Racial bias within the Criminal Justice System contributes to the Overrepresentation of African-American Males in correctional facilities

By Dianne A. Williams, Ph.D., Assistant Professor, Department of Criminal Justice,  Livingstone College, Salisbury, North Carolinia

Abstract

 

This paper attempts to identify a correlation between race, rate of incarceration, and severity of sentencing for drug related crimes.  Statistical data was analyzed and an overview of the information is presented.  The statistical review reveals a substantial, but disproportionate increase in the rate of incarceration of African-American males for drug related crimes.  Additionally, there is disparate handling of African-Americans compared to Anglo-Americans throughout the process of arrest to incarceration.  Legislative policy that was implemented to control crime appears to support economic, geographic and cultural biases, which have resulted in disproportionate overrepresentation of African-Americans in correctional facilities.  Stricter guidelines are needed to ensure that arresting and sentencing policies are applied across the board regardless of race.

 

 


Introduction

 

            The advent of the ‘War on Drugs’ has had a catastrophic impact on minorities.  African-American representation in correctional facilities in alarmingly disproportionate.  In fact, according the to U.S. Department of Justice, Bureau of Justice Statistics (BJS), African-Americans and Hispanics constitute almost 90% of offenders sentenced to state prison for drug related crimes.  Additionally, says the BJS, the lifetime chances of an African-American going to prison is 16.2% and for an Anglo-American it is 2.5%.  Moreover, a BJS report released in January of 1998 said that African-Americans compose almost 75% of defendants charged with robbery or a weapons offense and 62 % of those charged with a drug offense Bureau of Justice Statistics ,various years). 

A nation’s rate of incarceration is a significant indicator of its criminal justice system, but more importantly, it is a significant indicator of that nations social policies.  A high rate of incarceration could be an indication of a high crime rate or a harsh sentencing system.  On the other hand, it could be representative of a society’s unwillingness to acknowledge the underlying cancer of corrupt and biased social policies that encourage and support high incarceration rates for African-Americans compared to Anglo-Americans; a social policy system that classifies Anglo-Americans arrested for drug offenses as sick but classifies African-Americans arrested for the same offenses as criminals.

Incarceration rates are determined by criminal justice policy, which includes sentencing legislation, parole policies, overall crime rates, violent crime rates and severity of sentencing.  Social policy includes the availability of alternative sentencing options and community resources and cultural attitudes toward punishment.  Every society attempts to establish a reasonable coexistence between both.  Our society has not been successful.

 

Research suggests that a society’s penal climate or its penchant for punishment is linked to its perception of social equality (Mauer 1999 ).  The greater a society’s tolerance for inequality, the more likely that society is to support extreme punishment.  So, the severity of sentencing represents a  negative reward for those at the lower end of the economic spectrum and a  positive rewards for those with income and status.  In a society such as ours, therefore, which supports and encourages great disparity in wealth and social standing, we should not be surprised to see harsher cultural attitudes toward sentencing policy.

African-American communities are becoming increasingly concerned with police treatment in particular and with the criminal justice system in general.  Although this country’s

criminal justice system is based on equality before the law and during the administrative process of the law-- from the officer on the beat to the Supreme Court-- the reality is that it is predicated on the exploitation of economic, geographic and social inequalities. 

            The Supreme Court has ruled that under the terms of the Fourth Amendment a police officer must have reasonable suspicion--probable cause--before conducting a search and seizure.  ( Mallor et al, 1998 ). Yet it is the Supreme Court that continues to created exceptions that permit the police to invade privacy without probable cause, particularly in cases involving minorities who are less likely to assert their legal right to refuse.

 

Statistics

African-Americans make up 13% of the national population yet African-American males are incarcerated 9.6 times the rate of Anglo-American males (Mauer, 1999).  They comprise 13% of monthly drug users yet are 39% % of drug arrests.  From 1986 to 1991, the number of African-American drug offenders in state prisons has more than quintupled from 14,000 to 80,000 (Federal Bureau of Investigation, Uniform Crime Reports, various years).  In 1993 African-Americans made up 45.7% of all arrests for violent crime.  Which means that Anglo-Americans made up 54.3%.  Yet African-Americans were convicted and incarcerated at rates of 55 % and 74% respectively (Federal Bureau of Investigation, Uniform Crime Reports, various years). 

