Concerns about racial disparity in criminal justice are not new. Authors as diverse as public health scholar Deborah Prothrow-Stith and former New York City Judge Bruce Wright called attention to the problem a decade ago.
But the crisis has grown dramatically worse in the years since the problem was first identified.
Today it is beyond debate that America’s minorities are treated unfairly within the criminal justice system. Innocent minorities are detained and interrogated more often than innocent whites. Minorities who violate the law are more likely to be targeted for arrest, less likely to be offered leniency and are subject to harsher punishment when compared to similarly situated white offenders. Each successive measure of unequal treatment compounds the prior disparities. Meanwhile minority youths face similar inequities, and are therefore more likely than white youths to be transformed by government policies into career criminals.
There is a self-perpetuating, cyclical quality to the treatment of black and Hispanic Americans in the criminal justice system. Much of the unfairness visited upon these groups stems from the perceptions of criminal justice decision-makers that (1) most crimes are committed by minorities, and (2) most minorities commit crimes. Although empirically false, these perceptions cause a disproportionate share of law enforcement attention to be directed at minorities, which in turn leads to more arrests of blacks and Hispanics. Disproportionate arrests fuel prosecutorial and judicial decisions that disproportionately affect minorities and result in disproportionate incarceration rates for minorities. The accumulated effect is to create a prison population in which blacks and Hispanics increasingly predominate, which in turn lends credence to the misperceptions that justify racial profiling and “tough on crime” policies.
There are innumerable consequences to this vicious cycle of inequality -- for incarcerated minorities, for their families and communities, and for the continued legitimacy of the criminal justice system.
A. The Lost Generation and Their Families
The United States has the second highest incarceration rate in the world, behind only Russia. Two million people are housed in American prisons. Although they comprise less than a quarter of the U.S. population, black and Hispanic Americans make up approximately two-thirds of the total U.S. prison population. The percentage of prisoners who are black is four times that of the percentage of blacks in the U.S. population (49 percent to 12 percent); the percentage of prisoners who are Hispanic is almost twice that of the percentage of Hispanics in the U.S. population (17 percent to 10 percent). In order to grasp the enormity of these facts, consider that:
Almost one in three black males aged 20-29 is on any given day under some form of criminal supervision – either in prison or jail, or on probation or parole.
As of 1995, one in fourteen adult black males was in prison or jail on any given day.
A black male born in 1991 has a one in three chance of spending time in prison at some point in his life. A Hispanic male born in 1991 has a one in six chance of spending time in prison.
There are more young black men under criminal supervision than there are in college.
For every one black male who graduates from college, 100 black males are arrested.
Black and Hispanic America have lost a generation of young men to the criminal justice system. Statistical projections suggest that future generations of minority males will be lost unless our criminal justice polices are reformed.
The rate at which young minorities are relegated to lives of incarceration and its consequences serves to negate many of the hard-fought gains of the civil rights movement. During the last half of the 20th century, black Americans and other minorities struggled to win the right to equal opportunity in employment, housing, education and public accommodations. These rights are meaningless to hundreds of thousand of minority prisoners and are largely unavailable to hundreds of thousands of minority ex-convicts. The ability of minorities to enjoy the fruits of the civil rights struggle is compromised by the racial disparities of the criminal justice system.
Perhaps the most precious of the civil rights victories was the right to vote. In a democracy such as ours, the franchise is the fundamental engine of change, the primary means of ensuring the responsiveness of elected officials to public concerns. Yet in 46 states and the District of Columbia, convicted adults in prison are stripped of the right to vote. Thirty-two states also disenfranchise felons on parole, while 29 states disenfranchise felons on probation. And 14 states even disenfranchise for life ex-felons who have fully serve their prison terms. Many of those who lose the right to vote are convicted of relatively minor, non-violent crimes. In some states, an offender who receives probation for a single sale of marijuana, or for shoplifting, may be permanently disenfranchised.
Because of the disproportionately high percentage of convicted black criminals, these laws have a disproportionate effect on blacks, reneging on the guarantees of the Fourteenth Amendment and the Voting Rights Act. As a consequence of disenfranchisement laws, 1.4 million black men – 13 percent of the entire adult black male population – are denied the right to vote. In two states, 31 percent of all black men are permanently disenfranchised. In five states, approximately one in four men are currently disenfranchised. And given current rates of incarceration, in states with the most restrictive voting laws, 40 percent of black men are likely to be permanently disenfranchised in upcoming years. Disenfranchisement laws furnish another example of the disproportionate and lingering effects of criminal justice policies on minorities.
The massive incarceration of black and Hispanic males also has a destabilizing effect on their communities. It skews the male-female ratio in those communities, increases the likelihood that children will not be raised by both parents, and contributes to the fragmentation of inner city neighborhoods that renders the crime-race linkage a self-fulfilling prophecy. In many communities involvement in the criminal justice system is so common that the criminal law has lost its stigmatizing effect. Jail can become a badge of honor through overuse of criminal sanctions.
