Mass Incarceration, Race and Gun Background Checks. Reenforcing Implicit Bias


Expanded Summary

Mass shootings shape much public opinion on the issue of gun violence and its prevention.  Yet in 2012, the year of the highly publicized Sandy Hook Elementary and Aurora movie theatre incidents, mass shootings accounted for less than one percent of this country’s gun homicide victims.  Two separate studies on mass shootings showed, where data was available, that between 62% and 78% of the shooters were in legal possession of their firearms, and one of those studies cited that in only 11 percent of the cases was there evidence that concerns about the mental health of the shooter had been brought to the attention of a medical practitioner, school official, or legal authority prior to the shooting.  

The majority of this country’s gun homicide victims reside with minority populations, particularly African-Americans.  Although representing only 13% of our population, African-Americans have been cited as accounting for more than half (55%) of our gun homicide victims.  In contrast, American whites, that comprise 65% of the population, account for only 25% our gun homicide victims.  On a population adjusted basis, African-Americans experience an 11-fold greater gun homicide victimization than do whites despite both populations being subjected to the same gun laws on a state by state basis.  

The United States represents 5% of this planet’s population but holds 25% of the world’s incarcerated, a population that has increased 700% since 1970.  Non-violent drug offenders now account for the majority of those behind bars, totaling more than all other offenses combined including homicides, kidnappings, aggravated assaults, weapons charges, and sex offenders, amongst others.

In response to a marked increase in violent crime in the 1980’s and 1990’s, dominated by handgun homicides, Congress enacted ‘tough on crime’ laws based on the erroneous assumption that crack cocaine was more addictive than powder cocaine and induced violent behavior.  These laws (still partially in effect today) created and maintained minimum mandatory sentences for first time offenders with a 100:1 difference between the quantities of powder and crack cocaine involved; i.e., 5 grams crack (less than 1/5 ounce) resulted in a mandatory first offense minimum 5 year imprisonment whereas 500 grams powder (more than a pound) was required to trigger the same penalty.  Crack tended to be used by a more marginalized segment of society and, whereas two-thirds of crack users were white and hispanic, in 1994 (the year president Bill Clinton and Congress kept the harsh crack penalties in place) almost 85% of the crack possession convictions were African-American.  As these non-violent offenses involve both illegal use of a controlled substance and prison sentences exceeding one year, these individuals are identified by federal firearms background checks.   Thus, African-Americans, the very population that accounts for the majority of gun homicide victims, finds itself, as a result of being disproportionately and unfairly incarcerated for minor first offense non-violent drug convictions, in the position of being included in the company of murderers, rapists, domestic abusers and others as being too dangerous to possess a firearm which would work to reenforce implicit bias, an important factor in the victimization of African-American males on many levels.

This paper argues that, in addition to enacting appropriate regulatory measures controlling gun sales and distribution, gun violence can not be meaningfully, nor fairly, addressed without simultaneously addressing the issue of racial discrimination.  And a practical and easy-to-implement first step in beginning this process exists.  But the failure of our government for over 20 years to implement a public awareness program regarding its commitment to end all forms of racial discrimination speaks volumes as to its lack of political will to do so. 


A Consideration of Mass Shootings

Following the recent mass shooting at Umpqua Community College in Oregon, there has been a renewed cry to address gun violence.  Statistics abound, such as the 142 school shootings or the 894 instances of mass shootings in the US following the murder of 20 children and six adults at Sandy Hook Elementary in December 2012.  There is no downplaying the tragic nature of these events and no attempt is being made to do so here.  In a previous article (Gun Violence and Children: A Cold and Broken Hallelujah) this writer described the unspeakable pain inflicted on parents who have lost their children to such senseless violence, a visceral tearing of the parent-child bond that forms the very instant we first lay eyes on our children.  However, in considering the overall issue of gun violence in our country, mass shooting events attract a disproportionate amount of media attention, coming into our homes in dramatic fashion as breaking news on television, even resulting in visits from our president to meet with families of the victims and make public statements as to how our country has become numb to such events.

