Race in the United States criminal justice system

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2009. Percent of adult males incarcerated by race and ethnicity.[1][2]

Race in the United States criminal justice system refers to the unique experiences and disparities in the United States in regard to the policing and prosecuting of various races. There have been different outcomes for different racial groups in convicting and sentencing felons in the United States criminal justice system.[3][4] Experts and analysts have debated the relative importance of different factors that have led to these disparities.[5][6] Minority defendants are charged with crimes requiring a mandatory minimum prison sentence more often, in both relative and absolute terms (depending on the classification of race, mainly in regards to Hispanics), leading to large racial disparities in incarceration.[7]

Historical timeline[edit]

Race has been a factor in the United States criminal justice system since the system's beginnings, as the nation was founded on Native American soil.[8] It continues to be a factor throughout United States history through the present.

Legal background (1763-1829)[edit]

Lynching and Lynch-Law date back to the 1700s when the term was first used by the Scotch-Irish in reference to an act pursued by the Quakers toward Native Americans.[8] The law was originally regulatory, providing regulations regarding how lynching could and could not be carried out.[8] Most crimes of and relating to lynching prior to 1830 were frontier crimes and were considered justifiable due to necessity.[8]

In the construction of the United States Constitution in 1789, slavery and white supremacy were made part of the justice system, as citizens were defined as free white men.[9]

Antebellum (1830-1860)[edit]

Lynch law was renewed with the anti-slavery movement, as several acts of violence towards people of color took place in the early 1830s.[8] In August, 1831 Nat Turner led the slave insurrection in Virginia, in which Turner, an African-American Baptist preacher, believing that the Lord had destined him to free his race, followed through with his plans to conquer Southampton county through the enlistment of other slaves.[8] He did so by traveling from house to house murdering every white person he could find.[8] Due to this act, many innocent negroes and slaves were killed by the police.[8]

The court decision in Dred Scott v. Sandford made it so that African slaves and their decedents were considered non-citizens, further incorporating racism into the justice system.[9]

Postbellum (1865-)[edit]

When slavery was abolished after the Civil War through the ratification of the Thirteenth Amendment to the constitution, violence against African Americans increased tremendously and thousands of African Americans experienced lynching.[9]

During the same time period, unequal treaties towards Native Americans led to a large decrease in Native American land holdings, and Native Americans were forced into 160 acres (65 ha)- reservations.[9]

Latin Americans entering the country were also a target for the penal system during this time.[9]

Reconstruction Period (1865-1877)[edit]

Further information: Reconstruction Era

The Ku Klux Klan, founded in 1865 in Pulaski, Tennessee as a vigilante organization whose goal was to keep control over freed slaves;[9] It performed acts of lawlessness against negroes and other minorities. This included taking negro prisoners from the custody of officers or breaking into jails to put them to death. Few efforts were made by civil authorities in the South against the Ku Klux Klan.[8]

The Memphis Riots of 1866 took place after many black men were discharged from the United States Army. The riot broke out when a group of discharged Negro soldiers got into a brawl with a group of Irish police officers in Memphis, Tennessee. Forty-six African Americans and two white people were killed in the riot, and seventy-five people received bullet wounds. At least five African American women were raped by predatory gangs, and the property damage was worth over $100,000.[10]

In 1868 the Fourteenth Amendment to the United States Constitution overruled the 1857 Dred Scott v. Sandford by establishing that those born or naturalized in the United States are entitled to equal protection under the law, regardless of race.[9]

Events after the Reconstruction Era[edit]

1882 Chinese Exclusion Act[edit]

In 1882 Congress passed the 1882 Chinese Exclusion Act prohibiting Chinese laborers from immigrating into the United States.[9] Senator James G. Blaine proposed the idea in 1879 in an effort to prohibit the Chinese from taking over the Pacific slope and avoid the possibility of another civil war.[11]

