2. Racial Inequality in the U.S. Criminal Justice System: How Does It Feel To Be A Problem?

Author: Mary-Kathryn Smith, Junior

I. Introduction
In his seminal work The Souls of Black Folk, W.E.B. DuBois argued that the quintessential and defining element of being black in the United States was being seen as a problem, a very existence that required management and control. DuBois introduced a groundbreaking metaphor to illustrate this: double-consciousness or simply, the veil. The idea holds that the black identity is fractured into two parts: self-perception and the keen awareness of white perception of black identity, which is conflated with prejudice (DuBois, 1903). He described the resulting strife,

“After the Egyptian and Indian, the Greek and Roman, the Teuton and Mongolian, the Negro is a sort of seventh son, born with a veil, and gifted with second-sight in this American world,—a world which yields him no true self-consciousness, but only lets him see himself through the revelation of the other world. It is a peculiar sensation, this double-consciousness, this sense of always looking at one’s self through the eyes of others, of measuring one’s soul by the tape of a world that looks on in amused contempt and pity” (DuBois, 1903).

More than a century later, DuBois’ metaphor remains relevant, raising the question: How does it feel to be a problem? In the past two years, the death of Trayvon Martin and subsequent cause célèbre pulled back the curtain from the so-called era of color-blindness. The usual excuses and rationalizations purposed to excuse racism towards black Americans were moot. There was just a teenage boy on the phone with a friend, walking home in the rain from the convenience store, who was viewed as out of place, as a potential criminal, and was fatally shot in an ensuing confrontation (Robles, 2012). Martin’s story resonated with millions in the United States. A Million Hoodie March was organized in New York, NY and thousands attended, donned in hoodies to show support for Martin (Akitunde, 2012). If he had observed the march, DuBois may have remarked that the veil of double-consciousness had evolved into the hoodie - a symbol of the consequences and difficulties of being black in the United States, consequences that proved fatal for Martin.

The widespread resonation with Martin speaks to the volume of people living in the United States who still suffer lack of opportunity, decreased social mobility and prejudice because of their race. Institutional racism has created disadvantage for black Americans in various facets of life, but a remarkable impact is visible in the criminal justice system. Black men are more likely to be incarcerated during their lifetime, typically serve longer sentences than white men for identical crimes, and are more likely to receive the death penalty; stop-and-frisk policies have led to discrimination and a disproportionate majority of those stopped by authorities are black; the War on Drugs has led to overwhelming numbers of black people being incarcerated in the United States, though studies show black people are no more likely to use illicit drugs than white people; and once released from the prison system, the punishment is far from over for felons who lose their right to vote and often have difficulty finding employment. The United States is home to a system of institutional racism that is hampering the potential of black Americans through the structures of the criminal justice system. In this analysis, I seek to examine evidence of disproportionate representation of black Americans in the criminal justice system, including racial discrimination in the American courts and prisons, stop-and-frisk, the War on Drugs, and quality of life after release from incarceration; and to examine the political, economic and social contexts within which institutional racism operates and is perpetuated in criminal justice. This analysis aims to answer the question: How are the current structures of criminal justice perpetuating racial inequality in the United States?

II. Racial Disparities in Prisons and Sentencing
A widely cherished American notion is that equality of opportunity is a defining characteristic of what it means to be American. Multiple tenants of the American Constitution are purposed to foster equality. Specifically, the Fourteenth Amendment’s Equal Protection Clause specifies that all citizens, regardless of race, are entitled to equal protection and application of the law (Legal Information Institute, 2010). However, for black Americans today the scales of justice remained skewed against them. Specifically, black males feel the brunt of punishment more harshly than any other group in the United States at every level of the criminal justice system. Racial disparities in the likelihood of being incarcerated, the length of sentences received, and the likelihood of receiving the death penalty remain embedded in the processes of criminal justice.

