Chapter 4 Racial Discrimination in the Criminal Justice

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Chapter 4: Racial Discrimination in the Criminal Justice System

Chapter 4: Racial Discrimination in the Criminal Justice System

Ethical Background • Generally agreed discrimination based on ethnic origin is morally wrong and

Ethical Background • Generally agreed discrimination based on ethnic origin is morally wrong and violation of principle of equality • Race – Refers to groups of persons who are relatively alike in their biological inheritance and are distinct from other groups (American Anthropological Association, 1997) • Ethnicity – Cultural phenomenon referring to a person’s identification with a particular cultural group (Hinman, 1998) • Racism – “Social practices which… attribute merits or allocate values to members of racially categorized groups solely because of their ‘race’” (Zatz & Mann, 1998). Banks, Criminal Justice Ethics. © 2017, SAGE Publications.

Ethical Background • There at least three aspects of racism – Personal prejudice –

Ethical Background • There at least three aspects of racism – Personal prejudice – Ideological racism – Institutional racism • Petit apartheid • Grand apartheid Banks, Criminal Justice Ethics. © 2017, SAGE Publications.

Historical Context • African Americans have been victims of discrimination through slavery and then

Historical Context • African Americans have been victims of discrimination through slavery and then through pattern of informal and formal exclusion • Brown vs. Board of Education (1954) – Supreme Court struck down “separate but equal” doctrine • Black community in U. S. includes several groups: Jamaicans, Nigerians, Ethiopians, Somalis and others from other African and West Indies nationalities • Presence of Latinos in United States predates presence of Anglo Americans Banks, Criminal Justice Ethics. © 2017, SAGE Publications.

Historical Context • Latinos commonly associated with issue of immigration • Racist stereotyping of

Historical Context • Latinos commonly associated with issue of immigration • Racist stereotyping of Latinos often depicts them as sneaky, lazy and thieving • American Indians and Alaskan Natives are only indigenous groups – Both suffer economic, educational and social stereotyping Banks, Criminal Justice Ethics. © 2017, SAGE Publications.

Is There Racial Discrimination in the Criminal Justice System? • Independent Commission on the

Is There Racial Discrimination in the Criminal Justice System? • Independent Commission on the Los Angeles Police Department (1991) report – Suggests LAPD officers used excessive force against Rodney King • Compounded by racism and bias • New York State Judicial Commission on Minorities (1991) – Found inequality and injustices based on race Banks, Criminal Justice Ethics. © 2017, SAGE Publications.

Is There Racial Discrimination in the Criminal Justice System? • Most research has found

Is There Racial Discrimination in the Criminal Justice System? • Most research has found that although some discrimination does exist, it is not systemic (Blumstein, 1993; Di. Iulio, 1996; Russell, 1998; Tonry, 1995) • Many of these studies examined major decision points within system to identify presence or absence of discrimination. – Some researchers (Russell, 1998) contend it is inaccurate to argue discrimination is not systemic Banks, Criminal Justice Ethics. © 2017, SAGE Publications.

Discrimination in the Juvenile Justice System • Been argued that any examination of discrimination

Discrimination in the Juvenile Justice System • Been argued that any examination of discrimination within juvenile justice system should be separate from adult system for two basic reasons – High level of discretion utilized within juvenile justice system, making discrimination more likely – Most adult offenders begin contact with system as juvenile • Characteristics acquired in juvenile system may influence way they are treated within adult system Banks, Criminal Justice Ethics. © 2017, SAGE Publications.

Police Encounters With Citizens and Police Arrest • For juveniles, research has shown police

Police Encounters With Citizens and Police Arrest • For juveniles, research has shown police officers take into account suspect’s demeanor when deciding whether to make an arrest (Black & Reiss, 1970; Piliavin & Briar, 1964) • In addition to racial origin, Smith (1986) found officers were more likely to arrest, threaten, and use force in neighborhoods that were racially mixed or were minority neighborhoods Banks, Criminal Justice Ethics. © 2017, SAGE Publications.

