Balkinization: The Missing Lesson of Ferguson: Conduct ≠ Contact

The Missing Lesson of Ferguson: Conduct ≠ Contact

Guest Blogger

Vesla M. Weaver, Yale University

For the Symposium: Deconstructing Ferguson One Year Later

“You need to be twice as good and work twice as hard.” This is a crucial piece of received wisdom in the black community -- lessons taught through the rituals of adolescence, teachers’ expectations and decisions, job turndowns, and the glances of strangers. In other words, black life and not books impart this wisdom. Black kids learn another lesson, too. That they should behave twice as well “and if they don’t learn it fast enough,” a young justice-involved man once told me, “they end up in the system, and there go another male.” The messages make plain that each of their missteps will have grave consequences and that their innocence, because of their race, is forever in doubt.

In the year of national reckoning that began with Michael Brown’s death, and by the week travelled through New York, Baltimore, Charleston, Cleveland, and Atlanta, our consciousness was raised. These videos are to 21^st Century America what the dogs and water hoses were to our parents and grandparents. The heinousness of the actions of white authorities contrasted with the powerlessness of those being pummeled by water, fear-choked into silence, and tasered into docility, is fast becoming the central paradox our democracy attends to in times when we need a moral facelift.

But there is one idea that has for too long gone unchallenged, one that enjoys the imprimatur of statistical evidence and the silent worship of Americans of all traditions and beliefs – in other words, something like an ideology. Our collective gaze is trained on the gruesomeness of these police killings, the “I can’t breathes,” the ‘nickel rides’ and severed vertebrae, the cold indifference of law-enforcers and medics as they stood over the broken, choked, bullet-ridden bodies unmoved to action. Our captivation tends to end there.

Our nation objects to Michael Brown, Eric Garner, Sandra Bland, Walter Scott, Shawn Dubose, and the others being killed and maimed, but we do not find repellent their status as “suspect citizens,” the presumptive criminality that engulfs their race. “Why did he run?” we ask. “Why had he failed to appear in court?” “Why didn’t she just comply with the officers instructions?” Less an object of our disgust is how easy it is to have unwanted contact with police in neighborhoods like Michael Brown’s. The ideology of black lawlessness – the one Khalil Muhammad shows governed progressive circles for much of the 20^th century – still enjoys a comfortable place in our national mindset and continues to define black citizenship. This stigma that attends a sizable group of our fellow citizens is as formidable as it is invisible: it drives decisions about where to live and who to hire in some communities while shaping the daily existence of members of other communities, who discern what kinds of mundane behaviors are off limits. This distortion of democracy, state legitimacy, and justice, is still very much with us as we blindly rush to outfit police with cameras and better training.

A few years before Michael Brown was killed, a majority (66%) of white Americans believed that the word “violent” described “most” blacks well (Associated Press/GFK 2012 survey). This belief endures although they no longer see police mistreatment of blacks as epiphenomal. Nevertheless, the idea that police brutality is aberational rests on a much more poisonous dynamic: the diminished recognition of white criminality while blacks are construed as a criminal race. You might recognize its close cousin, the “missing white women” syndrome, the much greater outpouring of sympathy and resources when white girls go missing than when black girls disappear.

To understand fully the disappearance of white criminality from public discourse, I must turn to a thought exercise and some empirics even though I heed Khalil Muhammad’s caution that statistics can win a few victories on the battlefield of ideas but not the war.

We might take as a measure of the legitimacy of the criminal justice system whether it targets the right people. People who report doing illegal things should get arrested and people who don’t, should not. One could imagine a two-by-two table with four quadrants, like so:

Conduct (did something illegal)

YES NO

YES X

Contact

(was arrested/jailed)

NO X

For a legitimate system, we want most people to fall in the marked diagonal and we would want as few as possible in the opposite diagonal. In other words, we want contact to closely and tightly follow conduct. There will be mistakes in interpreting offending and law-abiding, for sure, but the exceptions should not mock the rule.

Let us now measure how things stand in America today. I turn to a large, overtime data source, the National Longitudinal Survey of Youth (NLSY). The NLSY asks a nationally representative survey sample of about 12,000 young adults questions about their criminal offending and direct experiences with the criminal justice system over time in two very different cohorts, one that turned 18 around 1980 and one that came of age about two decades later. The NLSY does so in a non-intrusive manner, and many scholars treat these measures as good proxies for actual criminal offending. There are a few slight differences in question-wording between the two different years of the survey, so we should interpret the overtime comparisons with caution.

An analysis of the 2000 NLSY cohort shows quite clearly that its members were much more likely to have contact with legal authorities than the 1980 cohort, even though the earlier cohort engaged in more criminal offenses. Notably members of the 2000 cohort reached adulthood under the policy and practices of broken windows policing, zero tolerance, the drug war, and mandatory minimums. Concretely, in the 1980 cohort of 18-23 year-olds, only 11 percent had been arrested by police, while a quarter of the 2000 cohort of the same age had. Unfortunately, only the 1980 data include measures of being stopped by police (without arrest), so we cannot track changes over time in stop-and-frisks. But it is clear that the later cohort experienced more encounters with police.