While considering racial discrimination in the criminal justice system, it is significant to remain cognizant of the racial demographics of the United States. Black Americans account for approximately 12% of the United States population, yet they account for 60% of the United States prison population (Kerby, 2012).  Further, in 2005, there were 3,042 black male prisoners per 100,000 black males in the United States, compared to 1,261 Hispanic male prisoners per 100,000 Hispanic males and 487 white male prisoners per 100,000 white males (U.S. Department of Justice, 2008). The lack of equality in the criminal justice system results in disproportionate prison populations and in decreased social mobility for black Americans; the likelihood of a black male going to prison in his lifetime is a staggering 28%, in comparison to 4% for white males and 16% for Hispanic males (U.S. Department of Justice, 1997).

An examination of approximately 77,000 federal offenders sentenced since 1984 concluded that blacks, males, and people of low socioeconomic status received substantially longer sentences than their white, female, and wealthy counterparts. Black males were specified as the group that received the longest sentences. Mustard attributes the disparity to departures from guidelines of the Sentencing Reform Act of 1984 (Mustard, 2001). The Act was purposed to provide increased fairness and to avoid unwarranted disparity in sentencing (USSC). Mustard asserts that departures from the guidelines specified by the act produced about 55% of the black-white disparity. Due to these departures, black males are less likely than white males to receive no prison-time when the option is available, less likely to receive a reduction of the sentence and are more likely to receive an increase of the sentence. If a reduction of the sentence is granted, black males typically receive a smaller reduction than whites or females (Mustard, 2001).

Further, black men are more likely to receive the death penalty than any other group. The Department of Justice (DOJ) analyzed federal death penalty cases between 1995 and 2000, in this time 682 defendants were charged with crimes for which the death penalty was a potential sentence. Of the defendants 48% were black, 29% were Hispanic and 20% were white. The DOJ found that racial disparity was evident in the outcomes of plea agreements, which spare defendants from the death penalty. Only 25% of black defendants entered into plea agreements compared to 48% of white defendants. Of the remaining defendants who failed to enter a plea agreement 68% were black while only 21% were white. Further, at the state level, combined data found that 45% of defendants sentenced to the death penalty were black (Coker, 2003).

While this analysis has focused predominantly on black men in the criminal justice system, the disproportionate rate of incarceration is not confined to that group exclusively. The number of black women incarcerated has risen sharply, due largely to drug enforcement policies. Further, the number of women incarcerated is rising at a faster rate than the number of men incarcerated, and black women are the overwhelming majority of this group (Coker, 2003).

III. Racial Discrimination in Police Searches
Black Americans are disproportionately stopped while driving or walking in areas of the United States which enforce stop-and-frisk policies. Many proponents of stop-and-frisk claim that the proportion of black people stopped reflects the proportion of black people who commit crimes. Others claim that the concept of race is divorced from stop-and-frisk entirely. To borrow from the Supreme Court jurisprudence of the Fourth Amendment, this is a fallacious assumption without basis of evidence. The Supreme Court addresses this notion as,

“...a constructed reality in which most police officers do not act on the basis of considerations of race, the fact underlying a search or seizure can be evaluated without examining the influence of race, and the applicable constitutional mandate is wholly unconcerned with race” (Coker, 2003).

There is ample evidence of racial discrimination in traffic and pedestrian stops (Gelman & Fagal & Kiss, 2007).  In regards to traffic stops, police in the United States are more likely to stop black people at traffic stops and are more likely to search the vehicle once stopped if it is driven by a black person. Traffic stop data from 2001 found that black drivers had a 60% greater chance of being stopped than white drivers (Coker, 2003). Further, black drivers are twice as likely to be arrested after being stopped and almost four times as likely to experience the use of force during encounters with police than white drivers (Kerby, 2012).

In regards to pedestrian stops, New York, NY may be the most well-known city in the United States to have enacted stop-and-frisk policies. The New York Police Department (NYPD) has enforced stop-and-frisk since 1994 and mandates that police officers keep record of their stops and thus provides a suitable context for analysis of pedestrians stops. An analysis of 175,000 pedestrian stops over a 15-month period in the city revealed black people accounted for 51% of stops despite only accounting for 26% of the city’s population (Gelman & Fagan & Kiss, 2007). This study, conducted between 1998 and 1999, also provides a useful analysis of how racial discrimination by police is increasing, not decreasing, with time. While the rates from this period are discouraging, a more recent study conducted by CCR found that between 2005 and 2008 the NYPD stopped approximately 1,600,000 people, 81% of which were black or Hispanic, while just 11% were white. In 2008, black people had a 42% likelihood of being stopped by the NYPD (CCR, 2009).

