The Stone is a forum for contemporary philosophers and other thinkers on issues both timely and timeless.

I.

Plato’s “Republic” is the wellspring from which all subsequent Western philosophy flows, and political philosophy is no exception. According to Plato, liberty is democracy’s greatest good; it is that which “in a democratic city you will hear … is the most precious of all possessions.” Subsequently, two notions of liberty emerged in the writings of democratic political philosophers. The dispute about which of these two notions of liberty is most central to human dignity is at the heart of Western philosophy. Both are central to American democracy. Indeed, it is best to think of these as two different aspects of the conception of liberty at the heart of American democracy, rather than distinct concepts.

The American criminal justice system applies in a racially unbalanced way, threatening the country’s political ideals.

The standard source of the distinction between two senses of “liberty” is a speech in 1819 by the great political theorist Benjamin Constant. The first, “the liberty of the ancients,” consists in having a voice into the policies and representatives that govern us. The second, “the liberty of the moderns,” is the right to pursue our private interests free from state oversight or control. Though the liberty of moderns is more familiar to Americans, it is in fact the liberty of the ancients that provides the fundamental justification for the central political ideals of the American Democratic tradition. For example, we have the freedom of speech so that we can express our interests and political views in deliberations about policies and choice of representatives.

Given the centrality of liberty to democracy, one way to assess the democratic health of a state is by the fairness of the laws governing its removal. The fairness of a system of justice is measured by the degree to which its laws are fairly and consistently applied across all citizens. In a fair system, a group is singled out for punishment only insofar as its propensity for unjustified violations of the laws demands. What we call a racial democracy is one that unfairly applies the laws governing the removal of liberty primarily to citizens of one race, thereby singling out its members as especially unworthy of liberty, the coin of human dignity.

There is a vast chasm between democratic political ideals and a state that is a racial democracy. The philosopher Elizabeth Anderson argues that when political ideals diverge so widely from reality, the ideals themselves may prevent us from seeing the gap. Officially, the laws in the United States that govern when citizens can be sent to prison or questioned by the police are colorblind. But when the official story differs greatly from the reality of practice, the official story becomes a kind of mask that prevents us from perceiving it. And it seems clear that the practical reality of the criminal justice system in the United States is far from colorblind. The evidence suggests that the criminal justice system applies in a radically unbalanced way, placing disproportionate attention on our fellow black citizens. The United States has a legacy of enslavement followed by forced servitude of its black population. The threat that the political ideals of our country veil an underlying reality of racial democracy is therefore particularly disturbing.

II.

Starting in the 1970s, the United States has witnessed a drastic increase in the rate of black imprisonment, both absolutely and relative to whites. Just from 1980 to 2006, the black rate of incarceration (jail and prison) increased four times as much as the increase in the white rate. The increase in black prison admissions from 1960 to 1997 is 517 percent. In 1968, 15 percent of black adult males had been convicted of a felony and 7 percent had been to prison; by 2004, the numbers had risen to 33 percent and 17 percent, respectively.

About 9 percent of the world’s prison population is black American (combining these two studies). If the system of justice in the United States were fair, and if the 38 million black Americans were as prone to crime as the average ethnic group in the world (where an ethnic group is, for example, the 61 million Italians, or the 45 million Hindu Gujarati), you would expect that black Americans would also be about 9 percent of the 2013 estimated world population of 7.135 billion people. There would then be well over 600 million black Americans in the world. If you think that black Americans are like anybody else, then the nation of black America should be the third largest nation on earth, twice as large as the United States. You can of course still think, in the face of these facts, that the United States prison laws are fairly applied and colorblind. But if you do, you almost certainly must accept that black Americans are among the most dangerous groups in the multithousand year history of human civilization.

‘The best way to judge a culture,’ John Dewey said, ‘is to see what kind of people are in the jails.’

The Columbia professor Herbert Schneider told the following story about John Dewey. One day, in an ethics course, Dewey was trying to develop a theme about the criteria by which you should judge a culture. After having some trouble saying what he was trying to say, he stopped, looked out the window, paused for a long time and then said, “What I mean to say is that the best way to judge a culture is to see what kind of people are in the jails.” Suppose you were a citizen of another country, looking from the outside at the composition of the United States prison population. Would you think that the formerly enslaved population of the United States was one of the most dangerous groups in history? Or would you rather suspect that tendrils of past mind-sets still remain?

Our view is that the system that has emerged in the United States over the past few decades is a racial democracy. It is widely thought that the civil rights movement in the 1960s at last realized the remarkable political ideals of the United States Constitution. If political ideals have the tendency to mask the reality of their violation, it will be especially difficult for our fellow American citizens to acknowledge that we are correct. More argument is required, which we supply in making the case for the following two claims.

First, encountering the police or the courts causes people to lose their status as participants in the political process, either officially, by incarceration and its consequences, or unofficially, via the strong correlation that exists between such encounters and withdrawal from political life. Secondly, blacks are unfairly and disproportionately the targets of the police and the courts. We briefly summarize part of the case for these claims here; they are substantiated at length elsewhere.

