This is the first of six blogposts on the inflammatory subject of the interaction between African-Americans and the United States Justice System. The first three will consider the arguments of the critics of the American system, and the second set of three will take up the counter argument.
The critics of the U.S. System say yes—Part One.
There are two definitions of fairness in the United States: the right side of the political spectrum sees fairness as a simple dictum: there is one law for everyone, and the letter of the law should be obeyed, enforced, and when broken, the perpetrator should face punishment under the law. The left side of the spectrum sees the law as more complicated. Mitigation should form part of the equation such that the core issues behind breaking of the law ought to be taken into consideration and the past history of the treatment of minorities as a whole also be considered. Unfairness would result from a young African-American male being arrested and ultimately convicted for possession or selling crack cocaine and receiving a harsh sentence without recognizing that crack is cheaper and more abundantly available in the area where he lives, and the young White man receives a lesser sentence for possession or selling powder cocaine.
Bringing Negro people from Africa to the United States for enslavement occurred and has marred the subsequent history of the country ever since. Its offspring were racial discrimination, anti-miscegenation laws, endemic poverty, disrupted and dysfunctional family structure, and racial violence. The practices of slavery and of overt discrimination against people of color were heinous and reprehensible, to put it mildly; and the country will never see nor hear the end of the problems which resulted. However, the United States has made significant progress toward the objective of ensuring equal treatment under law for all citizens after a long struggle carried on by people of all ethnic backgrounds. The right to vote, the right to be free from discrimination in employment, housing, public accommodations, anti-segregation legislation, and integration of educational facilities are now carved in statutory stone. The number of minorities in positions of authority in public and private life is nothing short of remarkable and continues to grow. America’s minorities now enjoy greater economic, political, and educational opportunities than at any time in history. U.S. 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. People of color are not only free to engage in any and all areas of life leading to financial gain, but they excel in most of them: medicine, law, clergy, sports, and entertainment, to name a few. There are laws governing every stage of the criminal justice process–from the initial investigation of a crime by the police officer, to the prosecution and due process of the courtroom procedures, to verdicts and punishments of crime by prosecutors, judges, and juries which guarantee that individuals in like circumstances are treated fairly and alike, consistent with the Constitution’s guarantees and the weight of years of local, state, and federal legislation enacted to provide equal treatment under the law.
The above comments notwithstanding, there remains one critical area of American life where there are powerful and fractious questions posed about whether or not there is racial equality, and that is the criminal justice system. Many people assert that racial inequality is growing, not receding, and is the rule not the exception. U.S. criminal laws are–on the surface–color-blind and neutral. A substantial proportion of Americans, and a strong emphasis from news media are convinced that criminal laws are enforced in a manner that is massively and pervasively biased at all steps in the process. Those who hold that view are fearful that the injustices of the criminal justice system threaten to render irrelevant fifty+ years of hard-fought civil rights progress.
Others take a diametrically opposite point of view and see the almost constant litany of accusations that the country’s system is flawed, biased, and harmful to people of color as not only inaccurate and misguided; but the endless promulgation of the concept is harmful and prevents action to correct the actual problems facing African-Americans and other racial minorities. In addition, respect for laws and law-enforcement is rapidly diminishing which creates fear among law-abiding citizens who see a hobbling of law enforcement personnel increasing exponentially.
In this blogpost (I) the point of view of those who believe that there is a profound and uncompromising degree of discrimination against minorities will be summarized.
- In 1964, the Congress of the United States passed into law the Civil Rights Act which prohibited discrimination in employment. Nevertheless, currently, 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.
Racial disparities negatively affect both innocent and guilty minority citizens and undocumented immigrants. Innocent minority citizens are detained by the police on the street and in their cars far more frequently than are Caucasians. Such interchanges with law enforcement officers cause inconvenience, humiliation, and a loss of privacy. It is presumed by many—probably most minority individuals–that all of those negative impacts are heightened by the presumption that the rationale for the police action is the color of a motorist’s skin or a pedestrian’s accent—being charged with DWB [Driving while Black]. There is 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. At every subsequent stage of the criminal process—from the subtle biases and stereotypes that cause police officers to rely on racial profiling to the first plea negotiations with a prosecutor, to the imposition of a prison sentence by a judge– are compounded by the racially skewed decisions by other antecedent or extraneous but key factors. Regrettably, the evidence is clear that prosecutorial discretion is systematically exercised to the disadvantage of black and Hispanic Americans. It should be said that prosecutors are not–by and large—intentionally or overtly bigoted. But as with police activity, prosecutorial judgment is shaped by a set of self-perpetuating racial assumptions and by the factual information that is before them regarding the records of the minority defendants.