However, some proponents of stop-and-frisk argue that racial profiling is an accurate measure necessary to apprehending criminals, assuming that minority populations commit more crime than white Americans.  To investigate the validity of this argument, Gelman & Fagan & Kiss’ analysis compared the number of arrests in New York City by ethnic group to the number of stops concluding that the ratio of stops to arrests was 1.24 for white people and 1.54 for black people, meaning black people are stopped 23% more than white people in relation to the respective number of arrests (Gelman & Fagan & Kiss, 2007).

IV. The War on Drugs
When President Richard Nixon declared a War on Drugs in 1971, he referred to illicit drugs as “public enemy number one in the United States” (PBS). His administration began a series of programs coordinated by the Special Action Office for Drug Abuse Prevention (SAODAP), most of which were rehabilitative initiatives rather than punitive. However, the War on Drugs evolved and punitive measures were gradually prioritized and became the focus of the effort. By 1989, rehabilitation accounted for one-third of the War on Drugs budget, while the remaining funds were allocated to punitive spending on prisons and enforcement (PBS). In the last 40 years the United States government has spent $2.5 trillion dollars fighting the War on Drugs, and prison populations have swelled, along with racial disparities in prison populations (Suddath, 2009).

Despite higher rates of incarceration for illicit drug offenses, evidence suggests that black people do not use illicit drugs more than white people do. The 2001 National Household Survey on Drug Abuse found the rate of illicit drug use to be 7.4% among black people, 7.2% among white people and 6.4% among Hispanics. However, black Americans account for approximately 57% of those incarcerated for drug offenses in state prisons (Coker, 2003). This disparity is largely attributed to the introduction of mandatory minimum sentences for illicit drug possession and the differentiation between crack cocaine and powder cocaine in the criminal justice system, which contributes substantially to racial divide.

The Anti-Drug Abuse Act of 1986, signed into law by Reagan, introduced mandatory minimum sentences for possession of certain illicit drugs and the legislation has had a massive impact on black Americans and on the criminal justice system. The Act mandated a minimum sentence of ten years for possession of five kilograms of powder cocaine and a minimum sentence of five years for possession of five grams of crack cocaine, a thousand times less cocaine by weight (PBS).

The Act differentiates substantially between crack cocaine and powder cocaine, though the substances are chemically identical; there is a large disparity in sentence severity and length depending on the type of cocaine the defendant is found guilty of possessing. Until 2010, possession of crack cocaine, even in small amounts, carried a minimum sentencing requirement of 5 years in prison. Possession of powder cocaine, even in large amounts (under 5 kilograms, a generous amount), carries probation requirements, but no minimum sentence (Coker, 2003).

Because crack cocaine is substantially less costly than powder cocaine it is more commonly used in urban areas, which have a higher black population. 93% of those convicted for the possession or distribution in federal courts of crack cocaine are black, meaning that black Americans were receiving the vast majority of minimum sentence requirements. The divide is seen at the state level too. In Nebraska, 3.6% of the population is black but 92.3% of the population convicted for crack cocaine offenses in 1992 were black (Ho & Marshall, 1997) David Dudley, a California attorney who defends those charged with possession or distribution of crack cocaine discussed the inherent racism of the crack-powder disparity,

“Today, you don’t find people using racist language unless they are Skinheads...No one says they want to “lock the niggers up.” They use words like “criminal.” These prosecutors, judges and Congressmen will deny racism to their graves” (Ho & Marshall, 1997)

In 2010, the U.S. Congress passed a historic piece of legislation, the Fair Sentencing Act, which abolished the five-year minimum for possession of crack cocaine. However, this action has not been made retroactive; meaning the thousands convicted of possession for crack cocaine are still serving mandatory sentences. Further, evidence suggests crack cocaine continues to be punished more harshly than powder cocaine, a proclivity of courtrooms that will take time and effort to correct (FAMM).

