California Prison Inmates
General population inmates walk in a line at San Quentin State Prison in San Quentin, California, on August 16, 2016. (AP Photo/Eric Risberg)

When it comes to critical race theory, strong opinions abound. Proponents declare that it’s “the only way we hold the devil at bay,” while the conservative Heritage Foundation insists that its embrace would “destroy our military.” 

Recently, the amorphous concept has stirred growing debate not just in the world of education policy but also in the national conversation over criminal justice reform. For example, CRT has been associated with the movement to abolish prisons that, taken literally, lacks any international analog even among oft-cited Scandinavian countries that still incarcerate to a low degree. Regardless of one’s position on CRT, we must acknowledge the influence of racism on our justice system while also recognizing our progress on narrowing racial disparities. Above all, we must not allow controversy over CRT to throw us off the bipartisan path toward better safety and justice for all. 

The sudden firestorm over critical race theory has been jarring, since it was obscure until a year ago, when critics held a megaphone that connected the faculty lounges of academia to the front lines of the culture wars. The uproar stems, in part, from concerns that CRT might be used to justify reparations and other policies that would require expanding government and redistributing wealth. Yet in criminal justice, a major reason the right and the left have united on many reforms is that changes such as reining in drug sentencing laws, ending civil asset forfeiture, and expanding compassionate release involve shrinking the size and cost of government. Unlike redistributing resources, enacting these policies is not a zero-sum game in which some gain while others lose by an equal amount. 

In addition, whether one is drawn to CRT or, at the other end of the spectrum, a narrative of “American Greatness,” it is a false choice to simply criticize or romanticize our nation’s history and justice system. An informed patriotism recognizes the trailblazing role of our Constitution in elevating rights such as freedom from invasive searches and seizures, but also rejects the textbook portrayal of our system, which so often conflicts with reality. For example, just as we have fallen far short of fulfilling the promise of the Declaration of Independence credo that “all men are created equal,” the right to counsel is often abridged and jury trials have been replaced by a system of plea bargains with a trial penalty that incentivizes even the innocent to plead guilty. 

Some perceive CRT as positing America as irredeemable and unable to overcome its undeniably abominable history of slavery and segregation, as well as other manifestations of white supremacy such as the subjugation of Native Americans. But irrespective of whether this is, in fact, a tenet of CRT, the recent trajectory of criminal justice reforms suggests a much more hopeful view. From 2009 to 2019, the U.S. incarceration rate for Blacks fell by 29 percent, compared to a dip of 12 percent for whites. One case in point: Georgia’s 2012 comprehensive criminal justice reforms, which included the easing of penalties for drug possession, contributed to a reduction of Black prison admissions by 30 percent, compared with an overall decline of 19 percent. 

Even before CRT became the new front in the culture wars, most Americans acknowledged that pronounced racial disparities remain in virtually every part of the criminal justice system, though many have substantially narrowed. The Washington Post journalist Radley Balko documented an extensive, though not exclusive, list of stark racial disparities in the system based on years of empirical research that encompassed everything from police contacts to sentencing. 

Nonetheless, a December 2019 Council on Criminal Justice analysis found that while Black Americans were incarcerated for drug offenses at a rate 15 times that of white Americans in 2000, the ratio had dropped to five times by 2016, the most recent year for which data was available at the time. Similarly, a July 2021 Sentencing Project report found that racial disparities in youth detention, while still pronounced, are falling, with Black youth placements having declined from 2015 to 2019 at a 54 percent clip, compared with a 36 percent drop for whites. 

Of course, not all racial disparities are created equally. Data indicating that Black people and whites use and sell drugs at similar rates suggests that discrepancies in arrests for drug possession arise in part from enforcement practices. Many drug arrests do not stem from police calls. Instead, they often reflect which cars happen to be pulled over or which people are frisked in a world where wealthier, and more often white, individuals can more easily obtain drugs discreetly rather than on a street corner. 

In contrast, officers are typically called to the scene to respond to violent incidents, which are perpetrated at higher rates by young Black males than other demographic groups; in these circumstances, disparities in enforcement can arise from discretionary decisions about how to handle a minor altercation or whether to add a resisting arrest charge. Racial disparities extend to victims as well, as young men of color are much more likely to be victims of crime and these crimes are less likely to be solved. 

While it is impossible to understand, let alone confront, inequities in the justice system without focusing on race, it is far from the only factor driving disparate outcomes. Others include povertydisability, and language barriers, to name just a few. Poor Americans, who are disproportionately people of color, are less likely to be able to afford an attorney, pay money bail, and even place a paid phone call to loved ones while incarcerated. And given that those in their late teens and 20s are overrepresented among defendants, it is notable that while the median net worth of all young people is much lower than that of older Americans, it is virtually zero among young Black individuals, leaving the possibility of posting bail or hiring an attorney out of reach for many. 

Indeed, the interaction of race with other identities is central to understanding not just our trajectory as a nation but also the crucible of the criminal justice system. Some scholars who write on critical race theory focus on intersectionality, and while this concept has implications for criminal justice policy, they are nuanced and not always predictable. For example, Eric Adams, the newly elected mayor of New York City, powerfully described being profiled by police as a young Black man, an experience that recurred even after he became a cop himself. Research indicates that Black boys are perceived both in society and in the policing context as older than their actual age, suggesting that Black males are more likely to be seen as threatening. 

Just as being both Black and male, and especially young, often generates illegitimate suspicion, academic thinkers such as Kimberlé Crenshaw have addressed intersecting identities in the context of workplace discrimination. One example she documents: Being both Black and female exacerbates the risk of unfair treatment. But intersectionality is not a one-way street, as evidence also suggests that sources of commonality can mitigate the risk of racial difference leading to tension or abuse of authority.

study of military academy students, for example, found that whites who were randomly assigned to room with Black students developed more positive attitudes about race, indicating benefits of exposure to other racial groups in the context of a positive, shared bond of service. In short, the common bond of military service provided a validating basis for peers to interact as equals, a dynamic that helped erode racial stigma. 

