Shapiro’s arguments suggest that America has overcome its history of racism through a mere stroke of a pen—completely ignoring the pervasive influence of race throughout American history. His unwavering belief in the good faith of American institutions has led him to downplay or even deny the existence of systemic racism. This is clearly evident in his attempts to refute anti-Black forces in the criminal legal system.
The National Registry of Exonerations has found that African Americans are more likely to be wrongfully convicted for the crime of murder, sexual assault, and drug offenses than white people.[1] The study also found that police perjury and prosecutorial misconduct played a more significant role in wrongful convictions of African Americans than white people who had been wrongfully convicted of a crime. Significantly, the study concluded that “Many of the convictions of African-American murder exonerees were affected by a wide range of types of racial discrimination, from unconscious bias and institutional discrimination to explicit racism.”[2]
Moreover, based on their data, the National Registry of Exonerations found that “Most wrongful convictions are never discovered. We have no direct measure of the number of all convictions of innocent murder defendants, but our best estimate suggests that they outnumber those we know about many times over. Judging from exonerations, half of those innocent murder defendants are African Americans.” In other words, the amount of innocent Black people languishing in prison far surpasses the actual number of those who are actually able to have their convictions overturned.
Shapiro also makes the unfounded assumption that African Americans and white Americans are punished equally for their crimes. Again, the data does not support this assumption. The study “The Relationship between Race, Ethnicity, and Sentencing Outcomes: A Meta-Analysis of Sentencing Research ” by Omarrh Mitchell and Doris MacKenzie analyzes prison sentences given to African Americans.[3] The study took into account “controlling factors” such as criminal history and the severity of the crime. The results showed that, even when African Americans and whites have the same or similar criminal history and are being convicted for the same offenses, African Americans are punished more severely than whites. An additional study from the United States Sentencing Commission found that Black men who commit the same crimes as white men receive federal prison sentences that are, on average, nearly 20 percent longer.[4] The disparities were evident after researchers controlled for several sentencing factors, including age, education, citizenship, and prior criminal history.
Therefore, when data shows that Black people are more likely to be wrongfully convicted of crimes due to prosecutorial misconduct and police perjury, and when the data shows Blacks who have been convicted of crimes are given harsher sentences than whites convicted of the same crimes (controlling for other sentencing factors), the notion that the disproportionate amount of Black people in prison can merely be explained by saying ‘Blacks commit the most crime’ is wholly unsubstantiated and not supported by the data. Said differently, there are Black people in prison who would not currently be in prison had they been born with a different skin color. This proves that the criminal legal system is not race-neutral.
Shapiro’s retort that people in prison have had a plea deal or a trial does not obviate the significant racial bias in that process. Prosecutors are able to use their discretion to decide which charges to file, and they can drop charges, reduce charges that carry a larger prison sentence, and offer deals to defendants. A study titled “Racial Disparities in Plea Bargaining” by Carlos Berdejo accounted for age, prior convictions, and other controlling factors, and the study found that whites who faced felony charges were 25% more likely than Blacks to have their felonies dropped or reduced.[5] Further, the study found that white defendants with no previous convictions receive charge reductions more often than Black defendants with no prior convictions.[6] Notably, the study also found that whites who faced misdemeanor charges were 75% more likely than African Americans to end up with a conviction with no jail time or no conviction at all.[7] Thus, racism in the plea bargaining process contributes directly to the disproportionate amount of African Americans in prison.
Another careless mistake is that Ben Shapiro also uses jail and prison interchangeably. Jail is where people who are arrested and accused of a crime are taken and held prior to any trial and any plea. Only after a trial, if there is a conviction, are such individuals taken to prison. Therefore, it is factually inaccurate to claim every person in jail has had a trial or a plea. The distinction between prison and jail is significant because the same evidence that establishes African Americans are more likely to be wrongfully convicted of crime also establishes African Americans are more likely to be falsely arrested for crimes that they did not commit.
Shapiro also assumes that white people are equally prosecuted for their criminal acts as Black people. The reality is that part of systemic racism is the ability of white people to establish a judicial system and to select and provide resources for the prosecution of crimes that they themselves have defined. When looked at historically, white crimes against Black people have historically gone unprosecuted and considered such a routine matter of life that it simply was not considered a crime.
