While the media and public were briefly focused on the Supreme Court’s consideration of the constitutionality of the Affordable Care Act, the court made a rather troubling ruling on a case involving Albert Florence.F
Florence, a finance director for a care dealership, was stopped on the way to a family event. He was then arrested when the trooper determined that there was a warrant for his arrest. While the warrant was in error (he had paid the fine in question) and he had a document to that effect, he was still jailed. While in jail he was strip searched. Six days later he was transferred and strip searched once again. Florence took issue with this treatment and his case made it to the supreme court.
By a predictable 5-4 vote, the Court ruled that anyone who is arrested (even for minor offenses, such as traffic violations) can be stripped searched. The ruling allows this even when there is no reasonable suspicion the person is concealing anything that would require a strip search to locate.
In the majority opinion Justice Kennedy noted that it would be “unworkable” to require jail officials to strip search only in cases in which they had reasonable grounds to suspect that a strip search would be needed. As might be imagined, this seems like an absurd thing to say. After all, it seems to be saying that it would not work to limit strip searches to cases in which a strip search would be reasonably justified. I certainly hope that this same logic is not extended to arrests. After all, the police are currently limited to arresting people when they have reasonable cause to suspect that a person needs to be arrested. I do hope that this is not also “unworkable.”
Kennedy did attempt to back up his point with an example, specifically that of the infamous Timothy McVeigh. McVeigh had been arrested for driving without a license plate which caused Kennedy to note that “people detained for minor offenses can turn out to be the most devious and dangerous criminals.”
One rather obvious response to this is that his example is irrelevant to the matter of strip searching. After all, nothing about the McVeigh case involved finding something dangerous or important by strip searching him. Now, if McVeigh had been arrested on a traffic stop and the police had found a bomb taped to his genitals and had thus prevented the horrific bombing, then Kennedy’s example would have had at least some relevance. It would, of course, still be just one example and thus an incredibly weak argument by example.
It might be countered that Kennedy did not mean for this to be an example directly showing the importance of strip searching people but rather as evidence that very bad people can be arrested for minor offenses. Presumably his reasoning is that such people would be more likely to hide things in places that only a strip search would reveal. Of course, this logic would also seem to apply to having the police check anyone, such as folks who eat fast food. After all, “people who eat at McDonald’s can turn out to be the most devious and dangerous criminals.”
It might be replied that people who are arrested for minor offenses have been arrested and hence are legitimately subject to searches in ways that people who are just out and about are not subject to arrest. This can, of course, be countered by the reply that it seems to be unwarranted to treat all prisoners the same, regardless of the offense and other factors. After all, if the police can distinguish between who should and should not be arrested, they should be able to distinguish between who needs to be strip searched and who does not.
This can be countered by arguing that the strip searching is done for the safety of the prisoners and the guards. After all, if everyone is strip searched, then the chances of dangerous items getting into prisons is somewhat lower. However, there is the fact that the overwhelming majority of people who are arrested for minor offenses are not concealing anything and to strip search people on the minute chance that they have something would be overreacting. To use an analogy, putting all prisoners in straight jackets and masks would provide greater protection, but that seems needlessly excessive for the vast majority of prisoners. There is also the rather important fact that people are not supposed to be subject to cruel and unusual punishment.
While searching prisoners is a legitimate practice, strip searching certainly seems to go beyond what is needed in the case of minor offenses. After all, even Alito notes that strip searches are humiliating. As such, to subject a minor offender to such unnecessary humiliation would be to punish them in cruel and unusual ways-even before they are found guilty.
Naturally, the ruling does not require that everyone who is arrested be strip searched-it just allows it to occur. Alito even noted that for most people arrested for minor offenses, “admission to the general jail population, with the concomitant humiliation of a strip-search, may not be reasonable.” As such, jails could elect to house those arrested for minor offenses apart from the general jail population and not strip search them. However, the fact that this could be done does not mean it will be done and there is the rather obvious concern that this ruling will be exploited to allow the humiliation of people who are arrested on minor offenses. This would add nothing to public safety and would merely serve to impose on liberty, privacy and dignity.
