Racial Bias in Criminal Justice

• Study after study confirms that Blacks and Whites differ on their views about the fairness of the criminal justice system
• Blacks are more inclined to think the justice system is against them, whereas Whites are more likely to believe it is in their favor
• Two common sayings that express these opposing views include: "The system works"​(Whites), and "Justice means 'just us' " (Blacks)

Invisibility of Racial Discrimination

• Mainstream criminology research suggests racial discrimination in the criminal justice system is largely a thing of the past
• Some discrimination still exists, but it's neither intentional nor widespread, especially with drug offenses
• Michael Tonry claimed a near consensus among scholars and policy analysts that most black punishment disproportions stem from black offending patterns and criminal records, not racial bias
• Alfred Blumstein said the high rates of black incarceration in the U.S. are more attributable to factors outside the criminal justice system, rather than racial discrimination
• John DiIulio claimed America's justice system is not racist anymore, unlike generations ago
• William Wilbanks acknowledged racial prejudice and discrimination within the criminal justice system on an individual level, but he does not believe the entire system is characterized by racial prejudice against blacks
• These conclusions were drawn mainly from 1970s and 1980s research, typically divided into "single" and "multiple" stage studies
• Single-stage research focuses on criminal cases at one phase of the justice system.
• Research on racial discrimination has focused mostly on sentencing, which has produced inconclusive results
• Many studies suggest very little overt discrimination exists
• Laws no longer prescribe justice based on race of the offender or victim
• Race has an indirect influence on criminal justice processing through interactions with class status and prior criminal record
• Arrest, bail, prosecutorial discretion, and incarceration have all been analyzed
• Research on prosecutorial charging indicates racial discrimination, specifically when the victim is White
• Studies analyzing discrimination at bail and sentencing show subtle, indirect racial bias exists
• Multistage research assesses cases at different points to assess the effect of offender race on criminal justice processing
• Disparity research, whether single or multistage, doesn't provide clear evidence of racial bias in the criminal justice system, leading criminologists to adopt a "no discrimination" thesis
• Other researchers refute this conclusion, citing four key criticisms

