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Racial Injustice within the Criminal Justice System

Weighing Scale in Hands

History

The Civil War ended in 1865. Shortly after, some states in the United States passed “Black Codes” which severely limited the rights of Black individuals. The 13th Amendment to the Constitution abolished slavery and involuntary servitude, except as punishment for a crime. This loophole in the 13th Amendment is what southern states used to pass “Black Codes.” These codes hindered what jobs Black individuals could hold and their ability to terminate employment once hired. Some states took it a step further and restricted the kind of property Black individuals could own. Further, this allowed southern states to establish economic and labor systems that relied on the arrest and imprisonment of Black individuals in the United States. 

In 1867, the Reconstruction Act dampened the effect of the Black Codes by requiring all states to uphold equal protection under the 14th Amendment. Specifically, providing Black men the ability to vote. The 14th Amendment addresses many aspects of citizenship and the rights of citizens. Black males forcefully utilized their ability to vote to influence change in legislation. However, in 1896, the Supreme Court ruled in Plessy v. Ferguson, which ultimately deemed “separate but equal” facilities including public transportation and schools, as constitutional. Until the 1964, Civil Rights Act, discrimination and segregation were legal and enforceable.  

The same criminal legal system that was developed after the Civil War to reimpose control over Black individuals in the United States exists today. Imprisonment has been and continues to be used as a weapon to control communities of color in ways that are not used or observed in other communities. 

Incarceration in the United States

First, let’s look at the data on how many individuals in the United States are imprisoned in prisons and jails. The Prison Policy Initiative collects and presents the data to illustrate the criminal justice system.

In 2022, approximately 1,042,000 individuals were incarcerated in state prisons, 547,000 in local jails, and 208,000 in federal prisons and jails.    

A closer look at which communities were most heavily impacted by mass incarceration reveals a glaring racial and ethnic discrepancy in the United States incarceration rates. 

According to the United States Census, Black individuals are incarcerated five times more than White individuals are, and Hispanics are nearly twice as likely to be incarcerated as Whites.

More specifically as of 2016, in state prisons, 34% of people identify as Black and 32% identify as White, groups roughly equal in size. Another 21% identify as Hispanic, 11% identify as two or more races, about 1.4% are American Indian or Alaska Native, and 0.9% were Asian, Native Hawaiian or other Pacific Islander. This is a marked difference from the United States population, where Blacks account for about 12% of the U.S. population and Hispanics account for about 17%. Thus, every race and ethnicity is overrepresented in prisons, except for White and Asian people, as illustrated in the picture below. 

Incarceration in USA
What leads to this disparity

What leads to this disparity?

A heavily researched topic within criminology has been the investigation of whether racial status influences the administration of justice. Based on the numbers above, it appears that it does. 

The Society for Black Neuropsychology, the Hispanic Neuropsychological Society, and the Asian Neuropsychological Association have concluded that racial factors significantly influence criminal justice system decision-making, resulting in disparate conviction rates, wrongful convictions, and levels of punishment across racial groups in the United States. 

Furthermore, the debate continues to rage over the extent to which race serves as an extralegal characteristics that disproportionality exposes minorities to more stringent sanctions. A study conducted by Hagan and Albonetti in 1982 analyzed a national survey of attitudes toward the courts and the administration of justice. Their study found that Black individuals, were more likely than White individuals to perceive the criminal justice system as unjust. Below highlights a few examples of how race impacts outcomes in the criminal justice system:

1. Race and the War on Drugs:

“Nothing has contributed more to the systematic mass incarceration of people of color in the United States than the War on Drugs.”

Michelle Alexander, The New Jim Crow (2010)

The War on Drugs has been a focus in the United States dating back to the 1970s. Aggressive criminalization of certain drugs, targeted heavily against certain communities is a method of oppressing, disrupting, and disempowering marginalized communities. In 1986, the Anti-Drug Abuse Act established a 100 to 1 sentencing disparity between powder cocaine and crack. In the following years, 15 states enhanced penalties for crack offenses. This led to Black individuals not only being disproportionately punished because of sentencing guidelines, but also because of decisions by prosecutors and judges. Black individuals convicted of crack offenses were sentenced to double the amount of time as were White individuals convicted of crack offenses. 

