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Book Review: Search And Destroy: African-American Males In The Criminal Justice System, by Jerome G. Miller, Cambridge University Press, 344pp., $24.95

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When future epochs look back at late 20th-century America, perhaps nothing will shock them as much as our hypertrophied prison system. Today’s criminal justice empire -- with 1.5 million people under its immediate rule in prison, and millions more on probation and parole in its shadows -- is a virtual state within a state. Here no democratic norms are upheld, no personal rights respected, living conditions -- often a 20 foot by 20 foot steel cell with two cots and an exposed toilet, for two adult men -- can be unbelievably harsh, and the slightest infraction of the rules is met with immediate and often violent retaliation.

This massive prison complex never really had much to do with controlling crime: In the last 15 years, the U.S. prison population has quadrupled, even though crime rates have remained close to constant. Increasingly, even apologists for the current criminal justice system are abandoning the pretense that it has any effect on crime, turning instead to recrudescent biological theories of criminality to justify filling the prisons with those deemed inferior.

Debate about the criminal justice system is distinguished, on almost every side, by a complete lack of first hand knowledge or experience. How many politicians who set policy on crime, or the academics and journalists who write about it, have ever worked in the prison system, or have a friend or relative who served time in a prison? What makes Jerome Miller’s book Search and Destroy such a useful and interesting contribution to discussions of crime in that he has spent his whole career in the prison system. He has worked as administrator of the juvenile detention systems in two states, as a court-appointed jail monitor, as head of the National Center for Institutions and Alternatives (which recommends alternative sentences to judges inclined to impose them), and most recently as head of the District of Columbia’s child welfare services. Few people have such broad and detailed inside knowledge of our prison system, accumulated over so many years; no one has painted as devastating a portrait of how it works or offered as ominous a prognosis for its future. As a practical matter, says Miller, incarceration has little to do with crime control and everything to do with filling up prisons as a goal in itself.

Over the last two decades, the proportion of arrests made for violent and property crimes has fallen, while the proportion for drug and minor crimes has risen sharply. In the vast majority of violent crime cases, moreover, defendants are charged with “aggravated assault,” an amorphous category that is distinguished from “simple assault” (a misdemeanor) as much by the whim of the police officer or prosecutor as by any formal established criteria. Tellingly, in 68% of all “violent” crimes, there is no injury of any kind to the victim. In the majority of the 400,000 annual arrests for aggravated assault nationwide, the prosecutor declines to proceed or the charges are dismissed by the courts; in most of the remainder, the charge is reduced to a misdemeanor -- a sure sign of routine overcharging by police anxious to exaggerate the severity of violent crime. With an essentially infinite number of behaviors potentially classifiable as criminal (by legal definition, an assault, for instance, can be any action that makes someone feel physically threatened) and a public mood that sanctions virtually any “anti-crime” measure, no matter how extreme, the number of those arrested and jailed depends not on crime levels but how many occupants the relevant authorities think their jails and prisons should have. Even the harshest punishment for the most minor offense can be justified by the need to “maintain respect for the system.”

The reach of the police process is frightening. As of 1990, local law enforcement authorities kept more than 50 million criminal histories on file. Another 4 or 5 million adults get criminal records every year. In other words, at least one in five Americans is officially a criminal. (So much for separating out the bad guys!) And then there are the gang membership databases increasingly popular with police in large metropolitan areas. In Chicago, a typical example, police officers can enter into the “GRIPS” database of suspected gang members if they see him on a street corner talking with other suspected gang members; this listing can then be used as evidence in a trial. This sort of iterative guilt by association can be tremendously effective in piling up “suspects”: In a similar database, Denver police have listed more than two-thirds of the city’s black males between the ages of 12 and 24 as “suspected gang members.”

