All too often, the role of race in the criminal justice system (particularly where Black people are concerned), is not given the serious attention it deserves. Many White Americans appear to have drawn the conclusion that the criminal justice system, perhaps while imperfect, is still effective in dispensing fairness irrespective of the race of the person effected. In short, many Whites seem to agree with the system’s contention that it is colorblind. Many Blacks, and other so-called minorities, on the other hand, differ with this contention, believing that the judicial system is a “White” system where White people get justice (or get away with committing crimes), and Black people get punished. Many Blacks and other so-called minorities simply believe that “looking to the courts for solutions to civil or criminal complaints is a waste of time.”
19
In fact, a growing number of Blacks view the criminal justice system generally, and contemporary crime and drug policies in particular, as White America’s primary means to control, if not ultimately destroy, the Black community.
20
In their book,
Chain Reaction: The Impact of Race, Rights and Taxes on American Politics,
Thomas and Mary Edsall “describe focus groups held in the late 1980’s . . . In every session with Black participants, the view was expressed that crime and drug control policies were a deliberate effort to destabilize Black communities.”
21
Amos Wilson suggests that “There is a pervasive feeling among many White Americans that their world would be much more secure if all young Black males were imprisoned, solitary confined to their ghettos, or kept under constant surveillance . . . Ultimately, criminality of the Black male . . . resides in any act or attitude on the part of Black males which appears to White Americans to defy White American authority, control or dominance.”
22
The entire “crime picture”, is extremely fuzzy to most Americans. The text may be crime. The subtext is race.
23
That is, the common perceptions concerning crime are apparently based upon non-factual, stereotypical and racist presumptions about who commits crimes and who does not. One of the most glaringly erroneous conclusions that most Americans draw in regards to crime is defining as criminal only those persons arrested by the police. As a result,
The trouble with the official crime picture is that it has the effect of grossly distorting the average citizen’s image of what crime is all about. It minimizes and deflects attention from one kind of crime (the common kind that one’s neighbors commit) and exaggerates and spotlights another, less common, kind (the code name is “crime-in-the-street” which is presumably committed by “criminals”).
24
The fact of the matter is that poor people, and especially poor Blacks, are convicted of crime more often, although there is no substantial relationship between social class and the
commission
of crimes. There is, however, a marked relationship between class and
conviction
for crime.
25
In short, “ . . . the fact that half or more of the fifty per cent of the persons arrested for crimes of personal violence, and that forty to fifty percent of all prisoners in jails and penitentiaries are black says nothing at all about the criminality of black people. And that an even higher proportion of persons arrested are poor and imprisoned sheds no light whatever on the criminality of the poor. These facts only identify the objects of police and court activity. There are law violators and there are law violators; one kind gets arrested, the other kind is usually left alone.”
26
It is not disingenuous to conclude, then, that those “left alone” are almost always White and/or wealthy. For in America, Whites clearly benefit from White-skin privilege. Conversely, Blacks appear to suffer from Black-skin punishment.
Police officers do not help bring clarity to this fuzzy criminal picture. In fact, they are greatly responsible for the fuzziness in the first place. For example, in several states, police departments use profiles which they claim help to reduce drug activity. The profiles purport to describe common characteristics of drug couriers by basically encouraging officers to stop, at random and with no reasonable suspicion, people of color (usually Black males) traveling on Interstate 95 and engage in a search of both the vehicle and passenger. While just “a small percentage of the motorists traveling the highway were black, . . . blacks constituted nearly two-thirds of the detainments.”
27
In Florida, “Ninety percent of the motorists from whom cash was seized by Volusia County deputies were blacks or Hispanics.”
28
This happens despite the fact that the majority of drug abusers in Volusia County are White. Of course, they were not represented amongst the various groups in the profiles.
Perhaps at no point in the law enforcement process is the idea of Black-skin punishment more apparent than at the most powerful and primary level of law enforcement—policing. For police, “Hung with the pressure of quotas to meet, . . . tend to ignore big-time, well-financed professional white criminals (which require long-term investigations but also potentially yield substantially more remunerative arrests) and instead pursue the quick bust, the far easier prey of small-time dealers and gang members.
29
Hence, “any experienced police official could have predicted that policies of wholesale arrests of dealers would sweep up mostly young minority user-dealers in the cities.