2. Race and Pretrial 

Unfortunately, racial disparities emerge at most decision-making junctions of the criminal justice system. A study on bail setting practices in Miami and Philadelphia found that Black defendants were over 11 percentage points more likely to be assigned monetary bail than White defendants were and received bail amounts that were $14,376 greater. Moreover, in large urban areas, Black defendants accused of felonies are 25% more likely than White defendants to be held in detention pretrial. 

3. Race and Sentencing 

The Violent Crime Control and Law Enforcement Act of 1994, also known as the crime bill, appears to implement a host of provisions that placed more Black and Brown individuals behind bars, for extended periods of time. This bill established three-strike laws, which impose an automatic life sentence for individuals convicted of certain felonies if they already have two convictions on their record. Even in states that do not have three strikes laws, and in cases in which it may not apply, prosecutors and judges can recommend and decide sentences based on a defendant’s criminal history. The result is communities subject to more aggressive policing and prosecution are subject to harsher sentences. These communities that are affected are mainly Black and Brown communities. 

According to a report by the United States Sentencing Commission, Black male defendants’ sentences were 7.9% longer than those received by White male defendants. Moreover, it indicated these disparities were not a result of different histories of violence. Even when accounting for violence in a defendant’s past, Black male defendants received sentences that were 20.4% longer than similarly situated White male defendants. 

Takeaways

There are many more areas of the criminal justice system where racial disparities are clear such as race and policing, race and the death penalty, race within the juvenile system, and race and public defense. At each stage of the criminal legal process, these disparities are compounded, contributing to a system in which Black and Latinx individuals are disproportionately incarcerated, denied parole, and kept on community supervision, with devastating consequences for their families and communities.

References

Allard, P., & Greene, J. (2012). Children on the Outside: Voicing the Pain and Human Costs of Parental Incarceration. 

Arnold, D., Dobbie, W., & Yang, C. (2017). Racial bias in bail decisions. National Bureau of Economic Research. https://doi.org/10.3386/w23421 

Brown, T. (2022, July 8). The Black Codes and Jim Crow laws. National Geographic Society. Retrieved January 10, 2023, from https://education.nationalgeographic.org/resource/black-codes-and-jim-crow-laws 

Hagan, J., & Albonetti, C. (1982). Race, class, and the perception of criminal injustice in America. American Journal of Sociology, 88(2), 329–355. https://doi.org/10.1086/227674 

National Association of Criminal Defense Lawyers. (2022, December 7). Racial disparity. NACDL. Retrieved January 10, 2023, from https://www.nacdl.org/Landing/RacialDisparity 

Sakala, L. (2014, May 28). Breaking down mass incarceration in the 2010 census. Breaking Down Mass Incarceration in the 2010 Census | Prison Policy Initiative. Retrieved January 10, 2023, from https://www.prisonpolicy.org/reports/rates.html 

Sawyer, W. (2019, October 9). How race impacts who is detained pretrial. Prison Policy Initiative. Retrieved January 10, 2023, from https://www.prisonpolicy.org/blog/2019/10/09/pretrial_race/ 

Schmitt, G. R., Reedt, L., & Blackwell, K. (2017). Demographic differences in Sentencing: An Update to the 2012 Booker Report. Federal Sentencing Reporter, 22(5). https://doi.org/10.1525/fsr.2010.22.5.323 

The Pew Charitable Trusts, 2010. Collateral Costs: Incarceration’s Effect on Economic

Mobility. Washington, DC: The Pew Charitable Trusts.

U.S. Const. amend. XIV, § 2

Western B, Pettit B. Incarceration and social inequality. Daedalus. 2010;139(3):8-19. doi: 10.1162/daed_a_00019. PMID: 21032946.



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