Law enforcement officers stop Blacks and Latinos at rates that are much higher than whites. In New York City, where people of color make up about half of the population, 80% of the NYPD stops were of Blacks and Latinos. When Whites were stopped, only 8% were frisked. When Blacks and Latinos are stopped, 85% were frisked according to the NYPD. A California study by the ACLU found that Blacks are three times more likely to be stopped than Whites.
Since 1970-1971, drug arrests have skyrocketed rising from 320,000 in 1970 to nearly 1.6 million currently. African-Americans are arrested for drug offenses at rates two to eleven times higher than the rate for Whites, according to a May, 2009 report on disparity in drug arrests by Human Rights Watch. Once arrested, Blacks are more likely to remain in jail awaiting trial than Whites; and when Whites are detained, it is for a shorter period of time. A 1995 New York state division of criminal justice review of disparities in processing felony arrests showed that in some parts of New York, Blacks are 33% more likely to be detained awaiting felony trials than Whites facing felony trials.
The arrest stage establishes the pattern, a downward spiral. Blacks are 17% of the U.S. population; but they account for 38.9% of all violent crime arrests nationwide—including 32.5% of all rapes, 55.5% of all robberies, and 33.9% of all aggravated assaults; and Blacks are arrested for 29.8% of all property-crime. Critics of the system consider these statistics to be self-evident proof of the bias of the U.S. system where racism prevails, and where Blacks begin the process of being unfairly targeted by the police, appear before judges and juries, and end up in jail and prison with harsher sentences than their White counterparts. It is apparent to the critics that the issue of racial profiling and other law enforcement strategies and practices single out Blacks and Hispanics as objects of suspicion solely on the basis of the color of their skin or their accent.
In 1991 the San Jose Mercury News reviewed almost 700,000 criminal cases from California between 1981 and 1990 and uncovered statistically significant disparities at several different stages of the criminal justice process. Among the study’s findings was that six percent of Whites, as compared to only four percent of minorities, won “interest of justice” dismissals, in which prosecutors dropped a criminal case entirely. Moreover, the study found, twenty percent of White defendants charged with crimes providing for the option of diversion received that benefit, while only fourteen percent of similarly situated Blacks and eleven percent of similarly situated Hispanics were placed in such programs. The same study revealed consistent discrepancies in the treatment of White and non-white criminal defendants at the pretrial negotiation stage of the criminal process. During 1989-1990, a White felony defendant with no criminal record stood a thirty-three percent chance of having the charge reduced to a misdemeanor or infraction, compared to twenty-five percent for a similarly situated Black or Hispanic.
Scrutiny of the role of Congress and other legislative bodies in shaping and implementing criminal justice policies reveals that–in aggregate–all such bodies fall short of the trumpeted commitment to equal treatment under the law. The decision to sentence a convicted criminal to prison has—until relatively recently–been viewed as a profound responsibility, one entrusted solely to impartial judges. Increasingly of late—however–sentencing has become mundane and mechanistic, a decision effectively controlled by legislators, prosecutors, and sentencing commissioners. This change in the culture of sentencing has had disastrous consequences for minorities in the United States.
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–the report found–more than 8000 fewer Black defendants would have received prison in that two year period, resulting in a five percent decline in the percentage of Blacks sentenced to jail as a percentage of the entire sentenced population, i.e., the study found that Blacks are sentenced to prison more frequently than Whites for the same conduct.
There is a more egregious aspect of the treatment of Blacks. Some of the failure by legislative and judiciary bodies might be excused because of overwork, too few officers, too few judges and courts, or policies, laws, and rules that in effect bind the judiciary’s hands. However, there is an intentional failure on the part of the judiciaries in some (many) jurisdictions to redress obvious injustices by curbing access to and restricting the use of data that reflect the disparate impact on minorities of law enforcement and prosecutorial practices. Courts bear significant responsibility for the injustices suffered by minorities in the U.S. criminal system, despite this era of mandatory sentencing laws and sentencing guidelines in which judges have less authority to affect the outcome of criminal cases through the exercise of judicial discretion. In the face of the overwhelming racial disparities created by policing tactics, prosecutorial decision-making, and unjust sentencing laws, courts have generally declined to examine or redress racial inequality in the criminal justice system, and have made it harder for litigants to expose such flaws.
The consequences of unequal treatment of minority Americans in the criminal justice system impacts those directly caught up in the system, their families and communities, and society as a whole. Innocent minority people are stopped, detained, and interrogated more 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. Minority youths are disproportionately vulnerable to politicians’ efforts to “adultify” juvenile justice, and are therefore more likely than White youths to be transformed into adult criminals by being exposed to hardened adult offenders in prisons.
