Michelle Alexander’s Thesis

On page 4 of The New Jim Crow, Michelle Alexander argues that “mass incarceration in the United States had, in fact, emerged as a stunningly comprehensive and well-disguised system of racialized social control that functions in a manner strikingly similar to Jim Crow.”  She “argues that mass incarceration is, metaphorically, the New Jim Crow.”  (Id. at p. 11.)  She describes “mass incarceration as a ‘racial caste system'” consisting of “the larger web of laws, rules, policies, and customs that control those labeled criminals both in and out of prison.”  (Id. at p. 12-13.) Here’s the way people took it:

Bad Statistics About Bad Things

Critics of policing and mass incarceration make a basic statistical mistake.  Men represent less than half the population of the country but over 90% of those incarcerated.  But no one says the system is sexist.  That is because men commit more crime.  Comparing population numbers to incarceration rates gives a false picture.  Crime rates should be compared to incarceration rates.

Why are groups imprisoned at higher rates than their representation in the population?  The first question must be whether these groups are doing things that get you imprisoned at higher rates than their representation in the population.  Similarly situated groups can be compared. Groups that are not similarly situated cannot be compared. In America today, ethnic and racial groups are not similarly situated. There are many reasons for this, including the systemic racism of the recent past. The Jim Crow laws did not predestine anyone for a life of crime, but they didn’t help either. And there are many more reasons for ethnic and racial difference that are worth knowing. The rich and the poor are not similarly situated. I’ve read that the most predictive factor for criminality is age, then sex. Social scientists try to control for variables like relative crime rates. We should do the same, even though it is a difficult conversation to have.

Unfortunately, for many, the analysis goes something like this: look at the percentage of the population that belongs to the group, look at that group’s representation in prison, and draw a conclusion. Social scientists know better. The media should know better, and so should we.

Here’s how Crime and Consequences describes the problem:

One thing we do not need is the exaggeration of the prejudice problem created by all the bleating about “disparities” in statistics based on the Fallacy of the Irrelevant Denominator. Comparisons of the demographics of Statistic X with the general population are irrelevant if offending rates are not uniform across the demographic groups in question, which they rarely are. Do the police ticket more men than women for speeding? Of course they do, because a greater percentage of men speed. That statistic does not establish or even indicate discriminatory enforcement unless one establishes that speeding men are more likely to be ticketed than speeding women. The general population is an irrelevant denominator. The people who commit the offense in question make up the relevant denominator. And so it is for criminal justice statistics generally.

LA Riots or Uprising?

I was reading a real estate blog, when I noticed a story about a community garden.  The garden had been planted on a lot that had been empty for 25 years.  The lot started out 1992 occupied by a structure, which was destroyed by arson during the civil unrest that followed the Rodney King verdict.  The blog described the structure as having been destroyed in the 1992 Uprising.  This is a term that I keep hearing more and more.  When the riots happened, they were called riots.

If you believe that words have whatever meaning we want to give them, then there’s no controversy over this issue.  People can use any word to describe any thing, up can be down, left can be right.  But if you believe words have a shared meaning that is not up to any one person’s interpretation, then you might be interested in which word fits this situation more.  Merriam Webster defines uprising as “an act or instance of rising up; especiallya usually localized act of popular violence in defiance usually of an established government.”  It defines a riot as “public violence, tumult, or disorder.”

Changing the description of something is often a political act rather than a descriptive act.  We may sympathize with the racial grievances of some of the rioters.  Some people may agree that the Rodney King jury got it wrong.  But we all know, since childhood, that two wrongs don’t make a right.  Legitimate racial grievances can’t be resolved through violence.  They can’t be resolved through arson, like the one described in the article.  They certainly can’t be resolved by looting, which only victimizes the rioter’s own community.

I can’t help think about what happened to Reginald Denny, who was pulled from his car, beaten, robbed and hit with a brick.  The man who did it, Damian Williams, was a gang member.  The other men involved in the attack were a convicted robber and two drug addicts.  Damian Williams would be convicted, released from prison early, and then go on to murder a man.

Uprisings are more noble than riots.  Some black journalists have described an uprising as “a group of people saying ‘enough is enough.'”  Uprising includes definitions that describe its purpose as overthrow of the political order.  Liberal opposition to President Trump is often described that way.  The use of the word uprising to describe noble behavior is the reason that it is being applied to the riots.  It reflects a retroactive attempt to burnish the image of the rioters from thugs to tragically failed revolutionaries.  Hijacking the facts to fit a political theory is dishonest, especially when the facts include death and destruction.

It makes me especially angry to think that we might be turning these rioters into heroes in some kind of anti-racist class struggle.  That could not be further from the truth.  You can’t fight racism by committing crimes.  Indeed, many racists probably saw confirmation of their racists views during the riots.  American history is full of examples of successful non-violent movements against racism.  Non-violent protesters are heroes.  The people that attacked Reginald Denny and burned down all those buildings are villians in this story.  As time passes, we shouldn’t forget that.