Given that the court accepted that the police have a right to strip search even without probable cause, it would seem sensible to think that they will rule in favor of the Affordable Care Act. After all, if the state has the right to strip you naked and check out your junk when you are arrested for anything at all, then surely the state has the power to require you to buy health care insurance. In fact, given that an increased number of Americans will be exposed to the chilliness and psychological stress of being strip searched, they will need health insurance more than ever.
Samantha Tumpach was recently arrested and jailed. She faces the possibility of three years in prison. Did she assault someone? Rob a store? No, her crime was that while she was filming a birthday event she managed to capture a few minutes of New Moon-a crime for which the movie theater folks had zero tolerance.
Being an author, I am against the theft of intellectual property. After all, as I would regard stealing my work as wrong, I must regard the stealing of others’ work as equally wrong. Also, it is theft and hence most of the moral arguments against stealing apply to this sort of theft as well. As such, people who try to steal movies by copying them in this manner should be subject to punishment.
Being an ethical and rational person, I am against excessive punishment and believe that the purpose of law is to serve the general good. Unthinking obedience to the letter of the law and zero tolerance tends to transform the law from an instrument of the public good to a implement of harm. I am, of course, against that.
To justly punish a person for theft, the thief would seem to be an intentional thief rather than an accidental taker. In this case, Tumpach did not seem to have any intent to steal the film (if she did, then the matter changes considerably) and her “theft” seems to be purely incidental. To use an analogy, it would be like a woman setting her purse down on the counter of a pastry shop and having a pastry stick to it by accident. When she walks out, unaware of the pastry, she is “stealing” the pastry, but it would be unreasonable to call her a thief. Likewise for Tumpach. If her video simply captures the film incidentally and does not show an intent to copy the film, then she should not be considered a thief.
Just punishment also needs to be proportional. After all, punishing a person to a degree that exceeds the wrong she did (and what is needed justly for deterrence) would simply create a new wrong that would need to be rectified. What she did does not seem to have done any meaningful harm to the owners’ of the movie and hence her arrest seems to be an injustice.
Before anyone asks, no I haven’t seen New Moon. I have seen the ads, thus leading me to infer that the werewolves in that film world spend their time in the gym getting buff rather than killing people. No doubt the older werewolves are disappointed.
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Jill Lawrence of Politics Daily has declared Michael Huckabee‘s 2012 presidential campaign DBA (Dead Before Arrival). This is based on the fact that Huckabee commuted Clemmon’s prison sentence in 2000. Clemmons allegedly murdered four police officers recently and the folks in the media have been quick to note the connection between the two men.
While one incident would be bad enough, Lawrence asserts that Huckabee has a pattern of making bad choices when it comes to commuting sentences (such as the case involving Dumond). Interestingly, no mention is made of any positive results from his commuting sentences.
What makes this incident so politically damaging is the fact that a similar sort of disaster was used to attack Michael Dukakis. Folks who have been around a while will recall that while Dukakis was governor, the convicted murder Willie Horton raped a woman while on furlough from prison. The Willie Horton club was wielded quite effectively by the Republicans to beat down Dukakis. Obviously enough, the Democrats can easily pick up the club, dust it off, spray paint “Maurice Clemmons” over “Willie Horton” and commence beating.
This sort of attack would seem to be especially effective against a Republican. After all, Democrats are generally stereotyped as being soft on crime but Republicans are supposed to be tough on crime. As such, Huckabee would seem to be fatally wounded by this situation. Or so it would seem.
In the case of Dukakis, the Republicans were able to cast him as weak and soft on criminals because of this weakness. Huckabee, however, is presented as commuting sentences primarily based on his faith and his belief in redemption. That is, he tended to commute sentences because he believed that the individual had found religion and had been redeemed.
Interestingly, while folks on the American right generally believe in being tough on crime, those with religious leanings tends to also believe greatly in the power of redemption through faith. As such, Huckabee can be presented as not being weak on crime but being a true believer in the redemptive power of faith. As such, Huckabee’s mistakes can also be presented as failings on the part of the once-redeemed. In the case of Clemmons, he did not act until nine years after his sentence was commuted. This would certainly seem to mitigate some of Huckabee’s responsibility. While it is true that if Clemmons was still in prison, then he would not have killed the officers. However, it is not clear that Huckabee is responsible for how those nine years affected Clemons.