Meanwhile, the adversarial, punitive aspects of the criminal justice system have overwhelmed earlier attempts, never very far-reaching, at rehabilitation -- that is, at treating the “criminal” as a human being and a member of society who can potentially amend his ways. Last year, the U.S. House of Representatives passed a crime bill that calls for “standards regarding conditions in the federal prison system that provide prisoners with the least amount of amenities and personal comforts consistent with good order and discipline.” Massachusetts Gov. William Weld declared “that prison should be like a tour through the circles of hell.” Evidently on the same wavelength, Graeme Newman, dean of the criminal justice department at SUNY-Albany, publicly wondered whether prisoners should “be subjected to the same terrible tortures in prison that Dante dreamed up for Hell and Purgatory,” or at least to “risky medical research.”

This shift toward the punitive is particularly obvious in those areas of the criminal justice system that were originally supposed to be less adversarial: the juvenile courts, and probation and parole. It’s not surprising that conservative “reformers” of the criminal justice system (including, in this context, President Clinton) have sought to transfer jurisdiction of certain classes of juvenile offenders to adult courts, despite the small number of individuals this would actually affect. The law’s distinction between juvenile and adult has always been based on the idea that young offenders can still become productive citizens. That’s why juvenile courts traditionally lack the adversarial accoutrements of the court room, such as prosecutors and defenders, and emphasize a narrative, individual understanding of the offender rather than just the “facts” of the crime. The juvenile courts have long since disappointed their early promise -- in the ‘40s, Harvard law professor Roscoe Pound compared the founding of the juvenile court to the signing of the Magna Carta as an advance in Western jurisprudence. They largely mirror the summary injustice of the adult courts, with the added slap in the face to defendants that their punishment is “for their own good.” But the conservatives still have reason to hate them: The notion that the offender is a member, not an enemy, of society still underlies much juvenile court practice, and, in Miller’s words, “there is always the remote possibility that, phoenix-like, it might one day rise from the ashes and overwhelm us all with reason and decency.”

Probation and parole officers, for their part, have largely shifted from advocates whose task was to help the offender stay out of prison, to armed pseudo-police officers whose task is to get him back in. The modern parole officer, for instance, does not provide the parolee with any assistance in finding a job, but he does have the power to return him to prison for failing to find one -- or missing appointments or Alcoholics Anonymous meetings, moving or marrying without permission, or a host of other behaviors that are in no way criminal. The goal, often explicitly stated, is to make parole as intensive and demanding as possible so as to return the maximum number of parolees to prison. The same goes for probation. “The goal of community protection is not always compatible with rehabilitation,” Los Angeles’ chief probation officer explained to Miller. “Why is revocation and sentencing of a probation violator not considered a ‘success’? I believe it should be, and that is why the goals of the [probation system] here in Los Angeles placed [preventing] recidivism as a lower priority.”

When probation or other “alternative” sentences are imposed in lieu of prison, the apparent effort at moderation is often vitiated by absurd overkill of restriction and monitoring. Miller cites the case of a 72-year-old man sentenced to a year of home detention, enforced by an electronic ankle bracelet, for “driving under the influence” on his moped; the man was put under 24-hour house arrest despite living alone. Probation and parole officers have lost interest in alternative sentences: A 1994 survey of law enforcement professionals -- police chiefs, sheriffs, prosecutors, judges -- found that probation and parole officers were the least likely to want alternatives in incarceration implemented in their jurisdictions. Between the mid-’70s and the mid-’90s, the proportion of all prison admissions in California accounted for by technical violations of probation or parole rose from 14% to 33%. The motto mounted on the wall of a California chief probation officer expressed the new philosophy succinctly: “Trail ‘em, Surveil ‘em, Nail ‘em, and Jail ‘em.”

At what point does a more or less racially biased crime control system become a system of racial subjugation that may also perform some crime control functions? As imprisonment rates for blacks and whites inexorably diverge, this question will only become more insistent. By 1993, African-Americans, who make up about 14% of the country’s population, were a majority of those entering its prisons; only 27% of those admitted to prisons that year were white. The proportion of black men in prison -- about 6% -- is approximately 20 times the corresponding rate for white men. At any given moment, about 25% of African-Americans between 20 and 29 are imprisoned or on probation or parole. In some big cities, the numbers are much higher. In Baltimore, for instance, 56% of black men are in prison or jail, out on bail, on probation or parole, or being sought on an arrest warrant. At least 90% of black men can expect to be arrested and jailed for a non-traffic offense at some point in their lives.