Police Encounters with Citizens and Police Arrest • Other research has found (Brown &

Police Encounters with Citizens and Police Arrest • Other research has found (Brown & Frank 2006): – 18% of white-officer suspect encounters ended in arrest, compared to 15% of the black-officer encounters – Males and juveniles more likely to be arrested – Interactions between black officers and black suspects significantly more likely to end in arrest than those involving black officers and white suspects • Fyfe (1982) – Found in New York City, blacks more likely to be shot by police than whites • In Memphis, blacks were more likely to be shot at by police while fleeing • In Seattle, found 64% of those arrested for delivering drugs other than crack cocaine are black Banks, Criminal Justice Ethics. © 2017, SAGE Publications.

Police Encounters with Citizens and Police Arrest • Comprehensive Crime Control Act of 1984

Police Encounters with Citizens and Police Arrest • Comprehensive Crime Control Act of 1984 – May have caused high ranking enjoyed by drug enforcement • Issue of whether prosecutorial discretion produces discrimination also investigated • Number of studies concluded white defendants offered plea bargains more frequently and obtain better deals than minorities – Others find race has insignificant effect on plea bargains • Clemons (2014) – Study of federal prosecutors – Found less likelihood to request lower sentences for blacks and Hispanics Banks, Criminal Justice Ethics. © 2017, SAGE Publications.

Bail • For most offenses, prosecutors and judges have wide amount of discretion. •

Bail • For most offenses, prosecutors and judges have wide amount of discretion. • Once dangerousness to community and flight possibility are accounted for, race does not seem to factor into bail decisions – Race does relate in other ways • Albonetti et al. (1989) – Found that, in general, white defendants receive better treatment than blacks • Walker, Spohn, and De. Lone (2000) – Note impossibility of guaranteeing judges will not take race into account in determining bail Banks, Criminal Justice Ethics. © 2017, SAGE Publications.

Jury Selection • Historically, laws have tried to entrench racial discrimination into jury selection

Jury Selection • Historically, laws have tried to entrench racial discrimination into jury selection process – Strauder v. West Virginia (1880) • Since mid-1930 s, Supreme Court has ruled in ways that make racial discrimination during jury selection very difficult • Walker et. al. (2000) – Contend drawing from DMV or property tax records may seem to be objective, but still poses problems for minorities • Attorneys able to use peremptory challenges – Court initially unwilling to restrict right to use them – View changed in Batson v. Kentucky (1986) Banks, Criminal Justice Ethics. © 2017, SAGE Publications.

Conviction and Sentencing • Research on conviction rates suggests blacks tend to be convicted

Conviction and Sentencing • Research on conviction rates suggests blacks tend to be convicted less than whites (Petersilia, 1983; Wilbanks, 1987) • Hagan and Bumiller (1983) – Found prior arrest record was more significant factor at sentencing than race • Racial disparities in sentencing found to be result of disproportionate representation of minorities in officially processed criminal activities – Giving them longer criminal histories Banks, Criminal Justice Ethics. © 2017, SAGE Publications.

Conviction and Sentencing • Research focusing on determinate sentencing has shown racial disparity in

Conviction and Sentencing • Research focusing on determinate sentencing has shown racial disparity in sentencing is not result of discrimination (Klein, Petersilia, & Turner, 1990) • Walker et al. (2000) – Large economic gap exists between white Americans and minorities • Believed to be factor in sentencing – Last 20 years has seen considerable growth in number of very poor • Economic and social factors also come into play through post release penalties Banks, Criminal Justice Ethics. © 2017, SAGE Publications.

