Glenn Loury has decided that if he writes like an overwrought 1960s liberal, people will forget that he was ever a 1980s Reagan conservative. In the Boston Review he argues that the American criminal justice system has become “crueler and less caring” than ever before. His explanation – white racism – could have been copied from the Kerner Commission Report. Bigots who opposed but knew they could not defeat the civil-rights movement, according to Loury, “sought to regain the upper hand by shifting . . . attention to a seemingly race-neutral concern over crime.”

This toxic mix of racism and cynicism has given America the highest rate of incarceration in the world, 0.714% of our population. That ratio is 6 times higher than Canada’s and 12 times higher than Japan’s. Moreover, says Loury, blacks’ incarceration rate is eight times higher than the rate for whites, a disparity “greater than in any other major arena of American social life.”

Loury acknowledges, sort of, that crime is a bad thing, meaning that the apprehension and incarceration of those who commit crimes is a necessity. Although he argues that blacks are disproportionately likely to be incarcerated, that disproportion is relative to their share of the entire population - Loury never contends that it is disproportionate to blacks’ actual commission of actual crimes. Lacking such evidence, he is reduced to arguing that “the sum of a million cases, each one rightly judged on its merits to be individually fair, may nevertheless constitute a great historic wrong.” And how is America to square this circle? The entirety of Loury’s concluding policy prescription is, “Our country’s policymakers need to do something about it.”

If not for the annoyances of democracy, this wouldn’t be such a hard problem. If the authorities decide we need more blacks in Yale Law School they can race-norm the LSAT until the proportion is more to their liking. And if they decide they want fewer blacks in San Quentin they can race-norm the penal code, handing out discounted sentences to criminals from demographic groups that are over-represented among the incarcerated population.

Politics makes it sticky, though. The Democratic party suffered for 25 years after the Kerner Commission Report by insisting that “law-and-order is a code word for racism.” Loury’s attempt to revive that position ignores the political traction conservatives got by retorting, “Then what’s the code word for law-and-order?” If there isn’t one, then Kerner Commission liberals are really saying that the imperatives of racial justice require that we learn to live with higher levels of crime and lower levels of public safety. They are also telling people terrified and infuriated by crime that their demands that the government do something about it are illegitimate - or legitimate only to the extent that government can find ways to fight crime through measures that have no racially disparate impact.

The Democrats, emboldened by the 2006 election, are voicing sentiments they’ve kept in storage for many years, speaking out for higher taxes and bigger government, and against free trade. We’ll know they’re really confident about 2008 when they follow Loury’s lead and call for a return to the golden age of 1990, when the murder rate in New York was four times as high as it is now.