This is not necessarily because more minorities use or sell drugs, but because arrests are easier to make in disorganized inner-city areas
where many minority dealers operate than they are in middle- and working class neighborhoods where white dealers operate.”
30
(Emphasis mine). This notion runs counter to the contention propagated by criminologist John J. Diulio that “America does not have a crime problem; inner-city America does.”
31
Diulio’s contention here is at best fatuous, and at its worst, racist because “he completely ignores four decades of rising crime rates in white America . . . Black and white crime rates have increased together . . . The black crime gap could disappear tomorrow and America would still have a crime crisis . . . ”
32
As mentioned earlier, the text may be crime. The subtext is race.
In order to advance their careers, police officers will try desperately to “make the collar”. The more arrests made, the more it appears as though police officers are getting the job done. As a result, those with the fewest resources are targeted because police officers, as agents of the state, have the full force of the state behind them. For example, where the issue of drug arrests are concerned, police officers, with the assistance and support of the daunting state apparatus, “focus on minority consumers rather than dealers and manufacturers, who are mostly white. The minority consumers, usually neither dangerous nor wealthy, are easier and cheaper to arrest in volume than the often well-armed and well-financed white dealers and manufacturers . . . .Ironically, this means that those in the drug market who are creating the problem are mostly untouched.”
33
While those who create the problem apparently go “mostly untouched” by law enforcement officials, Black and Latino males are arrested and incarcerated at rates well-beyond their representation in the drug-trafficking trade. However,
. . . the rising levels of black incarceration did not just happen; they were the foreseeable effects of deliberate policies spearheaded by the Reagan and Bush administrations and implemented in many states. Anyone with knowledge of drug-trafficking patterns and of police arrest policies and incentives could have foreseen that the enemy troops in the War on Drugs would consist largely of young, inner-city minority males. Blacks in particular are arrested and imprisoned for drug crimes in numbers far out of line with their proportions of the general population, of drug users, and of drug traffickers.
34
Closer to home, the Task Force on Minority Fairness, appointed by Connecticut Supreme Court Chief Justice Ellen Peters in 1992, has made some interesting findings concerning the role of race in the criminal justice system. Consider the following:
-
-77 percent of minority attorneys think sheriffs and court employees are disrespectful to minorities.
-
-Defendants are sometimes stereotyped.
-
-The courts frequented by minorities are more crowded and have fewer resources, leading to the perception they are “poor people courts.”
35
In the same newspaper article, however, is sort of a disclaimer where the issue of racism is concerned. Despite the conclusions of the Task Force, the article still stated that “Much of the real or perceived bias, however, is due more to cultural or socioeconomic factors than racism.” This suggests, among other things, that the socioeconomic position of Blacks and other so-called minorities is not determined by race/racism. Yet, what is becoming more clear is that,
At the root of the possible consequences of economic inequality and crime is the conflict perspective, which perceives the dominant, powerful (white) groups in society as attempting to control culturally dissimilar groups (in this case, nonwhites) who are seen by the dominant group as a threat to the political and social order benefiting them. Domination of nonwhites is achieved through agents of social control such as police . . . Another means of social control takes place in the isolation of worrisome groups into inner-city ghettos and barrios; racial segregation has the additional benefit of reducing the costs of crime control.
36
In short, Black people are not suffering from racism due to a generally low socioeconomic status, but are trapped in a low socioeconomic status due to racism—the idea held by Whites that they are superior to Blacks because they have White skin. Clearly they (Whites) would need, and do have, the power to institutionalize these feelings of superiority, even codifying these feelings into law when they deem it necessary. While it may be classified as a Marxist philosophy (and that should not matter at all here), it certainly rings true that,
. . . market discrimination is not just an important cause of the relative disadvantage of blacks, but an outward manifestation of a “thoroughly saturated” racist social order . . . It implies an attitude on the part of whites and a resultant attitude on the part of blacks which have become strong elements of the “human nature ” of each race. A competitive order intensifies the kinds of racist tendencies which people seem to have had throughout human history. In other words, . . . black poverty reflects racism . . . Capitalism, because it is competitive and aggressive exacerbates whatever racial or other prejudices one may have had to begin with.
37
Is the United States Criminal Justice System really racist?
Invariably, every argument must indeed have a counter argument. Despite clear and convincing evidence to the contrary, there are those who believe that, though there may be some evidence of discriminatory practices in the criminal justice system, these instances do not significantly impact the dispensation of jurisprudence. (Diulio, 1994, Langan, 1994). As such, there are those who feel, as Patrick Langan does, that “race is only weakly related to whether a defendant is arrested, convicted, prosecuted or sentenced severely.”