For drug related crimes in particular, National Corrections Reporting Program (NCRP) research shows that African-Americans comprise 62.7 % and Anglo-Americans 36.7 % of all drug offenders admitted to state prison, even though federal surveys and other data detailed in this report clearly show that this racial disparity is alarmingly disproportionate to the racial differences in drug use and even drug arrests.  There are, for example, five times more Anglo-American drug users than African-American. Relative to population, African-American men are admitted to state prison on drug charges at a rate that is 13.4 times greater than that of Anglo-American men (National Corrections Reporting Program (NCRP), 2001).  It would appear, therefore that the racial disparities in incarceration for drug offenses, has a significant impact on the overall rate of incarceration of African-American males compared to Anglo-American males.  African-American males are incarcerated for all offenses at 8.2 times the rate of Anglo-Americans.

One in every 20 African-American men over the age of 18 in the United States is in state or federal prison, compared to one in 180 Anglo-American men. Shocking as such national statistics are, they mask even worse racial disparities in individual states. In seven states, for example, African-Americans constitute between 80 and 90 % of all drug offenders sent to prison. In at least fifteen states, African-American men are admitted to prison on drug charges at rates that are from 20 to 57 times greater than those of Anglo-American men (NCRP, 2000).

There is a considerable range in prison incarceration rates among U.S. states.  Minnesota has the lowest rate, 121 prisoners per 100,000 residents, and Louisiana the highest, with a rate of 763.  Almost every state has a prison incarceration rate that greatly exceeds those of other western democracies, in which between 35 and 145 residents per 100,000 are behind bars on an average day. The District of Columbia, an entirely urban jurisdiction, has a rate of 1,600.  Thirty-two states have mandatory minimum sentencing laws for drug offenses (Bureau of Justice Assistance, "National Assessment of Structured Sentencing" U.S. Department of Justice, 1996).

These racial disparities in drug offenders admitted to prison skew the racial balance of state prison populations. In two states, one in every 13 African-American men is in prison. In seven states, African-Americans are incarcerated at more than 13 times the rate of Anglo-Americans. The imprisonment of African-Americans for drug offenses is part of a larger crisis of over incarceration in the United States.  Prison was intended to be used as a last resort to protect society from violent or dangerous individuals.  Today, more people are sent to prison in the United States for nonviolent drug offenses than for crimes of violence. Throughout the 1990s, more than one hundred thousand drug offenders were sent to prison annually. More than 1.5 million prison admissions on drug charges have occurred since 1980 and the rate at which drug offenders are incarcerated has increased nine fold.

Drug policies constitute the single most significant factor contributing to the rise in prison populations in recent years with the number of incarcerated drug offenders rising 510% from 1989 to 1994.   In eleven states the rate of incarceration of African-American males is 12 to 26 times that of Anglo-American males and in D.C. the rate is 49 times.  Nationally, incarceration rates amongst African-American males have grown exponentially from 39% in 1979 to 53% in 1990 (new convictions only) (National Institute on Drug Abuse (NIDA), 1995).   

The arrest rate for African-Americans for violent crime is  45%.  Although grossly disproportionate this rate has not changed significantly for the past two decades.   For drug offenses, however, the African-American proportion of arrests increased from 24% in 1980 to 39% in 1993, well above the African-American proportion of drug users nationally (BJS 1998 Sourcebook).  Mauer (1991) summarizes drug offense processing and its impact on African-Americans as follows.

(1)    Drug arrests have almost tripled since 1980, rising from 471,000 in 1980 to 1,351,000 by 1994

(2)    the African-American proportion of drug arrests has increased during this time as well, rising from 24% in 1980 to 38% in 1994, and,

(3)    the chances of imprisonment after being arrested for a drug offense have increased dramatically, rising by more than 400% from 1980 to 1992. 