This disproportionate targeting of minorities as criminal suspects skews–at the outset of a young Black or Hispanic’s contact with law enforcement–the racial composition of the population ultimately charged, convicted, and incarcerated, and later suffering from the stigma of being an ex-convict. Consider these examples from the literature:
After years of accusations by minority citizens, a federal court consent decree was issued that required traffic stops by Maryland State Police on Interstate 95 to be monitored. From January, 1995 to December 1997, seventy percent of all drivers stopped and searched by the police were Black, while only seventeen and a half percent of overall drivers–as well as overall speeders–were Black.
A similar study in Volusia County, Florida, in 1992, found that nearly seventy percent of individuals stopped by police on a selected interstate highway in Central Florida were Black or Hispanic, despite the fact that only five percent of the drivers on that highway were Black or Hispanic. The minorities were detained for longer periods of time per stop than Whites; Blacks and Hispanics were eighty percent of those whose cars were searched after being stopped. The discriminatory treatment of minority drivers was duly noted by Volusia County law enforcement.
Once arrested, eighty percent of the people of all races in the criminal justice system get a public defender for their lawyer since ignorance, inadequate education, and poverty play a significant role in the choice to commit crime. Separately, race plays a large role as well. Despite great effort by public defenders, the system gives them much more work and much less money than the prosecution. The American Bar Association reviewed the U.S. public defender system in 2004 and concluded, “All too often, defendants plead guilty, even if they are innocent, without really understanding their legal rights or what is occurring…The fundamental right to a lawyer that America assumes applies to everyone accused of criminal conduct effectively does not exist in practice for countless people across the U.S. This fact is compounded by the often inadequate defense mounted by beleaguered and often young and green defenders, not long out of law school. And minorities suffer more significantly than Whites from these inadequacies and failures of representation.
National studies–such as the Equal Justice Initiative–reveal that African-Americans are frequently illegally excluded from criminal jury service which compromises the chances for minorities to be tried by a jury of their peers. A report from Houston County, Alabama, revealed that eight out of ten African-Americans qualified for jury service were struck [excluded] by prosecutors from serving on death penalty case juries. Part of the problem is the diminished number actually eligible due their own negative involvement in the justice system.
Contrary to the impression one might get from television, trials in the United States are fairly uncommon, even rare. Only three to five percent of all criminal cases go to trial; the rest are plea-bargained. There is a strong incentive for prosecutors and the judicial system itself to deal with the large backlog of cases by the expediency of plea bargaining, which, in addition, is a far less costly way of dealing with criminal prosecution. Most African-Americans defendants never get a trial. Most plea bargains consist of threat of a much longer sentence if a person exercises his or her constitutional right to a trial. The American Bar Association points out that–as a result–people caught up in the criminal legal system who have limited resources, education, or power, plead guilty despite knowing they are innocent. The logic is disturbingly simple and unfair: A person would have to be stupid not to accept a two or three year sentence—possibly with time off for good behavior–for a crime they did not commit rather than to risk a twenty-five year sentence for a crime they did not commit. That is the logic, but the long term consequences for the individual, for his family, and for the community in which he lives are highly degrading; and the impact of minorities is seriously more egregious.
The U.S. Sentencing Commission reported in March 2010 that in the federal system Black offenders receive sentences that are ten percent longer than the sentences for white offenders for the same crimes. African-Americans are twenty-one percent more likely to receive minimum mandatory sentences than White defendants and twenty percent more likely to be sentenced to prison than Whites in drug related cases. The longer the sentence, the more likely it is that non-white people will be the ones receiving it. The Sentencing Project Report 2009 found that two-thirds of the people in the U.S. with life sentences are non-white. In New York State, it is eighty-three As a result, African-Americans–who are seventeen percent of the population and fourteen percent of drug users–constitute thirty-seven percent of the people arrested for drugs and fifty-six percent of the people in state prisons for drug offenses.
The U.S. Bureau of Justice Statistics concludes that the chance of a Black male born in 2001 of going to jail is thirty-two percent; Latino males have a seventeen percent chance, and White males have a six percent chance. Thus Black boys are five times and Latino boys nearly three times as likely as White boys to go to jail sometime in their lives. Again, according to the 2009 Sentencing Project related to juveniles, the seventeen percent of African-American juveniles make up twenty-eight percent of juvenile arrests, thirty-seven percent of the inmates in juvenile detention, and fifty-eight percent of the youth who are sent to adult prisons.