Vol. 5 No. 1 (January, 1995) pp. 15-17

MALIGN NEGLECT -- RACE, CRIME, AND PUNISHMENT by Michael Tonry. New York: Oxford University Press, 1995. 233 pp. Cloth, $25.

Reviewed by Herbert Jacob (Northwestern University)

Michael Tonry's MALIGN NEGLECT is an angry book, passionate and eloquent. It is also supremely timely. As the country races to ever more severe punishment for its criminal offenders (Georgia's "two strikes and you're out" trumping the federal government's "three strike" norm), Tonry urges his readers to consider the effect of punishment not only on offenders and victims but also on the families of offenders and their communities. His most passionate pages are those in which he outlines the vast disparity in punishment meted out to black offenders. He argues that the Reagan and Bush administrations are to blame for that disparity and that the principals of those administrations knew (or had every reason to know) that their policies would be destructive to vast portions of the African American community.

The first part of the book lays out the evidence that Tonry marshals to demonstrate the disproportionate burden assigned blacks by the criminal justice system. Tonry, who is a law professor at the University of Minnesota, does not report original research. Rather he collects evidence from a wide variety of sources to present his case.

His argument has several prongs. Relying on arrest data from the Uniform Crime Reports (p. 64) and data from victimization surveys (p.75), he shows that the participation rate of blacks in imprisonable offenses has remained strikingly constant since the mid-1970s. At the same time, the proportion of black's entering prison and residing there has steadily increased. Whereas blacks constituted about 1/3 of all inmate admissions in 1960, by 1990 they represented a majority of all admissions. Based on an incarceration rate per hundred thousand population, blacks are sent to prison 6.44 times more often than whites.

Tonry blames much of this disparity on the War on Drugs. Those policies, most aggressively designed and pursued by the Reagan and Bush administrations, had their greatest impact on blacks living in the poorest areas of our cities. The policy's emphasis on arresting and incarcerating the lowest members of the drug distribution system disproportionately led police to arrest blacks because infiltrating drug distribution organizations is easier in the socially disorganized communities where low income blacks live than in middle income neighborhoods where whites live. The law's insistence that possession or sale of 1 gram crack cocaine -- used mostly by blacks -- be considered the equivalent of 100 grams of powder cocaine -- used more by whites -- further tipped the scales against blacks. Finally, the adoption of sentencing guidelines and mandatory sentences, and the elimination of judicial discretion to ameliorate sentences for defendants who might have been victimized by socially mitigating circumstances such as child abuse, poor education, lack of employment opportunities has fallen mostly on black and low income

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defendants since there are relatively few white middle class defendants in the criminal justice system. Thus, although Tonry is careful to state repeatedly that neither the police, nor the designers of sentencing guidelines, nor judges intentionally discriminate against black defendants, the policies they follow grossly disadvantage blacks caught in the jaws of the criminal justice system.

The impact of this policy on the black community, Tonry argues, has been devastating. Citing studies of the United States as a whole, of New York state California, Washington, D.C., and Baltimore, he asserts that between one quarter and more than one-half of all young black males are under the supervision of the criminal justice process at any given time (p. 30). That means that there are relatively few young black men to help support the children they father or to assume the role of father in their young families; it means a whole generation of young black men is stigmatized for life as convicts; it means that both their families (including their children) and their community are driven ever more firmly into a life of poverty and welfare dependence.

One might ask whether the punitive policies which Tonry criticizes are needed to control the rise of crime. Tonry reminds his readers that all indicators show that since 1980 when Ronald Reagan was elected President, the crime rate has remained stable or slightly declined, but whatever decline exists predates the increasing harshness of criminal penalties. Moreover, the War on Drugs by almost all measures has been a failure. While the use of drugs is declining slightly, the street price of narcotics has not increased. Thus the slight success we have had in decreasing the use of drugs appears to result from reducing demand by education and drug treatment rather than by decreasing supply through interdiction and policing the streets.

The second half of Tonry's book elaborates the justification for a punitive policy and its alternatives. Tonry argues that sentences should take into account their social consequences as well as their punitive effects. He urges that judges be permitted to impose the "least restrictive or punitive alternative sentence" (p. 192). He would have policy makers (particularly appellate courts, for he has little confidence in legislators) "think about the racial effects" of crime policies (p. 182). Where those effects are adverse, he would look to possible alternatives. Second, Tonry urges individualizing punishments. He does not propose returning to the free-wheeling indeterminate sentencing practices of the 1960s. Instead, he would retain upper limits to sentences in order to avoid disparately harsh sentences. But he would urge judges to take into account social and individual circumstances of the offender in addition to the circumstances of the crime in order to render a sentence that is both appropriate and does as little collateral harm as possible. His prescriptions include reviving treatment options in state correctional systems so that they become more than warehouses of society's rejects. The money for these programs would come from the vastly smaller number of incarcerations he foresees under such a policy. He estimates that half of all prisoners in the United States today could be released under appropriate conditions.

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While Tonry presents convincing evidence about the unequal consequences of criminal justice for African Americans and whites, he does not explore with sufficient thoroughness the social consequences of that disparity. That may well be because social researchers have paid relatively little attention to these second order effects. This book is a call to action not only by policy makers but also a cry for social scientists to explore the consequences of American penal policies on the life chances of offenders, their families, and their communities.

Tonry's argument is controversial. One hopes it will not be dismissed out of hand by the social conservatives currently dominating Congress and many state legislatures. The most morally compelling part of the argument is his attention to the social by-products of mass incarceration. His argument extends far beyond his focus on African Americans to the impact of penal policies on all groups who contribute large numbers to jails and prisons. His book reminds us that jail house solutions to crime may contribute to many of the other social ills plaguing the United States.

Tonry's MALIGN NEGLECT is more rigorously argued and passionately written than Mann's (1993) UNEQUAL JUSTICE. However, it is also narrower in scope. If it is read by policy makers or their staffs as well as by academic researchers, Tonry's book will stimulate debate about policy options and may open doors to alternative treatments for criminal offenders.

Reference:

Mann, Coramae Richey. 1993. UNEQUAL JUSTICE: A QUESTION OF COLOR. Bloomington, IN: Indiana University Press.