The over-representation of blacks in U.S. prisons and jails has attracted much more attention than the over-representation of men. The over-representation of blacks can be discussed in terms of highly relevant history of slavery and racism in the U.S. The over-representation of men is more difficult to discuss. Yet black men are men. Formally free, open scholarly deliberation has completely failed to address reasonably the highly disproportionate criminalization of men, including black men.
Concern for men as a group is scarcely permissible in serious scholarly discussion. An important empirical study of black men’s welfare concluded:
The growth of incarceration rates among black men in recent decades combined with the sharp drop in black employment rates during the Great Recession have left most black men in a position relative to white men that is really no better than the position they occupied only a few years after the Civil Rights Act of 1965.^
Comparing black men to white men obscures changes in the position of men as a group. With respect to the incarceration sex ratio, men have improved their position relative to women since 1980, probably in large part through unintended effects of new, anti-men domestic violence policies. An insightful work on the collapse of American criminal justice addressed men only obliquely:
The removal from black communities of a substantial fraction of young men and a smaller but growing fraction of young women cannot help but alter those communities’ sense of identity, and the mores on which cultural identity rests. The scars may run deeper than those made by the most violent wars or the most deadly diseases. Wars sometimes carry off a neighborhood’s young men — but most wars last a few years or less, and the majority of the young men return from even the bloodiest of them. Epidemic disease may kill huge numbers — but the worst pandemic in American history, the Spanish flu that struck in 1918, claimed a smaller percentage of the population than the prison system claims in black communities today. And like wars, epidemics end; they play themselves out. Mass incarceration goes on and on. Barring major changes in America’s criminal justice system, the black imprisonment rate will be as high a generation from now as it is today, or nearly so. Large consequences are bound to flow from such large social facts.^
Sex disparities in criminal sentencing are more consistent and less discussed than racial disparities in sentencing. The long-run increase in the ratio of men to women in prison is largely discussed in terms of subtle forms of oppressing women. A proposal to expand enormously the criminalization of men got published in a leading law review and attracted little serious critique. Law journals have outperformed other deliberative fields in duration of support for a sensational, grotesque false claim about domestic violence against women. No misandry is too vicious to prevent a law professor from achieving an eminent academic position.^
What’s going on in legal scholarship is related to who’s held in prisons and jails. Legal scholars unwillingness to discuss normal law when writing about domestic violence helped to support the rise of mass incarceration in the U.S. from the 1980s. The analysis of the collapse of the criminal justice system lamented:
Change as radical as the United States has experience over the past eighty years, in both directions, suggests that criminal punishment is based more on political fad or caprice than on the moral quality of the defendant’s conduct.^
The criminalization of men is a political fad deeply rooted in male and female human nature. The failure across a wide range of deliberative fields to address seriously highly disproportionate criminalization of men is a fundamental failure of deliberative democracy.