On “Privilege” in Prison Sentencing: A Crash at the Intersection

Throughout this series, I’ve shown interest in taking popular claims of “institutional” racism against blacks, and exploring evidence which reveals that contrary to common impressions, little to no racism is involved in the institution in question at all. In Are African–Americans Disproportionately Victimized By Police?, I provided an original analysis by asking exactly how many violent crimes white and black suspects have to commit before one white or black suspect interacting with police is shot—and there I found that, per crime and therefore per encounter with police, whites are in fact almost two times more likely to be shot by police than blacks. It turns out that black suspects only appear to be more likely to be shot by police because they are more likely to interact with police to begin with because they commit more violent crimes. Control for that, and the policing bias against blacks not only disappears; it actually does in fact reverse and count against whites. (And I’d like to note that even if you already knew that blacks commit more crimes than whites, it wasn’t a pre–given that these numbers would be sufficient to produce such a reversal—it could have been the case that part of the gap in police shootings was explained by interaction rates, and part by racist bias. But in fact, there is absolutely nothing left over for racist bias to account for once those numbers are ran; and both the raw numbers corrected for violent crime rates and the best experimental study data in fact reveal a bias against whites–or, in other words, in favor of blacks.)

Similarly, in Violence Against Women and Violence Against Truth, I exposed the absurdity of a mainstream feminist publication which claimed that the fact that rates of assault and murder have fallen relatively more for men than they have for women over the past few decades is evidence that “deep structural gender inequities … marginalize women” without making any acknowledgment of the fact that across recent history 3 out of 4 victims of violent crime have been men to begin with. If anyone is being “marginalized” here, it is men: even after these disproportionate reductions in victimization by violent crime of men and women which Ms. Magazine bemoans as women failing to have “anywhere near parity rights to physical freedom and security”, in 2013, for every 2198 men victimized by violent crime, there were only 2097 women. The fact that even mainstream feminist publications can get away with a claim like this shows just how dangerously distorted so–called “feminist” reasoning can be—and how little other self–proclaimed feminists are doing to correct this kind of reasoning when it appears within their midst.

So, I might have created the impression that my aim throughout these posts is simply to debunk all claims of racism or sexism whatsoever. In this post, I’d like to address an issue that gives me the opportunity to demonstrate that this is not the case—but continue demonstrating the solidity of my actual thesis: prison sentencing length.

The worldview of the left–wing social justice warrior could well be summarized by a speech given by the novelist John Scalzi in which he claimed that if life were a role–playing game, “white male” would quite simply be the easiest difficulty setting, whereas “minority female” would be equivalent to setting the difficulty to “hardcore.” According to this scheme, one person can still have more success on the higher difficulties than another person has on a lower one, but there is a linear and one–dimensional increase in penalty regardless of one’s individual skills and talents as one moves away from “white” and “male.”

The model I’d like to propose, in contrast to this, is that setting one’s race and gender in life is less like choosing a difficulty setting in a video game than it is like choosing a class: Mage, Archer, or Warrior?

Each character type will have different advantages and disadvantages against other character types in different contexts—and especially because each class is born in a different kind of environment in the first place, these differences can’t really be measured in a way that allows them to be ranked against each other on any single–dimensional scale. In one environment with high elevation weakening the strength of the mage’s connection to the earth and thus his power but with steep mountains making travel more difficult yet allowing the archer to perch himself atop a steep hill, the warrior may win against the mage and lose to the archer. But in another environment with level plains and a low elevation, the warrior may win against the archer who can’t find high ground on the plains, but lose to the mage whose connection to the earth is at its peak.

Which class is “better”? There really is no objective way to say.

Looking at things this way need not require us to dismiss all claims of discrimination against women and minorities—but it also allows us to reject the ridiculous view that white males are simply sitting snidely together atop a superficially measured social pyramid of unjust privilege. The question is then not whether there are ever any penalties for being non–white or female in any contexts or circumstances, but rather how they compare in scale to the penalties which can also exist for being white or male in others—and my claim is that once we perform this kind of analysis more rigorously than mainstream sociology traditionally has, these advantages and penalties are roughly similar: in other words, no one comes out as the obvious winner of the “Oppression Olympics”.

