Equal Under the Law

This is a research paper I wrote for a English class about racial discrimination in the criminal justice system.

Equal Under the Law

The inscription above the entrance to the Supreme Court building reads: Equal Under the Law, in fact this judicial philosophy is at the very core of our criminal justice system. When we cease to be equal under the law our freedoms will be forfeit. Perhaps given the great strides we’ve made recently to end racial discrimination in this country we have been lulled into a kind of blindness to the reality of our situation. In our justified exuberance in having moved towards racial equality in many areas of our society we have neglected those among us who are least able to speak up for themselves. It has been said that a society can be judged by how well it treats its prisoners, if this is true America will be found wanting. It is my contention based on an analysis of the available data that racism is alive and well in the criminal-justice system, and its continued promotion by legislators, and law enforcement agents alike is decimating large segments of our society, and preventing our nation from becoming truly exceptional amongst the nations of the world.

Statistics from various sources clearly demonstrate the surprising disparities that exist across America. According to Doris Pravine in her book Unequal Under the Law “ an African American born in 2001 has a 32% chance of imprisonment at some point in their life compared to a 17% chance for a Hispanic, and a mere 6% chance for a white ”(2). The point is further illustrated by Samual Walker in his book The Color of Justice when he points out that “half of all United States prisoners are African American , despite the fact they make up only about 12 percent of the U.S. population”(1). At this point, based on only these numbers it would seem easy to conclude that blacks and other minorities are disproportionately represented in the criminal-justice system as a result of racism; however, the claim is bolstered even further when a major opponent of the argument that racial discrimination exists in the criminal-justice system utilizes similar statistics just as Heather MacDonald has chosen to do in her article “Is the Criminal-Justice System Racist?” when she states that “After all, in 2006, blacks were 37.5 percent of all state and federal prisoners, though they're under 13 percent of the entire population”(23). While there is wide spread agreement on the straight forward fact that minorities are over represented in prisons when compared to their numbers in society as a whole, this is where agreement on the subject comes to an end.

As obvious as it may seem racially skewed statistics alone are not proof that racism in the criminal-justice system is to blame. In order to determine if racial discrimination is in fact occurring it becomes vital for us to understand why certain minority groups commit crimes at seemingly higher frequency than whites, why others don't, as well as what happens to the offender once they are arrested, prosecuted, and imprisoned for their crimes. While there are some simple explanations that may account for a certain percentage of the disproportionate number of blacks and minorities in the criminal-justice system, these explanations do not take into account what occurs after the arrest as the offender enters into the criminal-justice system. Provine attempts to explain away the disparities in incarceration rates by pointing out that “law enforcement agencies have helped to create this racial skew by focusing their attention on nonwhites”. Law enforcement's tendency to focus limited resources in high crime areas, which happen to be minority neighborhoods seems to be common sense rather than a decision based on racist policies. While law enforcement's allocation of more resources to minority neighborhoods undoubtedly accounts for some of the disproportionate number of blacks, and minorities in the criminal-justice system, it does little to explain what happens to minority suspects once they are arrested. In her article titled “Racial Disparities in the Criminal-Justice System” , Dr. Joan Petersilla found that “controlling for the other major factors that might influence sentencing and time served, minorities received harsher sentences and served longer sentences”(ix). Petersilla went on to observe that “throughout the country, minorities and blacks received longer sentences than whites for the same crimes, and when they did get lighter sentences they still ended up doing the same time as similarly charged whites”(viii). It could be argued that law enforcement’s tendency to focus on policing minority neighborhoods is motivated by racist policies, but it is not proof of racism. The fact that Petersilla’s work points towards racial disparities in sentencing is much more indicative of racism in the criminal justice system.

While being aware that racial minorities are disproportionately represented in the criminal justice system, and knowing that blacks and minorities are treated differently once they enter the criminal justice system does bring us closer to being able to determine whether there is systemically sanctioned racism taking place, the question still remains as to why blacks and minorities are committing more crimes than their white counterparts. An important point is made by Robert Staples in his article “White Racism, Black Crime and American Justice” when he observes that “one of the key elements in securing obedience to a nations laws is the belief of the citizens that the laws are fair. A prevalent view of the law among blacks is summed up in Lester's statement that 'the American black man has never known law and order except as an instrument of oppression. The laws were written by white men, for the protection of white men, and their property, and enforced by white men against black men and the poor in general”(23). Even though the days of slavery and outright racist police brutality are behind us, there is justifiably, according to Staples, a deep distrust in minority communities that laws are meant to assist and protect whites not minorities. Because of this ingrained mistrust of the system, minorities are more willing to break laws to achieve their goals. Robert J Sampson and Janet L Laristein in their article titled “Racial and Ethnic Disparities and Criminal Justice in the United States” argue that ”racial differences in offending have been attributed to group differences in economic opportunities and success. For example strain theories argue that individuals who aspire to cultural success such as wealth but lack access to the legitimate means to obtain it are most strongly motivated to use illegitimate means”(332). Blacks and other minorities who find themselves in the hardest of times, unable to legitimately provide for themselves, and their families will turn to crime, and because minorities are more likely to find themselves in these situations they also find themselves locked up at a rate disproportionate to their white counterparts.

