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IS THE CRIMINAL-JUSTICE SYSTEM RACIST?

This section of DiscoverTheNetworks was established to examine the evidence regarding the influence of racism in the U.S. criminal-justice system.

Los Angeles congresswoman Maxine Waters, for one, believes the system is racist, charging that “the color of your skin dictates whether you will be arrested or not, prosecuted harshly or less harshly, or receive a stiff sentence or gain probation or entry into treatment.” Jesse Jackson, decrying America's “jail-industrial complex,” maintains that blacks are overrepresented in prison populations not because of their criminal activity, but because the justice system holds them to much stricter standards than whites.[1] Ivy League professor Cornel West condemns “the widespread mistreatment of black people, especially black men, by law-enforcement agencies.” Bill Quigley, legal director of the Center for Constitutional Rights, says “the U.S. criminal-justice system is ... a race-based institution where African-Americans are directly targeted and punished in a much more aggressive way than white people.” The late law professor Derrick Bell claimed that the justice system “disempowers people of color.” At a presidential primary debate in 2008, Barack Obama charged that blacks and whites “are arrested at very different rates, are convicted at very different rates, [and] receive very different sentences ... for the same crime.” That same night, Senator Hillary Clinton likewise denounced the “disgrace of a criminal-justice system that incarcerates so many more African-Americans proportionately than whites.”

Through much repetition, these allegations have gradually acquired the status of conventional wisdom. According to an April 2012 Washington Post-ABC News poll, 84% of black Americans feel that the justice system—from the police to the courtroom to the penitentiary—treats them inequitably; i.e., that racism pervades the system. In other surveys since the early 1990s, that figure has consistently ranged between 73% and 89%. The implications of this core belief, which has so firmly embedded itself in the worldview of black Americans, are monumental.

Examining the Evidence

The criminal-justice process is comprised of a number of stages, or decision points, at which law-enforcement personnel (such as police and judges) must determine how they ought to proceed—i.e., arrest or release a suspect; convict or acquit a defendant; impose a harsh or mild sentence on a convict; etc.

First comes the arrest stage. Blacks, who are 12.6% of the U.S. population, currently 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. (Further, blacks are 29.8% of all property-crime arrestees.) Critics charge that these statistics only prove the bias of a system where racism reigns, and where blacks are unfairly targeted by the police.

Thanks to the National Crime Victimization Survey (NCVS)—an extensive, scientific survey of U.S. residents conducted annually by the Bureau of Justice Statistics—we can determine whether or not this charge is valid. Victims of violent crimes (such as robbery, rape, and assault) are usually able to see an attacker well enough to at least identify his or her skin color—along with other distinguishing physical characteristics, like sex, height, weight, and clothing. Since these descriptions are generally what enable the police to make arrests in such cases, even the most racist officer has very little room for discretion; i.e., he cannot arbitrarily arrest a black person if a victim identifies a white offender. NCVS data show that, statistically, the average black is far more likely than the average white to be identified, by a victim, as the perpetrator of a violent crime. This racial gap, moreover, is approximately equal to the racial gap in actual arrest rates. In other words, blacks are arrested for violent crimes at higher rates than whites not because of police racism, but because they commit those crimes at higher rates than whites. The earliest solid evidence for this dates back to 1978, when a study of robbery and aggravated assault in eight cities found that the rates at which victims and witnesses identified blacks and whites, respectively, as perpetrators, were essentially equal to the rates at which blacks and whites were arrested for those particular crimes. As Manhattan Institute scholar Heather MacDonald notes, this finding has been “replicated many times since, across a range of crimes.”

