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Is the Criminal-Justice System Racist? Part 3

A few questions present themselves. How many convicts were living in a stable relationship with the mother (or one of the mothers) of their children before being sent upstate? (Forget even asking about their marriage rate.) What kind of positive guidance do men who are committing enough crimes to end up in prison, rather than on probation (an exceedingly high threshold), provide to young people? Further, if Fagan is right that keeping criminals out of prison and on the streets preserves a community’s social capital, inner cities should have thrived during the 1960s and early 1970s, when prison resources contracted sharply. In fact, New York’s poorest neighborhoods—the subject of Fagan’s analysis—turned around only in the 1990s, when the prison population reached its zenith.

Fagan, like many other criminologists, conflates the effects of prison and crime. Neighborhoods with high incarceration rates suffer disproportionate burdens, he claims. Firms are reluctant to locate in such areas, decreasing job opportunities. Police pay closer attention to these high-incarceration zones, increasing the chance that any given criminal within them will wind up arrested. Thus, incarceration “provides a steady supply of offenders for more incarceration.” But if business owners think twice about certain communities, it’s because they fear crime, not a high concentration of ex-convicts per se. It’s unlikely that prospective employers even know the population of ex-cons in a neighborhood; what they are aware of is its crime rates. And an employer who hesitates to hire an ex-con is almost certainly reacting to his criminal record, even if he has been given community probation instead of prison. Likewise, if the police give extra scrutiny to neighborhoods with many ex-convicts, it’s because those convicts commit a lot of crime. Finally, putting more criminals on probation, rather than sending them to prison—as Fagan and others advocate—would only increase law enforcement surveillance of high-crime neighborhoods.

This popular “social ecological” analysis of incarceration, as Fagan and other criminologists call it, treats prison like an outbreak of infectious disease that takes over certain communities, felling people on a seemingly random basis. “As the risks of going to jail or prison grow over time for persons living in those areas, their prospects for marriage or earning a living and family-sustaining wage diminish as the incarceration rates around them rise,” Fagan says. This analysis elides the role of individual will. Fagan and others assume that once one lives in a high-incarceration—that is, high-crime—area, one can do little to avoid prison. But even in the most frayed urban communities, plenty of people choose to avoid the “Life.” Far from facing diminished marriage prospects, an upstanding, reliable young man in the inner city would be regarded as a valuable catch.

No one doubts that having a criminal record—whether it results in community probation or prison—is a serious handicap. People convicted of crimes compete for jobs at a clear disadvantage with those who have stayed crime-free. But for all the popularity of the view that the system is to blame, it’s not hard to find dissenters who believe that individuals are responsible for the decision to break the law. “My position is not hard,” says public housing manager Matthew Kennedy. “You don’t have to do that crime.” Kennedy supported President Bill Clinton’s controversial 1996 “one-strike” rule for public housing, which allowed housing authorities to evict drug dealers and other lawbreaking tenants on their first offense. “I’m trying to protect the good people in my community,” Kennedy explains. “A criminal record is preventable. It’s all on you.” Kennedy has no truck with the argument that it is unfair to send ex-offenders back to prison for violations of their parole conditions, such as staying away from their gang associates and hangouts. “Where do they take responsibility for their own actions?” he wonders. “You’ve been told, ‘Don’t come back to this community.’ Why would you come back here? You’ve got to change your ways, change the habits that got you in there in the first place.”

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