Two Migrations: Law, Police, and Urban Blacks

William J. Stuntz introduces us to many peculiarities and failures of the US legal system in his book The Collapse of American Criminal Justice. In one of the sections most relevant to us today he uses a comparison of two mass migrations, separated in time, to illustrate the historical and legal context facing southern blacks who participated in The Great Migration to northern and western cities in the twentieth century.

Understanding this historical process is critical. The incarceration of blacks (and Hispanics) in this country is on a scale that seemingly can only be explained by pervasive discrimination and injustice. Michelle Alexander has written an important book titled The New Jim Crow. Alexander argues that there is a continuity in intent and effect that transitions from antebellum slavery to postbellum Jim Crow laws, to the mass incarceration and associated deprivation of citizens’ rights that occurs today. It is her claim of intent to create/maintain a lower caste based on color of skin that must be faced. While many faults exist in our legal system, assigning "intent" to their creation has an implication so heinous that it must be assessed and either accepted or disproved—but not ignored.

We have previously discussed Stuntz’s view of our legal system in Justice and Law in the United States: Ideals and Reality. Anyone interested in the present topic would find that article of value.

Let us begin with Stuntz’s perspective.

In the seventy years prior to World War I about 30 million Europeans made the voyage to the United States and mostly settled in the big cities of industrial areas of the North and Midwest. In the first sixty years of the twentieth century 7 million blacks left the rural South for these same cities. Both the European migrants and the black migrants came from low-crime environments. Both migrations produced crime waves.

"These....crime waves differed enormously: the first was short-lived and mild, the second long-lasting and severe."

Stuntz believes there is no simple, single explanation for the different experiences that resulted from these two migrations, but there are clearly some factors more important than others. He examines economic factors, criminal punishment trends, and methods of law enforcement. Somewhat counter to intuition, he concludes that the changing approach and the changing attitude toward law enforcement were the major factors. He deemed it critical that law enforcement be viewed as having legitimacy by the citizens it was supposed to be protecting.

When the European immigrants arrived they might not be exactly welcomed, but they were viewed as valuable voters. At the time most cities were controlled by political machines that were willing to provide benefits to potential voters.

"....slots on the police forces were patronage jobs, filled by political machines that depended on the votes of the working-class immigrants whose streets most needed patrolling. Those urban machines also chose the district attorneys who prosecuted criminal cases and the judges who tried those cases."

This was still a time when

"The government had to prove not just that the defendant had violated the relevant criminal statute, but that he had done so with ‘criminal intent’ or ‘a guilty mind’ or, to use William Blackstone’s more pungent phrase, ‘a vicious will’."

This was also a time when jury trials still occurred, and the jurors were, in fact, still peers of the accused.

"These legal standards called for moral evaluation, not just fact finding. Jurors were free to acquit whenever criminal punishment seemed, on balance, unfair."

Many homicides were of the "bar fight" variety and jurors were free to decide if an event worthy of the label "murder" occurred.

"More than three-quarters of turn-of-the-century Chicago homicides led to no criminal punishment—not because the perpetrator could not be identified, but because no jury would convict."

Such a system was effective, not in eliminating crime, but in keeping it under control. And it should not be surprising that incarceration rates were also kept under control.

Stuntz believes the most effective attribute of this environment was that it provided legitimacy to law enforcement efforts. The law enforcers were often members of the community where crimes were committed. Members of the community were involved in the legal judgments that were obtained. Extenuating circumstances could be recognized.

It is one of the great ironies that this politically corrupt environment supported the notion of "justice" better than the current system in which the concept of "justice" is mostly irrelevant.

Stuntz concludes:

"....violence was not controlled chiefly through criminal punishment. In large measure, it was controlled through local democracy and the network of relationships that supported it."

When the blacks arrived in the northern cities they encountered a different environment. Although jobs were more plentiful, at least initially, and wages were higher, they were neither welcomed nor seen as a valuable class of voters. Social isolation via racism was much stronger than any anti-immigrant feelings of the earlier period. The political, law-enforcement, and demographic environments had also changed.