In the United States, 5.85 million people cannot vote because they are in prison or jail, currently under supervision (probation, for example), or live in one of the two states, Virginia and Kentucky, with lifetime bans on voting for those with felony convictions (nonviolent first time drug offenders are no longer disenfranchised for life in the former). Yet the effects also extend to the large and growing ranks of the nation’s citizens who experience involuntary contact with police regardless of whether their right to vote is formally eliminated.

As one of us has helped document in a forthcoming book, punishment and surveillance by itself causes people to withdraw from political participation — acts of engagement like voting or political activism. In fact, the effect on political participation of having been in jail or prison dwarfs other known factors affecting political participation, such as the impact of having a college-educated parent, being in the military or being in poverty.

In a large survey of mostly marginal men in American cities, the probability of voting declined by 8 percent for those who had been stopped and questioned by the police; by 16 percent for those who had experienced arrest; by 18 percent for those with a conviction; by 22 percent for those serving time in jail or prison; and, if this prison sentence was a year or more in duration, the probability of voting declined by an overwhelming 26 percent, even after accounting for race, socioeconomic position, self-reported engagement in criminal behavior and other factors. Citizens who have been subject to prison, jail or merely police surveillance not only withdrew but actively avoided dealings with government, preferring instead to “stay below the radar.” As subjects, they learned that government was something to be avoided, not participated in. Fearful avoidance is not the mark of a democratic citizen.

“Man is by nature a political animal,” declares Aristotle in the first book of his “Politics.” “Nature, as we often say, makes nothing in vain, and man is the only animal whom she has endowed with the gift of speech … the power of speech is intended to set forth the expedient and the inexpedient, and therefore likewise the just and the unjust.” Aristotle here means that humans fully realize their nature in political participation, in the form of discussions and decision making with their fellow citizens about the affairs of state. To be barred from political participation is, for Aristotle, the most grievous possible affront to human dignity.

Related More From The Stone Read previous contributions to this series.

In the United States, blacks are by far the most likely to experience punishment and surveillance and thus are most likely to be prevented from realizing human dignity. One in 9 young black American men experienced the historic 2008 election from their prison and jail cells; 13 percent of black adult men could not cast a vote in the election because of a felony conviction. And among blacks lacking a high school degree, only one-fifth voted in that election because of incarceration, according to research conducted by Becky Pettit, a professor of sociology at the University of Washington. We do not know how many others did not get involved because they were trying to keep a low profile where matters of government are concerned.

If the American criminal justice system were colorblind, we would expect a tight link between committing crime and encountering the police. Yet most people stopped by police are not arrested, and most of those who are arrested are not found guilty; of those who are convicted, felons are the smallest group; and of those, many are nonserious offenders. Thus a large proportion of those who involuntarily encounter criminal justice — indeed, the majority of this group — have never been found guilty of a serious crime (or any crime) in a court of law. An involuntary encounter with the police by itself leads to withdrawal from political participation. If one group has an unjustifiably large rate of involuntary encounters, that group can be fairly regarded as being targeted for removal from the political process.

Evidence suggests that minorities experience contact with the police at rates that far outstrip their share of crime. One study found that the probability that a black male 18 or 19 years of age will be stopped by police in New York City at least once during 2006 is 92 percent. The probability for a Latino male of the same age group is 50 percent. For a young white man, it is 20 percent. In 90 percent of the stops of young minorities in 2011, there wasn’t evidence of wrongdoing, and no arrest or citation occurred. In over half of the stops of minorities, the reason given for the stop was that the person made “furtive movements.” In 60 percent of the stops, an additional reason listed for the stop was that the person was in a “high crime area.”

Blacks are not necessarily having these encounters at greater rates than their white counterparts because they are more criminal. National surveys show that, with the exception of crack cocaine, blacks consistently report using drugs at lower levels than whites. Some studies also suggest that blacks are engaged in drug trafficking at lower levels. Yet once we account for their share of the population, blacks are 10 times as likely to spend time in prison for offenses related to drugs.

Fairness would also lead to the expectation that once arrested, blacks would be equally likely to be convicted and sentenced as whites. But again, the evidence shows that black incarceration is out of step with black offending. Most of the large racial differences in sentencing for drugs and assault remain unexplained even once we take into account the black arrest rates for those crimes.

The founding political ideals of our country are, as ideals, some of the most admirable in history. They set a high moral standard, one that in the past we have failed even to approximate. We must not let their majestic glow blind us to the possibility that now is not so different from then. The gap between American ideals and American reality may remain just as cavernous as our nation’s troubled history suggests.



Jason Stanley, a professor of philosophy at Yale University, is the author of “Knowledge and Practical Interests,” “Language in Context” and “Know How.” He is working on a book on the threat propaganda poses to democracy.

Vesla Weaver, an assistant professor of political science and African-American studies at Yale University, is a co-author of “Creating a New Racial Order: How Immigration, Multiracialism, Genomics, and the Young Can Remake Race in America” and a co-author of the forthcoming book “Arresting Citizenship: The Democratic Consequences of American Crime Control.”