National Review Online Decries DOJ's “War On Phantom Racism”

In response to the Department of Justice's decision to collect demographic data on police stops, arrests, and convictions to address potential racial biases, National Review Online contributors Heather Mac Donald and Roger Clegg baselessly accused the Department of Justice of attempting to “racialize criminal justice.”

On April 28, the DOJ announced a new initiative that will allow local law enforcement agencies to compete for federal grant money to implement a data collection program that could help reduce racially discriminatory and unconstitutional police procedures. According to Reuters, the program hopes to specifically address the fact that “black men were six times more likely, and Latino men were 2.5 times more likely, to be imprisoned than white men in 2012.”

Mac Donald, who is not shy about her incredibly offensive views on race, has previously argued that young black males possess a “lack of impulse control that results in ... mindless violence on the streets.” In a recent column for NRO, Mac Donald argued that the DOJ's initiative “fingered as bigots not just the police, but the entire criminal-justice system” by attempting to address already documented racial discrimination.

Mac Donald also claimed that the DOJ's decision to collect demographic data on police stops and arrests was “part of the Obama administration's war on phantom racism, a colossal waste of taxpayer resources and a depressing diversion from the real problems affecting black and Hispanic populations.” Mac Donald went on to ignore the constitutional violations associated with race-based policing, arguing that law enforcement's attention should remain focused on people of color because black teenagers “commit homicide at ten times the rate of whites and Hispanics combined.” Ultimately, argued Mac Donald, the DOJ's initiative “will have no effect on crime,” but it will “inhibit sound policing.”

In response to Mac Donald, fellow NRO contributor and anti-civil rights activist Roger Clegg declared in an April 30 post that “of course Heather is right.” Clegg went on to suggest that people of color who have been unconstitutionally targeted by the police should simply stop breaking the law:

Now, I'm not persuaded that there is widespread discrimination in drug-law enforcement either, but let's assume that there is. What should be done about it?


Step 1: Do not use, buy, or sell illegal drugs.

Step 2: If you belong to a racial or ethnic group that you think is targeted by the police, then especially do not use, buy, or sell illegal drugs.

Now, it may be objected that it is unfair if the police let white kids buy, use, and sell illegal drugs more than black and Latino kids. True, but when you think about it, it's really not a good idea to buy, use, or sell illegal drugs anyway.


At no extra charge, I will also provide another suggestion, for members of all racial and ethnic groups:

Step 3: Instead of using, buying, and selling illegal drugs, spend that time doing homework or something else that will improve your mind and character rather than destroy them.

What Mac Donald and Clegg seem all too happy to ignore is that law enforcement is not free to reject constitutional principles to achieve the goal of reducing crime, regardless of supposed racial disparities in the commission of crimes. This is a common tactic of right-wing media, abandoning a pretense of fidelity to the U.S. Constitution in favor of "establishing a sense of order" that is disproportionately locking up men of color.

Clegg's suggestion that minorities unfairly targeted by the police simply not “use, buy, or sell illegal drugs” does not address the underlying problem, especially given the facts surrounding racially-motivated police work. According to the federal judge who considered the constitutionality of New York's highly controversial stop and frisk policy, "at least 200,000 stops were made without reasonable suspicion," which “resulted in the disproportionate and discriminatory stopping of blacks and Hispanics in violation of the Equal Protection Clause.” Not only that, but the judge also found that “the rate of arrests arising from stops is low (roughly 6%), and the yield of seizures of guns or other contraband is even lower (roughly 0.1% and 1.8% respectively).” Such a low success rate hardly justifies the use of constitutionally-suspect police procedures, at least if one only approves of police actions that adhere to American principles. In other words, thousands of innocent people of color were stopped by the police despite there being no evidence of wrongdoing, and a subsequent search of those people rarely, if ever, turned up contraband.

So it's interesting, then, that Mac Donald is concerned that the DOJ's new initiative “will have no effect on crime,” since race-based stops and arrests -- what she calls “sound policing” -- weren't particularly effective, either. Although conservatives have frequently claimed that race-based stop and frisk policies contributed to the reduced crime rate in New York City, the truth is that the crime rate was already on the decline before such policies went into effect -- and the crime rate was even lower in cities that did not rely on racially biased stops and arrests.

Clegg may not be “persuaded” about the very real existence of racial disparities in the enforcement of drug laws, but the experts certainly are. According to a comprehensive report from the American Civil Liberties Union, black people are arrested nearly four times more often for marijuana possession than white people are, despite the fact that both groups use marijuana at nearly the same rates.

The Washington Post also recently explained why Mac Donald's conflation of “crime rates” with arrest and conviction rates is misleading and not actually proof of a “lack of social control that leads to such elevated rates of minority crime.” From the Post:

“What you'd want to know is this: Since African-Americans are six times more likely to be stopped and frisked, are they six times more likely to be in possession of something criminal when they're stopped?” says John Roman, a senior fellow at the Urban Institute's Justice Policy Center.

If you were to stop people on the streets of New York entirely at random, would that still be true?

This is a particularly difficult question to answer because we are fundamentally trying to compare stop and arrest rates (about which we have data) with criminal behavior (about which we seldom do). We know, for instance, who and how many people are arrested and convicted within a given year in any city for burglary. But we don't know how many people -- or which people -- in that city committed a burglary, with or without getting caught. That larger group by definition evades data.


“We don't have a study that says 'these are the proportions by which different genders and races commit crimes,'” he says. “But we do know how often they self-report using drugs. And we do know how often they are arrested for drug violations.”

Research consistently says that blacks are not more likely -- they may even be less likely -- than whites to use drugs. But they are four times as likely to be arrested for some drug possession charges. “When you see similar rates of use and completely disparate rates of arrest,” Roman says, “that's evidence of racial bias that's sort of hard to refute.”

The DOJ's decision to start officially capturing more data is not about labeling individual police officers as “bigots,” as Mac Donald claims, but ensuring that law enforcement officers are operating effectively and constitutionally. In fact, collecting data will help police departments who have been accused of bigotry and seen the usefulness of their community policing decline as a result. Not only can the problem not be adequately defined and addressed without the data -- regardless of the results -- such self-reflection is a first step in improving trust between police departments and communities of color.

For two people concerned about reducing incidents of crime and the reputation of law enforcement, it's strange that Mac Donald and Clegg instead favor a lawless approach from the police to address the problem.

Photo via Flickr/Michael Fleshman under a Creative Commons License.