Race in the United States criminal justice system

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The rate of homicide victimization by race, 1976-2005.

There have been different outcomes for different racial groups in convicting and sentencing felons in the United States criminal justice system.[1][2] Experts and analysts have debated the relative importance of different factors that have led to these disparities.[3][4] 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.[5]

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.[6] It continues to be an 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.[6] The law was originally regulatory, providing regulations regarding how lynching could and could not be carried out.[6] Most crimes of and relating to lynching prior to 1830 were frontier crimes and were considered justifiable due to necessity.[6]

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.[7]

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.[6] 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.[6] He did so by traveling from house to house murdering every white person he could find.[6] Due to this act, many innocent negroes and slaves were killed by the police.[6]

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.[7]

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.[7]

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.[7]

Latin Americans entering the country were also a target for the penal system during this time.[7]

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;[7] It preformed acts of lawlessness against negroes and other minorities. This included taking negro prisoners from the custody of officers or braking into jails to put them to death. Few efforts were made by civil authorities in the South against the Ku Klux Klan.[6]

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.[8]

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.[7]

Events After the Reconstruction Period[edit]

1882 Chinese Exclusion Act[edit]

In 1882 Congress passed the 1882 Chinese Exclusion Act prohibiting Chinese laborers from immigrating into the United States.[7] 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.[9]

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."[7] Homer Adolph Plessy was removed from the East Louisiana Railroad train and arrested for violating the 1980 Louisiana Separate Car Act on June 7, 1982. 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.[10]

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.[7]

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.[7]

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.[7] 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.[11]

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.[12][7]

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.[7]

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.[7] In 2002, nearly 40 years later, Bobby Frank Cherry was the last person brought to trial for the murder of the four girls.[13]

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.[7]

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.[7] 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.[14]

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.[7]

The war on drugs[edit]

Further information: War on drugs

In December 1969, President Nixon instigated the discussion of problems affecting American youth by appointing Stephen Hess as National Chairman of the White House Conference for Children and Youth. Hess created a task force on drugs that worked to address the root causes of drug abuse among youth in the United States and pushed for therapy as opposed to incarceration and punishment for addicts. However, three months later Nixon launched the drug war, which framed drug abuse as a criminal act and drug addicts as criminals, discipline and punishment being the only solution.[15]

Many 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.[16]

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.[17]

Racial inequality in incarceration[edit]

2009. Percent of adult males incarcerated by race and ethnicity.[18]

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.[19]

Violent crime rates by race of victim 1973-2003.

Race and the death penalty[edit]

Further information: Capital punishment in the United States Among races

Various scholars have addressed what they perceived as the systemic racial bias present in the administration of capital punishment in the United States.[20] 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.[21] 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.[22][23]

Factors affecting incarceration rates[edit]

Blacks had a higher chance of going to prison especially if they drop 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.[24] 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.[25]

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.[26] 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.[26]

Crime in poorer urban neighborhoods is linked to increased rates of mass incarceration, as job opportunities decline and people turn to crime for survival.[27] Crime among low-education men is often linked to the economic decline among unskilled workers.[27] 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.”[28]

Black ex-inmates earn 10 percent less than white ex-inmates post incarceration.[28]

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.[29] 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.”[30]

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.[30] 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.[31]

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.[32] 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.[32]

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.[33] 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.[33] 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.[26]

Having parents in prison can have adverse psychological effects as children are deprived of parental guidance, emotional support, and financial help.[26] 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”.[27] 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.[27]

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. Due to the lack of resources, these same men will continue along this perpetuating cycle.[27]

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".[34] 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.[35] 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.[19]

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.[35]

See also[edit]