1896 Plessy v. Ferguson[edit]

In its 1896 ruling, Plessy v. Ferguson, the United States Supreme Court established that segregation was legal in the United States, establishing the doctrine, "separate but equal."[9] Homer Adolph Plessy was removed from the East Louisiana Railroad train and arrested for violating the 1890 Louisiana Separate Car Act on June 7, 1892. Despite the Supreme Court ruling against him, Plessy's case marked the first use of the 14th Amendment's Equal Protection provision after the Reconstruction Period.[citation needed]

1935 Norris v. Alabama[edit]

In 1935 the United States Supreme Court overturned convictions of the Scottsboro Boys in Norris v. Alabama. These were nine African American teenagers who had been previously denied equal protection under the law as stated in the Fourteenth Amendment to the United States Constitution because African Americans were purposely excluded from their cases' juries.[9]

1941 Fair Employment Practices Commission[edit]

President Franklin D. Roosevelt established the Fair Employment Practices Commission with Executive Order 8802, which banned discrimination based on race, color, religion, or national origin in the defense industry.[9]

1954 Brown v. Board of Education[edit]

In the 1954 Brown v. Board of Education, the United States Supreme Court decision overturned the "separate but equal" doctrine implemented in the 1896 Plessy v. Ferguson case in schools and required that schools be integrated.[9] The case was brought before the Court in 1952 after African American Oliver Brown tried to enroll his daughter Linda in a local white elementary school and was refused enrollment. He and other African American parents, with the help of the NAACP sued the Topeka school district, and Thurgood Marshall argued before the Supreme Court in 1952 and 1953 that public school segregation violated the 14th Amendment. The Court decision was unanimous.[12]

1955 Murder of Emmett Till[edit]

Emmett Till, 14-year-old African American boy in Mississippi was murdered for allegedly flirting with a white woman. His mother's insistence on an open-casket funeral led to the publishing of images of his mutilated body in many newspapers and magazines to showcase the scrutiny of the Mississippi criminal justice system in the 1950s and 1960s.[9][13]

1960 Boynton v. Virginia[edit]

In the 1960 case of Boynton v. Virginia, the United States supreme court ruled that racial segregation in public interstate transportation facilities such as bus or train stations violates the Interstate Commerce Act.[9]

1963 16th Street Baptist Church bombing[edit]

In 1963 16th Street Baptist Church was bombed, killing four African American girls and bringing attention to the need for increased civil rights protection in the United States Legislature.[9] In 2002, nearly 40 years later, Bobby Frank Cherry was the last person brought to trial for the murder of the four girls.[14]

1964 Civil Rights Act[edit]

The Civil Rights Act of 1964, prohibited discrimination based on race, color, religion, sex, or national origin in employment or public accommodations. It also overruled all state and local laws that mandated such discrimination.[9]

1965 Watts Riot[edit]

In the 1965 riot in Watts, Los Angeles, an African American Neighborhood, 16,000 policemen, highway patrolmen, and National Guard troops were forced to restore order.[9] The riot lasted for six days and resulted in property damages worth 40 million dollars. It started when an African American man by the name of Marquette Fry was pulled over by the police for suspicion of driving while under the influence of alcohol, after which tension grew between onlookers and police officers fusing the resulting violence.[15]

1965 Voting Rights Act[edit]

In the Voting Rights Act of 1965, poll taxes, literacy tests, and other impediments formerly used to prevent African Americans from voting were prohibited.[9]

The war on drugs[edit]

Further information: Race and the War on Drugs

The first U.S. law that restricted the distribution and use of certain drugs was the Harrison Narcotics Tax Act of 1914. The first local laws came as early as 1860.[16]

The Federal Bureau of Narcotics was established in the United States Department of the Treasury by an act of 14 June 1930 (46 Stat. 585).[17]

In 1935, President Franklin D. Roosevelt publicly supported the adoption of the Uniform State Narcotic Drug Act. The New York Times used the headline "Roosevelt Asks Narcotic War Aid".[18][19]