Critique of the Research

• Disparity studies are limited by "tunnel vision" because analyzing racial discrimination at a single stage of the criminal justice system cannot detect racial discrimination that exists in other parts of the system
• A study assessing race upon sentencing in State A may find no racial disparity, but that does not mean that State A does not have a racially discriminatory criminal justice system
• Racial discrimination may exist at other stages like plea bargaining
• A study of several criminal courts may obscure discrimination that exists in a few of those courts
• An aggregate analysis of sentencing decisions of ten courts may mean there is little racial discrimination, but examining each of the ten courts individually might reveal substantial discrimination, thus aggregate studies minimize the existence of racial discrimination in sentencing
• At best, single-stage studies provide limited information about the role race plays in the criminal justice system, but cannot reliably answer whether racial discrimination exists in the American criminal justice system
• Multistage research is less problematic than single-stage because it covers more ground, but the fact that discrimination is not evident at two or three stages such as bail and sentencing, does not mean that it is absent from other stages
• Single and multistage studies cannot be generalized across states because state variations like differences in criminal code statutes and jury-pool eligibility, mean the empirical findings for one jurisdiction do not apply to another jurisdiction
• Many researchers have not acknowledged the limitations of single and multistage research, leading to questionable assessments of the degree of racial discrimination in the criminal justice system
• A further criticism of discrimination research is that "disproportionality" is improperly defined by being used to mean whether a group is involved in the criminal justice system at a rate exceeding its rate in the general population
• Using this formula for disproportionality, Blacks, who comprise about 12 percent of the U.S. population, are grossly overrepresented in arrest and incarceration figures.
• Blacks account for more than 30 percent of arrests and more than 50 percent of the incarcerated population
• Conversely, Whites are said to be underrepresented with rates below 80 percent
• Some researchers reject this conventional definition of disproportionality in favor of a more complex analysis because they state that arrest rates should mirror indicators of social marginality.
• The conventional measure of disproportionality is only useful assuming all racial groups are on equal social footing
• Compared with Whites, Blacks have higher rates of out of wedlock births, infant mortality, illiteracy, unemployment, female-headed households, and poverty
• Criminologists Marvin Wolfgang and Bernard Cohen concluded that if a careful and detached scholar knew nothing about crime rates but was aware of the social, economic and political disparities between whites and Negroes in the United States, would expect African Americans would be found to have a higher crime rate than Whites
• It becomes reasonable to expect indicators of social marginality, such as high rates of unemployment and crime, should be positively correlated with unemployment rates rising, so do arrest rates
• The current definition of disproportionality is not so much misleading as it is incomplete
• Perhaps it better serves as one of the many indices of social status, rather than as a definitive measure for crime rates
• Understanding why Blacks offend at rates that exceed their percentage in the population requires a consideration of other factors that may have a direct or indirect effect on crime
• Race, poverty, employment, crime, and education are interacting variables
• Whether a group offends at a high or low rate is typically related to how it fares on other social indicators
• They are typically discussed as if they are competing, antithetical phenomena, but they coexist
• Those who are left-of-center tend to focus on racial discrimination, while those who are right-of-center tend to focus on the disproportionately high rate of Black offending, for example, liberals focus upon the law, while conservatives focus on the criminals
• Despite these political distinctions, research shows racial discrimination against Blacks in the criminal justice system alongside disproportionate offending
• The precise relationship between disparity and discrimination is unclear, so the two may be correlated, causally related, or operate independently of one another
• High rates of Black offending has caused many researchers to downplay, or ignore, racial discrimination in the criminal justice system
• Some researchers concedes the high rate of Black incarceration is not completely explained by disproportionate rates of offending.
• Professor Alfred Blumstein says the 20 to 25 percent of the incarceration rate for Blacks is not explained by disproportionate offending
• He surmises, however, that this gap is not a great cause for alarm because eliminating this gap would drastically change the incarceration picture
• Eliminating 20 to 25 percent would be a statistical drop in the bucket, but for the 10,000 Blacks it represents it is an enormous social problem
• The impact of this discrimination also extends beyond those being discriminated and affects their families and wider society
• Some researchers also question whether disproportionately high rates of Black arrests stem from crime rates or other factors that may operate to promote Black disproportionality
• National studies show that about half of all crack-cocaine users are White, yet they account for 4 percent of defendants convicted under the federal crack law, and blacks, who make up 38 percent of crack users, account for more than 85 percent of the federal crack convictions
• This racial disparity illustrates one of the problems with current measures of racial discrimination in the criminal justice system
• In U.S. v. Armstrong,
• The U.S. Supreme Court's highlights how certain types of race discrimination elude traditional checks and balances
• In this case, the Los Angeles federal public defender's office argued the U.S. Attorney's office was selectively prosecuting Black defendants under the federal crack-cocaine statute.
• Noting that cracking conviction is much harsher under federal law, therefore all twenty-four of the federal crack cases handled by the public defender's office involved Black defendants
• The public defender's office requested records from the prosecutor's office and asked if they would state its criteria to prosecute a case in federal court
• The public defender sought to make sure that White crack offenders were being prosecuted in state court because the penalties were less harsh
• The Court held that the defense had to offer minimal proof of racial discrimination before the prosecution could be required to turn over its case records
• One example of a legal roadblock that makes it difficult to measure race discrimination in the criminal justice system, meaning that easily escaped penalty
• Researchers have failed to expand their examination of racial discrimination to include nontraditional measures and constrain their analyses to the formal stages of the criminal justice system, such as arrest, bail, sentencing, and parole
• Daniel Georges-Abeyie asks if analyzing the formal, easily observed decision-making process obscures or misdirects attention from the most significant contemporary form of racism within the criminal justice system.