The U.S. rate of incarceration is 519 per 100,000, second in the world amongst industrialized nation having increased by 22 % since 1989.  This rate is 5 to 8 times the rate of almost all other industrialized nations and sadly enough, of the 1.3 million Americans behind bars 583,000 or almost 50% are African-American.  Bear in mind the fact that 537,000 African-American males are enrolled in higher education (Mauer, 1992).  These numbers should be cause for grave concern.

The past two decades have witnessed dramatic growth in the United States prison population.  In 1975 there were 250,000 persons incarcerated in state and federal prisons as compared to the nearly 1.3 million as of mid 1999 (Bureau of Justice Statistics, 1999).  Most commentators attribute this exponential growth to the increasingly severe sentencing practices for drug offenses (Mauer, 1999; Skolnick, 1997; Tonry, 1995).  They have determined that that the risk of receiving a prison sentence for a drug offense increased by 447 % between 1980 and 1992 and that the percentage of state prisoners incarcerated for a drug offense nearly quadrupled from 6% in 1980 to 23% in 1996. Similarly, the percentage of federal prisoners serving time for a drug offense increased from 25 % in 1980 to 60 % in 1996. In fact, the increase in drug offenders accounted for nearly three-quarters of the total increase in federal inmates and one-third of the total increase in state inmates during this 16-year period (Bureau of Justice Statistics, 1998).

These statistics reflect a crime control policy based on a “superficially persuasive: theory of deterrence” (Skolnick, 1997, p. 411) The assumption is that subjecting drug offenders to long prison sentences will deter current and prospective offenders and will eventually lead to an overall  reduction in drug abuse and drug-related crime.  The general consensus is, however, that  this theory rests on the unsupported assumption that altering criminal penalties will alter behavior (Irwin & Austin, 1997; Paternoster, 1987, 1991; Tonry, 1995). In fact, research generally supports the conclusion that increasing the severity of penalties will have little or not effect on crime (see Caulkins, Rydell, Schwabe, & Chiesa, 1997 and Speckart, Anglin, & Deschenes, 1989 for research that assesses the deterrent effects of punishment for drug offenders).

Critics of the ‘War on Drugs’ argue, however, that public safety has not improved as a result of the race to incarcerate (Irwin & Austin, 1997, p. 140).   Instead, these critics suggests that at least two-thirds of the $13 billion the United States spends annually to wage the War on Drugs should be reallocated to treatment and prevention of drug related illnesses (Skolnick,1997).  Additionally, the criminal justice system should challenge itself to create a program geared to eliminating drug related cases while providing treatment for those drug related offenders (Belenko,1990, p. 70).

 

The Double Standards of Incarceration Policies

Just as our constitutional rights depend upon double standards, so, it appears, do our incarceration policies. We currently confine about two million people, making us the world leader in per capita incarceration.  Our rate is approximately five times higher than that of the next highest industrialized nation.  About half of those behind bars are there for nonviolent offenses and the burden of this incarceration policy is born by minorities and the impoverished.  Moreover, for every African-American man who graduates college each year, 100 are arrested.

On any given day, one in three African-American men in their twenties is in prison or jail or on probation or parole. The per capita incarceration rate among African-Americans is seven times that among Anglo-Americans. And, most significantly, at the current rate, one of every four African-American male babies born in hospitals across the country today can expect to spend a year or more of his life in prison (Mauer, 1999).

            If the incarceration rates were reversed, and one in four Anglo-American male babies born faced the prospect of a year or more in prison, we could expect the politics of crime would change dramatically.  Instead of ‘three strikes and you're out’ laws, mandatory minimums and more severe sentences and the elimination  of parole, we would probably be faced with a host of lobbyists demanding more humane policies such as mandatory treatment for drug offenders,  more programs to encourage kids to stay in school and  job training programs.   Unfortunately, as long as the majority remains unaffected we, as a society will continue to bury our heads in the sand.

