Ordered Liberty

In Reports on Parole and Prison Discipline, the Gray Lady Does Disparate Impact

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Despite investing weeks of time in the production of lengthy reports decrying racism in the state of New York’s prison administration and parole system, the New York Times is unable to demonstrate that racism was the reason for the result in any specific case.

You needn’t take my word for it. As the Times’ own investigative team puts it:

[I]t is not possible to know whether race is a factor in any particular parole decision.

That’s after scrutinizing thousands of them. Nevertheless, in agitprop that barely pretends to be straight news reporting, the Gray Lady flatly accuses the state of systematically using race as the factor that determines which prisoners are detained and which are sprung from confinement.

The endemic racism is apparently a secret even to the racists themselves. Drawing on vignettes that are comical in their revelations of incompetence and disinterest on the part of parole commissioners, the Times suggests that the commissioners barely know the race, or much else, about the inmates whose cases they decide. But why let that spoil a good narrative?

In this instance, the narrative is built on the social justice warrior’s favorite artifice: the “disparate impact” theory of discrimination. The idea, of course, is that even though it cannot be proved that racism occurred in any particular case, we can infer that race — and only race — is the dispositive factor if the aggregated outcomes are worse for one race than another. In the disparate impact scheme, two rules are observed at all times: (1) ignore the fact that racial discrimination is an abomination precisely because it is a conscious act, an operation of the mind that does not happen inadvertently; and (2) take as a given that our society is pervasively racist, such that it is irrelevant whether any single one of us harbors racial animus – especially those of us whose allegedly racist decision-making is being analyzed.

Since those are the operating assumptions, is it any wonder that the reader must wade through a full 23 paragraphs before finding the most salient bit of information in the Times’s parole story:

The Times did not have access to the full range of information the [parole] board took into account. This includes inmates’ time in county jail, full arrest histories, complete prison disciplinary records and whether required prison programs were completed.

That’s right. Common sense would suggest that, to find the explanation for any disparities in parole determinations involving felons whose offenses appear similar, one should look first at the factors well known to influence parole decisions heavily: Is one guy’s rap sheet worse than the other’s? Has one guy behaved himself better while in custody and thus shown himself less likely to recidivate if released? But the Times, we learn (after 23 paragraphs), does not have this rudimentary information.

For most people, lack of access to the essential data would be cause to refrain from writing or publishing a high-profile news report — after all, any conclusion would necessarily be unreliable. For social justice warriors and their paper of record, though, it’s an opportunity to scream, “Racism!” Who could pass that up?

Similarly, 19 paragraphs into its story about endemic racism in the imposition of prison discipline, we’re told that the Times did not have access to the full disciplinary histories of state prisoners. Corrections officials pointed out that an inmate’s disciplinary history is – quite obviously – among the most critical factors in disciplinary determinations. And as the Times must know, disciplinary histories are not public information for such patently sensible reasons as avoiding prejudice to the inmate and preserving the confidentiality of informants. Thus, the state refused to make the disciplinary records of tens of thousands of prisoners available to the Times.

So did the paper say, “We can’t accuse people of something as heinous as racism without scrutinizing the relevant data”? Of course not. It published its explosive allegation and faulted the corrections department for “provid[ing] no data to contradict The Times’s findings of a systemwide imbalance in discipline.”

Even when given relevant data points, moreover, the Times dismissed them. The paper, for example, pointed out that black inmates were four times more likely to be sent to isolation than white prisoners at Clinton prison — a correctional facility on the Canadian border which is said to employ just one African-American among its 998 guards. The corrections department countered that black inmates, at disproportionately high levels, were young and had committed violent crimes, factors that correlate to higher levels of prison-rule infractions. The Times insists, nonetheless, that “even after accounting for these elements, the disparities in discipline persisted.” How did it “account for these elements”? How could it have without studying the inmates’ full criminal histories? Who knows?

It is worth pointing out that the disparities the paper says it found are not as stark as its accusation of racism intimates. The paper relates that “blacks make up only 14 percent of the state’s population but almost half of its prisoners”; yet, the paper does not mention – apparently, one must never mention – that this is explained by offense behavior, the incidence of which is much higher in the black community (an incontestable, if unutterable, fact that is easily knowable because African Americans are also disproportionately the victims of black crime).

The Times also found that, in first-time parole hearings, “one in four white inmates were released but fewer than one in six black inmates were.” To repeat, the Times did not have the criminal-history data that is often the dispositive factor in parole determinations; but putting that aside, one would expect the difference in these percentages to be much wider if racism were truly the explanation for disparities. Is it really believable that, in purportedly going out of their way to favor white inmates, parole commissioners are denying parole to 75 percent of them?

Two final points.

First, there is an easy way to end the supposedly ingrained racism in parole determinations: just get rid of parole. That is what the federal government did in its “truth in sentencing” reforms in the 1980s. For sentences imposed after November 1987, other than slight reductions for “good conduct time” (a statutory formula of 54 days per each year of a sentence, under Section 3624 of the penal code), the sentence imposed by the judge is the sentence served by the inmate – i.e., no discretion to curtail it, and therefore no opportunity to engage in racial discrimination.

Second, whenever we hear the narrative about racism in the justice system – a staple of New York Times reporting and the premise of Washington’s latest infatuation with sentencing “reform” – it is worth reminding ourselves that the justice system is the province of the legal profession. Quite apart from the fact that New York is one of the bluest states in the country, the legal profession is second only to academe in its “progressive” political orientation, with all the obsession about race that this implies. Thus, the antennae of judges and lawyers who run the justice system are finely tuned to detect any hint of racism, no matter how flimsy. It should be the proud boast of these practitioners that they would not tolerate a racist incarceration framework any more than they would permit race to influence the outcome of cases. It is laughable to suggest that they would stand for a system that is pervasively racist.

That is the problem with bogus “disparate impact” analysis. Racism is a conscious, willful act of invidious discrimination. In the absence of such acts, racism cannot be established by a statistical analysis of outcomes – unless you believe I should beat LeBron James one-on-one about half the time.