Policing the Black Man: Arrest, Prosecution and Imprisonment

Edited by Angela J. Davis

Pantheon Books, New York, 352 pages, $27.95

One of the great blessings of my New York City Bar Association membership was befriending the late Judge Sheila Abdus-Salaam who taught me that freedom is equality, empathy is a choice we make and acceptance of intolerance produces oppression.

Inequality, bias, empathy and oppression are major themes that dominate a new anthology edited by Professor Angela J. Davis, who has compiled eleven powerful essays that argue black men “are policed and treated worse than their similarly situated white counterparts at every step of the criminal justice system, from arrest through sentencing.”

The book draws attention to the disparities created by a “facially race-neutral system” that ostracizes offenders and stigmatizes blacks as criminals. In addition to identifying the root causes of this injustice, the book also examines the innovative ways enlightened public officials and scholars are tackling the problem. As such, the book makes a useful contribution to the national discussion that will produce change.

The statistics are alarming. Black men are 2.5 times more likely to be arrested than whites, 21 times more likely to be killed by police and twice as likely to be unarmed when killed by police. Meanwhile, black men constitute 34% of the American prison population and serve sentences that are 19.5% longer than white men for the same crime.

As chronicled by Professor Michelle Alexander in The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010), one-third of the black men born in 2001 can expect to be incarcerated in their lifetimes, and the total number of black men in prison or jail, on probation, or on parole is roughly equal to the number enslaved in 1850. This “criminal caste system” tends to stigmatize black men for life, relegating them to a “second-class citizenship” of job discrimination, exclusion from voter rolls and jury service and disqualification from food stamps, public housing, health and welfare benefits and student loans.

In a masterful introductory essay, Bryan Stevenson, the director of Equal Justice Initiative and accomplished Supreme Court advocate, discusses the legacy of America's sordid history of racial injustice and terror. In so doing, Stevenson examines the connection between lynching, capital punishment and racial disparities in the implementation of the death penalty. As noted by the editor, Stevenson's essay “lays a solid foundation for the remainder of the book and is essential to the reader's understanding of how and why the American criminal justice system continues to police black men.”

The most insightful essay is written by Professor Katheryn Russell-Brown, who focuses on the phenomenon of “implicit bias,” the “unconscious bias that results from exposure to negative stereotypes and attitudes,” particularly in police interactions with black men.

Russell-Brown notes that psychologists have developed many tests to measure “hidden bias.” In one computer simulation, 50 police officers were tested on their decision to shoot, based on photos showing a person with either a gun or a neutral object. The study concluded that “officers were more likely to shoot if the unarmed suspect was black.”

On a hopeful note, however, the same study also concluded that “repeated viewings of the simulation led to an elimination of racial bias,” and multiple exposures to the simulation “shifted the officers' decision criteria for black suspects.”

As described by Russell-Brown, this and other similar studies have reached similar results: (1) police tend to respond in a racially-biased way toward blacks; (2) the decision to shoot is made more quickly when there is a black armed target; (3) police are more likely to see a black armed target where none exists and less likely to see a white one who does exist; (4) when targets do not match stereotypes, police take longer to decide when to shoot; (5) police show less implicit bias than members of the general public; and (6) a police officer's personal beliefs and contact with minority communities affects levels of implicit bias.

Russell-Brown also discusses how training and education is assisting law enforcement and courts to recognize and counter racial bias. A widely-used program, entitled “Fair and Impartial Policing,” teaches officers about “implicit bias, how it works, and how it may impact their decision-making skills regarding the use of force.” She further notes that California Attorney General Kamala Harris established in 2015 the first such certified training program on implicit bias and procedural justice, and in 2016 the Department of Justice began requiring implicit bias training for 28,000 federal law enforcement agents and prosecutors.

Russell-Brown also highlights the work of U.S. District Judge Mark Bennett to increase awareness about implicit bias. The judge has urged all criminal justice system decision-makers to take the Implicit Association Test, an online test that measures hidden bias and has been taken by 1.5 million people.

In a concluding essay by former John Jay College President Jeremy Travis and Professor Bruce Western, the authors note that the “great markers of racial injustice have been violence and poverty.” Noting that poor and under-educated blacks are now incarcerated at an unprecedented level, the authors state that changing how governments respond to crime is vital to reducing prison populations.

Like Professor James Forman, Jr. (in a 2012 edition of the New York University Law Review), Travis and Western posit that mass incarceration is detrimental to public safety, rather than necessary to secure it. Forman notes that New York City has reduced crime while also reducing the number of people sent to prison. Such progress will require the increased use of diversion and other alternatives, reducing the time served in prison, decreasing the number of parole revocations, making better use of probationary resources and increasing human capital investments in education.

As observed by Forman, America incarcerates too many people generally and too many blacks specifically, thus creating “second-class citizenship” for millions. Like Professors Alexander and Forman, this book demonstrates how our society's decision to heap shame and contempt on those who struggle and fail in a system designed to keep them locked up and locked out says far more about ourselves than it does about them.

Jeffrey M. Winn is a management liability attorney with Chubb, a global insurer, and a member of the executive committee of the New York City Bar Association.