More than thirty years ago, at the height of the civil rights movement, the excesses and abuses of the southern system of justice were stark and overt. My colleagues and I often used the media to expose the overt racism and brutality of the police to help awaken Americans of good conscience to our cause. In those days we went to jail willingly and endured the treatment that the police and courts meted out because we were set on changing America. And in large part through our efforts and that of countless others, we were successful. As stated in Justice on Trial
, the United States has made significant progress toward ensuring equal treatment under law for all citizens. At the same time this report clearly shows that in the area of criminal justice, racial inequality is growing.
In my memoir, Walking With the Wind, I noted that the condition of poor black men, particularly in the inner-city, is the worst situation black Americans have faced since slavery. This report helps to explain why that is. Public policy that attempts to incarcerate the Nation out of its drug problem, and the crack-cocaine sentencing disparity have played a major role in creating far too many one-parent homes in the inner-city and further devastating minority communities. Further, the unequal treatment of minorities at every stage of the criminal justice system perpetuates the stereotype that minorities commit more crimes. This perception helps fuel racial profiling and a vicious cycle that affects both innocent and minority citizens. The reality is that the majority of crimes are not committed by minorities and most minorities are not criminals.
We may live in different rooms, but we are all under the same roof and we share the same walls. When sections of our house begin to rot, the entire structure is in danger of collapsing. As minority groups are treated differently by the criminal justice system, public confidence in the criminal justice system is eroded and our national faith in the rule of law is shattered.
There is no organization better posed to take on this challenge then the Leadership Conference on Civil Rights. As it has for the last 50 years, it will bring together a coalition that represents the diversity of America and that has honed its advocacy skills on every major piece of civil rights legislation enacted in the last 50 years. LCCR's advocacy for fairness and justice in our country's criminal justice system is one of the most important challenges it will face in the 21st century. But as the challenges of the late 20th century helped change the face of America, this challenge too holds great promise for continuing the Nation's progress toward true equality for all Americans in all facets of life.
I commend the LCCR and its sister organization the Leadership Conference Education Fund for publishing this report and look forward to working with my friends at the LCCR on yet another civil rights campaign.
- U.S. Representative John Lewis (D-GA)
April 27, 2000
We would like to express our deep appreciation to the authors of the report – Ronald H. Weich and Carlos T. Angulo of the law firm Zuckerman, Spaeder, Goldstein, Taylor & Kolker – for their counsel and scholarship. Prior to joining Zuckerman, Spaeder, Weich served as an Assistant District Attorney in New York City and as Chief Counsel to Senator Edward M. Kennedy on the U.S. Senate Judiciary Committee. Angulo previously served as counsel to Senator Paul Sarbanes. In turn, the authors would like to thank David Cole, Angela Davis, David Harris and Mark Mauer for their assistance and expertise.
Thanks are also due to Laura W. Murphy, Director of the National Washington Office of the American Civil Liberties Union; Charles Kamasaki, Senior Vice President of the National Council of La Raza; and Hilary Shelton, Director of the Washington Bureau of the National Association for the Advancement of Colored People. Murphy is chair of LCCR’s Criminal Justice Task Force which advocates before the Congress and the Administration for fairness and justice in our criminal justice system. Kamasaki and Shelton assist greatly in those efforts.
Our thanks are also expressed to Carol Bergman, Alexander Robinson, and the Research and Policy Reform Center (RPR) for their support of our work on the report. RPR is a 501(c)(4) advocacy organization that seeks reform of state and federal laws in areas such as criminal justice and drug control policy, and U.S. policy toward landmines and Burma. George Soros is the principal donor to RPR.
Wade Henderson, Executive Director, LCCR
Karen McGill Lawson, Executive Director, LCEF
The LCCR is the nation’s oldest, largest and most diverse civil and human rights coalition, with more than 180 national organizations committed to the protection and advancement of basic civil and human rights for all persons in our society. Founded in 1950 by giants of the era – A. Philip Randolph, Arnold Aronson and Roy Wilkins – the LCCR’s advocacy includes issues affecting persons of color, women, children, organized labor, major religious groups, persons with disabilities, gays and lesbians, and the elderly. In 1969, Arnold Aronson founded the LCEF to serve as the education arm of the Leadership Conference. LCEF conducts research and educational activities on civil rights issues with the goal of strengthening the Nation’s commitment to civil rights and equality of opportunity for all, and promoting an understanding and celebration of our Nation’s diversity.