  1. ^ United States. Dept. of Justice. 2008. Bureau of Justice Statistics: Prison Statistics. Washington, DC: U.S. Dept. of Justice.
  2. ^ Lifetime Likelihood of Going to State or Federal Prison, US Department of Justice, 1997.
  3. ^ Stephan Thernstrom; Abigail Thernstrom (1999). America in black and white: one nation indivisible. p. 273. Retrieved October 26, 2015. 
  4. ^ Bobo, Lawrence D., Victor Thompson. 2006. “Unfair By Design: The War on Drugs, Race, and the Legitimacy of the Criminal Justice System.” Social Research 73: 445-472.
  5. ^ Rehavi and Starr (2012) "Racial Disparity in Federal Criminal Charging and Its Sentencing Consequences" Working Paper Series, no. 12-002 (Univ. of Michigan Law & Economics, Empirical Legal Studies Center)
  6. ^ a b c d e f g h i Cutler, James Elbert (1905-01-01). Lynch-law: An Investigation Into the History of Lynching in the United States. Longmans, Green, and Company. 
  7. ^ a b c d e f g h i j k l m n o p q r Miller, Wilbur R. (2012-07-20). The Social History of Crime and Punishment in America: An Encyclopedia. SAGE Publications. ISBN 9781483305936. 
  8. ^ Ryan, James Gilbert (1977-07-01). "The Memphis Riots of 1866: Terror in a Black Community During Reconstruction". The Journal of Negro History 62 (3): 243–257. doi:10.2307/2716953. 
  9. ^ Gyory, Andrew (1998-01-01). Closing the Gate: Race, Politics, and the Chinese Exclusion Act. Univ of North Carolina Press. ISBN 9780807847398. 
  10. ^ "Learn and talk about Plessy v. Ferguson, 1896 in Louisiana, 1896 in United States case law, African-American history between emancipation and the civil rights movement, History of the United States (1865–1918)". www.digplanet.com. Retrieved 2015-11-22. 
  11. ^ "Brown et al. v. Board of Education of Topeka, Shawnee County, Kansas" (PDF). USHistoryAtlas.com. Nystrom: Herff Jones Education Division. 
  12. ^ Whitfield, Stephen J. (1991-11-01). A Death in the Delta: The Story of Emmett Till. JHU Press. ISBN 9780801843266. 
  13. ^ "Ghosts of Alabama: The Prosecution of Bobby Frank Cherry for the Bombing of the Sixteenth Street Baptist Church 12 Michigan Journal of Race & Law 2006-2007". heinonline.org. Retrieved 2015-11-22. 
  14. ^ "Watts Riots". crdl.usg.edu. Retrieved 2015-11-18. 
  15. ^ "The War on Drugs: How President Nixon Tied Addiction to Crime". The Atlantic (in en-US). https://plus.google.com/109258622984321091629. Retrieved 2015-11-20. 
  16. ^ Chin, Gabriel J. (2011-04-14). "Race, the War on Drugs, and the Collateral Consequences of Criminal Conviction". Rochester, NY. 
  17. ^ Tanner, Jennifer (2010). "Bennett, William J., John J. DiIulio, Jr., and John P. Walters: Moral Poverty Theory" (PDF). Encyclopedia of Criminological Theory. SAGE Publications, Inc. Retrieved September 16, 2014. 
  18. ^ Prison Inmates at Midyear 2009 - Statistical Tables (NCJ 230113). U.S. Bureau of Justice Statistics. The rates are for adult males, and are from Tables 18 and 19 of the PDF file. Rates per 100,000 were converted to percentages.
  19. ^ a b "Bureau of Justice Statistics (BJS) - Prisoners in 2014". www.bjs.gov. Retrieved 2015-11-18. 
  20. ^ Londono, O. (2013), A Retributive Critique of Racial Bias and Arbitrariness in Capital Punishment. Journal of Social Philosophy, 44: 95–105. doi: 10.1111/josp.12013
  21. ^ Coker, Donna. 2003. “Foreword: Addressing the Real World of Racial Injustice in the Criminal Justice System.” Journal of Criminal Law & Criminology 93: 827-879.
  22. ^ "Homicide Trends in the United States, 1980-2008" (PDF). p. 3. 
  23. ^ Cooper, Alexia (2012). Homicide Trends in the United States, 1980-2008. p. 3. ISBN 1249573246. 
  24. ^ Western, Bruce. 'Punishment and Inequality in America'. New York: Russell, 2006.
  25. ^ Rains, Bob (October 8, 2013). "Brevard's new literacy crusade:United Way. Alarming jail, social statistics motivate new priorities". Florida Today (Melbourne, Florida). pp. 5A. Retrieved October 8, 2013. 
  26. ^ a b c d Roberts, Dorothy (2004). "The Social and Moral Cost of Mass Incarceration in African American Communities". Stanford Law Review 56. 
  27. ^ a b c d e Pettit, B.; Western, B. (1 April 2004). "Mass Imprisonment and the Life Course: Race and Class Inequality in U.S. Incarceration". American Sociological Review 69 (2): 151–169. doi:10.1177/000312240406900201. 
  28. ^ a b Lyons, Christopher J.; Pettit, Becky (1 May 2011). "Compounded Disadvantage: Race, Incarceration, and Wage Growth". Social Problems 58 (2): 257–280. doi:10.1525/sp.2011.58.2.257. 
  29. ^ Greene, Susan (1 April 2004). "Mothering and Making It, in and Out of Prison". Punishment & Society 6 (2): 229–233. doi:10.1177/1462474504041269. 
  30. ^ a b Mechoulan, Stephane. "The External Effects of black Male Incarceration on Black Females". Journal of Labor Economics (29). 
  31. ^ Phillips, S.; Haas, L. P.; Coverdill, J. E. (15 December 2011). "Disentangling Victim Gender and Capital Punishment: The Role of Media". Feminist Criminology 7 (2): 130–145. doi:10.1177/1557085111427295. 
  32. ^ a b Rios, Victor M. (1 July 2006). "The Hyper-Criminalization of Black and Latino Male Youth in the Era of Mass Incarceration". Souls 8 (2): 40–54. doi:10.1080/10999940600680457. 
  33. ^ a b Ferraro, Kathleen J.; Moe, Angela M. (1 February 2003). "Mothering, Crime, And Incarceration". Journal of Contemporary Ethnography 32 (1): 9–40. doi:10.1177/0891241602238937. 
  34. ^ Wheelock, Darren; Christopher Uggen and Heather Hlvaka. 'Employment Restrictions for Individuals with Felons Status and Racial Inequality in the Labor Market' in 'Global Perspectives on Re-Entry'. Marquette University, 2011.
  35. ^ a b "Reducing Mass Incarceration Requires Far-Reaching Reforms". webapp.urban.org. Retrieved 2015-11-18.