The aforementioned rise in the incarceration of black women is partially a result of The War on Drugs policies. Federal mandatory sentencing laws operate maliciously for many black women who commit illicit drug crimes with men. Black women typically play minor roles in drug transactions while their intimate partner is typically the significant player. Mandatory sentencing eliminates lenient sentencing for women in this position. To worsen the situation, because of their status as low-level players these women are unable to provide information or names in exchange for a reduced sentence, resulting in some women receiving longer sentences than their male counterparts (Coker, 2003).

V. Life After Incarceration
Many ex-offenders are released from incarceration only to discover that their punishment is far from over. In the United States those with criminal offenses, especially drug-related offenses, are penalized through felony disenfranchisement, face difficulties when applying for public housing, are denied entitlement to food stamps in many states, and are subject to decreased wage trajectory (ACLU, 2006). Given that black Americans only account for approximately 12% of the United States population while accounting for approximately 60% of the United States prison population, penalties for ex-offenders disproportionately affect the black population (Kerby, 2012). The difficulties an ex-offender contends with after release from incarceration contribute to and perpetuate a dangerous cycle in which ex-offenders become frustrated with their circumstances and commit crime, leading to their eventual return to incarceration (ACLU, 2006).

Due to felony disenfranchisement, an estimated 5.3 million black Americans are denied the right to vote, ultimately denying 13% of black men in the United States the right to vote. In more than 11 states, more than 10% of the black population cannot vote (Kerby, 2012). States have absolute power in deciding the voting restrictions for those with criminal records. 48 states place some restrictions on felons’ right to vote and 12 states have lifelong bans on voting for some or all persons convicted of crimes. While these actions are constitutional it is significant to retain cognizance of historical precedence and of the disproportionate effect these laws have on black Americans  (ACLU, 2006).

Some have argued that disenfranchisement of felons is a continuation of extinct racist institutions such as Jim Crow laws. In The New Jim Crow, author Michelle Alexander cites the story of Jarvious Cotton, a black man who cannot vote due to his status as a felon. Alexander notes that Cotton’s great-great-grandfather was a slave who could not vote, his great-grandfather was murdered by the Ku Klux Klan for attempting to vote, who later intimidated his grandfather out of voting, and poll taxes and literacy tests prevented his father from voting. Jarvious’ lineage is evidence of continual institutions, like poll taxes and literacy tests, and prejudices that have prevented black Americans from voting. Alexander writes, “In each generation, new tactics have been used for the same goals” (Exum, 2012).

Those with criminal records are also prone to face difficulties acquiring public housing. Public housing authorities (PHAs) have the right, under federal law, to exclude those with criminal records when they apply for housing. Further, PHAs are required by law to reject applicants who they believe to be current drug abusers, which is typically determined from a past drug conviction or lack of proof of rehabilitation after said conviction. In 3 states, PHAs have a ban on applicants with a wide-range of criminal records. In 47 states, PHAs make individualized decisions about applicant eligibility based upon criminal records (ACLU, 2006). This culminates in another slight against many black Americans, who constitute more than 57% of those incarcerated for drug offense in state prisons (Coker, 2003).

Lastly, the 1996 reforms to federal welfare prohibit anyone convicted of a drug-related felony from receiving the benefits of the Supplemental Nutrition Assistance Program (SNAP), more commonly referred to as food stamps. The ban is a lifetime restriction, but states have the option of limiting or eliminating the ban. Seventeen states have adopted the ban without modification, effectively limiting all those with drug-related felonies in the state from accessing SNAP regardless of need. Twenty-one states have adopted but limited the ban, making exceptions for those who have met a waiting period or participated in rehabilitation. Only twelve states have eliminated the ban in its entirety, meaning that in thirty-eight states there is some limitation to the ability of those with drug-related felonies to access to SNAP, regardless of need. This practice creates larger problems for the families of these felons; over 135,000 children in these states are placed at risk due to their parent(s) not being able to receive assistance (ACLU, 2006).

Following release from prison, the estimated wage trajectory for black felons is disproportionately low compared to white felons. Wages grow at a 21% slower rate for black felons than for white felons. Further, a number of states have bans on people with convictions working in health-services such as nursing, child care, and home health care-areas in which many black women seeking jobs (Kerby, 2012).

