a turning point in confronting the excesses and injustices of America’s criminal law.” In his NYRB blog post “Getting Past ‘Tough on Crime’,” Cole sums up recent criminal justice achievements across the country:
The coincidental delivery on August 12 of Attorney General Eric Holder’s speech calling for measures to reduce overincarceration and racial disparities in our criminal justice system, and federal judge Shira Scheindlin’s 195-page opinion declaring the New York Police Department’s aggressive “stop and frisk” practices unconstitutional have led some to suggest that we are at a turning point in confronting the excesses and injustices of America’s criminal law. In fact, the turn began some years ago. Both Holder’s brave speech and Scheindlin’s powerful decision reflect a growing recognition over the past decade—in law and in politics—that something is fundamentally wrong with the enforcement of criminal law in America.
Racial injustice in the enforcement of the law, and its disturbing consequences, have been with us for centuries. As President Obama reminded the nation in his remarks after the conclusion of the Trayvon Martin trial last month, “there is a history of racial disparities in the application of our criminal laws, everything from the death penalty to enforcement of our drug laws.” African-Americans today are far more likely to be arrested, convicted, and sentenced to prison for drug possession, even though studies consistently find that whites and blacks use illegal drugs equally. African-Americans are only 13 percent of the general population—and about the same percentage of those who use and sell drugs. Yet African-Americans account for roughly 35 percent of those arrested on drug charges and 53.5 percent of those entering prison for a drug conviction. Much of the rise in the nation’s prison population over the past forty years has been fueled by drug convictions, and African-Americans have borne the brunt of the policy.
But there are encouraging signs that we are moving away from the worst of these practices. While the nation’s incarceration rate has skyrocketed since the 1970s, in the last three years the state prison population has decreased. The drop in 2012 was the largest yet. And racial disparities are also diminishing.