Double standards undermine law enforcement.  It breeds resentment and alienates minorities and the poor. As long as African-Americans see the criminal justice system as biased they will be less likely to cooperate with police.  In addition, people who have lost respect for the letter of the law are more likely to break the law themselves.  Racial profiling does the same. Using racial generalizations to decide whom to watch, approach, stop, search or arrest is becoming a major part of policing culture.  But is it not obvious that if minorities are stopped more, all things being equal, they will be arrested more?  But, says Mauer “if low-income youth are more subject to police scrutiny and have fewer counseling and treatment resources available to them than middle class adolescents, their youthful criminal activities will more likely result in a criminal record that will affect their chances of going to prison later on” (Mauer, 1999).

 

Crack cocaine versus  Powder cocaine

Another subtle strategy of the criminal justice system is its non-clinical differentiation between crack cocaine and powder cocaine.  The disparity in sentencing between crack cocaine and powder cocaine is overwhelming.  Persons convicted of crack possession receive a mandatory prison term of 5 years by possessing only one-hundredth of the quantity of cocaine those charged with powder cocaine possess.  Fourteen states already have statutes that distinguish between crack and powder cocaine in sentencing.  The U.S Sentencing Commission found that African-Americans accounted for 84.5% of federal crack possession convictions in 1993, but only accounted for 38% of those who report using crack during the same period..  The Sentencing Commission has also reported that a person convicted of trafficking in five grams of crack with a maximum retail value of $750 will receive the same sentence as an offender charged with selling 500 grams of powder cocaine retailing for $50,000 (U.S Sentencing Commission, 1992).

            This phenomenon is significant when considered with the rationalization of the likes of Hagedorn who concluded that:  “Long and mandatory prison terms for use and intent to sell cocaine lump those who are committed to the drug economy with those who are using or are selling in order to survive.  Our prisons are filled disproportionately with minority drug offenders…who in essence are being punished for the ‘crime ‘ of not accepting poverty or of being addicted to cocaine”  (Hagedorn, 1998).  Ongoing research supports the argument that the hard and fast, yet biased rules that have been adopted to fight the war on drugs have been so unsuccessful that consideration should be given to equitable and unbiased availability of jobs, improved accessibility to drug treatment, alternative sentencing, and, perhaps, even decriminalization of nonviolent drug offenses. 

 

Revolving Door

 A 1990 study by Peter Reuter and his colleagues at RAND examined the criminal histories and demographics of young African-American males arrested for drug distribution in Washington, D.C. since they comprised the vast majority of persons arrested for that offense.  The intention was to document the extent to which drug dealing has become a source of income.  One-sixth of the African-American males born in 1967 had been arrested for drug distribution by the age of 20, and there were projections of one-quarter having an arrest by the age of 29.  Two-thirds of the offenders had been employed at the time of arrest, primarily at low-wage jobs with an average income of $800 per month.  Drug dealing had, in fact, become a second job for some of these young men, who were able to earn, on average, $2000 per month in drug sales (Reuter, 1990, Wilson, 1987).

            History has shown repeatedly that there is a direct correlation between poverty and crime.  As a group, young African-Americans are generally worse off than their Anglo-American counterparts regardless of their social standing.  Economically, the lowest fifth of African-American families was on average 45% worse off than the lowest fifth of Anglo-American families.  The second lowest fifth of African-American families on average were 53% worse off than corresponding Anglo-Americans (Swinton, 1987).  Additionally, 45% of African-American males under 18 were living in households with incomes below the poverty level whereas 15% of similarly aged Anglo-Americans lived in a comparable manner (Gibbs, 1988).

            Moreover, U.S. Bureau of Census, 1990 data revealed that African-American youths were three times more likely to live in poverty that their Anglo-American counterparts.  When national unemployment rate was 7.5%, unemployment among African-Americans was 16% and overall 43% of all working age African-American males (almost 4 million) may be out of a job.  This translates to 11% unemployed another 19% out of the labor force 2% incarcerated and 11% unaccounted for (Joe, 1987).