VI. Political Context
Party values, political motivations, and ideological leanings of Capitol Hill are an important context for consideration. Political legislation and policies have played an integral role, either intentionally or unintentionally, in racial inequalities in criminal justice. The Republican and Democratic parties have varying approaches to criminal justice and to addressing racial inequality. Conservative and liberal ideologies exhaust the American political sphere and are the driving political force behind policies that have created racial inequality in the criminal justice system, particularly The War on Drugs.

The Democratic and Republican platforms in 2012 regarding criminal justice provide an appropriate synopsis of the parties’ disparate and corresponding views. The parties are divided on the death penalty, while both supports the penalty the Democratic platform suggests that DNA testing be mandatory for all appropriate circumstances. While the Republican platform doesn’t address racial disparities, the Democratic platform states that the party is committed to reducing inequality in criminal justice and to reducing racial profiling. The Republican platform supports mandatory sentences for illicit drug and violent crimes, while the Democratic platform doesn’t address it. While there is substantial divide, both platforms express support for The War on Drugs. The Democratic platform supports the expansion of drug courts and continued efforts to combat and prevent drug crime. The Republican platform similarly supports The War on Drugs. Neither platform mentions the racial disparities in prisons as a result of The War on Drugs (The Sentencing Project, 2012).

As the 2012 party platforms suggest, The War on Drugs and expansion of prisons has been a bipartisan effort. While President Nixon initiated The War on Drugs, subsequent presidents and politicians perpetuated and reinforced the initial policies (Exum, 2012). During the nascent years of The War on Drugs, both parties ultimately accepted and endorsed legislation purposed to create tougher penalties and longer sentences. Republicans, under the influence of Nixon, took advantage of the circumstances and ran campaigns based on being hard on crime. Democrats, aware that drug enforcement was a contentious voting issue, also embraced The War on Drugs’ policies (Rapoport, 2013).

VII. Economic Context
The United States has the highest rate of incarceration per capita worldwide. It is not surprising, then, that the government and private prison facilities contribute to the United States economy. The prison-industrial complex is increasingly becoming essential to the United States economy and effectively thriving off of the imprisonment of millions, who are disproportionately black. Particularly, the War on Drugs led to a monumental increase in prison populations, as evidence by the construction of new prisons across the country to hold inmates. In 1995 alone, 150 prisons were built and filled in the United States. The interweaving of government and private interests has culminated in a prison-industrial complex that is perpetuating the growth of prisons and thus negatively impacting large proportions of black Americans. In the industrialization of prisons, inmates are the material. The prison economy can only grow if more people are incarcerated. This offers an economic explanation for motives behind policies of the War on Drugs, particularly mandatory minimum sentencing, which greatly increased United States prison populations (Evan & Goldberg, 2009).

Private prison facilities contribute a large amount to the United States economy, though they were relatively recently instated. At the end of the 1980’s, the correctional crisis spurred by the War on Drugs meant that state and federal operated prisons were overcrowded. An increasingly appealing option at the time was the privatization of prisons that policy makers hoped would minimize costs and effectively manage the swelling prison populations. In 1990, Van R. Johnston described the circumstances, “When the services in question are provided by government, they are often accompanied by “public” sorts of values that may include concerns for equity, effectiveness, and sovereignty; these concerns can, at times, increase costs” (Johnston, 1990). Today, private prison facilities across the country have been contracted with the federal bureau of prisons. In 2007, approximately 19,000 inmates were housed in private prisons, accounting for nearly 10% of the federal inmates (Gran & Henry, 2007).

Due to this transition, private capital has become enmeshed in incarceration. Because of the profit potential of private prison facilities they are becoming increasingly important to the United States economy. The largest United States private prison company, Corrections Corporation of America (CCA), increased its revenues from $293 million to $462 million between 1996 and 1997. The next largest United States private prison company, Wackenhut Corrections Corporation (WCC), raised its revenues from $138 million to $210 million between 1996 and 1997. An integral method of raising revenues is labor provided by inmates while incarcerated which is paid at very low wages, in some cases 22 cents an hour. Private prison facilities sell the products of prison labor to multiple companies in the United States, including IBM, Motorola, and Microsoft. For these businesses, prison labor proves profitable in a vast number of ways, strikes and unions are disallowed and businesses do not have to provide health benefits or unemployment insurance. The practice is profitable for businesses and for private prison facilities - just about everyone but the inmates themselves (Davis).