In the half century since a tired seamstress named Rosa Parks refused to give up her seat on the bus, the United States has made significant progress toward the objective of ensuring equal treatment under law for all citizens. The right to vote and the right to be free from discrimination in employment, housing and public accommodations are enshrined in statute. The number of minorities in positions of authority in public and private life continues to grow. America’s minorities now enjoy greater economic and educational opportunities than at any time in our history. While it certainly cannot be said that the United States has achieved complete equality in these areas, we continue to make slow but steady progress on the path toward that goal.
But in one critical arena – criminal justice – racial inequality is growing, not receding. Our criminal laws, while facially neutral, are enforced in a manner that is massively and pervasively biased. The injustices of the criminal justice system threaten to render irrelevant fifty years of hard-fought civil rights progress.
In 1964 Congress passed the Civil Rights Act prohibiting discrimination in employment. Yet today, three out of every ten African American males born in the United States will serve time in prison, a status that renders their prospects for legitimate employment bleak, and often bars them from obtaining professional licenses.
In 1965 Congress passed the Voting Rights Act. Yet today, 31 percent of all black men in Alabama and Florida are permanently disenfranchised as a result of felony convictions. Nationally, 1.4 million black men have lost the right to vote under these laws.
In 1965 Congress passed the Immigration and Nationality Act, which sought to eliminate the vestiges of racial discrimination in the nation's immigration laws. Yet today, Hispanic and Asian Americans are routinely and sometimes explicitly singled out for immigration enforcement.
In 1968 Congress passed the Fair Housing Act. Yet today, the current housing for approximately 2 million Americans – two-thirds of them African American or Hispanic – is a prison or jail cell.
Our civil rights laws abolished Jim Crow laws and other vestiges of segregation, and guaranteed minority citizens the right to travel and utilize public accommodations freely. Yet today, racial profiling and police brutality make such travel hazardous to the dignity and health of law-abiding black and Hispanic citizens.
The system by which lawbreakers are apprehended and punished is one of the pillars of any democracy. But for that system to remain viable, the public must be confident that at every stage of the process – from the initial investigation of a crime by the police officer walking a beat to prosecution and punishment – individuals in like circumstances are treated alike, consistent with the Constitution’s guarantees of equal treatment under the law.
Today, our criminal justice system strays far from this ideal. Unequal treatment of minorities characterizes every stage of the process. Black and Hispanic Americans, and other minority groups as well, are victimized by disproportionate targeting and unfair treatment by police and other front-line law enforcement officials; by racially skewed charging and plea bargaining decisions of prosecutors; by discriminatory sentencing practices; and by the failure of judges, elected officials and other criminal justice policy makers to redress the inequities that become more glaring every day.
Racial disparities affect both innocent and guilty minority citizens. There is obvious reason to be outraged by the fact that innocent minority citizens are detained by the police on the street and in their cars far more than whites. Those stops involve inconvenience, humiliation and a loss of privacy that is heightened when the rationale for the police action is the color of a motorist’s skin or a pedestrian’s accent. But there must also be outrage about the disparate treatment of minority citizens who have violated the law. A defendant surrenders many civil rights upon conviction, but equal protection of the laws is not one of them. It is an affront to all minority citizens – including the innocent – when a minority defendant is treated unfairly by the police, or by prosecutors, or at sentencing, because of his race or ethnicity.
The unequal treatment of minorities in our criminal justice system manifests itself in a mushrooming prison population that is overwhelmingly black and Hispanic; in the decay of minority communities that have given up an entire generation of young men to prison; and in a widely-held belief among black and Hispanic Americans that the criminal justice system is deserving neither of trust nor of support. All these factors contribute to a perception that lawlessness is a “colored” problem, and that the disproportionate treatment of blacks and Hispanics within the criminal justice system is a rational response to a statistical imperative.
Enforcement of criminal laws based on racial generalizations is not rational: The majority of crimes are not committed by minorities, and most minorities are not criminals – indeed, less than 10 percent of all black Americans are even arrested in a given year. Yet the unequal targeting and treatment of minorities at every stage of the criminal justice process – from arrest to sentencing – reinforces the perception that drives the inequality in the first place, with the unfairness at every successive stage of the process compounding the effects of earlier injustices. The result is a vicious cycle that has evolved into a self-fulfilling prophecy: More minority arrests and convictions perpetuate the belief that minorities commit more crimes, which in turn leads to racial profiling and more minority arrests.
