Criminal Justice
In its May 2000 report entitled, "Justice on Trial: Racial Disparities in the Criminal Justice System," the LCCR concluded that the treatment of minorities in the criminal justice system is the most profound civil rights crisis facing America. Beginning with the first step in the process — identifying criminal suspects — questions about racially biased treatment are raised. We wholeheartedly agree with Attorney General Ashcroft's position on this issue: "I believe that racial profiling is an unconstitutional deprivation of equal protection under our Constitution." (Press Conference following meeting with Congressional Black Caucus, February 28, 2001).
The evidence clearly demonstrates a pervasive pattern of unequal treatment of America's minorities in the criminal justice system. Unequal treatment at each stage of the process is compounded at each subsequent stage. Driven by the mistaken beliefs that (1) minorities commit more crimes and (2) most minorities commit crimes, law enforcement officials target minority suspects through racial profiling. The inevitable result of such profiling is that far more minorities than white Americans are arrested, even though minorities are no more likely than whites to engage in the conduct that leads to arrest. The subtle biases and stereotypes that cause police officers to engage in racial profiling are compounded by racially skewed decisions of prosecutors, who, in this era of mandatory minimum sentences, play a larger role than ever in determining whether, and for how long, a convicted defendant will be in prison.
Thus, studies show that at each stage of a criminal prosecution, from initial plea negotiations to charging and sentencing decisions, "justice" is systematically dispensed in a way that disadvantages minority defendants. Consequently, the overall prison population, both state and federal, is disproportionately African-American and Hispanic-American. This fact then reinforces biases that gave rise to racial profiling and racially based prosecutorial practices.
The cumulative effect of this circular pattern of unequal treatment is astonishing:
- Although they comprise less than a quarter of the total U.S. population, African- Americans and Hispanic Americans comprise approximately two-thirds of the total U.S. prison population (the largest in the world). The percentage of African-American prisoners is over four times the percentage of blacks in the total population, and the percentage of Hispanic prisoners is twice the percentage of Hispanics in the total population.
- Almost one in three African-American men aged 20-29 is, on any given day, under some form of criminal supervision — either in prison, in jail, on probation or on parole.
- An African-American man born in 1991 has a one in three chance of serving prison time at some point in his life. A Hispanic man born in 1991 has a one in six chance of spending time in prison.
- There are more young African-American men under supervision by the criminal justice system than in college.
- For every African-American man who graduates from college, 100 African-American men are arrested.
Support is growing for the reforms necessary to begin transforming the complex network of laws, policies, and biases that have caused these racial disparities in the first place. In "Justice on Trial," the LCCR recommended ten concrete improvements. They include:
- Enhance Police and Prosecutorial Accountability. Just as racial disparities begin with discretionary decisions by front-line law enforcement personnel, so should remedies begin with those persons. Congress should pass legislation establishing national standards for the accreditation of law enforcement agencies — standards that expressly prohibit racial profiling. Federal legislation should also require police to collect data on traffic stops and other exercises of discretion associated with racial profiling. Data collection and law enforcement accreditation bills were introduced in the 106th Congress, i.e., H.R. 1443 ("The Traffic Stops Statistics Study Act") and H.R. 3981 ("The Law Enforcement Trust and Integrity Act"), and we urge the new Administration to support such legislation in the 107th Congress. Similarly, Congress should pass legislation requiring prosecutors to collect data on charging decisions, bail and sentencing recommendations, and other exercises of prosecutorial discretion.
LCCR applauds President Bush's charge to Attorney General Ashcroft (February 28, 2001) to review the use by federal law enforcement authorities of race as a factor in conducting stops, searches and other investigative procedures. (Ashcroft Press Conference, supra).
- Diversify Law Enforcement. Hostility between minority communities and the police can often be traced to under-representation of minorities and language barriers in law enforcement. In too many neighborhoods the police are seen as an occupying force, not as a community resource. The federal government should condition grants to state and local law enforcement agencies on efforts by those agencies to implement minority recruitment and hiring practices.
- Improve the Quality of Indigent Defense Counsel. A systematic review of indigent defense services in the United States is the first necessary step toward significant improvements in our current system of indigent defense. Many racially disparate outcomes in the criminal justice system are attributable to inadequate lawyering. Some of these attorneys may be incompetent. More often, they are competent attorneys who lack the time and resources to vigorously defend their clients.
- Suspend Operation of the Death Penalty. LCCR opposes capital punishment as one of the most glaring manifestations of racial disparity in the criminal justice system. Simply put, whether a defendant eligible for capital punishment lives or dies depends in large part on the skin color of the defendant or victim. But even those who support the death penalty should agree to a nationwide moratorium on the death penalty while flaws in current procedures are studied and reformed. The Bush Administration should also support the Leahy-Smith Innocence Protection Act, which would reform death penalty procedures at the state and federal levels.
- Repeal Mandatory Minimum Sentencing Laws. These laws are an engine of racial injustice. They have filled federal and state prisons with tens of thousands of non-violent minority offenders. Particularly egregious are "three strikes" or "two strikes" sentencing laws that impose long and irreducible prison terms for even the most minor criminal conduct. Such laws prevent judges from considering mitigating circumstances about an offense or offender, and therefore prevent a judge from mitigating racial bias encountered at earlier stages of the process. The repeal of mandatory minimum sentencing laws is needed to restore balance and racial fairness to a criminal justice system that has increasingly come to view incarceration as an end in itself.
- Remedy the "Crack v. Powder" Cocaine Sentencing Divide. The new Administration should follow the recommendation of the U.S. Sentencing Commission and abolish the crack/powder disparity. Without mandatory minimums, sentencing in the federal system would be governed by the federal sentencing guidelines. But, these guidelines themselves are infected by racial disparities. Most egregious of these disparities is the crack/powder cocaine sentencing divide, in which longer federal sentences are imposed upon persons convicted of dealing crack cocaine than those convicted of dealing the same amount of powder cocaine. Because African-Americans almost exclusively have been targeted for crack dealing by federal authorities, African-Americans and other minorities serve far longer prison sentences for drug dealing than whites convicted of similar crimes involving powder cocaine. Perhaps no policy has contributed more to minority cynicism about our justice system than this one.
- Reject Efforts to Transfer Juveniles into the Adult System. No criminal justice policy is more destructive to our children and our future than one that extends punishment-based crime approaches to children. Policies that favor incarceration in adult facilities at the expense of rehabilitation are inconsistent with a century of U.S. juvenile justice policy and practice, are applied disproportionately to minority youth, and threaten to create a permanent underclass of undereducated, untrained, hardened criminals. The Administration should reject efforts, to extend this into the federal system. It should support current requirements that states collect data bearing on the racial disparities that characterize some state juvenile justice systems.