These ripple effects of imprisonment on family and community are especially acute when the prisoner is a woman. Black women are incarcerated at a rate seven times greater than white women. The 417 percent increase in their incarceration rates between 1980 and 1995 is greater even than the increase for black men. Three fourths of the women in prison in 1991 were mothers, and two-thirds had children under 18. More women in prison therefore means fewer mothers caring for their children, a trend that further exacerbates the deterioration of minority communities and family structures.
No community that loses one-third of its men and many of its women is strengthened by that development. A community that is already beset by economic and social problems of the magnitude facing inner city neighborhoods simply cannot afford this loss.
B. Effects on the Justice System Itself
The effects of racial disparities in the justice system extends beyond prisoners and prisoners’ families. That inequality ultimately affects all Americans because it compromises the legitimacy of the system as a whole, undermines its effectiveness and fosters racial division.
Persistent inequality in the justice system gives minorities good reason to distrust the system, and to refuse to cooperate with it. Such lack of cooperation can take many forms, each of which has a corrosive effect on the system’s strength and continued viability.
Cooperation of Victims and Witnesses. To be effective, police and prosecutors need the cooperation of those who are victimized by criminal conduct. Minorities are disproportionately victimized by crime. Black Americans are victimized by robbery at a rate 150 percent higher than whites. They are the victims of rape, aggravated assault, and armed robbery at a rate 25 percent greater than whites. And homicide is the leading cause of death among young black males. It is in the interest of minority communities to support the fight against crime. Yet the perception that the criminal justice system is not on their side leads many black and Hispanic Americans – as well as other groups with historically tense relationships with the police, such as gays -- to not report criminal activity. This is as true, if not more so, for witnesses of crime as it is for victims of crime. Minorities are often reluctant to assist in a criminal investigation because they view law enforcement authorities as hostile, or at least indifferent, to their concerns.
In 1993, Isham Draughn was shot in the back of the head in Richmond, Virginia, in the back of the McDonalds where he worked as a security guard. He had been trying to make an arrest in the middle of an unruly crowd of several hundred. No member of the crowd came forward to assist the investigation.
In 1996, Des Moines, Iowa police had to drop a murder investigation because no witnesses were willing to confirm the identity of the individual the police suspected of the murder. Reverend Keith Ratliff, president of the local NAACP, explained this lack of cooperation on the grounds that police officers were not viewed as “friends and co-workers in the inner city because of the historic treatment of minorities and poor whites.”
In 1997, 58 deaf and mute Mexicans were found living in virtual slavery in New York City. They had been smuggled into the United States, and then forced by their smugglers into a life of servitude, where they were beaten, raped, traded, and repelled by stun guns. Neighbors of the Mexicans witnessed some of the abuse, but did not alert law enforcement, in part because they were concerned that the police would turn the Mexicans over to INS, and in part because they did not think the police would take them seriously. One neighbor said, “[w]e speak with an accent, we can hardly make ourselves understood. They are not going to come here just because we call and complain about something that is happening to us.”
Fear of immigration-related law enforcement has a detrimental effect on the willingness of many Hispanics to cooperate with the police and other government agencies. There is little doubt that Hispanics communities are undercounted in the census, for example, because some residents fear identifying themselves to government authorities.
In short, out of hostility to, distrust of, or simply lack of faith in law enforcement, minorities may decline to participate in crime prevention and reporting, thereby weakening the justice system. That syndrome has direct adverse consequences for minority communities which, after all, are beset by especially high rates of victimization.
That this distrust is shared by a large number of minorities in the United States has enormous implications for our democracy. But an equally ominous development is that cynicism about the fairness of the criminal justice system is spreading beyond minority communities to the country as a whole. A 1995 Gallup Poll found that 77 percent of black Americans and 45 percent of white Americans believe the criminal justice system generally treats blacks more harshly than whites, and a majority of both white and black Americans surveyed last year believe that racial profiling by the police is widespread in their communities. The criminal justice system faces a growing national crisis of confidence.
Minorities and the Jury System. The current Deputy Attorney General, Eric Holder, is black. He is also a former United States Attorney for the District of Columbia. Looking back on his years as a front-line prosecutor trying numerous cases before predominantly minority juries, Holder observed: “There are some folks who have been so seared by racism, so affected by what has happened to them because they are black, that even if you’re the most credible, upfront black man or woman in law enforcement, you’re never going to be able to reach them.”
The perception of racial injustice manifests itself in important ways when minorities are asked to serve as jurors. First, many minorities, when summoned for jury duty, simply do not appear. In Chicago, 60 percent of residents of black neighborhoods did not even respond to calls for jury duty, as compared to eight percent of residents in white neighborhoods. Given the constitutional guarantees of trial by a jury of a defendant’s peers, the failure of minorities to appear for jury duty has enormous implications for minority defendants and for the legitimacy of the jury system.