Even minority people and their supporters do not posit that all people of color who are arrested are innocent. In fact, some may actually be guilty of Black-on-Black crime. But it is outrageous that there is an egregious and disparate treatment of minority citizens who have been accused of having violated the law. All defendants surrender many of their civil rights upon conviction, and African-Americans take great umbrage that they are singled out for disproportionately harsh treatment. They point out, rightly so—that equal protection under the laws is not one of the civil rights they have to surrender. It is an affront to all minority citizens, innocent or guilty–when a minority defendant is treated unfairly by the police, by prosecutors, by their inadequate court-appointed attorneys, and at sentencing by a judge, because of race or ethnicity.
This sense of being treated unfairly is not mere feeling; there are salient facts to back up the argument. Minority defendants are charged with crimes requiring a mandatory minimum prison sentence more often–in both relative and absolute terms–and for both African-Americans and Hispanics which leads to significant racial disparities in incarceration. Bureau of Justice data from 2002 showed that there were 3,042 Black male prisoners per 100,000 Black males, 1,261 Hispanic male prisoners per 100,000 Hispanic males, and only 487 White male prisoners per 100,000 White males in the general population of the United States. African-Americans now constitute nearly 1 million of the total 2.3 million incarcerated population and make up 37.4% of incarcerated individuals. African-Americans are incarcerated at nearly six times the rate of Whites. Hispanics make up 20.6%, and Whites 59.2%.
The report showed that the likelihood of Black males going to prison in their lifetime to be twenty-eight percent compared to sixteen percent for Hispanic males and only four percent for White males. Similarly, federal death penalty data released by the United States Department of Justice for 1995–2000 shows that 682 defendants were sentenced to death. Out of those defendants, forty-eight percent were African-American, twenty-nine percent were Hispanic, and Whites accounted for twenty percent of the executions.
The incarceration figures fly in the face of the racial demographics of the general population of 317 million people in America: 77.7% white, 50.8% female, 49.2% male, 13.2% Black, 17.1% Hispanic, 5.3% Asian, 2.4% mixed races, 1.4% American Indian, Alaska Native, Hawaiian, and other Pacific Islanders. The disproportionate prison population with Blacks being the substantial majority is considered to be prima facie evidence of discrimination in the system.
The unequal treatment of minorities in our criminal justice system manifests itself in a mushrooming prison population—the largest in the world–that is overwhelmingly Black and Hispanic; in the decay of minority communities that have given up entire generations of young men to prison, a large percentage of Black men who are not permitted to vote or, often, to hold political office, a high and rising crime rate growing out of disenfranchisement and despair, and in a widely-held fear of law-enforcement and belief among Black and Hispanic Americans that the criminal justice system is deserving neither of trust nor of support. It is not inconsequential that another of the results of this unequal treatment is the biased perception that lawlessness is a “colored person” problem, and that the disproportionate treatment of Blacks and Hispanics within the criminal justice system is a rational response to a flawed level of society leading to a statistical imperative.
During the arrest phase: The U.S. has experienced an overall surge in arrests and putting people in jail over the last four decades, and the arrest phase establishes the bias that will affect Black youth for the rest of their lives and the lives of their families. Most of the reason for that increase is the war on drugs, a result of a crusade which gained a huge impetus starting in 1971. According to a report on race and drug enforcement published by Human Rights Watch in May, 2008, Whites and Blacks engage in drug offenses, including both possession and sales, at roughly comparable rates. African Americans comprise 17% of the U.S .population and 14% of monthly drug users. Yet, they are 37% of the people arrested for drug offenses according to the 2009 Sentencing Project.