Conversely, in property crimes such as burglary, larceny theft, auto theft, and arson, which are far less likely to have witnesses, and for which a great deal of proactive investigation is necessary to find and arrest the suspect, a racist police officer would have a much greater opportunity to arbitrarily, unjustly arrest blacks. Therefore, if police racism were indeed responsible for the comparatively high overall arrest rate of blacks, we would expect to find a greater racial imbalance in arrests for property crimes than for violent personal crimes. But in fact, the racial imbalance is considerably greater in violent-crime arrests. In a review of the literature on this subject, the politically liberal author Michael Tonry concluded that “black incarceration rates are substantially higher than those for whites … [because] black crime rates for imprisonable crimes are substantially higher than those for whites.”[2]

Nor does the race of the police officers appear to play a role in the aforementioned figures. If it were true that racial discrimination by white police officers contributes to the high arrest rate of blacks, it would logically follow that the arrest-related decisions of black officers should differ significantly from those of their white colleagues; i.e., one would expect black officers to arrest blacks a lower rate than do white officers. There is no evidence of such a difference, however. Black and white officers have very similar arrest patterns.[3]

The reality is much the same vis à vis the issue of police brutality, which the vast majority of blacks in the U.S. consider more likely to be directed at them than at whites. There is a considerable body of empirical evidence suggesting that black suspects are treated no worse than white suspects—when their demeanors toward the police are similar and their crimes are equivalent.[4] Research further shows that both white and black police officers are more likely to use excessive force against antagonists of their own race than against those of another race.[5] Black officers as a group, for instance, are more likely than their white colleagues to shoot black suspects. While this may be partly because black officers more frequently patrol black neighborhoods, black and white officers who work only in black neighborhoods are equally likely to shoot black civilians.[6]

After an arrest is made, the next decision points in the criminal-justice process are: whether or not to convict a defendant, and then, whether to impose a harsh or mild sentence. The left contends that because of racism, white defendants are not only acquitted more regularly than their black counterparts, but are treated more leniently even in cases where they are found guilty. Such disparate treatment, says the left, explains why, as of December 31, 2010, blacks (12.6% of the U.S. population) constituted fully 37.9% of all prisoners under state and federal jurisdiction—whereas non-Hispanic whites, (64% of the population) were just 32.2% of prisoners, and Hispanics (16% of the population) were 22.3% of prisoners. While black males were incarcerated at a rate of 3,074 per 100,000, the corresponding rates for white and Hispanic males were 459 and 1,258 per 100,000, respectively.

The question of whether the trial and sentencing stages of the justice system are plagued by racism has been studied extensively for several decades. As early as 1983, the Panel on Sentencing Research, which was established by the liberal-leaning National Academy of Sciences (NAS) on request of the U.S. Justice Department, reviewed more than 70 studies on sentencing patterns and concluded: "Our overall assessment of the available research suggests that factors other than racial discrimination in the sentencing process account for most of the disproportionate representation of black males in U.S. prisons ..."  Further, the NAS reported that it had found “no evidence of a widespread systematic pattern of discrimination in sentencing.”[7] In 1985 the Journal of Criminal Law and Criminology concluded that a disproportionate number of blacks were in prison not because of a double standard of justice, but because of the disproportionate number of crimes they committed.[8] That same year, federal government statistician Patrick Langan conducted an exhaustive study of black and white incarceration rates and found that “even if racism [in sentencing] exists, it might explain only a small part” of the black overrepresentation among prison inmates.[9] In a 1987 review essay of the three most comprehensive books examining the role of race in the American criminal-justice system, the journal Criminology concluded that there was little evidence of anti-black discrimination.[10] In his 1987 book The Myth of a Racist Criminal Justice System, William Wilbanks presented a summary of "what is known about race and sentencing," where he wrote:

  • "Extralegal variables (for example, race, sex, age, socioeconomic status of defendant) are not as predictive of sentence as legal variables (for example, type of crime, strength of evidence)."
  • "The black/white variation in sentences is generally reduced to near zero when several legal variables are introduced as controls."
  • "There is no evidence that black judges are less likely than white judges to send blacks to prison or to give them lengthy terms."[11]

The most exhaustive, best-designed study of sentencing patterns ever conducted—a 1990 analysis of more than 11,000 recently convicted criminals in California—found that the severity of sentences depended heavily on such factors as prior criminal records, the seriousness of the crimes, and whether guns were used in the commission of those crimes; race was found to have no effect whatsoever.[12] Likewise, a 1991 RAND Corporation study found that a defendant's racial or ethnic background bore little or no relationship to conviction rates; far more important than race were such factors as the amount of evidence presented, and whether or not a credible eyewitness testified.[13]