James Lynch and William Sabol point to additional significant racial effects of law enforcement practices.  They analyzed data on incarceration rates, race and class from 1979-1991 and classified inmates as either underclassed or non underclassed (working class or middle class) based on educational background, employment history and income.  They concluded that the most significant increase in incarceration rates was for working class African-American drug offenders, whose rated increased 6 times in a 12 year period.  The trend for Anglo-Americans, on the other hand was just the opposite with underclassed drug incarceration for Anglo-Americans doubling during the same period.  They suggested that increased targeting of African-American working and middle class citizens for supposedly discretionary drug enforcement and ultimately increased incarceration for drug offenses was the cause. The immunity that working and middle class status used to bring in the African-American community (and still does among Anglo-Americans) is all but lost (Lynch and Sabol, 1997).

While the processes that produced these outcomes may not have been racially motivated in intent, and we have no proof of that , the bottom line is that they have resulted in racially disparate outcomes. Additionally, there is the potential for a ‘spillover effect’ from the combination of residential racial segregation and law enforcement profiling which will only serve to herd more non-underclass African-Americans into the criminal justice system.

 

A Mental Health Perspective

            Declining federal funding combined with the inability of mental health organizations to address more subtle forms of discriminatory practices in health care settings, as well as increasingly narrow interpretations by the courts, and a the lack of adequate monitoring mechanism for monitoring of providers, all contribute to disparate levels in the availability of mental health services for minorities. There are many other indicators of racial disparity in the mental health system beyond the direct control of health services providers and disparities in income, wealth, insurance, housing, and environmental risk exposures also play important roles. 

Not only must we deal with racial disparities but we are also faced within the African American community we are also faced with the issue of gender.  While acts of physical violence are relatively rare between both sexes, they are very much common among men. Differential parenting styles result in the great disparity among men and women. Although more women are committing crimes, the nation must develop a way in which we can raise children without gender differences (Glietman,1999).

Men commit a large percentage of all crime (BJS, various years). Perhaps discovering the reason for this phenomenon will provide society with the answer to the prevention crime.   Nonetheless experts such as Glietman and Weiten have theorized that the problem lies in the fact that men and women are socialized differently according to their gender roles. They argue that males and females receive differential treatment during childhood. Boys are expected to be tough, strong and independent, whereas the girls are expected to be soft and dependent. Because of this, boys are allowed to stay out until after dark, while girls must go home before sundown. Parents have more confidence in their male children that they can be on their own and that girls need more parental guidance (Glietman,1999; Weiten, 2001). 

Although this difference continues into adulthood, BJS statistics have identified an increase in the number of women criminals, which is being blamed on the present transition in gender roles (BJS, various years).   This transition in genders may be directly related to the exponential increase in incarcerated African-American males, which would result in African-American women having to assume the role of head of household.  So, from a mental health perspective, the criminal justice system could be slowly and subtly destroying the African-Americans family unit.

 

Impact

We have no way of knowing the magnitude of the effect that inconsistent sentencing policies have on the African-American community at large.   Conversely, we can only imagine a positive impact on actual crime rates. As Block and Twist have found, from 1980 to 1992, the 10 states that had the highest increase in their prison populations, relative to total FBI index crime, experienced, on average, a decline in their crime rates of more than 20 %, while the 10 states with the smallest increases in incarceration rates averaged nearly a 9 % increase in crime rates (Block and Twist, 1992).

A 1994 review of statistical literature on the relationship between imprisonment rates and crime rates concluded that a 10 % increase in the likelihood of being imprisoned after conviction for a violent crime would reduce violent crime by about 7 %.  Still, as Joan Pertersilia has observed, “it is one thing to say that a person will not commit a crime while incarcerated and quite another to say that society's overall crime rate will be affected by the increased use of imprisonment” (Pertesilia, 1992).

            In 1989, there were an estimated 66,000 fewer rapes, 323,000 fewer robberies, 380,000 fewer assaults, and 3.3 million fewer burglaries attributable to the difference between the crime rates of 1973 versus those of 1989 (i.e., applying 1973 crime rates to the 1989 population). Langan reports “if only one-half or one-quarter of the reductions were the result of rising incarceration rates, that would still leave prisons responsible for sizable reductions in crime. Tripling the prison population from 1975 to 1989 potentially reduced reported and unreported violent crime by 10 to 15 % below what it would have been, thereby potentially preventing a conservatively estimated 390,000 murders, rapes, robberies, and aggravated assaults in 1989 alone” (Langan 1994).