Imprisonment Disparities • At year end 2013, there were estimated 1, 574, 700 federal

Imprisonment Disparities • At year end 2013, there were estimated 1, 574, 700 federal and state prisoners – Incarceration rate for black males was 2, 805 – For Hispanic males was 1, 134 – 466 for white non-Hispanic males • U. S. Sentencing Commission (Doerner & Demuth, 2009) – Found male Hispanics and Blacks received harsher sentences in federal court than Whites – Young Hispanic males had highest odds of being incarcerated Banks, Criminal Justice Ethics. © 2017, SAGE Publications.

Imprisonment Disparities • Blumstein (1982) – Concluded between 1979 and 1991 there was enormous

Imprisonment Disparities • Blumstein (1982) – Concluded between 1979 and 1991 there was enormous growth in rate of imprisonment and it tripled between 1975 and 1990 • Blumstein (1993) – Concluded War on Drugs contributed to racial disproportionality to major degree Banks, Criminal Justice Ethics. © 2017, SAGE Publications.

Death Penalty Disparities • Historically, race and death penalty have been closely associated •

Death Penalty Disparities • Historically, race and death penalty have been closely associated • Baldus et al. (1987) – Found pattern of discrimination by race of victim and weaker pattern of discrimination by race of defendant – Research rejected by Supreme Court in Mc. Clesky v. Kemp (1987) • Race is factor in prosecutor’s decision to seek death penalty as well as imposition of death penalty • Race of victim and race of defendant have significant impact on prosecutor’s decision Banks, Criminal Justice Ethics. © 2017, SAGE Publications.

Death Penalty Disparities • Blacks murdering whites are most likely to receive death penalty

Death Penalty Disparities • Blacks murdering whites are most likely to receive death penalty and any offender murdering a black is least likely to receive capital punishment • Substantial difference between white and black views about death penalty • 2002 General Social Survey (Barkan & Cohn, 2005) – 69. 8% of whites favored death penalty – 42. 1% of blacks favored death penalty Banks, Criminal Justice Ethics. © 2017, SAGE Publications.

Death Penalty Disparities • Other research shows whites with higher family incomes more likely

Death Penalty Disparities • Other research shows whites with higher family incomes more likely to support death penalty than whites from lower-income-earning groups (Soss et al. , 2003) • Snell (2010) – 3, 483 inmates held under death sentence at year end 2009 represents 9 th decline over same number of years • 98% on death row were male, while 2% were female • Executions declined from 85 in 2000 to 46 in 2010 (Death Penalty Information Center, 2010) Banks, Criminal Justice Ethics. © 2017, SAGE Publications.

Hate Crimes • Hate crime statutes fall into two types (Russell 1998: 86) –

Hate Crimes • Hate crime statutes fall into two types (Russell 1998: 86) – Treated as independent offenses – Provide enhanced penalties for crimes motivated by bias • To be successful in a conviction, prosecutor must establish motive of accused – Very difficult to do • Data collected under Hate Crime Statistics Act (2014) indicates 48. 5% of hate crime incidents motivated by race Banks, Criminal Justice Ethics. © 2017, SAGE Publications.

Explanations of Racial Discrimination in the Criminal Justice System • Most research on racial

Explanations of Racial Discrimination in the Criminal Justice System • Most research on racial discrimination draws on consensus and conflict theories to explain discrimination – Consensus view • Individuals share values with the state • State is organized to protect interests of society – Conflict theorists • View society as being comprised of different groups with competing values • Feel state is organized to protect values of ruling class Banks, Criminal Justice Ethics. © 2017, SAGE Publications.

Explanations of Racial Discrimination in the Criminal Justice System • Holmes and Smith (2008)

Explanations of Racial Discrimination in the Criminal Justice System • Holmes and Smith (2008) – Reviewed applicability of conflict theory to instances of police brutality involving minorities – Argue that police and minorities should be viewed as distinct groups dynamically and intractably opposed • Police brutality is outcome and symptom of that relationship • Emotional responses are significant factors in intergroup dynamics – Role of emotions in policing is under researched • Minorities and police conditioned to distrust and fear each other – Outcome of emotional responses and prior stereotyping Banks, Criminal Justice Ethics. © 2017, SAGE Publications.

