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TheColorofJusticeRaceEthnicityandCrimeinAmerica6thEdition.pdf

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The Color of Justice RACE, ETHNICITY, AND CRIME IN AMERICA

Sixth Edition

SAMUEL WALKER University of Nebraska at Omaha

CASSIA SPOHN Arizona State University

MIRIAM DELONE Fayetteville State University

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The Color of Justice: Race,

Ethnicity, and Crime in

America, Sixth Edition

Samuel Walker, Cassia Spohn, Miriam DeLone

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iii

About the Authors

SAMUEL WALKER is Professor Emeritus at the University of Nebraska at Omaha, where he taught for 31 years. He has published 14 books on criminal justice history and policy, policing, police accountability, and civil liberties. In addition to his writings, he speaks and consults widely on police accountability issues. In January 2015, he was invited to testify before the President’s Task Force on 21st Century Policing. The Task Force accepted in part his recommendation for eliminating offensive language by police officers in encounters with the pub- lic. He also testified before the U.S. Commission of Civil Rights regarding the national police–community relations crisis. Professor Walker’s primary research, writing and consulting interests involve federal investigations of civil rights viola- tions by police departments. He is quoted frequently in the national news media on this issue. He also continues his interest in early intervention systems for police departments, and the effectiveness of those systems for identifying officer perfor- mance problems. Finally, Professor Walker has developed an expertise on police unions and union contract provisions that impede holding officers accountable for their conduct.

CASSIA SPOHN is a Foundation Professor and Director of the School of Crim- inology and Criminal Justice at Arizona State University. She received her PhD in political science from the University of Nebraska-Lincoln. She is the author or coauthor of seven books, including Policing and Prosecuting Sexual Assault: Inside the Criminal Justice System, which was published in 2014. Her research interests include prosecutorial and judicial decision making, the intersections of race, eth- nicity, crime and justice, and sexual assault case processing decisions. In 2013, she received ASU’s Award for Leading Edge Research in the Social Sciences and was selected as a Fellow of the American Society of Criminology.

MIRIAM DELONE has a PhD in Criminology from the College of Criminol- ogy and Criminal Justice at Florida State University. She is currently Professor of

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iv A B O U T T H E A U T H O R S

Criminal Justice at Fayetteville State University. Dr. DeLone is currently serving as Interim Associate Dean of the College of Arts and Sciences. She is working on projects with Dr. Greg DeLone, Associate Professor of Public Administration at Fayetteville State University, that recognize the intersectionality of race, ethnic, gender, and class in order to offer effective crime prevention from a public health perspective. Dr. DeLone has published in the areas of race, ethnicity and sentenc- ing, as well as, the political economy of crime. Her publications appear in the Journal of Quantitative Criminology, Social Problems, Justice Quarterly, Criminal Justice Review, and Journal of Ethnicity in Criminal Justice. She is an active member of the American Society of Criminology and past Editor of The Criminologist.