 

Sentencing Alternatives

It is the general consensus of criminal justice critics that increased penalties for drug use and distribution have had a negligible impact on the operation of illicit drug markets, on the price and availability of illicit drugs, and on consumption of illicit drugs (Cohen, 1998, p. 1260).

Additionally, those critics of the crime control approach, who maintain that the War on Drugs has failed and that “public safety has not improved as a result of the imprisonment binge” (Irwin & Austin, 1997, p.140), have called for a new approach that effectively combines public safety and public health needs.  While acknowledging that imprisonment may be appropriate penalty for some offenders, from a public health perspective it has become necessary to contemplate alternatives to incarceration (Skolnick, 1997).

There is now a litany of arguments for drug abuse treatment programs to reduce drug use and drug-related crime (see Anglin & Hser, 1990 for a summary).  Positive results have been noted for both community-based treatment (Benedict, Huff-Corzine, & Corzine, 1998; McCorkel, Harrison, & Inciardi, 1998; Smith & Akers, 1993), and for treatment within a correctional institution (Field, 1984; Inciardi, Lockwood, & Hooper, 1994; Mullen,1996; Tunis, Austin, Morris, Hardyman, & Bolyard, 1996; Wexler, Falkin, & Lipton, 1990).

In addition to the process of drug abuse treatment, and for those who need no treatment by need supervision, Bureau of Justice Statistics reported that over 90 % of all probationers are part of a punishment system that begins with substance abuse counseling but successfully encompasses house arrest, community service and victim restitution programs, to name a few. Bear in mind, though, that it has been determined that these intermediate sanctions have not proven effective for high risk probationers or those who pose a threat to the public.    It is also felt that these programs are more expensive than routine probation and defeat the purpose in the long run (Bureau of Justice Statistics, 1999).

Community corrections would be effective as a sentencing alternative if, and only if, it was applied across the board regardless of race or culture. Not only would it reduce overall annual cost of incarceration but, if executed in an unbiased manner, should reduce the rates of incarceration and, more importantly, the rate of recidivism especially among African-American males.  Allen and Simonsen (1989) argue that implementation of community corrections policy would weaken the efficacy of the concept of incarceration which is that isolation is the only effective punishment. But in view of the fact that rates of recidivism are rising exponentially and the cost of maintaining institutional programs are exorbitant, community corrections as a sentencing alternative may be the only viable option. However, the success of Private Profiteering as it relates to the prison industry has become a significant challenge to the success of community corrections.
            Bureau of Statistics (2000) reports that over 63% of adults on probation are Anglo-American while only 34% are African-American and 55% of parolees are Anglo-American while 44% are African-American. If the statistics show bias, the research shows bias and the bias continues to exist it is unlikely that community correction absent a series of solid checks and balances would solve the problem.  There is no doubt that there is a desperate need to erase sentencing inequality across racial and cultural lines, however, by the time the problem of sentencing arises it is in its final stages.  The problem begins with disparate community policing and racial profiling and since most criminologists and advocates against incarceration  say that we cannot build our way out of the problem the question still remains, how do we solve it?

Legal Representation

The quality of legal representation is also a significant factor in the severity of after-arrest activity.  According to the Justice Department's Bureau of Justice Statistics (BJS) in 1998 two out of every three federal felony defendants were represented by publicly-financed counsel.  Public defense involves the use of publicly-financed counsel to represent indigent defendants who are unable to afford private counsel. Obviously the quality of representation will be crucial when such large numbers are being considerer.  Surprisingly, the data, presented in a BJS report on indigent defense also supports an alternate theory that conviction rates for indigent defendants and those with their own lawyers are about the same in federal and state courts. About 90 % of the federal defendants and 75 % of the defendants in the most populous counties were found guilty regardless of the caliber of their legal representation. 

