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Criminal Justice Section Website › Newsletters › The True Bill February 2011 › Racial Disparities in the Criminal Justice System

Racial Disparities in the Criminal Justice System

Article Date: Wednesday, February 09, 2011

Written By: James Williams

Unwarranted racially disparate outcomes in the criminal justice system is a nationwide problem. In my opinion, it is the most pervasive blight on our criminal justice system today. With justification, the elimination of unwarranted racially disparate criminal justice outcomes has been described as the major civil rights issue in our country today. Even if incarceration is not imposed, the collateral consequences of a conviction – laws and regulations that bar people from jobs, education, benefits, and housing are also debilitating. In addition, conviction often results in disenfranchisement. Consequently, the criminal justice system, especially with respect to reentry into society of people who have been incarcerated is referred to by some as the new Jim Crow. See Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010).

Criminal justice policies across the country have resulted in mass arrest, prosecution, conviction, and incarceration of people of color. Consequently, African-American and to a lesser extent, Latino communities have been casualties of the domestic “wars” on drugs and crime.

The scale of racial disparity with the criminal justice system is shocking. African-Americans are incarcerated at a rate of nearly 6 (5.6) times the rate of whites. The Sentencing Project, Uneven Justice: State Rates of Incarceration by Race and Ethnicity 3 (2007). One in three (32%) of black males can expect to serve time in prison at some time in their lives, Hispanic males have a 17% chance and white males have a 6% chance.

Thus, incarceration in America is concentrated among African-American men. While one in 87 white males between the ages of 18 to 64 is incarcerated and the figure for similarly situated Hispanic males is 1 in 36; in black males it is 1 in 12. More than one third (37%) of black male dropouts between the ages of 20 and 34 are behind bars. The Pew Charitable Trust, Collateral Cost: Incarceration Effects on Economic Mobility (2010).

Within the State of North Carolina, 46% of misdemeanor convictions and 53% of felony convictions for the fiscal year 2008-2009 were African-American even though African-Americans make up only 21% of the state population. African-Americans also constitute roughly 60% of the prison population. According to 2005 Bureau of Justice statistics, in the State of North Carolina, in 2005, whites were incarcerated at a rate of 320 per 100,000 and African-Americans at a rate of 1,727 per 100,000. African-Americans were incarcerated at 5.4 times the rate of whites in North Carolina.

While there may be some disagreement as to all causes of the disparity, is beyond dispute that the so-called war on drugs is a major contributor. African-Americans constitute 14% of monthly drug users, Hispanic 12.4%, and whites 69.2%. These rates generally reflect the social and ethnic distribution of the general population of the United States. Thus, drug use patterns in this country does not account for the racial disparity in the criminal justice system. Nevertheless, African-Americans who use drugs are more likely to be arrested than any other group. Even though only 14% of the nation’s population, they represent 37% of those arrested for a drug offense. The Sentencing Project, A 25 year Quagmire: The War on Drugs and Its Impact on American Society 19-20 (2007). While blacks and whites engage in drug offenses at roughly the rate, 56% of the people in state prisons from drug offenses are African-American. Id. at 20. Black men enter state prisons on drug charges at ten times the rate of white men. Jamie Fellner, A Drug Abuse Policy that Fails Everyone, Huffington Post, Aug. 10, 2010. As it relates to the infamous crack cocaine, while two-thirds of the regular crack users are white or Latino, 82% of defendants sentenced in federal court for crack offenses are African-American. Quagmire, supra, at 19.

Law enforcement practices alone do not account for the extensive social disparities noted in criminal justice outcomes. At every step of the process following arrest, decisions are made that can affect the racial composition of the population of the criminal justice system. Implicit bias has also been shown to be a factor that contributes to racial disparities. Implied bias can play into decisions made by prosecutors, judges, defense attorneys, probation and parole officers, prison officials, and those involved in reentry. No one in the criminal justice system can escape responsibility for the situation. In order to reduce or eliminate the racial disparities, we all need to study the problem and try to determine what things we can do to eradicate this injustice.

On Aug. 8, 2003, Justice Anthony Kennedy of the United States Supreme Court in an address to the American Bar Association said:

Nationwide, more than 40% of the
prison population consist of African-
American inmates. About 10% of
African-American men in their mid-to-
late twenties are behind bars. In some
cities, more than 50% of young African-
American men are under the supervision
of the criminal justice system.

A year later, in August 2004, The American Bar Association Justice Kennedy Commission issued a report describing criminal justice racial disparities in more detail. In addition, the commission recommended measures to eliminate or reduce such disparities. While the Commission expressed some uncertainty as to the exact causes of the disparities, it was certain about two things: (1) Racial disparity must be recognized as a serious problem, and (2) the problem must be addressed in a serious way. American Bar Association Justice Kennedy Commission, Report to the House of Delegates 6 (2004). The Commission went on to say that it was important to encourage responsible officials to identify racial disparities in the criminal justice process, whether intentional or unintentional that result in the dissimilar treatment of similarly situated individuals. Once identified, officials can develop policy and practices to reduce or eliminate the problem.

One of the recommendations of the Justice Kennedy Commission was the creation of criminal justice procedure and ethnic task forces to, among other things:

Design and conduct studies to determine
the extent of racial and ethnic disparity in
the initial stages of criminal investiga-
tions, prosecutions, dispositions and sen-
tencing; make public reports of the results
of their studies; and make specific recom-
mendations intended to eliminate racial
and ethnic discrimination and unjustified
social and ethnic disparities.

Id. at 1.

We should not tolerate disparate treatment of people of color within the criminal justice system. It denigrates the American ideal of equality of fairness to all. In addition it threatens our public safety, the integrity of our justice system and the quality of our society. It is time that all of us – legislators, law enforcement, prosecutors, defense attorneys, and judges – collaborate collectively and courageously to eradicate this stigma.

James Williams is the public defender for District 15B, encompassing Orange and Chatham Counties.
Views and opinions expressed in articles published herein are the authors' only and are not to be attributed to this newsletter, the section, or the NCBA unless expressly stated. Authors are responsible for the accuracy of all citations and quotations.