38
Diulio argues that once controls for such characteristics as the offender’s criminal history or whether an eyewitness to the crime was present, racial disparities no longer exist.
39
Advocates of Law and order, like Diulio and Langan, apparently have naive notions about fairness in American society generally, and in the criminal justice system in particular. To suggest, as he does, that locking up criminals for a long time will lead to a decrease in crime is simply not true. Diulio asserts that “In the 1980’s, rates of imprisonment rose and crime rates fell . . . ”
40
Had Diulio “compared the crime rates in 1985 with those in 1990, a five year period when the percentage and absolute increases in prison populations were the largest in the nation’s history, he would have found it difficult to claim a cause-and-effect relation between incarceration and crime rates. Crime rates overall rose 12 percent, and violent crime rates climbed more than 32 percent.”
41
As James Q. Wilson notes, “Very large increases in the prison population can produce only modest reductions in crime rates.”
42
Furthermore, if locking up criminals was a deterrent, there should be no crime at all!
In his article, “No racism in criminal justice system”, Patrick Langan makes several assertions. Among them are the following: 1) 66% of Black defendants were prosecuted for felonies, while 69 percent of whites were prosecuted for felonies; 2) Among Blacks prosecuted in urban courts, 75 percent were convicted of a felony, while 78 percent of Whites were convicted of a felony and 3) The average state prison sentence received by Blacks convicted of a felony was five and one half-years, one month longer than their white counterparts. Yet among Black defendants convicted of a felony, 51 percent received a prison sentence, as opposed to 38 percent of whites.
43
One could, however, draw a vastly different conclusion regarding the role of race in the criminal justice system because “Blacks tend to get substantially longer prison terms [unlike the one month asserted by Langan above] than whites convicted of the same crimes, even when the Black person is a first time offender and the White person a second- or third-time offender.”
44
Clinton Cox adds that, for murder Blacks serve 91.7 months versus 79.8 months for whites; for rape, 55 months for Blacks versus 43.9 for whites; for kidnapping, 41 months for Blacks to 37 for whites; and for robbery, 37.4 for Blacks to 33.3 for whites.
45
Furthermore, Langan appears to invalidate at least part of his theory that there is no racism when he refers to those who receive sentences (they were overwhelming Black). Hence, while Langan suggests that judges did not give longer prison sentences to Blacks (which does not appear to be true), his own research shows racial disparities in sentencing. Despite his attempt to explain away these differences by introducing other factors (i.e. were they repeat offenders?, did they live in jurisdictions where sentencing was tougher [which raises another set of racially charged issues?], etc.), it is clear that race matters in the criminal justice system.
Readings
-
1. Malign Neglect:
Race Crime and Punishment in America.
(Introduction). Michael Tonry.
Accompanying Activity:
Pre-lesson evaluation to gauge student perceptions of race-based inequities in the criminal justice system, if any.
Objectives
-
1. To introduce the role of race in the criminal justice system.
-
2. To provide students with insight into the criminal justice system.
-
3. To analyze the basis for student perceptions of race-based inequities in the criminal justice system, if any exist.
General Statement
American leaders have used the legal system to control the political behavior of Black people from the moment that they endorsed or participated in the forced removal of Africans from their native continent. This control has continued nearly unabated for the last 375 years. As a result, many have come to view Black people as somehow “predisposed” to commit crimes, and in the process, have made the mistake of labeling criminal only those who get caught. Hence, because more Black people get caught, and are more likely to be featured in the evening news in connection with criminal behavior than are Whites, there has been a widely-held view among many that Blacks are “innately criminal.”
Entry Point A:
Inform the class that they will be starting a unit on race and the criminal justice system and that they will be answering a brief survey in order for the teacher to assess, and ultimately for the class to discuss, any perceptions they may currently have regarding the issue. Teacher should inform students that this survey will not be graded.
Entry Point B:
Teacher distributes evaluation and has students complete them. (see attached).
Entry Point C
:
Teacher instructs students to read aloud their responses to the questions on the evaluation.
Entry Point D:
Teacher then engages students in discussion concerning the role of race in the criminal justice system.
Homework
Read the introduction to
Malign Neglect
.