Black Men and the Police

• Black men have an endless supply of police harassment stories, many involving vehicle stops.
• They are subject to vehicle stops for many reasons, including: driving a luxury automobile, driving an old car, driving in a car with other Black men, driving in a car with a White woman, driving early in the morning, driving late at night, driving a rented automobile, driving too fast, driving too slow, driving in a low-income neighborhood, driving in a White neighborhood, driving in a neighborhood where there have been recent burglaries, fitting a drug courier profile and violating the vehicle code
• It is so commonplace for Black men to be pulled over in their vehicles that this practice has its acronym DWB (Driving While Black).
• In Selma, Alabama, Black leaders installed a telephone hot-line for people to call and report police harassment.
• There are clear distinctions between police harassment and police brutality, which typically refers to the unlawful use of excessive force
• Harassment covers a range of police actions, some lawful, some unlawful
• For Black men, consistently negative encounters with the police have caused the line between harassment and brutality to become blurred, meaning each stop has the potential for police brutality
• The comments made by the young Black men in focus groups show the general fear and loathing that many Black men have of the police
• Black men are commonly taught to make no quick moves, remove any possibility of danger, and never give offense to official power, to minimize harm
• Many also use strategies like sitting erect while driving, traveling at the precise posted speed limit, avoiding certain neighborhoods, avoiding certain headgear and cars, and vanity license plates
• The difference in experiences with law enforcement may explain why Blacks and Whites have contrasting impressions of the legitimacy and trustworthiness of police treatment of Blacks. In 1996, the Joint Center for Political and Economic Studies conducted a national survey and found 43 percent of the Blacks polled answered "yes" to the question, "Do you believe that police brutality and harassment of African Americans is a serious problem where you live?"
• In addition to the experiences of the larger Black citizenry, Black police officers too have stories of abuse and harassment at the hands of other police officers of all races
• Black distrust of the justice system is not new
• Gunnar Myrdal reported that between 1920 and 1932, White police officers were responsible for more than half of all the murders of Black citizens
• Historical accounts also show that White policemen were often present at lynchings
• Further, it has only been within the last half-century that Blacks have been allowed to police White communities on a wide scale
• Black officers viewed during the 1960s and later have been assigned to patrol Black communities
• Police abuse is one indicator showing a the number of famous Black men report being unfairly stopped and harassed
• Mae Jemison, the first Black female astronaut, had a remarkable run-in where she was arrested and handcuffed and her head was pushed face down onto the pavement
• The Jonny Gammage case is a notorious recent example when he was killed following stopped by police
• In 1989, Black police officer Jackson invited a television news crew to videotape his drive through a high crime area, so the two white police stopped the car and assaulted him leading to the report being deemed false
• In the 1991 Christopher Commission Report found that more than 25 percent of Los Angeles police officers believe some officers engage in racially discriminatory procedures
• Measuring police abuse is difficult because it requires a variety of studies that examine of police/Black citizen encounters
• The “out-of-place” doctrine has police use a person's race as a basis for a stop
• In Whren v. United States, the U.S. Supreme Court was asked to determine whether it is constitutional for the police to use a minor traffic violation to stop a driver whom they suspect of criminal activity
• As part of the 1994 Crime Bill, the Department of Justice was directed to develop a method for collecting national data on police use of excessive force
• As of 1997, Congressman John Conyers introduced the Traffic Stops Statistics Act
• Since the mid-1990s, a barrage of lawsuits has been filed against state and local police departments Robert Wilkins, a Washington, D.C. lawyer, was pulled over under a race-based policy, The Wilkins case was settled for just under $100,000
• In 1995, Maryland troopers conducted 533 searches along the Interstate-95 and seventy seven percent involved black motorists and 18 percent involved White drivers
• A 1996 ACLU study shows that along Interstate-95 Blacks account for approximately 17 percent of the motorists and 17.5 percent of traffic law violators.
• Black residents in November 1995 sued against the Beverly Hills department that they were being targeted as Black motorists and pedestrians with no reason.

Conclusion

• Conclusion: A Costly Enterprise
• Numerous costs are associated with race-related police abuse for individuals
• Race based polices raise questions about the legitimacy of the police