Two reports on mass shootings in America are cited here, one by Mother Jones and the other from the Everytown for Gun Safety organization.   Both reports provide much useful information, some of which is discussed below.

Although mass shootings are a key driver in shaping public opinion on the need to reduce/prevent gun violence, both reports cite that such acts constitute an exceptionally small percentage of gun homicides in America.  The Everytown report, using FBI data, showed that in 2012 (the year of the highly publicized Sandy Hook Elementary and Aurora movie theatre incidents) mass shootings accounted for less than 1% of US gun murder victims.

Although mass shootings have led to a call for expanded background checks, both reports indicate that the majority of shooters were in legal possession of their weapons.  The Everytown report indicating, where data was available, that 62% of the shooters were not prohibited gun possessors (federal law prohibits felons, certain domestic abusers and the severely mentally ill from possessing guns)…

…and Mother Jones similarly reported that, in the 62 cases where data was available, 49 (79%) of the shooters were in legal possession of their weapon(s).

As a result of some high profile mass shootings such as Tucson, Aurora and Sandy Hook, monitoring mental health as a gun violence preventative measure is often discussed – and here the two reports differ somewhat.   Of the 133 examined incidents in the Everytown report, there was only one where was there evidence that the shooter was prohibited by federal law from possessing guns due to severe mental illness.  In only 15 other incidents (11%) was there evidence that concerns about the mental health of the shooter had been brought to the attention of a medical practitioner, school official, or legal authority prior to the shooting.

Mother Jones used suicide as a measure of mental health noting that the majority of mass shootings studied were murder-suicides.  Whether in many of these cases the decision of the shooter to take his own life could be pre-diagnosed and serve as a predictor of a mass shooting is questionable.  Additionally, in the regulated industry in which this writer participated, corporations bore the expense of steps required to make their product safe.  Is Mr. LaPierre and the NRA (that overwhelmingly directs its political contributions to the tax-cut and small government Republican party) actually looking for the taxpayer to bear this expense?

There is little question that a key driver in shaping public opinion on gun violence are some highly publicized horrific mass shooting events that represent a very small fraction of the overall gun homicide picture in America – the Sandy Hook Elementary shooting in December 2012 was central in bringing multiple pieces of gun violence prevention legislation to a vote in the US Senate a few months later.  But starting with the data in the two reports where the majority of shooters were in legal possession of their firearms, it becomes clear that expanding currently existing background checks, as but one example, will provide only some limited level of benefit and to an extent that we do not fully understand.  Even with these checks in place our current gun culture is producing ‘qualified’ gun owners who commit criminal homicide with firearms thus backfilling to some extent the benefit of the checks.  The Violence Policy Center’s Concealed Carry Killers data base provides hundreds of examples (held to be a considerable underestimate) where ‘law abiding’ CCW permit holders have committed criminal gun homicides, including multiple instances of mass shootings – and it is a safe assumption that a large majority of these permit holders underwent a background check as a condition to obtain the permit.

This writer holds that gun violence prevention should be approached on a more fundamental level, and that includes taking into consideration where the majority of homicide victimization is occurring. There is no argument that keeping firearms out of the hands of those who would do harm is a worthy endeavor.  But, as will be developed below, due to a very broken criminal justice system and ‘tough on crime’ laws put into place in the 1980’s and 1990’s that are still partially in effect today, non-violent first offense drug offenders, who represent the majority of those incarcerated in our country, have been imprisoned for exceptionally long periods of time for exceptionally minor non-violent offenses.  As the offenses involve both use of a controlled substance and prolonged imprisonment, these individuals are tagged by the current background checks and included amongst those described as being too dangerous to possess a firearm.  And a grossly disproportionate number of those caught in this trap are African-Americans, the very population that accounts for the majority of gun homicide victims and a population that falls prey to implicit bias (the perception of being dangerous) on many levels (not just violence, but profiling, excessive force, and jury verdicts as but some examples).