Racial disparity in the criminal justice system is the most profound civil rights crisis facing America in the new century. It undermines the progress we have made over the past five decades in ensuring equal treatment under the law, and calls into doubt our national faith in the rule of law.
This policy report examines the systematically unequal treatment of black and Hispanic Americans and other minorities as compared to their similarly situated white counterparts within the criminal justice system. It reviews the effects of such unequal treatment on these groups in particular and on the criminal justice system generally.
Chapter One examines racial profiling and other law enforcement practices that single out blacks and Hispanics as objects of suspicion solely on the basis of the color of their skin or their apparent ethnic heritage.
Chapter Two addresses the unequal treatment of minorities in the exercise of prosecutorial discretion, focusing on charging decisions in drug cases and racial disparity in the administration of capital punishment.
Chapter Three reviews the issue of sentencing, and describes the role of Congress and other legislative bodies in shaping and implementing criminal justice policies that fall short of our commitment to equal treatment under the law.
Chapter Four discusses the judiciary’s failure to redress obvious injustices by curbing access to and restricting the use of data that demonstrate the racially disparate impact of law enforcement and prosecutorial practices.
Chapter Five examines the disproportionately harsh treatment of minorities in the juvenile justice system, an area in which especially pronounced disparities pose ominous consequences for minority communities.
Chapter Six outlines the consequences of unequal treatment of minority Americans in the criminal justice system – for those caught up in the system, for their families and communities, and for society as a whole.
Chapter Seven outlines several proposals to ameliorate the racial disparities that dominate the criminal justice system today.
Neither in Chapter Seven nor elsewhere does this report propose less public safety or ineffective law enforcement. The issue is not whether to be tough on crime, but rather whether to be fair and smart in the course of being tough on crime. Contrary to the assertions of some politicians, it is entirely consistent with effective policing to treat citizens fairly and humanely. There is no contradiction between effective law enforcement and the promotion of civil rights.
The policies advocated in this report are designed to enhance public safety by replacing current enforcement efforts that do more to breed crime than combat it. For example, over-reliance on incarceration as a means of addressing social problems in the inner city harms those communities by reducing the stigma of a criminal conviction and by siphoning scarce resources from needed health and education programs. It may sound tough to advocate more prisons and it may sound soft to advocate changes in the sentencing laws that would permit non-violent drug addicts to receive treatment instead of warehousing. But the opposite is true. Politicians who advocate more of the same, tired, lock-‘em-up nostrums are taking the easy way out. The ones willing to confront the ineffectiveness and unfairness of current crime policies deserve to be called tough and courageous.
Regardless of how vigorously we choose to enforce our criminal laws, racial and ethnic neutrality is an imperative. Should two similarly situated but racially or ethnically different individuals – whether they be two innocent motorists or two marijuana dealers – be treated the same regardless of the color of their skin or their ethnic heritage? Our Constitution says that the answer to this question must be in the affirmative.
This report compiles and synthesizes a growing body of empirical evidence proving that our criminal justice system discriminates against minorities. But the goal of this report is not to identify intentional racism by criminal justice personnel. Overt bigotry is relatively rare, relatively easy to uncover, and, when uncovered, subject to public opprobrium. Although overt bigotry surely exists in pockets of the system, the report does not rest its condemnation of the criminal justice system on those grounds.
Instead, we seek to highlight a pervasive pattern of unequal treatment of black and Hispanic Americans throughout that process, and to describe the consequences of this pattern for our system of democratic government and for our people. Whether the unequal treatment we discuss is intentional is (almost) beside the point. Our civil rights laws are premised on the notion that disparate treatment of minority groups, whether identifiably intentional or not, is unacceptable given the guarantees of equality imbedded in our constitutional system.
As the Leadership Conference on Civil Rights celebrates its 50th Anniversary, it takes pride in its accomplishments and girds itself for the struggle ahead. Just as we worked together to meet the historic civil rights challenges of the late 20th Century, so the racial disparity that infects the criminal justice system demands our attention as a united movement today.