Six people died from arson during the riots, out of 53 total deaths.  The article I read does not say whether this community garden was built where one of those people died.  But those people who view the riots as an understandable or even justified response to racism, should read this list, containing a short accounting of each of those deaths.  The riots were nothing more that the sum of each of these crimes.  We do a disservice to these victims when we try to polish or politicize that fact away.

Public Defenders Play the Race Card

I just finished an article on Slate with the headline “When Race Tips the Scales in Plea Bargaining.”  It discusses a study out of Loyola Law school that

analyzed 30,807 misdemeanor cases in Wisconsin over a seven-year period and found that white people facing misdemeanor charges were more than 74 percent more likely than black people to have all charges carrying potential prison time dropped, dismissed, or reduced. And white people with no criminal history were substantially more likely to have charges reduced than black people who had no criminal history.

The authors did not consider the obvious: that relative poverty might cause this outcome.  In California, people of color are less wealthy.  If you wealthy, you are more likely to afford a lawyer who can negotiate these benefits.  They wealthy can bail themselves out and fight the case, eventually securing a better deal.  If people of color tend to be less wealthy, they may be unable to afford to fight as hard, and thus may get a worse deal.  There may be other explanations. Do the two groups commit the same crimes at the same rates? Consider a hypothetical: one group commits only driving without a license misdemeanors, while the other commits only domestic violence misdemeanors. You would not expect similar jail commitment rates for these two groups. The authors don’t consider whether different patterns of offending account for the different outcomes. The authors don’t consider geographical differences. Is the law more lenient in the suburbs than urban centers? In the south than the north? The list of alternate explanations could go on and on.

But the authors, without an explanation, go right to “prosecutors are racist” as an explanation.  That’s lazy, inaccurate, and offensive to well-meaning public servants. Prosecutors are like any other profession, there are good and bad people. In my experience, prosecutors as a group far exceed other lawyers in their honesty and ethical conduct. And they show a lot of patience in the face of nonsense muckraking like this, both inside and outside of courtroom.

Also, the incoherent authors appear to partially blame bail, but don’t explain how the race-neutral bail system fits their “prosecutors are racist” theory.  Is it bail that’s causing this?  Or racist prosecutors?  The authors can’t decide.  They just know that prosecutors “destroy livelihoods, and tear families apart” “destroy communities of color” and “devastate low-income communities.”  Not criminals; prosecutors are to blame.  Who thinks like this?  More stupidity: the study found disparities in Wisconsin, therefore “New York must eliminate money bail.”  What?

I just hate-read this again before finishing up and noticed this was written by public defenders.  Assuming they believe in their work, their agenda is clear. Not all public defenders make dumb, incoherent arguments.  Not all public defenders are quick to accuse the other side of racism.  But it seems like these two are a great example of everything that’s wrong with the defense bar.

Foster v. Chatman

On the morning of August 28, 1986, police found Queen Madge White dead on the floor of her home in Rome, Georgia. White, a 79-year-old widow, had been beaten, sexually assaulted, and strangled to death. Her home had been burglarized. Timothy Foster subsequently confessed to killing White, and White’s possessions were recovered from Foster’s home and from Foster’s two sisters.

(Foster v. Chatman (2016) 578 U.S. ___.)  These are the opening lines of Justice Roberts’ majority opinion in the Supreme Court’s latest jury selection case.  Foster v. Chatman is a well-meaning decision aiming to strike a blow at racism.  Instead, it makes peremptory challenges against African-Americans extremely dangerous to prosecutors.

White lived by herself in Rome Georgia.  Early in the evening of August 27, 1986, a friend took White to choir practice.  When White’s sister stopped by early the next morning, she discovered that White’s house had been broken into and ransacked.

[The police] found White’s body lying on the floor in her bedroom covered to her chin by a blanket. Her face was coated with talcum powder. Her jaw was broken. She had a severe gash on the top of her head. She had been sexually molested with a salad-dressing bottle, and strangled to death. A number of her possessions were missing from her home.

(Foster v. The State (1988) 258 Ga. 736.)

Timothy Tyrone Foster was arrested for White’s murder a month later when he threatened another person and she turned him in.  The police recovered White’s possessions from Foster’s home and the homes of his two sisters.

Foster confessed.  He said that White got up to use the bathroom in the middle of the night.  She returned to her bedroom and turned on the lamp.  Then she noticed Foster in her living room.  White got out a knife and chased Foster, but he picked up a fireplace log and hit White hard enough to break her jaw.  He then admitted the sexual molestation and strangling.

The Procedural Posture

By the time the parties completed for cause challenges in the trial court, four black jurors were left out of 42 total jurors.  The prosecution exercised nine of its ten peremptory challenges, removing all four of the remaining black prospective jurors.  Foster was convicted.  During the sentencing phase, the prosecutor urged jurors to sentence Foster to death to deter people “out there in the projects.”

After the trial was over, Foster filed a series of Open Records Act requests.  He obtained documents related to jury selection at trial.  On the jury venire list, the name of each black juror was highlighted in green.  On these jurors’ jury questionnaires, their race had been circled.  On a list of jurors remaining after for cause challenges, there were ten “N”s next to jurors the prosecution intended to remove, including next to the names of all the black jurors.  The five black jurors were included in the prosecution’s list of six “definite NO’s” [sic].  There were three handwritten notes on black prospective jurors in which they were labeled “B#1”, “B#2”, etc.  There was a handwritten document titled “Church of Christ”.  A notation on that document read: “NO.  No Black Church.”