On the other hand, the statistics also show that those offenders who are represented by publicly-financed attorneys and are found guilty are incarcerated at a higher rate than those defendants who paid for their own legal representation; 88 % compared to 77 % in federal courts and 71 % compared to 54 % in state courts.  Additionally, sentence lengths for convicted offenders are shorter, on average, for those with publicly-financed attorneys than for those who hired counsel.  Moreover, about 50% of felony defendants in large urban counties with public counsel and over 75% of felony defendants with private counsel were released from jail before trial. Bail was granted to 57 % with public counsel and 65 % with private attorneys. And, of those offenders who were allowed bail, over 30% of those who had a public attorney and 75% of those with a hired attorney were released before adjudication.  Seventy-five % of state and federal prison inmates who had a public defender or assigned counsel and 66 % with their own counsel either pleaded guilty to the charges or did not contest them.  While 69 % of white inmates in state prison reported they had lawyers appointed by the court, 77 % of blacks. 

In federal prison black inmates were more likely than whites and Hispanics to have public counsel 65 % for blacks, 57 % for whites and 56 % for Hispanics.  So although it can be argued that in cases of public versus private legal representation the outcome is statistically the same, it would appear that the type of representation is still significant as far as sentencing rate of incarceration, severity of sentencing, pretrial release, release before adjudication, and granting of bail are concerned.  

Court-appointed counsels should receive a fair sum of financial funding to ensure legitimate representation for indigent defendants. By providing court-appointed counsels with more financial resources, defendants will have stronger cases against the prosecution. The court-appointed lawyer can obtain expert witnesses or conduct competent investigations.  In an effort to eliminate bias and discrimination during the process of sentencing in any trial, strict guidelines should be made by which jurors and judges are guided to make a decisions.  Perhaps sentences should be more narrowly assigned to the various crimes such that jurors and judges have less room to include their personal beliefs and biases. 

Stricter guidelines must be put in place to  prevent the inconsistencies that are prevalent in the sentencing process. It is not fair that two people who commit similar crimes receive different sentences.  Every criminal act must have particular punishment.  The jury and even the judge must not be given the power to choose within a broad range of sentences, such as one to nine years. The consequence must be narrowly defined with the possibility of additional jail being incurred with each criminal act.  For example and offender might receive two to three years for possession of a deadly weapon and four to five years for causing bodily harm to the victim. When all violations of the law are assessed, it should be easy to calculate punishment without considering the race, class, or gender of an individual. Race, class and gender should not be factors in deciding the sentence for criminal behavior because it is the crime, not the criminal, that is on trial. 

When offenders are sentenced to jail time, the judicial system must ensure that theses offenders serve the time that they have been sentenced to. If parole is a consideration, it should be a consideration across the board regardless of race.  Prisoners, on the whole, are only serving 20% of their sentence because of overcrowding in correctional facilities (Bedau 1997).  All other variables being equal, this is acceptable as long as race is not a consideration in the decision making process.

The Political Perspective

            After all is said and done it is only fair to give credit where it is due.  In the January Session of the 1999 General Assembly, Substitute Bill No. 7089 was passed.  This bill is entitled An Act Concerning Racial Disparity in the Criminal Justice System.  In theory Bill No. 7089 addresses all the issues presented in this paper with an apparent intention to rectify.  But is it feasible to expect corrective action to be feasible at this stage where disparate treatment and discrimination have permeated the very fabric of the criminal justice system.  And even when these band-aid solutions are implemented can it effectively eliminate the racial subtleties that have become the system’s foundation.

 

Recommendations

How do we restore a sense of legitimacy to our criminal justice system?  All fingers point to legislative policy.  Adopting double standards must itself become a punishable crime.  Police departments must become more representative of the communities they serve and diversity training must become the norm.  Society must proactively seek alternative methods of dealing with crime since incarceration is obviously not the answer.  Policies must be put in place to get and keep the media under control.  The media breathes fear in the population at large and this fear fuels unreasonable reaction in power hungry politicians.

It is the fear of crime rather than crime itself shapes criminal justice policies (lobbying,

media sensationalism) and politicians capitalize on society’s fears about crime (caused by the media) and use this fear to feed campaign strategy.  Moreover, the issue of private profiteering must be addressed.  Prison-industrial complexes have become lucrative and profitable businesses and as long as private corporations are allowed to profit from prison labor the efforts made to support an impartial criminal justice system will always be suspect.