The Unspoken Statistic

The majority of US gun homicide victims reside in minority populations, particularly African-Americans.   The grossly disproportionate effect of gun homicides in American blacks was the subject of this author’s report to the Committee to End Racial Discrimination.  This effect was documented in the report from multiple sources including the Centers for Disease Control and Prevention, the Federal Bureau of Investigation and the field of actuarial science.  The effect was so staggering that the committee actioned our government to do something about it through a number of recommendations contained in the report (the US being party to the ICERD treaty).

Additional to the content in that report is a recent study published by the Pew Research Center.  Whereas African-Americans represent only 13% of our population, they account for more than half (55%) of our gun homicide victims.  In contrast, American whites (65% of our population) account for only 25% of gun violence homicides.

In directing teams both domestically and internationally in assessing therapeutic agents for both benefit and safety, we were required to submit to authorities what are known as subset analyses.  Three mandatory analyses included examination of effect across age, gender, and race.  If differences were found amongst these populations, we were required to take steps to address the disparity in defining the safe and effective use of the product.  Race includes populations that represent both males and females and, as a rule, a full range of age.  Although there are differences across states in the proportions of race groups, gun violence victimization, and gun violence prevention laws, all race populations are subjected to the same conditions within any given state.   And in no state are African-Americans a majority population.

Using the Pew Research statistics and examining the overall national picture, all things being equal, what we would expect to see for a race group is the level of gun homicide victimization tracking that of its representation in the population, i.e., the ratio of percentage victimization to population percentage should be about 1.0.  Rather, using the Pew Research Center statistics (that are consistent with many other sources as outlined in this writer’s report to CERD), what is observed is that the ratio of percentage white gun homicide victimization to percentage of whites in the population (.25/.65) is 0.38 indicating a considerably lower level of victimization than its representation in the overall population.  In contrast the ratio for African-Americans is 4.23 indicating over a 4-fold greater victimization than their representation in the overall population.  In comparing these population-adjusted ratios, gun homicide victimization in African-Americans is eleven times greater than that experienced by American whites.  This is an enormous difference and as both groups are subjected to the same laws on a state by state basis, it strongly argues that something is at play other than just inadequate gun violence prevention laws.  And we know what that is, but it is just not part of the discussion.

African-Americans face a discrimination issue that white America does not – and, as has been written before, gun violence is but the visible part of a massive number of silent deaths in that population, totaling into the millions, borne of discrimination.  Regarding gun violence, this writer’s UN report identified at least three mechanisms contributing to its disproportionate effect in African-Americans.  The first is overt acts of racial hatred such as the Charleston church shooting (and gunfire is but one form of violence to which this population is subjected).  The second is the issue of Implicit Bias – the Trayvon Martin and Jordan Davis matters are high profile examples of this (this is no small issue as implicit bias is a key factor in African-American victimization on many levels and will be further discussed below).  The third involves the creation and maintenance of adverse socio-economic conditions that foster violence where American blacks become both perpetrators and victims of violent crime.

Mass Incarceration, Firearms Background Checks and Implicit Bias

The issue of mass incarceration has drawn much attention recently including a HBO VICE documentary on our criminal justice system that included interviews with victims of unjust laws and racial targeting as well as interviews with former Attorney General Eric Holder, Bryan Stevenson of the Equal Justice Initiative, and president Obama (the first sitting president to visit a federal prison).  Statistics from that documentary are used below as well as other sources where indicated.

Our country leads the world in incarcerating its citizens.  The US represents only 5% of this planet’s population but holds 25% of the world’s inmates, with 2.2 million behind bars (an increase of 700% since 1970) at a cost of $80 billion/year.  More people are incarcerated for nonviolent drug offenses than all other offenses combined – these include homicides, kidnappings, aggravated assaults, weapons charges, sex offenders, bribery, extortion, etc.  And nonviolent drug offenses are heavily skewed along race lines.  In our society, only 1 in 17 whites can be expected to go to prison – in contrast 1 in 3 African-Americans will wind up behind bars.  The origins of this increase in incarceration with its racial disparities has its roots in ‘tough on crime’ laws passed in the 1980’s and 1990’s that are still partially in effect today.

Crack Cocaine and the Origins of Today’s Mass Incarceration

The 1980s and 1990s experienced a marked increase in violent crime as shown in the graph below (data credited to the Bureau of Justice Statistics), with handguns overwhelmingly being the weapon of choice..