The jury list (Prawfsblawg)

The prosecution employed an investigator who was black himself.  The investigator wrote a draft document with his views of the jurors.  In it, he wrote: “If it comes down to having to pick one of the black jurors, [this one] might be okay.  This is solely my opinion.”  This language was removed from the final document by the prosecutor.


Many Courts Reviewed These Facts And Only The Supreme Court Found Racism.

The defense challenged the prosecution under Batson v. Kentucky (1986) 476 U.S. 79, claiming that the prosecution’s challenges were racially motivated.  The trial court denied this claim.  Following sentencing, Foster renewed his Batson claim in a motion for a new trial.  After an evidentiary hearing, the trial court again denied his motion.  Foster sought a writ of habeas corpus on the Batson issue.  He discovered and admitted the evidence from the prosecution file, described above.  The state habeas court considered this evidence and denied relief.  They held that Foster “fail[ed] to demonstrate purposeful discrimination.”  The Georgia Supreme Court then reviewed the case.  They denied Foster his ability to appeal the case further, holding that his claim had no “arguable merit.”

Despite the fact that the trial court had denied Foster’s Batson claim twice, the habeas court denied his claim, and the Georgia Supreme Court held the claim had no merit, the United States Supreme Court granted certiorari and reversed all of these courts in holding that the prosecution was motivated by race.

During oral argument, Justice Kagan said, “Isn’t this as clear a Batson violation as a court is ever going to see?”  Justice, Roberts, writing for the 7-1 majority, gave what has been described as “a devastating indictment of the prosecutors.”  Ironically, the only justice in dissent was Justice Thomas.

The Court reversed Foster’s conviction, meaning he can go back to the Georgia Supreme Court and will probably get a new trial.

Prosecutors Are In A No-Win Situation When Deciding Whether To Document Race.  

Justice Roberts was particularly troubled by the “arresting” number of references to race in the prosecution file.  He criticized prosecutors for “the persistent focus on race in [their] file.”  The clear implication is that prosecutors who make notes about the race of the prospective jurors might be keeping track in order to discriminate.  Indeed, Roberts and the other justices considered these notes as evidence of racism.  A conscientious prosecutor, who is actually not violating Batson, would not want to make such notes.  Such a prosecutor might reasonably believe that such notes may be used against him by a zealous defense attorney and a hostile appellate court.

On the other hand, prudent prosecutors need to keep track of the race of all the prospective jurors to protect themselves from Batson challenges at the trial court level.  For example, a prosecutor defending against a Batson challenge might need to point out that she has challenged jurors of all ethnic and racial backgrounds.  She might need to rely on more than her memory, especially in a high-pressure trial.  She might need notes.  Moreover, courts don’t review cases for many years.  Memories fade.  Prosecutors therefore need to document the grounds for their peremptory challenges, in order to explain them many years later.

At The End Of The Day, We Should Not Forget That There Is No Real Doubt As To Foster’s Guilt.

Foster confessed.  The confession was voluntary: there isn’t even an allegation (much less evidence) that this confession was coerced.  The confession was corroborated by the recovery of the victim’s property in Foster’s home.

Timothy Foster (AP)

This is not a case in which an innocent person of color ended up in jail due to racial prejudice, as some commentators have suggested.  This is a case in which a murderer had his conviction reversed on a flimsy technicality by well-intentioned justices.  As a result, prosecutors are facing an even more difficult situation during peremptory challenges.  Maybe we should just get rid of them altogether.


Jill Leovy’s Ghettoside starts out with some pretty grim statistics.  Black men are only six percent of the nation’s population but nearly 40% of those murdered.  They make up 12% of Los Angeles County’s population but account for nearly half its homicide victims.  A total of 186,807 people died from homicides in the United States between 1995 and 2005; of these victims, 89,991 were black, or 48%.  She points out that “[t]he black homicide death rate remained as much as ten times higher than the white rate in 1960 and 1970, and has been five to seven times higher for most of the past thirty years.”

After review these statistics, and many others, she concludes that “for too long black men have lived inadequately protected by the laws of their own country.”  She complains that “the speed and certainty of adequate punishment for the murderers of black men” remains a problem in our criminal justice system.  She decried lawlessness in general in Watts, and other poor black areas of Los Angeles County.  She argues that “gangs are a consequence of this lawlessness, not a cause.”

I picked up Ghettoside and began reading it because of this argument.  I agree that we should reorient the discussion around race towards victims, and talk more about protecting black victims.  Focusing on criminals, rather than victims, may make for better stories, but the big picture can’t be ignored.  And the big picture is the misery created for victims, especially black victims.

I’ve heard mixed things about Ghettoside, but I’m willing to give it a try.  After finishing the first section, I think Jill Leovy does an excellent job marshaling the statistics.  I’m looking forward to the rest.


Spoiler alert: they caught the guy who committed the Ghettoside murder.  I liked his closing argument.