In 1866, Police in New Orleans and Memphis massacred hundreds of African Americans. An investigation into the massacre found that without Constitutional protection, African Americans would be killed in massive numbers.
In a detailed description of the massacre, one observer noted, “[M]en who were in the hall, terrified by the merciless attacks of the armed police, sought safety by jumping from the windows, . . . and as they jumped were shot by police.”[8] Despite the brutal killing, historian Calvin Schermerhorn writes that, “Maj. Gen. Phillip H. Sheridan called the event ‘an absolute massacre by the police.’”[9] The reason for this is simple: state actors were responsible for participating in these murders.
In Trouble in Mind: Black Southern in the Age of Jim Crow, historian Leon F. Fitwack writes,”[h]ow many [B]lack men and women were beaten, flogged, mutilated, and murdered in the first years of emancipation will never be known.”[10]
The non-prosecution of white murders of Black people has continued through the centuries. The Georgia Civil Rights Cold Cases Project at Emory University, for example, has noted there are countless African Americans who were killed in racially motivated murders.[11] Some of these murders include Black people being killed by police officers due to Black people driving higher quality cars than them. In many cases, the police would work to cover up murders of African Americans by their department and deny African American victims of police brutality medical treatment—thereby leaving them to die. There are countless cold cases involving African American victims of murder. Clifton Walker was an African American man who was driving home from work late at night in Southwest Mississippi in 1961. At the same time, the local White Knights of the Ku Klux Klan signed a 40-page constitution that outlined their agenda to exterminate Black people.[12]
Despite evidence that Clifton Walker was murdered by two members of the Ku Klux Klan, no one would ever be prosecuted for his murder. The Civil Rights Cold Cases Project—an organization that focuses on bringing justice to African American murder victims whose cases went unprosecuted—indicates that the widespread involvement of KKK members in the Southwest Mississippi police force were “obstacles to a full and proper investigation and prosecutions.”[13]
In Crimes without Punishment: White Neighbors Resistance to Black Entry, professor Leonard S. Rubinowitz further documents that, as African Americans began to move into predominately white neighborhoods, they would be met with wanton violence by white Americans.[14] In the forties, whites began a violent campaign to bomb African American households in Chicago. When a Black family moved in a predominately white Atlanta neighborhood, whites responded by attempting to bomb them. Rubinowitz states, “They could do so knowing that they probably would not be pursued or apprehended by the police, or prosecuted, convicted, or punished. [15]
There have been attempts to bring these white killers of Black people to justice but as the United States Justice Department has noted, “the death of key witnesses or the destruction of important evidence prevents prosecutors from proving beyond a reasonable doubt that the defendant is guilty of a civil rights-era homicide.”[16] The fact that these cases of countless African American murder victims became cold is not a coincidence: racism is directly responsible for why these cases went “cold.” The lives of African Americans were deemed worthless, and they could be killed with impunity. The various law enforcement members who were responsible for investigating such murders were themselves active KKK members and those who partook in the murders of Black people. The fact is there are countless white killers who have never been brought to justice for murders they have inflicted, just as there are countless African Americans who have been wrongfully convicted of crimes that they did not commit.
Conservatives seem to not believe that blacks can be the victims of racism. Hence, they do not believe that either law enforcement or the criminal legal system bears any responsibility to punish perpetrators of racist terror or be held accountable for being complicit. The long history of not following up on racist attacks against African Americans, convicting perpetrators of racist attacks against African Americans, punitively sentencing perpetrators of racist attacks against African Americans, or participating in racist attacks against African Americans is not evidence to them that the criminal legal system from police, courts, and penitentiaries is explicitly racist. They continue to change the criteria for racism in order to make it exceedingly impractical to prove.
The People’s Law Office in Chicago, which led the first successful lawsuit against the FBI for its COINTELLPRO program where it was established that the FBI, under J. Edgar Hoover in conjunction with the Chicago Police Department, orchestrated the assassination of Fred Hampton: the Black Panther Party leader.[17] Despite proving this in a civil court of law and earning damages on behalf of Hampton’s estate, it is noteworthy that the government never prosecuted Hoover or any FBI officials.