In 1937, the Marijuana Transfer Tax Act was passed. Several scholars have claimed that the goal was to destroy the hemp industry,[20][21][22] largely as an effort of businessmen Andrew Mellon, Randolph Hearst, and the Du Pont family.[20][22] These scholars argue that with the invention of the decorticator, hemp became a very cheap substitute for the paper pulp that was used in the newspaper industry.[20][23] These scholars believe that Hearst felt[dubious ] that this was a threat to his extensive timber holdings. Mellon, United States Secretary of the Treasury and the wealthiest man in America, had invested heavily in the DuPont's new synthetic fiber, nylon, and considered[dubious ] its success to depend on its replacement of the traditional resource, hemp.[20][24][25][26][27][28][29][30] However, there were circumstances that contradict these claims. One reason for doubts about those claims is that the new decorticators did not perform fully satisfactorily in commercial production.[31] To produce fiber from hemp was a labor-intensive process if you include harvest, transport and processing. Technological developments decreased the labor with hemp but not sufficient to eliminate this disadvantage.[32][33]

Although Nixon declared "drug abuse" to be public enemy number one in 1971,[34] the policies that his administration implemented as part of the Comprehensive Drug Abuse Prevention and Control Act of 1970 were a continuation of drug prohibition policies in the U.S., which started in 1914.[35][36][37]

Some argue that the decision to criminalize the use of drugs was driven by racial considerations. Cocaine was associated with African Americans, opium was associated with Chinese Americans, and marijuana was associated with Chicanos. The argument is based largely on the fact that these minority-linked drugs have the same potential for harm as other drugs that are not treated the same way by the criminal justice system or viewed the same way by the general public.[38]

William J. Bennett, John J. Dilulio, Jr., and John P. Walters’ moral poverty theory counter argues that the increase in juvenile crime and drug use during the 1980s and 1990s is due to children’s lack of adult role models in their upbringing, such as parents, teachers, and guardians. They argue that children born out of wedlock are more likely to commit crimes, and they use this argument to explain the higher rate of crime for African American youth compared to that of white youth in the United States.[39]

Racial inequality in incarceration[edit]

2010. Inmates in adult facilities, by race and ethnicity. Jails, and state and federal prisons.[40]
Race, ethnicity % of US population % of U.S.
incarcerated population
National incarceration rate
(per 100,000 of all ages)
White (non-Hispanic) 64 39 450 per 100,000
Hispanic 16 19 831 per 100,000
Black 13 40 2,306 per 100,000

According to the United States Bureau of Justice, in 2014 6% of all black males ages 30 to 39 were in prison, while 2% of Hispanic and 1% of white males in the same age group were in prison. There were 2,724 black male prisoners with sentences over one year per 100,000 black male residents in the United States, and a total of 516,900 black male sentenced prisoners in the United States as of December 31, 2014. This compares to 1,091 Hispanic male prisoners per 100,000 Hispanic male residents, and 465 white male prisoners per 100,000 white male residents in the United States at that time. Black males between the ages of 18 and 19 had a rate of imprisonment 10.5 times that of white males of the same age group in 2014.[41] Studies have found that a decreasing percentage of the overrepresentation of blacks in the U.S. criminal justice system can be explained by racial differences in offending: 80% in 1979, 76% in 1991, and 61% in 2004.[42]

Violent crime rates by race of victim 1973-2003.
The rate of homicide victimization by race, 1976-2005.

A 2013 study found that the increased likelihood of African American males of being arrested and incarcerated than white males was entirely accounted for by adjusting for both self-reported violence and IQ.[43] According to a report by the National Council of La Raza, research obstacles undermine the census of Latinos in prison, and “Latinos in the criminal justice system are seriously undercounted."[44] A study regarding the Violent Crime Control and Law Enforcement Act concluded due to mandatory sentencing blacks have a 1 in 3 chance of spending some time in prison or jail. Latinos 1 in 6 chance and whites, a 1 in 17.[45][46]

Race and the death penalty[edit]

