Issues of race and ethnicity in the criminal justice system raise a number of important civil liberties issues. Allegations of discrimination in the administration of justice regarding African Americans, Latinos, and Native Americans involve all components of the criminal justice system: the police, prosecution and sentencing in the courts, corrections agencies, the death penalty, and the juvenile justice system. There are also issues related to the denial of due process that disproportionately affect minorities. People of color are also underrepresented among employees in virtually all criminal justice agencies. Social science research has confirmed the existence of patterns of discrimination in all of these areas, although there is debate among scholars over the exact nature and seriousness of such discrimination.
While there is much research on African Americans and the criminal justice system, the data on Latino Americans is very limited. Until recently, most criminal justice agencies did not collect data on Latinos as a distinct group. Following the standards set by the federal government, agencies classified Latinos as ‘‘white,’’ combining them with non-Hispanic whites. Most research on criminal justice followed this pattern, collecting data on ‘‘white’’ and ‘‘black’’ or ‘‘African Americans’’ and the criminal justice system. There has been relatively little research on Native Americans and Asian Americans and the criminal justice system.
Racial and ethnic controversies over the police include allegations of discrimination in arrests, stops and frisks of citizens, traffic enforcement, and the use of both deadly and nonlethal force, along with discrimination in employment.
Racial and ethnic minorities are disproportionately arrested in terms of their presence in the U.S. population. Research has found that these disparities are partly explained by the higher involvement in crime on the part of minority peoples and partly explained by bias on the part of the police. Racial and ethnic disparities in arrest are strongest with regard to drugrelated offenses, and the so-called ‘‘war on drugs’’ has had a particularly strong impact on young African-American males.
In the 1990s national attention focused on race discrimination in traffic enforcement. Civil rights activists accused the police of engaging in ‘‘racial profiling,’’ meaning that police officers stopped vehicles because of the race of the driver and not because of any violation of the law. A number of states passed laws requiring police departments to collect and report data on traffic stops. The controversy stimulated academic research on police traffic enforcement practices. Most studies found racial disparities in the percentage of drivers stopped by the police relative to the resident population. Even greater racial disparities have been found in the subsequent searches of drivers and vehicles.
There are also racial disparities with respect to police use of nonlethal force. Civil rights activists often refer to the use of excessive force as ‘‘police brutality.’’ Research has consistently shown that the police are more likely to use nonlethal force against young African-American males, compared with other demographic groups.
The strongest patterns of racial disparities in police practices exist with respect to the use of deadly force. In the 1960s, African Americans were six times more likely to be shot and killed by police than were white Americans. As a result of new policies restricting the use of deadly force that began to be implemented in the 1970s, the racial disparity among persons shot and killed by the police has narrowed to about three to one.
A major grievance among African Americans is their perception that police departments do not thoroughly or fairly investigate citizen complaints about police conduct. As a result, civil rights leaders have demanded the creation of independent citizen oversight agencies to handle citizen complaints. By 2005 the police departments in virtually all of the major cities in the United States were subject to some form of independent citizen oversight.
Civil rights leaders have alleged discrimination against racial and ethnic minorities in all phases of the court proceedings in the criminal justice system. This includes bail practices, plea bargaining, the dismissal of criminal cases, and sentencing. Research has found evidence of racial and ethnic disparities in the handling of cases, but these disparities are confounded with other legally relevant factors. African Americans, for example, are generally treated more harshly than whites in all phases of court proceedings, but this is often due to the fact that they are involved in more serious crimes and have more serious prior criminal records.
With respect to bail, researchers have found that males and African Americans and Latinos are more likely to face higher bail requirements than are females and whites. A similar pattern exists with respect to plea bargaining and the dismissal of cases. Females and whites are often given more lenient consideration than males and African Americans.
With respect to sentencing, racial and ethnic disparities are found with respect to persons sentenced to prison. As is the case with bail and plea bargaining, these disparities are confounded with legally relevant variables such as the seriousness of the offense and offenders’ prior criminal histories. The most serious racial and ethnic disparities in non–capital crime cases involve drug offenses. The so-called war on drugs has affected sentencing as well as policing, and there is evidence of harsher treatment of African Americans in particular. The impact of the Federal Sentencing Guidelines on drug offenses has been the subject of considerable controversy. The Guidelines provide for much longer sentences for persons convicted of possession or sale of ‘‘crack’’ cocaine compared with powdered cocaine. Since African Americans are involved with crack cocaine at a much higher rate than white Americans, the result is a serious racial disparity with regard to the length of prison terms.