Thus, the essential fallacy is in concluding that Blacks are overrepresented in prison due to their actual crime rate. The state has historically turned its eye away from prosecuting white murderers and refused to allocate resources toward prosecuting white murders of Black people. It is precisely this reason that we cannot be confident that the amount of people in prison accurately reflects those who commit crimes. The crime data collected by agencies such as the FBI have no integrity. The fundamental premise that Shapiro’s argument rests upon has thus been refuted and proven erroneous.
Here is Shapiro’s true modus operandi: when facts and data on structural racism contradict your feelings and deeply held myths (and romanticization of America), then you distort the data and evidence!
One prominent example of white killers escaping justice is the Tulsa race massacre of 1921, in which white mobs attacked and destroyed the thriving Black community of Greenwood in Tulsa, Oklahoma—resulting in the deaths of hundreds of Black people. Despite the overwhelming evidence of the violence and destruction, no one was ever held accountable for the massacre, and no one was ever prosecuted for the murders and other crimes committed against the Black community.[18]
Similarly, in 1964, three civil rights workers—two white and one Black—were brutally murdered by members of the Ku Klux Klan in Mississippi. While some of the killers were eventually brought to trial and convicted, others went unpunished for decades, with evidence suggesting that law enforcement officials at the time colluded with the Klan and covered up the crimes.[19]
These examples illustrate the ways in which systemic racism has historically protected white criminals and allowed them to escape justice while simultaneously punishing and criminalizing Black people disproportionately. This undermines the validity of crime statistics that simply point to higher rates of crime among Black communities as evidence of inherent criminality or deviance.
The notion that Blacks are more likely to be in prison because they commit more crime cannot be substantiated.
[1] Gross, S. R., Possley, M., Otterbourg, K., Stephens, K., Paredes, J., & O’Brien, B. (2022). Race and Wrongful Convictions in the United States 2022. Social Science Research Network. https://doi.org/10.2139/ssrn.4245863
[2] Ibid.
[3] Mitchell, O., & MacKenzie, D. L. (2004). Document Title: The Relationship between Race, Ethnicity, and Sentencing Outcomes: A Meta-Analysis of Sentencing Research. U.S. Department of Justice. https://www.ncjrs.gov/pdffiles1/nij/grants/208129.pdf
[4] Ibid.
[5] Berdejó, C. (2018). Criminalizing Race: Racial Disparities in Plea-Bargaining. Boston College Law Review, 59(4), 1187. https://lawdigitalcommons.bc.edu/bclr/vol59/iss4/2/
[6] Ibid.
[7] Ibid.
[8] Reports of Committees 16th Congress, 1st Session – 49th Congress, 1st Session · Volume 2. (1867.).
[9] Schermerhorn, C. (2018). Unrequited Toil: A History of United States Slavery. https://openlibrary.org/books/OL27352984M/Unrequited_Toil
[10] Litwack, L. F. (1980). Been in the Storm So Long: The Aftermath of Slavery. Vintage.
[11] Clifton Walker Case | The Civil Rights Cold Case Project. (n.d.). https://coldcases.org/cases/clifton-walker-case/
[12] Clifton Walker Case | The Civil Rights Cold Case Project. (n.d.). https://coldcases.org/cases/clifton-walker-case/
[13] Clifton Walker Case | The Civil Rights Cold Case Project. (n.d.). https://coldcases.org/cases/clifton-walker-case/
[14] Rubinowitz, L. S., & Perry, I. (2001). Crimes without Punishment: White Neighbors’ Resistance to Black Entry. Crim. L. & Criminology, 92(1/2), 335. https://doi.org/10.2307/1144214
[15] Ibid.
[16] Civil Rights-Era Cold Cases. (2021, July 16). HATECRIMES | Department of Justice. https://www.justice.gov/hatecrimes/spotlight/civil-rights-era-cold-cases
[17] Hampton v. Hanrahan, 600 F.2d 600
[18] Randy Krehbiel. (2021, May 29). Tulsa World. https://tulsaworld.com/news/local/racemassacre/tulsa-race-massacre-in-aftermath-no-one-prosecuted-for-killings-and-insurance-claims-were-rejected/article_3ba23c3c-886d-5821-9970-02153261960a.html
[19] American Experience, PBS. (2014b, June 25). Murder in Mississippi. American Experience | PBS. https://www.pbs.org/wgbh/americanexperience/features/freedomsummer-murder/