            Mauer (1990) found that 23% of all African-American males in the U. S. age 20 to 29 have been either in prison, jail, probation, or on parole. By 1994 that figure had increased  to 30.2% (Mauer, 1995). In contrast, Anglo-American males of the same age had an incarceration/parole rate of 6.7% for the same period.. Coggins (1990) pointed out that in the larger metropolitan cities as much as 40% of the African-American male population could be affected by the legal system in one capacity or another.

Could this fact be related to the Coggins argument that at the time of arrest, 63% of African American males were unemployed, 41% had less than a 12th grade education and generally, the annual income $4,000 below the federally mandated poverty level (Coggins, 1990)?  Well, FBI crime data for 1997 show that African-Americans are seven times more likely than Anglo-Americans to be homicide victims and eight times more likely than Anglo-Americans to commit homicides.  Ten years earlier Wilson (1987) warned that structural changes in the society, relative to the labor market and hiring practices by some businesses, would fuel the societal stress evident in inner-city African-American male youth population as it relates to violence; a significant factor is the impact of the joblessness ratio between African-American and Anglo-American males upon leaving secondary school (Tatum, 1996). No one listened.  The results speak for themselves.

Today, African-American males remain unemployed anywhere from two to four times the rate of Anglo-American males at all levels in the society, with unemployment for African-American male youths between 16 and 19 years being particularly high (U. S. Bureau of Labor Statistics, 2000). This income differentiation has caused a disproportionate number of young African-American males and those with families to live in poverty. As a result, many often become delinquent and involved themselves in crime in order to survive.    

To charge, prosecute, and incarcerate this group cost U. S. taxpayers billions of dollars annually. According to Conciatore (1989) the government spends more money housing African-American male prisoners than preparing them for a higher education and the job market.  Yet the very leaders that create committees to monitor spending in these areas are the very leaders, who, by their actions or their refusal to take action, support this type of spending.  So perhaps it can be argued after all, (as Mauer seems to suggested ) that the growth of the criminal justice system in the past twenty years has coincided with a host of factors including, but not necessarily limited to, economics and the changes in social policies.  And these changes in social policy have had a profound effect on income distribution, employment opportunities, community development, and family structure in every segment of society but especially in African-American communities.

 

Conclusion

In 1998, the Advisory Board to the President’s Initiative on Race presented recommendations to the president titled One America in the 21st Century: Forging a New Future.  Among other things, this report identified an under-representation of minorities in law enforcement professions (President’s Advisory board, 1998).  The BJS Sourcebook of Criminal Justice Statistics 1996, had already pointed out that 81% of full-time sworn personnel in local police departments were Anglo-American as compared to 11% African-American.  Additionally, BJS stated that 68% of correctional officers in state adult correctional systems are Anglo-American compared to 23% African-American.  This is, of course, supported by other societal factors which play additional roles in the over-and under representation of minorities in the criminal justice system.  These factors include, but are in no way limited to, employment opportunities and other economic conditions, educational opportunities, minority role models, and the portrayal of minorities in the media.

            The common societal goal of the criminal justice system should be to build and support safe communities and neighborhoods.  Minority issues prevent the effective execution of these goals.  There is still an urgent need to deal with such issues as:

·         Conscious and unconscious tensions and stresses between minorities and law enforcement personnel

·         Accurate reporting of racially motivated hate crimes

·         Minorities as crime victims

·         Racial profiling by law enforcement officials and  its detrimental effect on community relations and prison crowding.

·         Minority access to the court system and adequate legal representation

·         Disparate minority treatment Re parole and probation

·         Racially biased effects of drug laws and enforcement strategies

·         Evaluation standards for law enforcement personnel

·         Racially disparate sentencing patterns.

Until this society is willing to acknowledge its shortcomings and make genuine efforts to correct injustices, the cancer of minority issues will continue to spread silently within the U.S. criminal justice system.

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