by Doris Marie Provine. Chicago: University of Chicago Press, 2007. 193pp. Cloth. $45.00. ISBN: 9780226684604. Paper. $18.00. ISBN: 9780226684628.
Reviewed by Charles R. Epp, Department of Public Administration, University of Kansas. Email: chuckepp [at] ku.edu.
Although it is widely known that the United States has experienced a “prison boom” (Western 2006) with dramatically harsher effects on African Americans than whites, no one has analyzed the racialized sources and implications of these disparities so deeply, subtly, and persuasively as Marie Provine in this thoughtful study.
Provine’s thesis is that American criminal justice policy on drugs is racially-framed at its core, resulting in a “war on drugs” that especially targets and imprisons African Americans. Provine argues that this bias, however, is institutional rather than intentional, complicating any attempt to correct the problem. Thus, Provine observes that, while punitive policies toward illegal drugs have targeted racial minorities and this bias follows deep historical patterns, efforts to correct it have been undermined by arguments that it is not intentional and therefore is perfectly acceptable. Provine builds a powerful case for her thesis by marshalling evidence from the consistent historical pattern of targeting racial minorities in America’s past and current wars on drugs; from the pervasive racial disparities in the effects of wars on drugs; and, especially, from the widespread resistance of elected officials and appellate judges to address these disparities with policy reforms.
The book’s Introduction, Chapter 1, and a brief Epilogue clearly frame the above thesis. In these chapters Provine draws on a wide array of historical and social scientific literature, relying especially on recent work in the areas of American Political Development and social psychology. From the former area she draws the idea that institutions are both accretions of past ideological forces and the generators of continued biases in keeping with those ideological structures. Thus, following Paul Frymer’s (2005) influential observation, she observes that in the area of criminal policy, “institutions provide incentives that make racism rational” by predisposing elected officials and ordinary citizens alike to see racial minorities as sources of drug abuse and drug-related crime (p.10). From social psychology, Provine draws the observation that implicit negative racial stereotypes contribute to widespread perceptions that racial minorities represent a greater threat to order than do whites (pp.156-58). Relying on these insights, Provine argues that American criminal policy toward drugs has institutionalized the implicit expectation that drugs and drug-related crime are greater threats when associated with racial minorities and that it is necessary to respond to these threats with heavy criminal punishment. Finally, in order to address the problem, she observes that “negative stereotypes must be actively [*152] resisted to be avoided” and that only deliberate policy will reverse well-institutionalized racially-discriminatory patterns (p.158).
In Chapters 2 and 3, Provine turns to her historical evidence, demonstrating that punitive crusades against drugs historically have targeted racial minorities by portraying them as especially prone to abusing alcohol and other drugs and as morally corrupt threats to responsible white Americans. Provine’s history, although based largely on other studies, draws together the evidence in support of this thesis in a synthesis found nowhere else. Although most readers are likely to know generally of the moral crusades against alcohol, opium, and marijuana in American history, for instance, few are likely to know how thoroughly racialized were these campaigns. Thus, Prohibition in the South contributed directly to black disenfranchisement as its supporters relied heavily on images of drunken black men, fueling efforts not only to ban alcohol but also to restrict access to the ballot (pp.38, 52-58).
In Chapter 4, Provine analyzes the development of federal policy on crack cocaine in the 1980s, showing that members of Congress and law enforcement officials alike acted on racialized assumptions. As in earlier anti-drug crusades, they assumed that most crack users were racial minorities, that the drug represented an irresistible enticement and could not be shaken once tried, that the scourge was threatening to spread from black ghettoes to the white middle class, and that only extremely harsh punishment could discourage the hardened minority criminals who sold and used the drug. Although available evidence at the time discredited these assumptions, the country was seized by a “moral panic,” and Congress rushed into law a bill with draconian punishment even for carrying exceedingly small amounts of crack cocaine, resulting in the notorious “crack-powder” sentencing disparity of 100-1 (pp.107-115). Although Provine identifies some culprits in this story (namely Reagan administration officials and conservative members of Congress), she emphasizes that the racially-framed assumptions behind the disparity were widely held and that even many members of the Congressional Black Caucus supported the measure. Her target here, as in the study as a whole, is institutionalized bias, not intentional racism.