We have already seen that the popular view that whites have a profound advantage over blacks when facing police, in fact, has it exactly backwards: once the fact that black suspects simply do in fact commit more violent crime is taken into account, it turns out that any given black suspect facing police has an advantage over any given white—the white suspect is actually almost twice as likely to end up shot. Similarly, in part 3 of the “Is Dylann Roof ‘White Like Me?’” series I discussed the fact that not only are men more likely to be raped in prison than women are, but white men are much more likely to be raped than non–whites—and almost always by black men, according to mainstream sociological research stretching back for decades. Like it or not, these are “institutional” forms of suffering which give people facing police or spending time in prison penalties both for being white and/or male.

But the analogy of choosing a class in a role–playing game also allows me to clarify how my view differs from that of many conservatives, and of so–called mens’ rights activists, who share my interest in this same set of facts: in sum, these perspectives often simply invert John Scalzi’s argument, without rejecting its fundamentals. According to their schemes, being white or male work just the same way that being non–white or female do in the left–wing social justice warrior’s scheme: they give one disadvantages, plain and simple. My class analogy should make it clear that I consider this view misguided and wrong for exactly the same reasons that I consider the left–wing view misguided and wrong: no demographic is an unequivocal victim in modern society; the advantages and penalties faced in each case are simply different. So, this post will start with me granting the existence of a case of “institutional” racism.

This brings me back to the matter of sentencing lengths. Once the cops have already shown up, and once we’ve already arrived at a conviction, how long are the sentences that different people tend to receive for similar crimes? Is there a penalty (or privilege) for the convicted criminal based on his (or her) race?

From the looks of it, there is. A 2013 study conducted by the U.S. Sentencing Commission found that blacks’ sentences were about 15%  longer than whites’. Much of the early research which found much higher disparities than this failed to take account of the fact that black defendants, on average, have longer rap sheets—which clearly factors in to judicial decisions. A 2012 study conducted by Sonja Starr which controlled meticulously for previous record found a gap of about 10%, to the disadvantage of blacks. Another 2013 study conducted by Beaver, et al. found “no evidence of racial discrimination in criminal justice processing” once matching defendants for self–reported lifetime violence and IQ—so perhaps what often happens is that defendants of lower intelligence behave differently in the courtroom, and judges pass sentences in response to these behavioral differences, not race itself.

But what often happens needn’t be what always happens, and it would be hasty to dismiss the entire literature on the sentencing gap out of hand without a deeper investigation. In a review of the evidence compiled for the time between 1980 and 2000, Tushar Kansal of The Sentencing Project writes that “32 state-level studies contained 95 estimates—meaning 95 different ways in which these studies sought to determine whether sentencing decisions were biased—of the direct effect of race on sentence severity[…, and] 43.2% [of these] indicated harsher sentences for blacks… 8 studies of the federal system contained 22 estimates of the direct relationship between race and sentence severity[…, and] over two-thirds (68.2%) [of these] indicated harsher sentences for blacks ….” In other words, for every ~9 state or federal studies which fail to find a racial disparity against blacks, there are 11 studies which do. The most plausible explanation is that rather than it being a coincidence that 55% of all studies find a racial disparity against blacks, with 45% mostly finding null results, there is a racial disparity—in some but not all times and places. Kansal concludes with an admission that “Despite the findings of the cited studies in the area of direct racial discrimination, a number of factors indicate that the presence of direct discrimination is not uniform and extensive. Some of the state-level studies found no evidence of direct racial discrimination, and many of those that did find evidence of direct discrimination concluded that it exercised relatively modest effects, increasing the likelihood of a minority being sentenced to prison by only a few percentage points. ”

For obtaining an estimate of how large the typical racial sentencing gap is, then, Sonja Starr’s 2013 finding of a 10% gap between blacks and whites represents the middle ground—less than the U.S. Sentencing Commission’s 15%; but more than the few percentage point, null, or reverse (that is, favoring blacks and disfavoring whites—of which there were 6) findings reported by 44.3% of the Sentencing Project review’s collection of studies.

Now, what happens when we ask the same question about gender?

Intersectional theory” is the term for the attempt within sociology to account for the fact that race and gender contribute interacting effects to one’s social disadvantages, rather than investigating each factor in isolation. The consensus is, of course, that being non–white and being non–male are always interacting disadvantages—so that in reality, as one Tumblr author who describes herself as a “genderfluid femme Black mixed bitch” writes, what intersectionality was really always about is “exposing the ways Black women are caught up in multiple systems of oppression … it is meant to help Black women understand their experiences in a white supremacist patriarchal culture [e.g., which is set up to privilege whites and men and therefore especially white men and punish non–whites and non–males and therefore especially minority women] like the U.S.”

The real findings, however, take the intersectional logic and turn that expectation flat on its head.