While Huckabee’s chances in 2012 have been damaged, I think it is premature to count him out. First, he can make use of the redemption angle to deflect attacks on him based on him being soft on crime. Second, he can apply damage control to the situation now and let it lose political beating power over the next three years.
Some states, such as Arizona, are considering privatizing certain prisons. The usual argument for doing this is based on money. It is claimed that privatizing the prisons will decrease costs and increase revenues for the state.
On the one hand, there is the stock argument that the government is inherently inefficient and that the private sector can do a far better job. On this view, privatization will have the desired effect by replacing the poor government management with the profit generating competence of the private sector. It is claimed that the effectiveness of the private sector will generate enough income so that the private company will make money and have enough to provide the state with a profit as well.
On the other hand, this sort of claim seems dubious. After all, it would seem that the state could simply see what a private company would do and do just that, thus avoiding the the need to split the profits with a private company. Even if the state was somewhat less effective than the private companies, not having to share the profits would compensate for this. Of course, it could be argued that the state is, by its very nature, incapable of such efficiency-but the burden of proof rests on those who make this claim. After all it seems that anything a private company can do, the state could also do. It seems most likely that the privatization of prisons would be rather profitable for the private companies, but not so for the states.
Another concern is a moral one, namely that the privatization of prisons is likely to do more harm than good. First, in order to make a profit that can be shared with the state, the prisons would need to make a profit that is not based on getting paid by the state. This would seem to lead to the exploitation of prisoners. Of course, if using prisoners to make a profit is acceptable, then the state could do the same thing-thus removing the need for the privatization. Second, since the profits a company makes would correspond to the number of people in prison, they would have an incentive to lobby for longer sentences, tougher laws and other means of increasing the prison populations. This, of course, would be unjust-people would be sentenced not based on the principle of justice but so that profits could be increased. Third, there is an increased risk of corruption. For example, judges might be bribed (as has been done)to send people to prison so as to increase profits.
While there are serious problems with the prison system, privatizing prisons does not seem to be a reasonable solution to these problems-or the financial problems of states.
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As most folks know, people are supposed to get the H1N1 shots. As folks also probably know, the vaccine is in very short supply (despite promises to the contrary). One thing that has stirred up controversy is that some folks in prison will be getting their shots before some other people who are in need.
On one hand, the furor over this does seem to be justified. After all, the people who are in prison would tend to be bad people who have harmed society. As such, to use society’s limited resources to protect them from H1N1 at the expense of protecting people who have not harmed society seems to be morally incorrect.
On the other hand, the distribution of vaccines is based on risk-those more at risk get moved up towards the front of the line. Since prisoners are in highly confined spaces and exposed to large numbers of people, they can be at much higher risk of H1N1 than the general population. While it might be tempting to say that they deserve to suffer because of their crimes, their punishment is to be in prison and not to become infected with a disease. As such, a case can be made as to why the prisoners would get the shots ahead of certain non-prisoners.
When Saudi trials make the news, it tends to make clear the nature of Saudi Society. In a recent incident, a female journalist was sentenced to 60 lashes and a two year travel ban because of her involvement in a Lebanese TV show, A Thick Red Line. This show covers social taboos and the episode that led to the sentence featured a Saudi man bragging about his sexual exploits.
The latest turn in this story is that the king of Saudi Arabia decided to pardon the woman. The king, who is regarded by many as working to modernize his country also pardoned a woman who had been a victim of a gang rape. She was to be punished with six months in prison and 200 lashes for being alone with a man not related to her.
While I see the appeal in whipping people who go on TV to brag about their sexual antics, the sentencing does seem to be rather unjust. After all, a basic moral principle of punishment is that it should be in proportion to the crime. In the case of the man, five years in prison and 1,000 lashes for bragging about his sexual activities seems quite out of proportion to any harm his actions might have caused. In the case of the woman, she seems to clearly not deserve that sort of punishment-or any punishment at all. As such, the king acted rightly in pardoning her.