Hispanic and African American males were the most represented with the injury and death rates tripling for Black males aged 13-17 and doubling for Black males aged 18-24.  The disparity between Black and White homicide victimization is graphically depicted below (again derived from US Bureau of Justice statistics).



Homicide offenders aged 14 – 24 years accounted for the overall increase in homicide rate while the rate decreased in older age groups the during that same period.

This increase in gun violence amongst minority youths in the 1980’s and 1990’s was attributed to crack cocaine which was new and largely an inner city drug.  In response, Congress enacted the Anti-Drug Abuse Act of 1986 that established two tiers of mandatory prison terms for first-time drug traffickers, a 5-year and 10-year sentence triggered exclusively by the quantity and type of drug involved (see section C.3).  The 1986 act created a 100-to-one difference in the quantities of powder versus crack cocaine for both the 10-year and 5-year mandatory sentences for first time offenders, i.e., possession of 500 grams of powder cocaine (more than a pound) and 5 grams of crack cocaine (less than 1/5 ounce) both triggered the five-year mandatory sentencing penalty.  The Anti-Drug Abuse Act of 1988 made crack cocaine the only drug with a mandatory minimum penalty for a first offense of simple possession – possession of more than five grams of crack punishable by at least five years in prison.

In 1994, president Bill Clinton, despite protests from civil rights groups about the unfair nature of these sentencing rules, as well as his own concerns about the disproportionate number of young black men going to prison, signed into law a bill that preserved the stiff crack rules, a law for which he issued apology in later years. In his apology to the NAACP he noted that the federal law set a trend for the states to follow suit and that his bill “made the problem [incarceration disproportionately affecting African-Americans] worse”.

In 2010 Congress passed the Fair Sentencing Act (FSA) that reduced the disparity between between offenses for crack and powder cocaine from 100:1 to 18:1.  As noted by the ACLU this law was a step toward fairness, but the 18:1 ratio was a compromise and still reflected outdated and discredited assumptions about crack cocaine.  Even though people sentenced before this law could benefit from the retroactive Sentencing Guideline amendments, they still remained subject to the pre-FSA statutory mandatory minimums.  The Smarter Sentencing Act of 2015, still working its way through Congress, is an attempt to further undo the damage from the 1980’s and 1990’s laws.

As noted in a study from the New York University Center for Drug Use and HIV Prevention, about 12% of adults in the US have used powder cocaine, but only 4% have used crack cocaine.  Yet it is that 4% who have used crack who are at greatest risk for arrest.  Racial minorities were at low risk for powder cocaine use, but they tended to be high risk for crack use.   But race was not the overwhelming factor involved with crack use.  The results showed that crack tends to be used by a more marginalized segment of society, and since Blacks are much more likely to live in poverty they become more likely to face incarceration for cocaine use.  Despite claims by Congressional advocates (of the harsh crack sentencing laws) that crack was more addictive than powder and led to greater potential for violence, the psychotropic and physiological effects of all types of cocaine are the same  (reviewed in a report by the Sentencing Project).  Additionally, crack cocaine is less expensive than powder.  Not only does powder cost more, but it has been portrayed as an elite drug in popular culture, associated with luxury or glamour, having a storied history of use on Wall Street.

In 1995 the US Sentencing Commission concluded that the violence associated with crack was primarily related to the trade and not the effects of the drug.  Crack being inexpensive and sold in small quantities is usually sold in open air markets which are especially prone to violence.  Powder is usually sold in larger wholesale quantities behind closed doors in locations which are inherently more secure (see section on The Difference between Crack and Cocaine Powder).

The racial disparities in sentencing became quickly apparent (see section on Racial Disparity).  Although 2/3 of crack users were White or Hispanic in 1994, the vast majority of persons convicted of possession in federal courts were African American (84.5% Black, 10.3% White and 5.2% Hispanic) as well as was the case for trafficking offenders (88.3% Black, 4.1% White and 7.1% Hispanic).  A point made by a law enforcement officer in the VICE documentary was that even though whites and blacks possess drugs equally, there is a difference where law enforcement tends to look – an issue of implicit bias.