From 2001–2006, three studies ([1], [2], [3]) all found a gender sentencing gap of about 10%.

But guess who that gap favored?

Women.

Already, the gender sentencing gap favoring women is at least as large as the racial sentencing gap—and therefore just as important.  The second of these studies, published by Max Schanzenbach, notes something interesting: “The findings regarding gender in the case of serious offenses are quite striking: the greater the proportion of female judges in a district, the lower the gender disparity for that district … These results are hard to square with the suggestion that unobserved accomplice status or blameworthiness is behind the gender disparity. [However,] appointing more black judges to the bench is unlikely to reduce sentencing disparities for black offenders who commit serious crimes.” In other words, the three takeaways here are: (1) the theory that men organize society to create distinctly male privileges appears in the case of prison sentencing to be absolute bullshit, because when men are given power to hand out sentences, they privilege women, not men; (2) it is unlikely that this sentencing gap is a result of other unobserved variables differentiating the crimes committed by women and men, because male judges give female offenders privileges in sentencing that female judges don’t; and (3) this does not appear to be the case for black/white judges handing out sentences to black/white offenders—black and white judges do not appear to sentence black or white defendants very differently, which at least suggests that most black and white judges are usually responding to the severity of crimes committed when they sentence black and white defendants differently.

By these measures, again, the gender gap in sentencing favoring women is exactly as large as the racial gap in sentencing favoring whites. However, in the Booker vs. United States ruling passed down by the Supreme Court in 2005, it was decided that sentencing guidelines requiring that men and women who committed the same crimes and held similar criminal records be given equally long sentences were to be considered recommendations, rather than requirements—and the evidence shows that the gender sentencing gap grew as a result of this decision. A 2007 study by Supriya Sarnikar  found an even larger figure than the aforementioned three: “We find that women receive prison sentences that average a little over 2 years less than those awarded to men. Even after controlling for circumstances such as the severity of the offense and past criminal history, women receive more lenient sentences. Approximately 9.5 months of the female advantage cannot be explained by gender differences in individual circumstances. In other words if women faced the same sentencing structure as men, women would on average receive 15.4 months less prison time than men rather than 24.9 months less prison time.”

But importantly, Sarnikar makes this note in her conclusion: “[O]ur data permit us to examine only the end stage of the criminal justice system. A more comprehensive treatment would take account of the fact that before arriving at the judge for sentencing, a defendant must also pass through a jury or possible plea bargain with a prosecutor.”

And that brings us back to Sonja Starr.

In 2012, Starr decided to present an analysis of the gender sentencing gap which accounted for decisions made in the earlier stages of the criminal justice system, just as she had done recently to arrive at her 10% figure for the racial sentencing gap. Her study incorporated data collected from the U.S. Marshals’ Service (USMS), the Executive Office of U.S. Attorneys (EOUSA), the Administrative Office of the U.S. Courts (AOUSC), and the U.S. Sentencing Commission (USSC) spanning from 2001–2009 (containing periods both before and after the equal sentencing for equal crime guidelines were ruled recommended rather than mandatory) and controlled extensively for the severity of crimes committed and the previous criminal records of offenders.

The result? On average, men receive a sentence that is 60% longer than the one a woman would receive for the same crime—and Starr notes that even this number is, in fact, an underestimate, because the average male prison sentence is driven downwards by the presence of men receiving relatively short sentences in cases where women would receive no sentence at all. But already, this is six times as large as the  racial sentencing gap of 10% which Sonja Starr had recently found by applying exactly the same methodology to race.

To be specific, the gender gap varies by race: among white offenders, men receive sentences 51% longer than womens’; among black offenders, men receive sentences 74% longer than womens’. But whereas this drags black mens’ sentences down compared to white mens’, it also pulls black womens’ back up—with the end result that black women have the largest advantage in prison sentencing length of all! So much for intersectionality as a method for “exposing the ways Black women are caught up in multiple systems of oppression … in a white supremacist patriarchal culture.” How long before we hear social justice warriors asking black women to check their prison sentencing privilege?