At this point it may seem as if we've veered off topic, after all we are attempting to determine whether racism plays a part in the disproportionate number of blacks and other minorities in the criminal justice system, and further whether that racism is officially sanctioned policy, or simply attributable to blacks and other minorities tendency to commit more crime. Including Staples argument regarding blacks inclination to ignore laws because of past injustices helps us to see the black criminal in a light not portrayed by mainstream media, just as Sampson and Landsteiner’s account provides some explanation about why this class of criminals do what they do. The fact that official racism exists in the criminal justice system would seem a fore gone conclusion, but none the less it is not a subject which can easily be understood without a full grasp of why each side is doing what they are doing. James Unnever and Shaun Gabbidon in their recent book A Theory of African American Offending: Race, Racism and Crime stated that “according to official numbers African Americans- about 6 percent of the national population �" account for nearly 60 percent of all robbery arrests in the U.S. It is obvious to us that this incredible racial disparity in offending must be related to the past and present racial subordination of African Americans”(17). Whether African-Americans commit crimes because of past injustices may or may not be true, but it is a factor we should consider given the past racial turmoil in this country. Having now established the following facts; minorities are disproportionately represented in the criminal-justice system, selective/targeted enforcement can not solely account for these disparities, minority suspects and white suspects are treated differently during sentencing for criminal offences, and having explored to some extent the reasons some of these minorities engage in criminal activity, it is now time to explore the extent to which racism plays a part in today’s criminal justice system in America.

No where is racism so prevalent in the criminal justice system than in the government’s “War on Drugs”. Strictly by the numbers, according to Saki Knafo in his article “When It Comes To Illegal Drug Use, White America Does The Crime, Black America Gets The Time”, “20 percent of whites have tried cocaine compared to 10 percent of blacks”, further according to Knafo in the same article quoting from a 2009 Human Rights Watch report “still blacks are arrested three times more often for drug possession as whites”, and finally reiterating the facts of a Justice Bureau Department report “Of the 225,242 people who were serving time in state prisons for drug offenses in 2011, blacks made up 45 percent and whites comprised just 30 percent”. Just as in overall incarceration rates we see a huge disparity between blacks, and whites here we see it in even starker contrast when it comes to drug related crimes.

In the early to mid 80's white politicians fueled by fear of blacks taking over their streets with crack cocaine began to enact harsher penalties for drug possession, sale, and use. Mona Lynch in her article “Crack Pipes And Policing: A Case Study Of Institutional Racism And Remedial Action In Cleveland.”, contends that “the federal legislative process was shaped by rhetoric that cast crack as predominantly a drug of choice among poor, urban, minority populations posing a serious risk and unpredictable threat to white Americans”(184). To further illustrate the mindset of legislators when they decided that possession, sale and use of crack cocaine should be punished much more severely than powder cocaine we can turn to Provine once again as she recounts her findings “Judge Calhill believed that he had located racial bias in congressional discussions of the appropriate penalties for offensives involving crack cocaine. Prior to enacting the mandatory minimums, members of Congress had been deluged with...magazine articles...regarding the crack cocaine epidemic that characterized it as a black problem which threatened white America.”(25). Members of Congress who decided to adopt tough mandatory minimum sentencing laws for crack cocaine offenses did not base their decision on any objective facts that crack cocaine posed any more significant threat than powder cocaine. Their decision was based on racially motivated fears that black crack dealers would provide the drug to their children and take over peaceful white neighborhoods with drug incited violence. The fact that the decision to punish crack offenses more harshly than powder offenses was not based on facts is supported by Lynch's finding that “legitimate policy reasons for disproportionate treatment of crack offenders are nearly impossible to identify”(185).

There is a vast body of evidence to support the conclusion that racism is alive and well in the criminal justice system, and further that this racism is officially sanctioned by politicians who pushed through legislation that targeted minority offenders for harsher penalties than whites who were committing essentially the same crime. Racism is evident in every facet of the criminal-justice system; minorities are arrested at a much higher frequency than whites, minorities defendants receive harsher sentences for the same crime as a white defendants, and perhaps most strikingly minority suspects are routinely denied their basic constitutional rights, because unlike their white counterparts they can not afford to avail themselves of bail, and in many cases can not afford an attorney.

Racial discrimination by law enforcement agents begins even before minorities are accused of any crime. Minorities receive more attention from law enforcement than their white counterparts. In his article “Racism: the Crime in Criminal Justice”, William Quigley makes the argument that “there is detailed evidence that police stop, frisk and search African-Americans and Latinos at a rate much higher than whites...when whites were stopped only about 8 percent were frisked compared with nearly 85 percent for African-American and Latinos who were stopped.”(418). The explanation for this disparity is that police departments are using racial profiling to determine who to stop and search.