Given that Saudi Arabia’s legal system is so harsh, that the country has some “interesting” connections to terrorism, and that it is a monarchy (a system of rule which directly opposes our political and moral philosophy of legitimacy) it is sometimes wondered why we are so closely allied to Saudi Arabia. The easy, obvious and correct answer consists of two facts: they have oil and they have an important strategic location next to other oil reserves.
If Saudi Arabia lacked oil and was located somewhere else, we would have no dealings with them-except, perhaps, to be critical of their legal system. Also, we most likely would have invaded the country after 9/11. Of course, without the money provided by the Saudi Osama Bin Laden, there might never have been a 9/11 attack.
As long as our economy relies on oil and as long as certain corporations (and families) maintain close relations to the Saudis, we will continue to stay allied with the Saudis. Of course, this is a marriage of convenience for them as well. If we did not have the money and power they need, they would most likely have nothing to do with us. After all, the sort of sexual bragging that they punish, we so often reward with book deals and TV shows.
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Our Guantanamo prison has become quite a political mess. Yielding to popular opinion, Obama promised to close it. However, his fellow Democrats recently decided to deny funding for its closure until he comes up with a plan. Perhaps the Democrats are being reasonable: after all, it would be unwise to allocate money irresponsibly (perhaps they learned something from AIG…). On the other hand, it is something of a slap at Obama. Perhaps they are trying to milk the situation for some political gain?
One of the main questions is what to do with the prisoners. One proposal is to transfer them to prisons on American soil. However, that has started off a frenzy of Not In My Backyard.
When people talk about transferring the prisoners, they often make it sound like they will simply be dropped off in a US city, perhaps with a new suit and $5 in their pocket. However, that is not the plan. The plan is to transfer them to a prison or prisons.
After a politician goes into a “no” frenzy, they typically start tossing out reasons as to why these prisoners cannot be imprisoned in his/her state. The main reason given is that these prisons would be a terrible threat. To be specfiic, it is claimed that they might: escape and commit acts of terror, radicalize other prisoners, establish means of funding terror (perhaps by tapping into the lucrative criminal enterprises thriving in American prisons) and so on.
On one hand, these are reasonable concerns. Presumably each members of Congress who has said “no” is doing so based on his knowldedg of his state’s’ prison system. If they believe that their prison system cannot handle prisoners adequately, then such claims should be taken seriously.Of course, this should spur an investigation into these prisons.
On the other hand, it might be suspected that a political game is being played. After all, our prisons already hold very dangerous and wicked people. That is what they are, in part, intended to do.
Of course, some folks in Congress would have us believe that the Guantanamo prisoners are a special sort of prisoner and are beyond the power of our prison system to contain. The obvious reply to this is that we have already been containing them. Further, as others have pointed out, we already have terrorists and very dangerous people in our prisons. Naturally, if some of the prisoners have special training or are masters of escape (apparently not from Guantanamo, though) then they can be sent to prisons designed to deal with that. After all, we do have maximum security prisons in the US.
They also stress how these people would do very bad things if they got out. While this is a reasonable concern, it is not a special concern. Some of the folks who are in prison are there because they did very bad things and it is assumed that they would do such things again if they escaped. If we accepted that people who would do bad things if they escaped should not be locked up in the US, then we would need to transfers prisoners from the US to places like Guantanamo. Also, during WWII we had POWs on US soil. If we can handle trained soldiers in a time of war, surely we can handle these prisoners as well.
Another tactic is to argue that having the prisoners brought to the US would cost the taxpayers money. One flaw with this argument is that they already cost us money. Of course, it is reasonable to consider the expense. But, if we can afford to keep 1% of our population locked up, we can handle a few more prisoners.
Yet another concern is that the prisoners might get trials and be released. Naturally, the fear is that they will be released in the United States and start being terrorists here. Or they might go someplace else and be terrorists there. It has been claimed that 1 in 7 of the 534 detainees already transferred abroad have returned to an involvement in terrorism or militant activity. Interestingly, this gives them a recidivism rate far less than criminals. Apparently about 50% of criminals return to crime after being in prison. In California, the percentage is even higher.
While this terror recidivism is a concern, the same concern applies to anyone who is sent to prison. If is acceptable to keep the Guantanamo prisoners locked up indefinitely, then the same logic would apply to all prisoners. In fact, normal criminals would be of greater concern because of a higher rate of recidivism. However, this approach hardly seems correct or reasonable.
