This week, U.S. Attorney General Eric Holder issued new directives to his U.S. attorneys in the field to use prosecutorial discretion and stop pursuing low-level drug possession cases that carry high minimum mandatory prison sentences. While state prison populations are finally slowly going down, the federal prison system continues to grow with non-violent drug convictions. Also this week, Judge Shira Scheindlin, a federal district judge in New York, ruled that New York City’s controversial stop-and-frisk policy was clearly biased in stopping black and Latino people out of proportion to the initial behaviors that made police instigate their searches. Thousands of innocent young black and Latino men were being prejudged by the police, losing their Constitutional rights and liberties based more on their race than on evidence.

These two events will give extra meaning to the upcoming March on Washington taking place to renew the national conversation sparked 50 years ago by the March for Jobs and Justice in 1963. There was already a renewed sense about the march because of the Supreme Court’s ruling on the Voting Rights Act and by the Trayvon Martin case in Florida. Attorney General Holder and Judge Scheindlin are moving the country in the right direction to discuss the racial implications of policies. And, there are dots connecting Trayvon Martin to Holder’s actions to Scheindlin’s ruling.

There are real costs to any action. And, the implications of policies that are not rational have costs for everyone. The need to discuss race is not just one of justice—though justice is the fabric of any sustainable society. Scheindlin’s ruling points to the cavalier attitude of New York City’s leadership in a policy that was inefficient, and therefore costly. A stated purpose of the stop-and-frisk policy was to reduce violent crime and get guns off the streets of New York and out of the hand of criminals. Yet, the data from the police searches clearly indicated that police were more likely to find weapons when they stopped and frisked whites than blacks or Latinos. So, all the thousands of times and hours police occupied themselves detaining young black and Latino men were the thousands of hours the real criminals were free to go unnoticed. Yet, blinded by their own view of race and crime, the police ignored their own statistics and defiantly challenged the ruling of Scheindlin in a press conference; calling her ill-informed.

What most disturbed the black community in the ruling of the Trayvon Martin case was a similar issue. A young black man, walking alone, quietly talking on a cell phone, minding his own business and eating Skittles candy was profiled, followed and stalked by a civilian neighborhood watch volunteer. Though Martin was not engaged in any suspicious activity, other than he was “black” and a young man walking through the neighborhood. The decision to cavalierly excuse his murder reflects a value on Martin’s life that underlies the defiance of Mayor Michael Bloomberg and the New York City police that black men do not have a value in society. Martin was disposable. And, the interrupted lives of the hundreds of thousands of innocent black and Latino men stopped by the New York police have no value. In the big equation, Martin can be disposed and thousands of lives can be affected because society’s sense of safety outweighs the logic of the evidence of innocence on the part of black and Latino men.

So, Holder’s step is in the right direction of reweighting the big equation. Locking up large numbers of people is not free. It is very costly. The dramatic rise in incarceration began in the late 1980s, blindly taking on costs and government resources was not free. At the state level, its clear manifestation was in the dramatic increase in the share of state budgets that had to go to building and maintaining prisons. The costs rose so fast that many states were seduced into “privatizing” their systems, which increased the cost spent by states per prisoner.  The National Association of State Budget Officers reported this year that the cost spent per prisoner rose from slightly more than $5,000 in 1985 to nearly $7,000 by 2008 (controlling for inflation), about equal to state expenditures per full-time college student. So, a state’s decision to incarcerate someone literally is a choice between the resources to support one more college student or jail one more person.

At the federal level, rising costs of incarceration have to be balanced against other priorities of the Justice Department, like reducing violent crime, financial misconduct and fighting terrorism. Locking up non-violent drug offenders for long periods means fewer dollars to go after the Wall Street criminals that helped collapse our economic system. The news that the Justice Department is likely to file charges against some J.P. Morgan employees for financial fraud this week should underscore this connection.

There must be a cost benefit analysis done of public policies like high incarceration rates. To the millions of America's families struggling with college tuition costs, this is not a moot point. Ineffectual criminal justice policies cost families the support needed to keep public higher education quality high. The argument about tuition costs has ignored the quality issues. Gone is a conversation about keeping University of California at Berkeley and the University of Michigan competitive in quality with the Ivy League; we have reduced the issue to keeping them cheap—like Walmart. In fact, the State Budget Officers, in their report, chastise the higher education community for seeking support of the college enterprise with all its bells and whistles of research, insisting that states should only bear the costs of operating budgets for basic instructional functions. Of course, a quality university is a place of research; the generation of new ideas and innovation, the very engine of economic growth. And, the challenge for America going forward is giving broad-based access to our children to the skills to innovate and invent prosperity for our nation. But, if the correction’s budget for the state goes unchallenged and can grow and gobble-up more resources, we cannot have the deep discussion we need on real priorities.

This is where the question of race enters. As long as a low value is placed on the liberties and rights of black men, we will not question the rationality of policies that are ineffectual. Despite evidence that the crime rate has fallen in the United States, we still insist on ever higher prison expenditures. And, we do not look at the evidence showing high incarceration rates increase recidivism in the system and does not account for the decline in the crime rate; ignoring a separate trend of declining crime is also taking place. We also do not discuss the implications of locking up non-violent drug offenders, or the disparities in who gets stopped by the police and thus swept into the criminal punishment system. But, turning a blind eye to the evidence means Wall Street bandits who rob the economy of billions and destroy the jobs of thousands will go unpunished; and states will underinvest in our children’s need for quality higher education; private prison companies will continue to profit; and instead of careful targeting of terrorists the federal government will instead pursue cheaper broad net collection of data on its citizens. Rational policies are not possible if we are irrational. And, too often, race makes America act irrational.  

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