Knowledge of this economic context is significant. There are multiple, large entities which have reaped economic benefits from The War on Drugs and the disproportionate incarceration of Black Americans. Prisoners are increasingly becoming products and while these structures exist there will be little action from many corporate entities to decrease the amount of people, white or black, in prison and much effort to increase the number (Davis).

VIII. Social Context
The American thoughts and perceptions of black Americans have a vast history that is worthy of in depth analysis. Knowledge of historical sociological approaches to race and criminality is integral to understanding American perceptions of race and criminality today. To retain a topical focus, I will begin my analysis with the post-Civil War era, when the United States was first confronted with the reality of freedom for black Americans and accordingly black Americans were first introduced to the criminal justice system as citizens. It was during the era of post-emancipation that white thinkers began to consider and debate the criminality of black Americans, often identifying biological defects as the reason for criminality (Exum, 2012). These perceptions of criminality were not uncommon during the period, and Lombroso’s Theory of Crime, which attributes criminal tendencies to biological tendencies rather than social, best expresses the views of the period. Lombroso identified several physical characteristics that he believed were indicative of a criminal mind, which were often physical characteristics typical to people of African descent, such a wider nostrils (Ellwood, 1912). In 1897, Lombroso wrote,

“But the greatest obstacle to the negro’s progress is the fact that there remain latent within him the primitive instincts of the savage; for notwithstanding that the garb and habits of the white men may have given him veneer of modern civilization, he is still too often indifferent to and careless to the lives of others; and he betrays that lack of the sentiment of pity, commonly observed among savage races…” (Lombroso, 1897).

Influential writing such as Lombroso’s reinforced proclivities towards harsher punishments for black Americans in the criminal justice system from an early point of their freedom.

Later, in the Progressive Era, thoughts regarding black Americans and crime transitioned from attributing criminality to biological determination to attributing it to black culture. This transition was marked by the emergence of some remedial efforts, like crime prevention. While this transition was progressive in appearance, predominant thought retained racist modes of thought and an us-them dichotomy, which distinguished black and white culture in the United States, portraying black culture as criminal. Sociologist Tukufu Zuberi described this transition as,

“a move from one type of essentialist perspective, the biological evolutionary, to another type of essentialist perspective, the cultural. This shift witnessed the birth of assimilation and a focus on unproductive behavior of the unassimilated as a dominant perspective—in a word, a return to viewing the ‘Negro as a [peculiar] problem” (Exum, 2012).

These historical social perspectives have played an integral role in the culmination of the perceptions and thoughts surrounding criminality and black Americans today. Prejudice continues to affect the lives of black Americans in the United States, and it is easily argued that extant prejudice is a surviving relic of racist attitudes from American history, such as those from these two periods, post-emancipation and the progressive era, a time when many white Americans debated the criminality of black Americans (Exum, 2012).

X. Conclusion
This analysis has sought to examine the broad policies and institutions of the criminal justice system that perpetuate inequality among black and white Americans. Through a topical examination of the criminal justice system, from the prejudice many black Americans face in their communities because of racial profiling to the difficulties many black Americans must navigate upon release from incarceration, this analysis has attempted to illustrate the range of disadvantages black Americans in the United States criminal justice system are subject to. These topics were placed within the appropriate political, economic, and social contexts, which explain the inception of these policies and institutions as well as reveal the driving forces behind them.

While racial discrimination is apparent in criminal justice in the United States, through understanding of the realities of racial inequality and their contexts the problem may be addressed. Discrimination in criminal justice perpetuates inequality and hampers the potential of black Americans. It is integral to the wellbeing of the United States and its people that these inequalities are addressed. It is my personal hope that soon black Americans will be judged solely by their character before the law and not by the color of their skin. 

Once again, the words of DuBois provide enlightenment,

“Between me and the other world there is ever an unasked question: ... How does it feel to be a problem? ...He simply wishes to make it possible for a man to be both a Negro and an American, without being cursed and spit upon by his fellows, without having the doors of Opportunity closed roughly in his face" (DuBois, 1903).

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