The Leadership Conference on Civil and Human Rights

Criminal Justice

As we have seen, while it certainly cannot be said that the United States has achieved complete equality in employment, education, voting, and housing, we continue to make slow but steady progress towards that goal. But in one critical arena - criminal justice - racial inequality appears to be growing, not receding. America's criminal laws, while facially neutral, are too often enforced in a biased manner. Indeed, the injustices of the criminal justice system threaten to render irrelevant fifty years of hard-fought civil rights progress in other areas. For example:

• In 1964, Congress passed the Title VII of 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.
• Similarly, Title II of the Civil Rights Act of 1964 guaranteed minority citizens the right to travel and utilize public accommodations freely. Yet racial profiling and police brutality make such travel hazardous to the dignity and health of law-abiding black and Hispanic citizens today.
• 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.

Disparate treatment within the criminal justice system is not rational: Most crimes are not committed by minorities, and most minorities are not criminals. Yet the unequal targeting and treatment of minorities throughout the criminal justice process -- from arrest to sentencing -- reinforces the perception that drives the inequality in the first place. 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 profiling" refers to law enforcement strategies and practices that single out blacks and Hispanics as objects of suspicion solely on the basis of the color of their skin or accent. Under such practices, minorities are disproportionately targeted as criminal suspects, skewing at the outset the racial composition of the population ultimately charged, convicted and incarcerated. For example:

Monitoring of traffic stops by the Maryland State Police on I-95 pursuant to a consent decree found that, from January 1995 to December 1997, 70 percent of the drivers stopped and searched by the police were black, while only 17.5 percent of all drivers -- and speeders -- were black.

Similarly, in Volusia County, Florida, nearly 70 percent of those stopped on a particular interstate highway in Central Florida in 1992 were black or Hispanic, although blacks and Hispanics comprised only 5 percent of all drivers on that highway. Moreover, minorities were detained for longer periods of time per stop than whites, and 80 percent of the cars searched after being stopped belonged to minority drivers.

The evidence similarly suggests that prosecutorial discretion is too often systematically exercised to the disadvantage of black and Hispanic Americans. In 1991, the San Jose Mercury News reviewed almost 700,000 California criminal cases between 1981 and 1990 and uncovered statistically significant disparities at several different stages of the criminal justice process. The study found, for example, that 20 percent of white defendants charged with crimes providing for the option of pretrial diversion received that benefit, while only 14 percent of similarly situated blacks and 11 percent of similarly situated Hispanics were placed in such programs. The same study revealed consistent discrepancies in the treatment of white and non-white defendants at the pretrial negotiation stage of the criminal process. During 1989-1990, a white felony defendant with no criminal record stood a 33 percent chance of having the charge reduced to a misdemeanor or infraction, compared to 25 percent for a similarly situated black or Hispanic.

Discrimination can occur at the sentencing stage as well. One of the most thorough studies of sentencing disparities was undertaken by the New York State Division of Criminal Justice Services, which studied felony sentencing outcomes in New York courts between 1990 and 1992. The State concluded that one-third of minorities sentenced to prison would have received a shorter or non-incarcerative sentence if they had been treated like similarly situated white defendants. If probation-eligible blacks had been treated like their white counterparts, more than 8000 fewer black defendants would have received prison in that two-year period. In short, the study found that blacks are sentenced to prison more frequently than whites for the same conduct.

Another area of concern involves the disproportionately harsh treatment of minorities in the juvenile justice system, an area in which especially pronounced disparities pose ominous consequences for minority communities. For example, minority youths are disproportionately targeted for arrest in the war on drugs. In Baltimore, Maryland, 18 white youths and 86 black youths were arrested for selling drugs in 1980. One decade later, juvenile drug sale arrests had increased more than 100 percent overall, and the almost 5-to-1 racial disparity that existed a decade earlier had become a 100-to-1 disparity: white youths were arrested 13 times for selling drugs in 1990, while black youths were arrested 1304 times -- a 1400 percent increase from 1980. These figures reflect the broader national experience: From 1986 to 1991, arrests of white juveniles for drug offenses decreased 34 percent, while arrests of minority juveniles increased 78 percent. All this despite data suggesting that drug use rates among white, black, and Hispanic youths are about the same, and that drug use has in fact been lower among black youths than white youths for the last couple of decades.

In 1994, Congress enacted legislation authorizing the Department of Justice to conduct investigations of and bring suit against police departments alleged to be engaging in a pattern or practice of abusive use of force or racial discrimination such as racial profiling. This authority led to the development of consent decrees with the Los Angeles Police Department, the New Jersey State Police, the Pittsburgh Police Department, and other jurisdictions to address racial profiling, excessive use of force, and other concerns. Investigations of other departments - such as those in New York and Cincinnati - continue.

Civil rights advocates have urged a number of further reforms: the increased use of data collection programs by law enforcement to assess whether their officers are engaged in racial profiling, establishing accreditation for law enforcement, ensuring equal employment opportunity for minorities and women seeking careers in law enforcement, abolishing or suspending the death penalty, reforming sentencing guidelines, repealing felony disenfranchisement laws, and repealing efforts to move juveniles into the adult justice system. Throughout these discussions, civil rights advocates have emphasized that fairness and nondiscrimination are entirely consistent with a commitment to tough, effective law enforcement.