In 1993 a Justice Department study tracked the experience of more than 10,000 accused felons in America's 75 largest cities found that black defendants fared better than their white counterparts—66% of black defendants were actually prosecuted, versus 69% of white defendants. Among those prosecuted, 75% of blacks were convicted, as compared to 78% of whites.[14] Also in 1993, criminologist Alfred Blumstein found that when comparing black arrests for homicide and the presence of blacks in prison for that crime, African Americans were significantly underrepresented among incarcerated inmates. Liberal criminologist Michael Tonry wrote in 1995: “Racial differences in patterns of offending, not racial bias by police and other officials, are the principal reason that such greater proportions of blacks than whites are arrested, prosecuted, convicted and imprisoned.”

A 1996 analysis of 55,000 big-city felony cases found that black defendants were convicted at a lower rate than whites in 12 of the 14 federally designated felony categories.[15] This finding was consistent with the overwhelming consensus of other, previous, well-designed studies, most of which indicated that black defendants were slightly less likely to be convicted of criminal charges against them than white defendants.[16] In 1997, liberal criminologists Robert Sampson and Janet Lauritsen undertook a painstaking review of the voluminous literature on charging and sentencing, and concluded that “large racial differences in criminal offending,” and not racism, explained why proportionately more blacks than whites were in prison—and for longer terms.[17]

Even though America's legal-education and civil-rights establishments have created a massive industry devoted entirely to uncovering even the barest shred of evidence pointing toward white racism in the justice system, the net result of their efforts has been nothing more than an occasional study showing a miniscule, unexplained racial disparity in sentencing, while most other analyses continue to find no racial effect at all.


NOTES

[1] Scott McConnell, "The Farrakhan Dilemma," New York Post (October 18, 1995). Jesse Jackson's address at the Million Man March (October 16, 1995).
Stephan Thernstrom and Abigail Thernstrom, America in Black and White, p. 272.
[3] William Wilbanks, The Myth of a Racist Criminal Justice System, p. 67.
[4] Wilbanks, p. 67.  John DiIulio, Jr., "My Black Crime Problem, and Ours," City Journal (Spring 1996), pp. 18-19.
[5] William Wilbanks, The Myth of a Racist Criminal Justice System, p. 73.
[6] William Wilbanks, The Myth of a Racist Criminal Justice System, p. 79.
[7] William Wilbanks, “Color Blind,” National Review (April 26, 1993), pp. 52-53.  William Wilbanks, The Myth of a Racist Criminal Justice System, p. 105.
[8] Ibid.
[9] John DiIulio, Jr., “My Black Crime Problem, and Ours,” City Journal (Spring 1996), p. 19.
[10] William Wilbanks, “Color Blind,” National Review (April 26, 1993), pp. 52-53.
[11] William Wilbanks, The Myth of a Racist Criminal Justice System, p. 120.
[12] David Tuller, “Prison Term Study Finds No Race Link,” San Francisco Chronicle (February 16, 1990), p. 2.  Heather MacDonald, “Is the Criminal-Justice System Racist?” City Journal (Spring 2008).
[13] Charles Logan and John DiIulio, Jr., “Ten Deadly Myths about Crime and Punishment in the U.S.”  See Robert James Bidinotto, ed., Criminal Justice (Irvington-on-Hudson, New York: Foundation for Economic Education, 1994), p. 163.
[14] Stephan and Abigail Thernstrom, America in Black and White, p. 273.
[15] Walter Olson, “Is It Really an Injustice System?” New York Post (September 30, 1996), p. 21.  Robert Lerner, “Acquittal Rates by Race for State Felonies,” in Gerald A. Reynolds, ed., Race and the Criminal Justice System (Washington, DC: Center for Equal Opportunity, 1996), p. 92.
[16] William Wilbanks, The Myth of a Racist Criminal Justice System, p. 98.
[17] Heather MacDonald, “Is the Criminal-Justice System Racist?” City Journal (Spring 2008).

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