Explanations of Racial Discrimination in the Criminal Justice System • Mauer (2006) – Discusses

Explanations of Racial Discrimination in the Criminal Justice System • Mauer (2006) – Discusses the history of marijuana policy – When drug was first introduced in 1900 s, perceived to only be used by Blacks and Mexican Americans – Views on penalization of use began to change in 1960 s • Even more so in 1970 s – Contends since 1980 s no policy has impacted Black incarceration more than War on Drugs – Two factors map impact • Enormous increase in number of drug arrests • Fact that Blacks have accounted for increasing proportion of those arrests Banks, Criminal Justice Ethics. © 2017, SAGE Publications.

Explanations of Racial Discrimination in the Criminal Justice System • Tonry (1998) – Argues

Explanations of Racial Discrimination in the Criminal Justice System • Tonry (1998) – Argues targeting of Black drug offenders far from unconscious – Believes those promoting policies were aware of disproportionate affects – Pointed to reality of ghetto life that entices young Black males into selling drugs • Mandatory imprisonment laws also had impact as approach applied most commonly to drug offenses Banks, Criminal Justice Ethics. © 2017, SAGE Publications.

Explanations of Racial Discrimination in the Criminal Justice System • Most discussed disparity is

Explanations of Racial Discrimination in the Criminal Justice System • Most discussed disparity is issue of sentencing for possession of crack cocaine – Mandatory sentencing laws provided harsher penalties than for powder cocaine – 2010 -Congress voted to change law which mandated sentence for possession of crack that was equal to the prison term for trafficking 100 times amount of powder cocaine and reduced ratio to 18– 1 • Also eliminated mandatory 5 year prison sentence for first time offenders – Significant motivating factor derives from high costs of imprisonment Banks, Criminal Justice Ethics. © 2017, SAGE Publications.

Explanations of Racial Discrimination in the Criminal Justice System • Alexander (2010) – Points

Explanations of Racial Discrimination in the Criminal Justice System • Alexander (2010) – Points to racial indifference as foundation of control of Blacks – Characterizes War on Drugs as “political ploy” and “tool” – Viewed decision in Mc. Clesky v. Kemp (1987) as driven by desire to protect entire system from challenges based on racial bias • Tonry (2010) – Argues foundations for disparity-causing policy choices lie in cultural and social forces – Believed White privilege holds that all members of society deserve their status Banks, Criminal Justice Ethics. © 2017, SAGE Publications.

Explanations of Racial Discrimination in the Criminal Justice System • Moore (2015) • Argued

Explanations of Racial Discrimination in the Criminal Justice System • Moore (2015) • Argued racial concerns and disparities consistently ignored • Suggests Supreme Court has perpetuated racial disparities by consistently applying ‘colorblind jurisprudence’ • Examined Congressional 45 measures from 2004 -2009 – Found only two bills that eliminated mandatory minimum and mandatory drug sentences – Single major achievement was Fair Sentencing Act of 2010 • Argued after 1960 s controlling crime refigured to be problem that concerned all Americans – Negative stereotypes about Blacks impacts views on criminal justice issues Banks, Criminal Justice Ethics. © 2017, SAGE Publications.

Chapter Summary • Debate surrounding racial discrimination in criminal justice system remains unresolved •

Chapter Summary • Debate surrounding racial discrimination in criminal justice system remains unresolved • Although researchers have not found evidence of systemic bias, studies do suggest discrimination occurs at certain decision-making points in criminal justice system • Majority opinion is discrimination may occur within system and may be rooted in cultural and social attitudes • Further, discrimination may be so nuanced that it is difficult to identify through research studies • Despite research to the contrary, there is widespread belief among minority groups that discrimination does exist within the system Banks, Criminal Justice Ethics. © 2017, SAGE Publications.