Various scholars have addressed what they perceived as the systemic racial bias present in the administration of capital punishment in the United States.[47] There is also a large disparity between races when it comes to sentencing convicts to Death Row. The federal death penalty data released by the United States Department of Justice between 1995–2000 shows that 682 defendants were sentenced to death.[48] Out of those 682 defendants, the defendant was black in 48% of the cases, Hispanic in 29% of the cases, and white in 20% of the cases.[3][clarification needed] 52.5% of people who committed homicides in the 1980-2005 time period were black.[49][50]

Racial disparity in the juvenile justice system[edit]

A 1994 study found that black and Hispanic youths were more likely to be detained at each of the three stages of the juvenile justice system examined (police detention, court intake detention, and preliminary hearing detention), even after controlling for other factors such as offense seriousness.[51] Other studies have reached similar conclusions.[52][53][54][55] A 2014 study looking at juvenile dispositional decisions found that minority juveniles were more likely than their white counterparts to be committed to physical regimen-oriented facilities than their white counterparts were, which the authors suggested was due to court actors using "a racialized perceptual shorthand of youthful offenders that attributes both higher levels of blame and lower evaluations of reformability to minority youth."[56] Research suggests the racial disparities in assessments of juvenile offenders, and the resulting sentence recommendations, result from officials attributing different causes of crime to cases based on the race of the offender.[57] According to a 1982 study, racial bias in juvenile justice decisions is more pronounced in police decisions than in judicial ones.[58]

Race and sentencing length[edit]

Numerous studies have been conducted to examine whether race is associated with sentence length or severity. An early study by Joan Petersilia found that in California, Michigan, and Texas, Hispanics and blacks tended to receive harsher sentences than whites convicted of comparable crimes and with similar criminal records.[59] A 1998 meta-analysis found that the relationship between race and sentencing in the U.S. was not statistically significant, but that the use of different methods of classifying race may also mask the true race-sentencing relationship.[60] A study published the same year, which examined sentencing data from Pennsylvania, found that young black men were sentenced more harshly than were members of any other age-race-gender combination.[61] Similarly, a 2005 meta-analysis found that blacks tended to receive harsher sentences than did whites, and that this effect was "statistically significant but small and highly variable."[62]

A 2006 study found that blacks and Hispanics received about 10% longer sentences than whites, even after controlling for all possible relevant characteristics, with regard to final offenses. However, when the researchers examined base offenses instead, the disparity was reversed.[63] A 2010 analysis of U.S. Sentencing Commission data found that blacks received the longest sentences of any ethnicity within each gender group (specifically, their sentence lengths were on average 91 months for men and 36 months for women).[64] A 2011 study found that black women with lighter perceived skin tones tended to receive more lenient sentences and serve less of them behind bars.[65] A 2012 study looking at felony case data from Cook County, Illinois found that the sentencing disparity between blacks and whites varied significantly from judge to judge, which the authors state provides "support for the model where at least some judges treat defendants differently based on their race."[66] A 2013 report by the U.S. Sentencing Commission found that black men's prison sentences were on average almost 20% longer than those of their white counterparts who were convicted of similar crimes.[67] A 2015 study analyzing data from Georgia found that after controlling for relevant factors of the case, blacks received, on average, 4.25% longer sentences than whites. However, the same study found a larger disparity in sentence length among medium- and dark-skinned blacks, who received 4.8% longer sentences than whites, whereas light-skinned blacks received sentences of about the same average length as those of whites.[68]

Police relation to race and ethnicity[edit]

A study published by Roland G. Fryer, Jr. a professor at Harvard concluded in 2015, nationwide, black and Hispanic civilians are indeed more likely to be manhandled, handcuffed or beaten by the police — even if they are compliant and law-abiding.[69] When it comes to lethal force the study found police are not racially biased in how they use lethal force.[70] A study by The Guardian concluded that 1146 people in 2015 were killed by the police. Per million, Blacks and Hispanics were four times as likely to be killed by police than Whites. The study showed by total, Whites were killed by police more than any other race or ethnicity.[71] The disparity in how police interact with minorities and people of color was a contributing factor to the rise of the Black Lives Matter movement.