Well, but isn’t it true that -- as one judge said to Miller when he raised this issue with him -- blacks are “the ones committing the violent crimes”? It is undeniable that the black murder rate is extremely high, while murder rates for American whites are comparable to those in other First World countries. But murderers make up an infinitesimal proportion of those going to prison, and, in general, the phenomenal increase in the prison population cannot be explained by any increase in violent crime. There is little evidence of major racial disparities among perpetrators of the type of crime more directly tied to the increase in the prison population. Blacks, for instance, are arrested and jailed far greater rates than whites for drug crimes. In Hew York, more than 90% of those sentenced to prison for drug possession are black or Hispanic. But according to the U.S. Substance Abuse and Mental Health Services Administration, whites are in fact more likely to be drug users than blacks.

If black men go to prison at 20 times the rate white men do, there are only two possible explanations: wholesale black criminality, or wholesale racism in the criminal justice system. If the latter by its nature is not as easy to document as we might like, spurious documentation of the former is abundant. The burgeoning of bogus racial science in recent years, epitomized by Charles Murray and Richard Herrnstein’s The Bell Curve, is the flip side of racial polarization in the criminal justice system. As police, prosecutors and other local officials pack their prisons in an effort to satisfy the public mood and advance their careers, they naturally find themselves targeting blacks, immigrants, the poor and other groups unlikely to be in a position to make much of a fuss. As prisoners become darker-hued, racial and other biological theories of criminality become more attractive. And as these theories are elaborated and publicized, it becomes easier to allow racial principles to guide police and prison policies.

In a recent article in the Wall Street Journal, Brookings Institution Senior Fellow John DiIulio warned that the nation faces a “growing threat of juvenile super-predators who murder without remorse or fear,” who have grown up “fatherless, Godless, and surrounded by deviant, delinquent, and criminal adults.” C. Ray Jeffrey, head of the American Society of Criminologists, heralded the link between criminal behavior and genetically determined low IQ as the dawn of a new era in “biosocial criminology,” while Richard Herrnstein and James Q. Wilson’s well- received 1985 book, Crime and Human Nature, popularized the idea that the genetic basis of crime rendered useless any crime prevention strategy other than locking up the born criminals. Daniel Seligman’s recent A Question of Intelligence, which anticipated The Bell Curve in making an explicit link between presumed inborn differences in IQ and race, received glowing reviews in mainstream business magazines such as Forbes. James Q. Wilson most bluntly expressed the moral of all this genetic theorizing: “There are one million people in prison. We are not going to change them. We have boys on the streets; we can’t change them.” Not too long ago, the National Review ran a cover story that argued that “America doesn’t have a crime problem; it has a black crime problem.” By strenuously refusing to consider the “root causes” of crime, these theorists are really just promoting their own preferred root cause: the existence of black people.

As race becomes the guiding principle of our prison system, a certain terrifying logic presents itself. If millions of people are incorrigible criminals, and if the source of their criminality can be located in their genes, then why bother with the formalities of courts and trials to determine their guilt or innocence? Since these individuals are genetically predestined to lives of crime, why not lock them up pre-emptively? Or indeed, since they can only be burdens to society, and since they have no feelings, remorse, families, religion, response to behavioral conditioning, or other recognizably human traits, why not simply dispose of them? In his conclusion, Miller warns that U.S. crime policy is laying the foundations of a “gulag society.” It will have played out,” he writes, “as a variation of the theme for crime control advanced by E. A. Hooton, an American physical anthropologist of the ‘30s resurrected by Wilson and Herrnstein. As Hooton put it: ‘The elimination of crime can be effected only by the extirpation of the physically, mentally, and morally unfit, or by their complete segregation in a socially aseptic environment.’”

When the trains begin to roll, no one can say we weren’t warned.

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*J. W. Mason, “The Gulag Society,” In These Times. v.20, n.20, August 19, 1996. pps. 34-36.

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