As a result of racial disparities in arrest, prosecution, and sentencing, African Americans are overrepresented in American corrections agencies. Although African Americans are only 14 percent of the U.S. population, they represent about half of all persons in prison. Similar disparities are found among persons on probation and on parole. Many prisons are characterized by the existence of gangs organized along racial and ethnic lines. Prison gangs are responsible for some violence among inmates.
Some criminologists argue that the overrepresentation of racial and ethnic minorities in prisons is a result of cumulative disadvantage. This concept holds that small disparities at each stage of the criminal process are amplified by similarly small disparities at each succeeding stage. The end results are large racial and ethnic disparities in persons in prison, on probation, and on parole.
The effectiveness of probation and parole is affected by the larger patterns of discrimination in American society. Both programs are designed to reintegrate offenders into society. African American and Latino probationers and parolees, however, are placed in their home communities that are affected by lack of employment opportunities and discrimination in employment, housing, and other services.
African Americans have been severely affected by state laws denying the right to vote to persons with felony convictions. Although most states have procedures allowing felons to regain the right to vote, they are often cumbersome and difficult to use. It is estimated that as many 1.4 million African-American males, or 14 percent of all African-American men, are denied the right to vote. Many experts argue that the practice of denying felons the right to vote denies them the most fundamental right of a democratic society. Additionally, denying an ex-felon the right to vote presents a major obstacle to reintegrating that person into a law-abiding life, thereby thwarting the basic goals of probation and parole.
The Death Penalty
has been an area of great controversy over racial discrimination. In the 1960s, the NAACP launched a legal attack on the constitutionality of the death penalty. It sponsored research by criminologist Marvin Wolfgang that documented significant racial disparities in persons executed in the United States since 1930. The majority of executions occurred in the southeastern states where institutionalized segregation prevailed until the 1960s. The most serious disparities involved African-American men convicted of the crime of rape.
The Supreme Court decisions in Furman v. Georgia (1972) and Gregg v. Georgia (1976) declared existing state capital punishment laws unconstitutional as they were administered. The Furman decision compelled states to enact new laws with provisions guiding the exercise of discretion in capital cases. In Gregg, the Supreme Court upheld the constitutionality of the new death penalty laws. Research on post-Furman cases, however, found that racial disparities continued to exist. Specifically, studies found that the likelihood of a death sentence was greatest in cases where an African American was convicted of murdering a white person. Conversely, a sentence of death was least likely when a white person was convicted of murdering an African American. In a landmark decision (McCleskey v. Kemp ), the Supreme Court refused to accept statistical data on general patterns of racial disparities as sufficient evidence to overturn the conviction one particular defendant.
With respect to the juvenile justice system, there has considerable concern over what has been labeled disproportionate minority confinement. This refers to the fact that African-American and Latino juveniles are more likely to be confined to juvenile institutions rather than being diverted into less restrictive alternatives. As is the case with adult imprisonment, disproportionate minority confinement is the end result of disparities in arrest, prosecution, conviction, and sentencing.
Latino or Hispanic Americans have experienced violations of civil liberties within the American criminal justice system. The exact nature and extent of discrimination is not known. Until very recently, criminal justice agencies did not collect data on Latinos or Hispanics. They were classified as ‘‘white’’ and as a result data on arrests, convictions, and imprisonment do not distinguish between non-Hispanic whites and Latino or Hispanic whites.
The question of Native Americans and criminal justice is extremely complex. Native American tribes hold the legal status of semisovereign nations within the boundaries of the United States. On many legal issues they are subject to tribal law rather than state or federal law. Many tribes operate separate tribal police and tribal court systems. As a result, the application of the federal Bill of Rights to individual Native Americans is ambiguous. It is not always clear whether an individual Native American is protected by the federal Bill of Rights, which emphasizes individual rights, or tribal law, which is more communal in orientation. In 1968 Congress enacted the Indian Civil Rights Act, but the law has not succeeded in clarifying all of the issues.
Racial and ethnic minorities are underrepresented in employment in virtually all criminal justice agencies. As a result of federal laws outlawing discrimination in employment, together with court-ordered affirmative action plans, progress has been made in the employment of African-American and Latino police officers. In some police departments, non-Hispanic whites are a minority among officers. Tribal police departments on Native American reservations are not subject to federal equal employment opportunity laws. Native Americans represent a majority of tribal police officers. African Americans and Latinos are underrepresented in the legal profession, and as a consequence are underrepresented among prosecutors, defense attorneys, and judges. Racial and ethnic minorities are better represented in corrections agencies, that is, prison guards, and probation and parole officers.
References and Further Reading
Cases and Statutes Cited