Race and habitual offender sentencing[edit]

A 1998 study found that black defendants in Florida were significantly more likely to be sentenced as habitual offenders than were whites, and that this effect was significantly larger for drug offenses and property crimes of which whites are often the victims.[72]

Factors affecting incarceration rates[edit]

Blacks had a higher chance of going to prison especially those who had dropped out of high school. If a Black male dropped out of high school, he had an over 50% chance of being incarcerated in his lifetime, as compared to an 11% chance for White male high school dropouts.[73] Socio-economic, geographic, and educational disparities, as well as alleged unequal treatment in the criminal justice system, contributed to this gap in incarceration rates by race.

Failure to achieve literacy (reading at "grade level") by the third or fourth grade makes the likelihood of future incarceration twenty times more likely than other students. Some states use this measurement to predict how much prison space they will require in the future. It appears to be a poverty issue rather than a race issue.[74]

Effects on families and neighborhoods[edit]

The rate of rapes per 1000 people in the US, 1973-2003.

The current prison complex serves as a punitive system in which mass incarceration has become the response to problems in society. Field studies regarding prison conditions describe behavioral changes produced by prolonged incarceration, and conclude that imprisonment undermines the social life of inmates by exacerbating criminality or impairing their capacity for normal social interaction. Moreover, this racial disparity in imprisonment, particularly with African Americans, subjects them to political subordination by destroying their positive connection with society.[75] Institutional factors – such as the prison industrial complex itself – become enmeshed in everyday lives, so much so that prisons no longer function as “law enforcement” systems.[75] Although African Americans have been exploited by the criminal justice system like no other group in America, inquiry into incarceration has often overlooked important Latino elements.[44] It has also been suggested that differences in the way the criminal justice system treats blacks and whites decreases legitimacy, which, in turn, increases criminal behavior, leading to further increases in racial disparities in interactions with the criminal justice system.[76]

Crime in poorer urban neighborhoods is linked to increased rates of mass incarceration, as job opportunities decline and people turn to crime for survival.[77] Crime among low-education men is often linked to the economic decline among unskilled workers.[77] These economic problems are also tied to reentry into society after incarceration. Data from the Washington State Department of Corrections and Employment Insurance records show how “the wages of black ex-inmates grow about 21 percent more slowly each quarter after release than the wages of white ex-inmates.”[78] A conviction leads to all sorts of social, political, and economic disadvantages for felons, and has been dubbed the “new civil death” (Chin 2012, 179). In the aggregate, these obstacles make it diffi cult for released inmates to transition to society successfully, which, in turn, makes it diffi cult for these communities to achieve social stability.

Black ex-inmates earn 10 percent less than white ex-inmates post incarceration.[78]

Black women[edit]

Violent crime rates by gender in the U.S. from 1973-2003.

Problems resulting from mass incarceration extend beyond economic and political aspects to reach community lives as well. According to the U.S. Department of Justice, 46% of black female inmates were likely to have grown up in a home with only their mothers. A study by Bresler and Lewis shows how incarcerated African American women were more likely to have been raised in a single female headed household while incarcerated white women were more likely to be raised in a two parent household.[79] Black women’s lives are often shaped by the prison system because they have intersecting familial and community obligations. The “increase incarceration of black men and the sex ratio imbalance it induces shape the behavior of young black women.”[80]

Education, fertility, and employment for black women are affected due to increased mass incarceration. Black women’s employment rates were increased, shown in Mechoulan’s data, due to increased education. Higher rates of black male incarceration lowered the odds of nonmarital teenage motherhood and black women’s ability to get an educational degree, thus resulting in early employment.[80] Whether incarcerated themselves or related to someone who was incarcerated, women are often conformed into stereotypes of how they are supposed to behave yet are isolated from society at the same time.[81]

Furthermore, this system can disintegrate familial life and structure. Black and Latino youth are more likely to be incarcerated after coming in contact with the American juvenile justice system. In a study by Victor Rios, 75% of prison inmates in the United States are Black and Latinos between the ages of 20 and 39.[82] Furthermore, societal institutions – such as schools, families, and community centers can impact youth by initiating them into this system of criminalization from an early age. These institutions, traditionally set up to protect the youth, contribute to mass incarceration by mimicking the criminal justice system.[82]