The great political machines were waning in influence, while the predominant white population was moving to the suburbs or, at least, to areas in which they would not be living with blacks. They took their political power with them. Police forces were becoming more professional and more politically driven as more district attorneys and judges became elected officials. The ties between police and the communities they were supposed to protect had been broken. Police, more and more, provided protection to the politically potent—often neglecting the high crime areas.

The blacks arrived providing the same conditions that caused an increase in crime in the earlier migration: a surfeit of rootless young men. But in this case there were no longer the same mechanisms available to keep it under control.

There were also other factors at work. Crime was increasing in the black urban areas, but it was also increasing nationwide. Strangely, this increase in crime rates was met by a greater tendency towards leniency in our legal system. The increase in crime, and the increased concern over crime, coupled with the perception of lax enforcement of law, was bound to generate a backlash. And then there came the urban riots of the 60s.

Consider this table provided by Stuntz.

"In the 1950s, 1960s, and early 1970s, in the midst of the largest crime wave in American history, prison populations fell throughout the Northeast, Midwest, and West Coast. By the early 1970s, imprisonment rates in those parts of the country were comparable to the lowest imprisonment rates in the twenty-first century Western world."

As the table shows, imprisonment was going to increase. It was the strength of the backlash that Stuntz considered astonishing.

"In the span of a little more than three decades, Americans first embraced punishment levels lower than Sweden’s, then built a justice system more punitive than Russia’s."

Reagan’s call for a war on drugs generated a massive expansion of the federal role in what had been a local issue, and created unprecedentedly harsh sentencing mandates.

"Stranger still, the next generation—the one that embraced Reaganism and declared an end to the era of big government—created a prison bureaucracy of unprecedented size and made it the centerpiece of the government’s efforts to control crime....Yet the same blundering government bureaucracies that could accomplish little save their own preservation were thought able to suppress mass markets in illegal drugs."

Stuntz considers these actions to be disastrous. Alexander provides more details of what this meant to any who might become "suspects."

Federal legislation, supported by an accommodating Supreme Court, gave unprecedented powers to police as aide in arresting, convicting, and incarcerating as many people as they could. The Reagan-era laws funded local agencies to prosecute drug crimes and they were given permission to keep any goods captured in a drug investigation. If you put a police department in the position of having its income depend on how many people it can arrest for drug possession, and give it a license to steal, you are going to see a lot of arrests and a lot of abuse.

When there is a situation where there are many more crimes being committed than can ever be investigated, such as recreational drug use, police have discretion as to whom they chose for punishment; it is only natural that their focus would fall on those least able to defend themselves—politically or with legal counsel. From Stuntz:

"Discretion and discrimination travel together. Ten percent of black adults use illegal drugs; 9 percent of white adults and 8 percent of Latinos do so. Blacks are nine times more likely than whites and nearly three times more likely than Latinos to serve prison sentences for drug crimes."

Let us now consider why legitimacy of law enforcement is viewed by Stuntz as so important.

"According to psychologist Tom Tyler, people obey the law, when they do so, because they believe the system of law enforcement to be fair and hence worthy of their respect. When the justice system seems legitimate to the young men it targets, those young men are more likely to follow the system’s rules. When that system seems illegitimate to those same young men, crime becomes more common, and controlling it becomes more difficult."

This contention has nothing to do with race or minority status. It is a universal effect. To convince oneself, one need only recall the era of prohibition and the widespread "criminal" activity that occurred because many people had no respect for that particular law. How many people would pay their full tax if they thought their neighbors were getting away with cheating on theirs?

Having gone through this history we return to Michelle Alexander’s contention that this "system of law" was produced with the intent of constructing a permanent lower caste based on color.

Based on what was presented here, I am not yet convinced of intent, although the claim of a caste being formed is convincing. Alexander will produce more evidence for her conclusion in a subsequent article.

For the moment let us remember the wisdom of this quote of unknown provenance:

"Never ascribe to malice what can be explained by incompetence."