Provine examines the tragic racial impact of the crack policy in Chapter 5, with a particular focus on how federal officials responded to growing evidence of this impact. While whites have always represented a majority of crack-cocaine users, the rate at which African-Americans were incarcerated in federal prison more than tripled from 1980 to 1999, while the disparity between whites’ and blacks’ prison sentences for drug crimes increased dramatically from 6% in the mid-1980s to 93% in the late 1990s (p.127), largely as a result of enforcement targeted at black crack users and dealers. Under pressure from civil rights groups and social scientists, the Federal Sentencing Commission recommended a sharp reduction in the crack/powder sentencing disparity, and, under the existing law, this reduction was to take effect unless overridden by an act of Congress, signed by the President. The majority in Congress, however, led by members incensed by the claim that such disparities [*153] represented racism (they asserted no “intent” to discriminate) voted overwhelmingly to override the Commission’s recommendation, and President Clinton signed the legislation, thereby affirming the policy.
Provine examines the judicial response in Chapter 6, showing that while some federal trial judges objected to the gross injustices imposed by the sentencing guidelines (some going as far as to rule them unconstitutional), many adopted a position like that of federal judges in the early 19th century who were asked to enforce the fugitive slave law: they passed the buck, seeking to absolve themselves of responsibility. Worse, appellate judges, those theoretically with the power to affirm the few trial-court decisions challenging the policy, consistently held that, since the effects of the policy were not frankly and deliberately intended to be racist, the policy producing them was perfectly constitutional.
Provine’s synthesis, while largely drawing on existing research, is original and powerful. It offers the clearest observation yet of a fundamental problem whose contours are increasingly marked out in large bodies of research in several disciplines: while American law and policy admirably (and largely successfully) prohibit intentional racial discrimination, the problem is no longer intentional bias but rather deep racial disparities – in jobs, education, healthcare, imprisonment, traffic stops – that grow from systematic tilts in our policies and administrative processes. The situation is doubly tragic for, as Provine poignantly observes, the American commitment to stamping out intentional bias “constrains debate about racial justice” by inviting “angry denials of racist intentions” and thereby allowing officials to avoid responsibility for unintended but deep and systematic racial injustices (p.138). Such disparities, she observes, can be addressed only with deliberately crafted policy aimed at reversing the systematic biases in our policies.
My only quibble is that it the book does not fully address why the long-standing racial biases in American drug policy have resulted in an imprisonment boom characterized by gross racial disparities only in the period after about 1980. For an answer to that question, readers will have to turn to other books, notably Tonry’s analysis (1995; 2004) of politically conservative alternatives to social-welfare policies, and Gottschalk’s analysis (2006) of how weak state capacity in the area of social welfare channeled moral panics over drugs after the 1970s into criminalization and a prison-building boom. By the same token, however, neither of these powerful analyses helps us to understand so clearly, as does Provine’s, why the imprisonment boom has been racially-biased at its core.
UNEQUAL UNDER LAW is a very well-crafted policy analysis and an elegantly written teaching tool. Students and scholars at all levels are likely to find the book accessible and thought-provoking. It is a model of normatively-driven, theoretically-framed research.
Frymer, Paul. 2005. “Racism Revised: Courts, Labor Law, and the Institutional Construction of Racial Animus.” 99 AMERICAN POLITICAL SCIENCE REVIEW 373-87. [*154]
Gottschalk, Marie. 2006. THE PRISON AND THE GALLOWS: THE POLITICS OF MASS INCARCERATION IN AMERICA. New York: Cambridge University Press.
Tonry, Michael. 2004. THINKING ABOUT CRIME: SENSE AND SENSIBILITY IN AMERICAN PENAL CULTURE. New York: Oxford University Press.
Tonry, Michael. 1995. MALIGN NEGLECT: RACE, CRIME AND PUNISHMENT IN AMERICA. New York: Oxford University Press.
Western, Bruce. 2006. PUNISHMENT AND INEQUALITY IN AMERICA. New York: Russell Sage Foundation.
© Copyright 2009 by the author, Charles R. Epp.