From a different perspective, parents in prison face further moral and emotional dilemmas because they are separated from their children. Both black and white women face difficulty with where to place their children while incarcerated and how to maintain contact with them.[83] According to the study by Bresler and Lewis, black women are more likely to leave their children with related kin whereas white women’s children are likely to be placed in foster care.[83] In a report by the Bureau of Justice Statistics revealed how in 1999, seven percent of black children had a parent in prison, making them nine times more likely to have an incarcerated parent than white children.[75]

Having parents in prison can have adverse psychological effects as children are deprived of parental guidance, emotional support, and financial help.[75] Because many prisons are located in remote areas, incarcerated parents face physical barriers in seeing their children and vice versa. Societal influences, such as low education among African American men, can also lead to higher rates of incarceration. Imprisonment has become “disproportionately widespread among low-education black men” in which the penal system has evolved to be a “new feature of American race and class inequality”.[77] Scholar Pettit and Western’s research has shown how incarceration rates for African Americans are “about eight times higher than those for whites,” and prison inmates have less than “12 years of completed schooling” on average.[77]

Post release[edit]

These factors all impact released prisoners who try to reintegrate into society. According to a national study, within three years of release, almost 7 in 10 will have been rearrested. Many released prisoners have difficulty transitioning back into societies and communities from state and federal prisons because the social environment of peers, family, community, and state level policies all impact prison reentry; the process of leaving prison or jail and returning to society. Men eventually released from prison will most likely return to their same communities, putting additional strain on already scarce resources as they attempt to garner the assistance they need to successfully reenter society. They also tend to come from disadvantaged communities as well and due to the lack of resources, these same men will continue along this perpetuating cycle.[77][84]

A major challenge for prisoners re-entering society is obtaining employment, especially for individuals with a felony on their record. A study utilizing U.S. Census occupational data in New Jersey and Minnesota in 2000 found that "individuals with felon status would have been disqualified from approximately one out of every 6.5 occupations in New Jersey and one out of every 8.5 positions in Minnesota".[85] The interaction between the race and criminal status of an individual will diminish the positive aspects of an individual and intensify stereotypes. From the viewpoint of employers, the racial stereotypes will be confirmed and encourage discrimination in the hiring process.[86] As African Americans and Hispanics are disproportionately affected by felon status, these additional limitations on employment opportunity were shown to exacerbate racial disparities in the labor market.

Calls for reform[edit]

Some efforts to reduce the incarceration rate in the United States have been made on the state level.[87] Many states have chosen to reduce the number of prison admissions for drug possessions and drug offenses. According to the United States Bureau of Justice Statistics, 57% of Hispanics and 53% of African Americans in federal prisons were convicted drug offenders in 2014. 50% of all sentenced inmates in United States federal prison in 2014 were serving time for drug offenses.[41]

Changes in the length of stay for technical violations of probation and parole have also been considered. This includes changes in the length of prison stay for technical violators of parole and probation, as well as the possible diversion of these violators from prison at all. Those crimes that are highly unlikely to qualify for prison diversion programs, such as violent crimes may be eligible for reductions in the lengths of stay assigned to those convicted.[87]

See also[edit]


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  2. ^ Prison Inmates at Midyear 2009 - Statistical Tables & Prisoners at Yearend 2009 - Advance Counts. Bureau of Justice Statistics, press release June 23, 2010. "Midyear 2009 incarceration rates for inmates held in custody in prisons or jails differed by race and gender. Black males, with an incarceration rate of 4,749 inmates per 100,000 U.S. residents, were incarcerated at a rate more than six times higher than white males (708 inmates per 100,000 U.S. residents) and 2.6 times higher than Hispanic males (1,822 inmates per 100,000 U.S. residents)."
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Further reading[edit]

  • Deborah E. McDowell, et al. (eds.), The Punitive Turn: New Approaches to Race and Incarceration. Charlottesville, VA: University of Virginia Press, 2013.