Perhaps these folks in Congress are worried about the possibility of the trial as much as the possibility of release. After all, a trial might reveal embarrassing or unpleasant facts about what was done. However, if these prisoners are as bad as is claimed and if we have imprisoned them justly, then surely there must be adequate evidence that would stand up in a legitimate trial? Surely we have nothing to fear from being the unjust and wicked to justice?
One reasonable legal concern is the status of the prisoners. Are they criminals? If so, they have the right to a criminal trial. Are they enemy combatants? If so, they would fall under the relevant laws and would also be entitled to proper treatment? Or do they occupy a legally gray area? A case can certainly be made for that. However, we cannot just leave them in the gray-something must be done.
While some folks on the right have been calling the closing of the prison and the decision to have trials a public relations or popularity thing, it is actually a serious matter. While Bush and his fellows seemed to take the view that what others think of the US matters not, Obama realizes that it does matter. While nations are not individuals, they are composed of individuals. If one person thinks well of another, then she is more inclined to help that person. If one person thinks poorly of another, then they are less inclined to help. If people in other countries think better of us, they will be more inclined to work with us.
So, closing the prison is, in part, a popularity thing. But being liked and popular are valuable resources in politics. Just as a company crafts its public image in order to move more product, we need to craft our public image in order to win people over. Doing the right thing is also important-it is good to see the two coincide.
The United States is still leading the world in prison populations. An obvious question is “why?” I’m not a sociologist, but here are some possibilities:
First, it is often claimed that the United States has fairly harsh laws and sentencing relative to many other countries. For example, we tend to have very strict drug laws and disproportionate sentences for what seem to be minor drug offenses. That would tend to boost prison populations.
Second, the United States has long been accused of having a strong racist undercurrent (or main current). This would have numerous effects such as an increased likelihood that minorities would be put into prison as well as the creation of social conditions that would incline certain minorities towards crime. I’ve written about this before.
Third, it has been suggested that America’s immigration history is a factor. Those setting out to a new land would (the hypothesis goes) be more aggressive, more inclined to risk, and looking for opportunities. While these traits can lead people to do good things, they can also incline people towards certain criminal activities. These traits would be passed down (genetically or socially) and hence modern Americans would be more likely to have them then people in other countries.
Fourth, America is well known for having considerable social and economic inequality. This no doubt helps create more crime.
Fifth, American politicians long ago discovered the value of fear. It has become a tradition for many candidates to say how tough they will be on crime. This approach adds to the fear of crime (via advertising) and also makes it more likely that there will be more arrests and longer sentences (when the elected politician makes good on the promises). Hence, the increase in prison populations..
Sixth, prisons are big business in America. Those with a liking for conspiracy might suspect a link between the commercialization of prisons and the increase in prison populations. This seems unlikely, but does provide some matter for consideration.
Naturally, I am not claiming that these explanations are necessarily correct. However, they are worth further consideration and we do need to address this serious problem.
America is a world leader in many ways. Unfortunately, one of these ways is in the percentage of the population in prison. According to recent statistics there are 2,319,258 Americans in prison. This is about 1% of the adult population. This puts us ahead of all other countries -even China (1.5 million in prison).
While the overall average is that 1 in 100 adults are in jail, the numbers are different when gender and race are taken into account. For all males 20-34 the number is 1 in 30. For black males in that age range, the number is 1 in 9. For women 35-39, there is 1 white woman in jail out of every 355. For black women the number is 1 in 100.
What is also of concern is the amount of tax money being spent on prisons. The national average per prisoner is $23,876 per year. Rhode Island tops the nation in spending at $44,860 and Louisiana is at the bottom with $13,009. States spend about 6.8% of their general fund budget on prisons. Four states (Vermont, Michigan, Oregon and Connecticut) spend more on corrections than they spend on higher education.
Interestingly, the increase in prison populations and spending has not been caused primarily by an increase in crime. For example, Kentucky had a 600% increase in prisoners while only experiencing about a 3% increase in crime. Thus, there must be another factor contributing to the increase.