Despite the great strides we have made to move towards a more equal society, the fact remains that racism is still a part of everyday life in America, and much more work still needs to be done to eliminate the harmful effects of this shameful way of thinking and behaving especially when it come to the criminal justice system. The reason racial discrimination in the justice system is so disturbing is because of the far reaching consequences of mass incarcerations of large segments of certain racial groups, largely based on unfounded and unnecessary laws such as those with regard to crack cocaine. Thomas Nolan in his article “Racism in the Criminal Justice System: Problems and Suggestions”, states that “there is persistent racism in this country, although no magic bullet solution is available to solve the problem as a whole, the criminal-justice system in itself aggravates race relations in this country, when blacks make up 98.4% of death row inmates in Georgia it sends a clear message that equal protection is nothing more than a aspiration in this country.”(417)

Besides stirring up racial disharmony, racially motivated mass incarceration of blacks and other minorities destroys entire communities making them unable to support themselves. Mary Pattillo, co-editor of the recently released book Imprisoning America: The Social Effects of Mass Incarceration explains that mass incarceration is destroying the family structures of those effected, ex-felons are finding it nearly impossible to get a job, and the disenfranchisement of many ex-felons leaves them without a voice, and feeling desperate. In the book Patillo also explains how the systemic racism that exists today makes it nearly impossible for African American ex-felons to reintegrate into society.

Further illustrating the unintended consequences of mass incarceration due to discriminatory practices within the criminal-justice system, Devah Pager observes in his book Marked: Race, Crime and Finding Work in the Era of Mass Incarceration “Despite the vast political and financial resources that have been mobilized toward prison expansion, very little systematic attention has been focused on the potential problems posed by the large and increasing number of inmates being released each year. A snapshot of ex-offenders one year after release reveals a rocky path of reintegration, with rates of joblessness in excess of 75 percent and rates of re-arrest close to 45 percent.”(n.p).

There can be no doubt that racism in America's criminal-justice system is officially cemented into the law of the land. While we proudly proclaim such slogans as “Equal Under the Law”, and “liberty, and justice for all”, we fail miserably to live up to those challenges. The counter arguments offered throughout this paper, that disparities in the criminal-justice system are simply representative of minorities that would rather sell drugs, and commit robberies than work for a living have been shown to carry little weight. From an early age minority children learn with their own eyes that the police will arrest their daddy for smoking marijuana on a street corner, but white collar criminals who steal the livelihoods of thousands are given a slap on the wrist. We know from statistics cited earlier in this paper that an African-American child has a 32% chance of being arrested compared to 6% for a white child. Surely at a time when our country has looked past the dark days of racially violent past to elect a black president, we can find a way to make the criminal-justice system “Equal to all Under the Law”.

Works Cited

Knafo, Saki. "When it Comes to Illegal Drugs, White Americans Do the Crime, Black Americans Do the Time." Huff-post 4 May 2014: N.P.. HUFF POST. Web. 4 May 2014.

Lynch, Mona. "Crack Pipes And Policing: A Case Study Of Institutional Racism And Remedial Action In Cleveland." Law & Policy 33.2 (2011): 179-214. Print.

MacDonald, Heather. "Is the Criminal Justice System Racist?." City Journal Spring 2008: N.P.. The City-Journal. Web. 4 May 2014.

Nolan, Thomas J. "Racism in the Criminal Justice System: Problems & Suggestions." Harvard Journal of Law & Public Policy 20.2 (1997): 417. HEINONLINE. Web. 4 May 2014.

Pager, Devah. Marked: race, crime, and finding work in an era of mass incarceration. Chicago: University of Chicago Press, 2007. Print.

Pattillo, Mary E., David F. Weiman, and Bruce Western. Imprisoning America: the social effects of mass incarceration. New York: Russell Sage Foundation, 2004. Print.

Petersilla, Joan. Racial Disparities in the Criminal Justice System. Washington, D.C.: US Department of Justice National Institute of Corrections, 1983. Print.

Provine, Doris Marie. Unequal under law: race in the war on drugs. Chicago: University of Chicago Press, 2007. Print.

Quigley, William. "Racism: the Crime in Criminal Justice." Loyola Journal of Public Interest Law 13 (2012): 417-425. LOYOLA UNIVERSITY. Web. 4 May 2014.

Sampson, Robert J., and Janet L. Lauritsen. 1997. Racial and ethnic disparities in crime and criminal justice in the United States. Crime and Justice 21: 311-374.

Staples, Robert. "White Racism, Black Crime and American Justice." Phylon 36.1 (2002): 44-22. Print.

Unnever, James D., and Shaun L. Gabbidon. A theory of African American offending race, racism, and crime. New York: Routledge, 2011. Print.

Walker, Samuel, Cassia Spohn, and Miriam DeLone. The color of justice: race, ethnicity, and crime in America. Belmont: Wadsworth Pub. Co., 1996. Print.