Well, I quickly skimmed the complaint -- which is of course a
set of conclusory assertions, and not a study -- and I didn't see
anything there supporting the proposition that "minorities are
investigated, prosecuted, convicted and sentenced (and thereby
disfranchised)  out of proportion, as all studies show, to their
propensity to commit crime."  (Paragraphs 32 and 43 unfortunately didn't
seem to include any source citations.)

	The only item that I noticed as pointing to various groups'
actual rate of commission of crime is item 40:  "40.  National research
shows that whites and African-Americans use illegal drugs at similar
rates" (giving data).  But the complaint said nothing about the
incarceration or arrest rates for drug use.  The complaint did talk
about groups' incarceration and arrest rates for various other crimes.
But it didn't seem to point to the groups' actual rate of commission of
the other crimes.  So I saw nothing in the complaint supporting the
proposition that the incarceration and enfranchisement rate is out of
proportion to actual commission of crime.

	Naturally, I should stress that most blacks and most whites are
not criminals.  But all the evidence that I've heard suggests that the
crime rate among young black men is quite disproportionate to their
share of the population; that's unpleasant, but it seems to be a fact.  

	It is of course possible that despite this the conviction rate
exceeds the criminality rate, because of racist law enforcement.  It is
also possible that the conviction rate may be *less* than the
criminality rate, because of racist law enforcement:  Since most crimes
are intraracial, and most crime in black neighborhoods is committed by
blacks, then if the police don't police black neighborhoods much they
may catch fewer black criminals than they otherwise would.   Or these
effects may cancel out, or be lower (or higher) than we might guess.

	Nonetheless, as best I can tell, such effects remain to be
proven.

	Eugene Volokh

-----Original Message-----
From: Frank Askin [mailto:faskin@kinoy.rutgers.edu] 
Sent: Tuesday, February 08, 2005 2:37 PM
To: Volokh, Eugene; election-law@majordomo.lls.edu
Subject: RE: NY Times and Felons


There is much data in regard to drug arrests and 
prosecutions.  Some of it was submitted in connection with 
the Farrakhan litigation in the State of Washington and 
referred to by the Ninth Circuit. I believe similar data was 
submitted in the Florida litigation, Bush v. Johnson.  I 
attach hereto FYI a copy of the Complaint in NAACP v. Peter 
Harvey, which I believe makes a pretty strong case for the 
proposition in New Jersey.  See Paragraphs 32 to 42 and 
sources cited there.

"Volokh, Eugene" <VOLOKH@law.ucla.edu> 02/08/05 04:57PM >>>

	I've heard this claim before, but I haven't seen much 
evidence supporting it.  Can you point to some of those studies?

	I should mention that the National Crime Victimization 
Survey, which directly asks the victims about the perceived 
race of the offenders, reveals that most crime is 
intraracial, and that the offenders are disproportionately 
black (and, if my memory is mistaken, disproportionately 
Hispanic, too, though with a lesser disproportion). I realize 
that victim recall may also be biased by race, but flawed as 
it is it seems to be the best gauge of offender race that we have.

	Also, another data point, though as to one crime: 
homicide. There's pretty broad agreement that most homicide 
is intraracial; and we do have a pretty good sense of the 
race of homicide victims -- nearly 50% black, if my memory is 
correct.  This makes the representation of blacks among 
alleged homicide offenders (a bit over 50%) pretty plausible.

	Naturally, this data is not by any means conclusive, 
which is why I'd like to hear more about which studies Prof. 
Askin is referring to.  Perhaps they do indeed have some 
objective, unbiased measure of actual criminal conduct by 
race, and show that blacks and Hispanics are indeed 
prosecuted out of proportion to this actual crime rate.  But 
I'd like to see the studies before I accept that proposition.

Dan - Does it not concern you that, in most of the country,
because of racial profiling, the vastly disparate impact of 
felon disfranchisement on the racial minority community is 
really an artifact of discrimination in the criminal justice 
system.  In other words, minorities are investigated, 
prosecuted, convicted and sentenced (and thereby 
disfranchised)  out of proportion, as all studies show, to 
their propensity to commit crime.  And it is not the 
individual felons who suffer, but the entire minority 
community by dilution of its voting power. FRANK

Prof. Frank Askin
Constitutional Litigation Clinic
Rutgers Law School/Newark
(973) 353-5687