Second, those minorities who do appear for jury duty may have such strong preconceptions about the justice system that they simply will not accept the testimony of police witnesses or the arguments of prosecutors. In some jurisdictions it is difficult to obtain a conviction predicated on uncorroborated police testimony. And even if jurors believe the prosecution’s case, they may engage in the practice of jury nullification. Deputy Attorney General Holder recalls that when he served as a Washington, D.C. trial judge, it was not uncommon for drug possession prosecutions to result in hung juries because a single juror decided that “I just was not going to vote to send another young black man to prison” (Holder’s words). Jury nullification, which is also gaining legitimacy in civil rights scholarship, is a troubling development for law enforcement officials.
The Moral Authority of the Law. We have seen how perceptions underlying racial inequality in our criminal justice system are self-fulfilling. The belief that minorities commit more crimes than whites, and that most blacks commit crimes, leads to an allocation of law enforcement resources that results in disproportionate arrests and convictions of minorities. These perceptions are self-fulfilling in another way: racial inequalities in law enforcement erode the moral authority of the criminal law in the eyes of minority citizens and may lead them to commit more crimes. As Professor David Cole has written: “[W]here people view criminal justice procedures as unfairly biased, they will be especially likely to consider the law illegitimate, and therefore less likely to comply with the law.” In some minority communities, the criminal law, “[r]ather than being viewed as the voice of the community’s mores . . . is likely to be perceived as the forcible imposition of one community’s values on another.”
C. Health and Economic Effects
Public Health Consequences. The health consequences of rising incarceration rates are often overlooked. As a result of prison overcrowding and the lack of appropriate correctional health care, tuberculosis spread rapidly in the early 1990s. In New York City, where a particularly virulent, multi-drug resistant form of the disease broke out, 80 percent of known cases were traced to prisons. Moreover, the rate of HIV infection in the prison population is now 13 times that of the non-prison population. Given the number of individuals incarcerated, and the constant interchanges between the prison and outside population, these developments signal a public health crisis that has dire consequences for prisoners and non-prisoners alike. And because minorities are disproportionately represented among prisoners, these public health effects are felt most sharply in minority communities.
Prisons vs. Schools. Rapid increases in incarceration rates require increased construction of facilities in which to house prisoners. More than half of the prisons in use today in the United States were built in the last twenty years. The Bureau of Prisons is the largest arm of the Justice Department. The 1994 crime bill alone included $8 billion in funding for new state prison construction. Funding for prison construction not only edges out funding for alternative crime-fighting strategies, such as prevention and treatment programs, it also edges out funding for many other priorities, within and outside the justice system. More money for prisons means less money for schools, libraries, youth athletic programs, literacy programs and many other programs that might do more to reduce crime than lengthy incarceration.
Minority communities, which are often beneficiaries of social spending, therefore feel the sting of criminal justice twice. They are victimized by racially skewed enforcement strategies and then deprived of needed funding for schools and community development. Once again the system is self-perpetuating, because the paucity of quality education and jobs can bear directly on rates of criminality in minority communities.
(Economic Implications. Racial disparities in the criminal justice system have a direct, adverse impact on the economic health of minority communities. Less directly, these disparities are a drag on the continued economic health of the nation as a whole. The United States is experiencing rapid demographic changes as the Hispanic, Asian and black populations grow more rapidly than the white population. Already, California is a "majority minority" state. Racial and ethnic minorities will necessarily constitute a larger share of the country's labor force as well. Future prosperity, not to mention the solvency of the Social Security and Medicare systems, increasingly is dependent on the productivity of the minority population. The challenge of maintaining productivity with a diminishing pool of skilled workers is exacerbated if huge numbers of minorities are removed from the workforce and incarcerated. As education and training programs in prisons are slashed, many of these prisoners will emerge without the skills they need to compete in a high-tech, global economy. That is both their problem – and ours.
D. Loss of National Ideals.
The final – and perhaps most important – consequence of a racially divided criminal justice system is the hardest to quantify. Our national self-image, against which we judge both ourselves and other nations around the world is of a land in which all people are created equal, and each is entitled to fair treatment before the law. We have often failed to live up to this goal, but have never given up the struggle to attain it. The inequities detailed in this report demonstrate that we have fallen short. The constitutional promise of equal protection under law has been broken.
Our failure to meet the exacting standards set for us by the Founding Fathers, not only does damage to our own self-image; it also damages our role as leader in the fight for international human rights. In particular, many of the discriminatory practices that characterize the criminal justice system – from racial profiling to the crack/powder sentencing divide – may well constitute violations of the International Convention on the Elimination of All Forms of Racial Discrimination (“CERD”), which condemns laws and practices that have invidious discriminatory impact, regardless of intent. The United States has declined to make the CERD self-executing, which means that in the absence of legislation granting the rights conferred by the Convention, CERD is without legal effect in the United States. The combination of the United States’ reluctance to confer the rights guaranteed by CERD on its own citizens, combined with its failure to eradicate practices which violate the guarantees therein, surely damage our government’s credibility when it seeks to lead the charge against racism and intolerance abroad.