The question then is whether the later cohort engaged in more criminal behaviors than the 1980 cohort, which would support their higher levels of contact with authorities. Again, analysis of the data suggests this is not the case. Not only did the later cohort come of age during an era of sharp declines in serious victimization, in the earlier decade, self-reported criminal behavior explained 6% of the variance in arrest; by 2000, it explained just 3% of the variance. Criminal conduct is a less good predictor in the later cohort than the earlier one of having contact. In 1980, if you did not engage in unlawful behaviors, you were quite unlikely to experience arrest (21%). By 2000, it was the exact inverse; as a result of net-widening policies, just over three-quarters of the people who had experienced arrest did not report engaging in a property or violent crime.

More crucially for the argument here, though, is that in 1980, this basic pattern doesn’t differ significantly by racial group. In 2002, it does. Dramatically. Crime begins to explain less of the variance between the races in contact with criminal justice authorities. By 2002, the share of people in the off-diagonal grows and differs by group. Crime distributions by race don’t change much across the two cohorts but contact with the law does. If you are a black young man, your likelihood of arrest is .41; if you are a young adult white man, it is .30. In 2002, black men were more likely to be arrested and report no illegal activity than white men (36% compared to 26%). And the group we don’t often discuss when we speak of crime, namely, those who engage in property damage, theft, or violence but do not experience arrest or conviction, is also racially inflected; white men were more likely to engage in criminal offenses without experiencing arrest (48% of white men compared to 37% of black men).

Notably, the pattern cannot be explained by drugs – that inner-city drug markets are policed more aggressively than drug deals on college campuses or in suburban backyards – because the patterns hold when we examine only those who reported doing a property or violent crime, not a drug offense.

The story of criminal justice over the last three decades, then, is a story of a system that is over-functioning and under-functioning: more people are engaging in criminal acts with little risk of arrest and more are having involuntary contact with authorities who are not engaged in crime. That is, more people are falling into the off-diagonals of the conduct/contact two-by-two table. How can both things be true?

Put simply: Blacks fall in one quadrant, whites for the most part fall in the other and this tendency became pronounced over time. This does not a legitimate system make. As criminal offending became less of a predictor of arrest, at least according to these nationally representative longitudinal surveys, something else filled the void: race interacting with class status. In such a world, are black parents irrational when we tell our kids the “police are looking for any reason to give black men a hard time”?

Scholars are not immune to the black-as-criminal ideology that is so at odds with basic statistics. I recently told another criminal justice expert, whose reforms are in vogue at the moment, of my findings. He acknowledged the statistical story saying that yes, middle class and affluent white communities did indeed have a crime problem, but countered: “We don’t need more aggressive policing in their neighborhoods because we can count on their parents for effective social control.” Black parents, he assumed, couldn’t be trusted to deal with their kids.

And this is not simply a matter of distorted media framings that romanticize white criminals as “Bonnie and Clyde’s” or decisions not to describe white outlaws in a massive gunfight in Texas as thugs, as happened recently. Indeed, the study of black crime is booming, enjoying a robust scholarly renaissance. A search of “white criminality” in academic publications yields 143 results; black criminality? Almost 2,000. That illogical phrase Black-on-black crime comes up in 1600 articles compared to 100 articles on white-on-white crime.

I often ask my (mostly affluent) students to raise their hands if they have ever done something that ran afoul of the law – shoplifting, drug use, fighting, trespassing, driving a car without a license – and they giggle and raise their hands. When I ask them if they should have gone to jail or be arrested or done court-ordered community service they look at me indignantly. The thought that their conduct could spell adversarial police contact runs so counter to their worldview of who is criminal and who is law-abiding that they cannot even fathom it. They cannot imagine being in the quadrant that many blacks occupy. Asked to explain the distinct punishment of others who do the same things, some double down on their punitive commitment with stereotypes-posing-as-reasons much like the criminal justice expert above. Whiteness and affluence, after all, are nothing if not freedom from police harassment.

The people I talk to in my research have a different mental mapping. They cannot fathom being in the offending/no contact quadrant. After asking me about my lived experience with police and learning that I had never been stopped, one of my interviewees said “your police ain’t like that? Come through our hood and you’ll get stopped.” And then he riddled, “Doesn’t matter if you short, black, or ugly, you gonna get stopped. Just to see who you are.”

The costs of the ideology for black women and men are clear as ever, the pouring of inhumanity and guilt on a race. The fact that whites benefit from it in terms of less supervision is just as real. But we should be careful not to assume that the black crime ideology is simply a psychological wage for whites or a symbolic scarlet letter for blacks; it may also have deep consequences for public safety as well. As the legal scholar Bennett Capers suggests in a 2010 article: “for whites, who face less scrutiny and are in fact under-policed, the cost of crime is reduced, thus making crime itself more profitable.” In less polite terms, underenforcement breeds white criminality.

I have provided some empirical evidence to dispel the cruel hoax. But the effects of this racial religion are scarcely quantifiable. How many people avoided black neighborhoods due to this ideology? How many eyewitnesses to crimes thought they saw one race? How many campaigns of police surveillance were waged on black neighborhoods? How many people were victimized because whites had the implicit guarantee of police non-interference?

More importantly, what kind of society do we envision if we continue along this path?

Vesla M. Weaver is Assistant Professor Political Science and African American Studies. You can reach her by e-mail at vesla.weaver at yale.edu

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