The effect of the ‘tough on crime’ laws of the 1980’s and 1990’s on our prison population was staggering.  As previously noted non-violent drug offenders, disproportionately representing minority populations, particularly African-Americans, now total more than all other offenses combined, including rape, homicide, domestic abuse, etc.

And African-Americans are at far more risk for imprisonment than whites in the US.

The impact on our society is not trivial.  Between early death (including gun violence victimization) and incarceration, the NY Times has reported that this country is missing 1.5 million black men.  Whereas parity exists amongst whites in the proportion of males and females, such is not the case for African-Americans.

Federal Firearms Background Check Law and Implicit Bias

Working its way through Congress during the same timeframe as the ‘tough on crime’ laws of the 80’s and 90’s was federal firearms background check legislation that was given the title The Brady Handgun Control Act.  The legislation was signed into law by president Bill Clinton in November 1993 and went into effect in March of 1994, the same year as his tough on crime law.

There are at least two prohibitions in the federal background check law that bear attention.  One is a prohibition placed on individuals who have “been convicted in any court of a crime punishable by imprisonment for a term exceeding one year”.  The other is a prohibition on any individual who “is an unlawful user of or addicted to any controlled substance”.  The sentencing guidelines for simple first offense (non-violent) crack possession trigger both of these.  As a result, not only do African-Americans represent the majority of this country’s gun homicide victims, but as they have been disproportionately convicted as non-violent drug offenders they are grouped along with murderers, rapists, domestic abusers and others as being dangerous.  Language along the lines that background checks keep guns out of the hands of dangerous people is commonplace and issued by many organizations.

Implicit bias is a key factor behind violence victimization in African-Americans.   Per former Attorney General Eric Holder in the VICE documentary, it involves seeing a young black man and making an assumption simply because the way he looks.  Mr. Holder referred to ‘the discussion’ that black parents have with their children about avoiding behaviors in public that can cost them their lives.  Charles M. Blow of the NY Times, following the Trayvon Martin shooting and Zimmerman acquittal, wrote that the “system failed [Martin] when the neighborhood watchman grafted on stereotypes the moment he saw him, ascribing motive and behavior and intent and criminal history to a boy who was just walking home.”  And our own president has issued comment about black men who have been followed while shopping in a department store, or hearing car door locks click while walking across the street, or who experience getting on an elevator with a woman nervously clutching her purse and holding her breath until she had a chance to get off.

No doubt that background checks have kept guns out of the hands of those who could do harm.  But for the victims of the unfair ‘tough on crime’ laws, overwhelmingly African-American who have been sentenced to multi-year mandatory prison sentences for minor first time non-violent offenses, they find themselves grouped with violent crime offenders as being dangerous, in fact too dangerous to own a gun – and that can only help reenforce the implicit bias that contributes to their victimization.

Concluding Remarks

There is no argument presented here that appropriate regulatory measures should not be placed on the sale and distribution of firearms in this country.  But in examining the grossly disproportionate gun homicide victimization in our minority populations, particularly African-Americans, the argument is being made that reducing gun homicides in our country can not be adequately, even fairly, addressed without simultaneously addressing the issue of racial discrimination.  The causes of gun violence in this country are multi-factorial and its prevention is not a one-size-fits-all matter.

In previous articles this writer has taken great exception to lumping the Charleston church shooting in with events such as Sandy Hook Elementary and Aurora.  Charleston was a ‘hate crime’, a targeted attack on a population by a “lone wolf” terrorist (white supremacist in this case) – and the violence levied upon those victims represents but one type amongst many forms of violence including arson, bombings, being dragged to death tied behind a pickup truck (the James Byrd incident), or white teens intentionally hunting and inflicting beatings and even killing an African-American in Mississippi (the James Craig Anderson case), to name but a few.  The background check prohibitions that were missed with Dylann Roof are the same as those that are triggered by convictions under the Tough on Crime laws that have unfairly incarcerated countless thousands of African-Americans who in turn are labelled as being dangerous.  This type of double victimization has been going on for 20 years.