Notably, this bond was ostensibly forged by undertaking activities together in pursuit of shared goals, rather than by talking about the problem, as laudable as that may be. This truth points to the value of community engagement in policing. As many cities contend with strained relations between minority communities and police forces that may be mostly white, research has found that biases are reduced when officers have significant interactions with community members that are intentionally not for enforcement purposes. Sustained community engagement, as contrasted with a reactive model focused on responding to calls, enables white officers to interact with more people of other races outside the context of crime, and work with them to co-produce public safety. 

Also, just as we must accept the existence of biases while rejecting a deterministic view that they cannot be mitigated, it is essential to distinguish between equity and equality. This also does not require novel legal theories, as equity is properly understood as being a concept independent of whatever constitutes critical race theory. For example, a system that imposes the same bail amount on everyone arrested for the same offense regardless of their ability to pay is an equal system but not an equitable one. Likewise, court proceedings that are only conducted orally are equal for those who can hear and those who are deaf, but they are clearly not equitable for the latter group. 

As we work toward not just equality but also equity, both in the justice system and society, this does not entail an exclusive focus on race. CRT has been characterized, or some say caricatured, as focusing only on race to the exclusion of all other tools for understanding and explaining the world. It is unimaginable to think about incarceration without thinking about race, as prisons in states such as Texas and Louisiana literally occupy the same ground as historic plantations, with incarcerated people at the Angola prison in Louisiana harvesting the same fields without pay that some of their ancestors worked as slaves and sharecroppers. We are, quite literally, still coming to terms with the monstrous acts of white supremacy that have animated and stained the history of our justice system. Just three years ago, the bones of some 95 Black bodies believed to be Jim Crow–era forced prison laborers were excavated on land outside of Houston that once contained the Imperial State Prison Farm. 

But while the legacy of racism is a major factor in American incarceration rates that far exceed those of other developed nations, if the U.S. were entirely white it would likely still lock people up at much higher rates than other similar, advanced nations, such as Germany. Although it is nearly five times less than the incarceration rate of Black Americans, the U.S. incarceration rate for whites—450 per 100,000 people—far exceeds the German rate of 76 per 100,000. Only a modest share of that difference can be explained by varying serious crime rates, with Germany having a robbery rate of 44 per 100,000 population compared to 74 in the U.S.

While the impacts of our history of racial oppression and the influence of race on the development of “tough on crime” policies are undeniable, there are other factors in play, such as the Puritanical streak in Anglo-Saxon culture. Indeed, the very word penitentiary reflects the well-intentioned, if naive, view among many early Americans that prisons would serve as a positive place for penance. Over the past several years, U.S. prisons and jails have become whiter, despite the persistence of racial disparities. Incarceration has risen in mostly white, rural areas while declining in urban areas, with rural counties in 2021 jailing twice as many people per capita as urban counties. 

Contemporary legal theories may be the dividing line in our politics, but it is the biblically inspired truism “There but for the grace of God go I” that is central to understanding that any one of us might, in the right or wrong setting, be a perpetrator or victim of crime. In the education arena, the CRT debate has been dominated by a conflation of shared responsibility with collective guilt. The distinction is clearer in criminal justice. This system as part of our republican form of government dispenses justice in each of our names, and thus we all bear responsibility, but not guilt, for its performance. At the same time, the system determines guilt on a case-by-case basis, ideally making individually tailored determinations regarding culpability, sentencing, and restitution. 

As embodied in that truism, it is not theory but empathy that leads to a realization that many people who enter the justice system would not be there if they had grown up in a neighborhood that was free of gangs and offered better opportunities for economic mobility. A recent study found that most young men of color in the Bronx who carried an illegal gun did so to protect themselves, both against gangs and the police. A shocking 88 percent said a friend or family member had been shot, and 81 percent said they had themselves been shot or shot at (although multiple respondents might, of course, share the same friend or family member who was involved). 

Such findings are sobering and remind us that centuries of racial discrimination, including real estate redlining, pervasively affect children’s experience as they grow up, erecting obstacles they must overcome and depriving them of positive opportunities that can decisively influence one’s future. This does not warrant a deterministic approach that views lawbreaking as inevitable or acceptable, but it does demand that each of us realize we might have committed crimes had our circumstances been different. 

Understanding the past, present, and future of criminal justice requires drawing from many disciplines, including law, economics, psychology, and sociology. Even if Americans can’t seem to agree about what elementary students should learn, surely we can have an adult conversation about race in the justice system. The remarkable recent progress in reducing racial disparities is a reality, not a matter of theory, and it proves that this nation’s original sin of racial oppression does not mean that the die is forever cast when it comes to the destiny of our nation and individual people. That said, painful and persistent racial inequities remain, and failing to confront them threatens to obscure the significant work that remains to achieve a justice system that treats everyone equitably and with dignity. 

Acknowledging the role of race is a prerequisite for the system to earn the trust of more Americans and better fulfill its mission of producing public safety and fair outcomes. We know that reforms grounded in both hard data and human empathy are needed to deliver on our national purpose of providing justice for all. And it is this work, not any theory, that is critical. 

Marc A. Levin

Marc A. Levin is chief policy counsel for the Council on Criminal Justice and can be reached at mlevin@counciloncj.org and on Twitter @marcalevin.

Khalil A. Cumberbatch

Khalil A. Cumberbatch is director of strategic partnerships at the council and can be reached at khalil@counciloncj.org and on Twitter @KhaCumberbatch.