To help visualize this, I’ve created a very oversimplified chart to represent the rough amount of “privilege” each group receives in prison sentencing by starting everyone at 500 points, creating a racial gap of 50 points (10% of 500; so add 25 points if white, and substract 25 points if black), a white gender gap of 255 points (51% of 500; so add 127 points if white female, and subtract 127 points if white male), and a black gender gap of 370 points (74% of 500; so add 185 points if black female, and subtract 185 points if black male). Black men get 290 points; white men get 398; white women get 652; and black women get 660. To translate that into years, if four people all committed identical crimes, then a black man would spend 7 years and 7 months in jail, a white man would spend 6 years and 8 months in jail, a white woman would spend 4 years and 7 months in jail, and a black woman would spend 4 years and 6 months in jail. Lest you think I’ve calculated this incorrectly and arrived at the finding that black women receive the most “privilege” in sentencing by mistake, note that on p.16 of her study (under section 3.6. Race-Gender Interactions), Sonja Starr notes that “among women, the race gap [is] reversed in sign.”

ChartGo (2)

What this means, even given the fact that the gender gap is larger amongst black offenders than it is amongst whites, is that black men in the criminal justice system share more in  oppression with white men on account of being male than they share in oppression with black women thanks to their race—and white men share more in oppression with black men on account of being male than they share in privilege with white women thanks to their race. If we want to improve the situation of black men in prison, then we should want to make their sentences more like black womens’ rather than more like white mens’.

To describe the implications still yet a few other ways, white men and white women are not united in shared privileges—white women and black women are; whereas it is white men and black men who, relatively speaking, are united in shared “oppression”. Rather than finding white men sitting atop the social pyramid, we find black women there instead. And even for black men, clearly the most disadvantaged group of all, addressing the sentencing length penalty for being male should be a much higher priority—about six times higher—than addressing the sentencing length penalty for being black. So in this case, whose efforts do black men need most? Supposedly anti–racist “intersectional” feminists would have it that the racial disparity should be everyone’s priority—but if mens’ rights activists were to instead successfully eliminate the gender sentencing gap first, this would benefit actual living and breathing black men much more than eliminating the racial sentencing gap.

Even where so–called “intersectional feminists” have something right (that the effects of race, gender, and other variables interact), they’ve still failed to bring us the whole picture. While nominally professing concern for the fact that “the patriarchy hurts men too”, it seems as though they would often rather fight wage gaps that don’t exist (except as the result of voluntary career choices and preferences) and narcissistically find ways to make men becoming somewhat less of a majority of the victims of violence a womens’ problem than work to bring to the public’s attention that the relatively little–known gender gap disfavoring men in prison sentencing is six times larger than the well known racial gap disfavoring blacks.

Perhaps that’s because that evidence so drastically undermines the “white male is the easiest difficulty setting; black female is ‘hardcore’” model of American social life by, at least in this instance, turning it all the way around on its head. So, not only are individual white men who commit a crime more likely to be shot by police than individual black men who commit a crime—and not only are white men in jail more likely to be raped (most likely by black men)—but even at the level of sentencing, white men are almost as disadvantaged in sentencing compared to both black and white women as black men are. And even here where black men are the most disadvantaged of all, and that is an “institutional” problem that should be addressed, they would still be more helped by an effort to reduce the gender penalty which also hits white men than they would by an effort to reduce the racial penalty, which only trivially hits black women (who are still despite that penalty by far the most privileged anyway).

One conclusion discoveries like these has brought me to is that it should now be perfectly reasonable to have college classes, think tanks, or student groups dedicated to examining the problems faced by whites, or men—and I stand by that even though I think much that is, or would be, produced by such groups is bunk. Why? First, because a great deal of what is produced by womens’ studies and minority studies is already bunk—but at least a variety of different focus groups could criticize each other well enough to exercise checks and balances against each others’ ideological excesses and help bring awareness of flawed arguments made by the other side to our attention.

But second, because just as there are valid issues faced by women and minorities even amidst the trash often produced by “feminist” and “anti–racist” groups and publications, so there are valid issues faced by men and whites amidst all the trash that “mens’ rights” or white–focused groups would inevitably also produce. Men (or whites) are not “the” oppressed segment of society without exception today any more than women (or non–whites) are. But the types of “oppression” faced by each of these groups are not massively different in kind—and were it not for the fact that feminist and anti–racist organizations alone are allowed to dominate the narrative airways and spread perspectives which are often flawed in ways that few will take the time to deeply examine and of which few people will ever even hear well–informed critiques, the suggestion that groups with opposing perspectives have a valid place would not sound so absurd. The reason we don’t know or hear about the facts which might go some way to validate their existence is because they aren’t here to give them to us. “Intersectional” anti–racist feminists can’t be trusted to do it sufficiently; and that goes for black men, too, whose need for the kind of analysis of the gender sentencing gap that feminists aren’t doing here is even more grave than white mens’ need for it is.

 

 

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