During the fight earlier this year to keep the NC Sherrif’s pistol permit process in place, along with its background checks, the Charleston shooting was used as an example as to why the pistol permit process should be maintained.  This writer supported that effort with testimony before the NC House Rules Committee (albeit before studying the mass incarceration issue) as well as in a published Op-Ed in the state’s second largest newspaper – but while doing so also understood that such laws were not structured to specifically identify those holding hateful ideological beliefs.  What was not mentioned in the NC effort was that the existing pistol permit process was also the same that issued not one, but five separate pistol permits to Wade Michael Page, the racist skinhead involved in the 2012 Sikh Temple shooting (copies of all permits provided here).   Each permit certified that the office had “conducted a criminal background check of the applicant” and received “no information to indicate that it would be a violation of state or federal law for the applicant to purchase, transfer, receive, or possess a handgun.”  An organization doing important and relevant work in this area is the Southern Poverty Law Center that, following the Charleston church massacre, disseminated (free of charge) a training video to about 60,000 law enforcement officers  to help combat “lone wolf” terrorists like Roof and Page.

Additionally, having witnessed corporate warfare at senior executive and corporate officer levels, the tactics employed by major gun violence prevention groups are baffling in that they are not playing into their strong suit.  The issue of gun violence prevention is a highly partisan issue and the African-American (and Hispanic) vote has shown itself to be critical in electing a more progressive Congress better able to address not only gun violence, but many other ills in this country born of discrimination.  The GOP, that has admittedly exploited racial conflict for votes, should be made to publicly argue against gun violence prevention from the perspective of the grossly disparate effects in minority populations, the very populations they are attempting to disenfranchise at the polls and prevent from entering our country (even threatening to separate families through deportation).

But there seems to be little appetite to aggressively address the issue of racial discrimination, not surprisingly on the political right, but on the left as well.  Regarding what follows, this writer is disclosing that he voted for Bill Clinton and, to date, plans to cast a vote for Hillary in 2016.  In an interview with Trevor Noah, Ta-Nehisi Coates said that Bill Clinton’s apology for his 1994 ‘tough on crime’ bill is easy in retrospect – both Clinton and Congress (that overwhelmingly approved the legislation) understood its unfair nature in disproportionately imprisoning black males.

In an off-stage interview with Black Lives Matter advocates, Hillary Clinton was pressed about her husband’s ‘tough on crime’ bill and how it contributed to the ‘prison/plantation’ system – yes, in places like the Louisiana State Penitentiary (also known by the name Angola), the predominately African-American prison population has, in recent years, once again found itself working cotton fields at four cents an hour.  Her response that ‘mistakes were made’ was far too weak.   An admission that our country has done a lousy job in addressing its commitment to end all forms of racial discrimination along with a stated commitment to aggressively address the matter would have been more appropriate.  Mrs. Clinton (as a former Secretary of State) knew full well about our country’s obligations under ICERD treaty as well as its ratification during her husband’s administration, interestingly the same year as his crime law and the ratification of ICERD (a good read on that treaty and our performance under it is found here).

And the first step here is not difficult.  It was laid out in paragraph 36 of the 2012 CERD Annotated Concluding Obserations of US Obligations and reiterated in Geneva last year by activists such as this writer and the US Human Rights Network: “the State party should organize public awareness and eduction programmes on the Convention and its provisions, and step up its effort to make government officials, the judiciary, federal and state law enforcement officials, teachers, social workers and the public in general aware about the responsibilities of the State party under the Convention, as well as the mechanism and procedures provided for by the Convention in the field of racial discrimination and intolerance”.

In my teachings of leadership development as an adjunct professor to emerging professionals at the graduate level and in continuing education to business owners, leaders are taught to focus and act on behavior (did you see it or hear it) as opposed to attitude (did you feel it or think it).  The 20 years that have elapsed without our government even initiating a public awareness program regarding its commitment to end racial discrimination is a behavior that, regrettably, speaks volumes as to the lack of political will to aggressively address the matter.