Many experts attribute the increase to tougher sentencing. For example, the famous “three strikes” rule has lead to an increase in the time people spend in prison. An increase in sentence time increases the prison population by keeping the same people in prison longer. So, even if crime increases only a small amount (or even if it decreases somewhat), prison populations will begin to expand. To use an analogy, imagine a high school that extends the graduation time from four years to twelve. Even if the number of incoming freshmen remains the same, the school population will swell dramatically.
These numbers are rather worrisome.
First, there are the overall numbers.
While many people see prisons as a cure for crime (like a hospital is a cure for disease) this is not the case. Prisons clearly do not cure crime. If they did, America would have the lowest crime rates in the world.
However, the analogy between prisons and the hospitals does hold in one respect: having a significant number of people in either indicates something is seriously wrong. In the case of a significant hospital population, one would infer a major health problem. In the case of the prisons, it indicates a major social problem. In the case of a health problem, building more hospitals and not addressing the cause of the problem would hardly be an effective solution. While it would treat the effects of the problem, the problem itself would remain and thus would continue to put people in the hospitals. The same is true of prisons. Building more of them without addressing the causes of crime merely means we have more places to put the people who will become criminals.
Second, the disparity in terms of gender is of concern.
While women are committing more crimes now than in the past, most prisoners are men. The obvious reason is that men commit more crimes. Of course, the question remains why this is the case. Some suggest that men and women are naturally different in ways that lead more men to crime. Other suggest that it is a matter of differences in socialization. In any case, the fact is that men vastly outnumber women in the prison population.
In any other area, the feminists would be throwing a fit about such a great disparity. Obviously, most feminists do not complain about this disparity and some use it as evidence that men are bad. Interestingly, the factors that lead to the disparity in crime probably also lead to the disparity elsewhere. As Kant pointed out, the traits that enable success for good also enable “success” in what is bad-what makes the difference is the goodness or badness of the will.
Whatever the reason, the fact that men end up in prison in such disproportionate numbers does seem to indicate a problem. If it is a result of natural inclinations, ways need to be found to channel those inclinations in other ways. If it is the result of socialization, then changes would need to be made that would result in less crime. Obviously, this is not a simple problem and would require a significant investment in resources even to begin to figure out the nature of the problem. However, such an investment offers something that prisons do not-a chance to actually have less crime.
Third, the ethnic disparities raise serious concerns.
As noted above, 1 in 9 black males in the 20-34 age range are in prison. With such numbers it is no surprise that this is something that is easily noticed. For example, the majority of my black students are women. One reason why there are fewer black males in college is that a large number of college aged black men are in prison. In the case of women, the percentage of black women in prison is also significantly higher than that of white women. This raises the obvious question: why is there such a disparity?
The easy and obvious answer is that blacks commit more crimes than whites. Even if it granted that this is true (thus laying aside reasonable concerns about racial biases in convictions and sentencing) a very important question still remains: why, then, are blacks committing more crimes?
Some people might suggest that it is a matter of race-black people are more inclined to criminal activity than whites. This nicely fits into centuries of racial stereotypes, but is unsupported by any actual evidence establishing the claimed causal link between race and crime (that is to say, evidence that shows that the qualities that are supposed to make a person black also incline that person to being a criminal).
A better approach is to look beyond race and consider the factors that incline people to crime. In general, social factors (education, opportunity, etc.) have a significant effect on whether a person turns to crime or not.
In the United States, minorities are denied social goods (education, opportunity, etc. ) more so than whites. This denial helps contribute to crime in many ways. One way is that people who are denied such goods still have needs and ambitions. If these needs and ambitions cannot be satisfied by legitimate means, then people will tend to turn towards illegal means. Another way is that people who are denied such goods feel less inclined to respect and obey a system that denies them such goods. This would tend to incline people towards crime. Since minorities tend to be denied the social goods more than whites, this would account for the disparity.
Given that these social injustices contribute to crime, it makes more sense to use resources to address these problems as opposed to spending more on prisons. Diverting funds from constructive social projects (like education) to prisons merely helps ensure that more people will end up in those prisons.
This is not to say that all crime can be solved by fixing fundamental social injustices. But, it would go a long way in taking a bite out of crime.