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v

A B O U T T H E A U T H O R S iii

P R E FA C E xviii

1 Race, Ethnicity, and Crime: American’s Continuing Crisis 1

2 Victims and Offenders: Myths and Realities about Crime 43

3 Race, Ethnicity, Social Structure, and Crime 113

4 Justice on the Street? The Police and People of Color 149

5 The Courts: A Quest for Justice during the Pretrial Process 197

6 Justice on the Bench? Trial and Adjudication in Criminal Court 251

7 Race and Sentencing: In Search of Fairness and Justice 293

8 The Color of Death: Race and the Death Penalty 359

9 Corrections in America: A Portrait in Color 419

10 Minority Youth and Crime: Minority Youth in Court 461

11 The Color of Justice 511

S E L E C T E D B I B L I O G R A P H Y 521

I N D E X 547

Brief Contents

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vii

A B O U T T H E A U T H O R S v

P R E FA C E xvii

1 Race, Ethnicity, and Crime: American’s Continuing Crisis 1

The National Race Crisis, 2014–2016 1

Race, Ethnicity, and Justice in America 3

Is Discrimination Just a Myth? 4

Objectives of the Book 6

The Colors of America: Racial and Ethnic Categories 8

The Official U.S. Census Categories 9

Race 10

Ethnicity 11

Problems with Traditional Racial and Ethnic Categories 13

Problems with Criminal Justice Data on Race

and Ethnicity 20

Case Study: How Many People Are Shot and Killed

by the Police? 20

Counting Race and Ethnicity in Criminal Justice Data 21

The Crime and Immigration Controversy 22

Sorting Out the Facts on Immigration 23

The Immigration and Crime Controversy 24

Problems with Immigration Enforcement 25

Contents

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viii C O N T E N T S

“Insecure Communities”: The Impact of Immigration Enforcement

on the Hispanic Community 26

The Geography of Racial and Ethnic Justice 27

Disparity versus Discrimination 28

Disparity 28

Discrimination 29

The Problem of Unconscious Bias 30

The Law of Discrimination 31

The Discrimination–Disparity Continuum 31

A Theoretical Perspective on Race, Ethnicity, and Crime 33

Alternative Theories 34

Conclusion 35

Discussion Questions 35

Notes 36

2 Victims and Offenders: Myths and Realities about Crime 43

Media and Crime 44

Racial Hoaxes 44

Race and Gender of Crime Victims 45

A Broader Picture of the Crime Victim 47

The National Crime Victimization Survey 49

Household Victimization 51

The Effect of Urbanization 52

Personal Victimization 53

The Effects of Urbanization 55

Prevalence of Crime Victimization 59

Lifetime Likelihood of Victimization 61

Homicide Victimization 62

Summary: A More Comprehensive Picture of the Crime Victim 64

Picture of the Typical Offender 64

Official Arrest Statistics 67

Problems with UCR Data 68

Arrest Data 70

Perceptions of Offenders by Victims 76

Problems with NCVS Offender Data 76

Perceptions of Offenders 76

Self-Report Surveys 79

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ixC O N T E N T S

Problems with Self-Report Surveys 79

Characteristics of Offenders 80

Theoretical Explanations for the Racial Gap in Offending 80

Community Influence on the Racial Gap in Offending Rates 81

Drug Offenders 83

Mass Shooting Offenders 84

Summary: A Picture of the Typical Criminal Offender 86

Crime as an Intraracial Event 87

National Crime Victimization Survey 87

Uniform Crime Report Homicide Reports 88

Summary 88

Crime as an Interracial (Hate) Event 88

Ethnic Youth Gangs 94

Gang Myths and New Realities 95

Varieties of Ethnic Street Gangs 99

African American 99

Native American 99

Asian American 100

Hispanic 101

White 101

Conclusion 102

Discussion Questions 103

Notes 104

3 Race, Ethnicity, Social Structure, and Crime 113

A Snapshot of Coming Home from Prison: Social Inequality

and Criminal Justice 114

Inequality and Crime 115

It’s Not Just the Criminal Justice System 115

Inequality in America: Long-Term Trends and the Recession 116

Two Societies? 116

Economic Inequality 117

Income 117

Wealth 118

The “Family Thing”: Emergency Assistance and Inheritance 121

The Growing Gap between the Very Rich and

the Rest of Americans 121

Unemployment 122

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x C O N T E N T S

Poverty Status 124

Insurance Coverage 124

Social Capital and Cultural Capital 125

The Debate over the Underclass 127

Community Social Structure 128

Residential Segregation 128

“Distressed Communities”: The Growing Gap

in Community Well-Being 129

Crime and Neighborhood Deterioration 129

Well-Being 131

Theoretical Perspectives on Inequality and Crime 131

Social Strain Theory 132

Applying the Theory 133

Differential Association Theory 133

Applying the Theory 133

Social Disorganization Theory 134

Applying the Theory 135

Culture Conflict Theory 136

Applying the Theory 136

Conflict Theory 137

Applying the Theory 137

Routine Activity Theory 137

Applying the Theory 138

The Limits of Current Theories 138

Inequality and Social Reform 139

The Impact of the Civil Rights Movement 140

Conclusion 142

Discussion Questions 142

Notes 143

4 Justice on the Street? The Police and People of Color 149

Unequal Justice? The National Police Crisis 150

The Post-Ferguson Events 150

A Long History of Conflict 151

A Contextual Approach to Policing Communities

of Color 151

The African-American Community 151

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xiC O N T E N T S

The Hispanic Community 152

The Native American Community 152

Asian, Native Hawaiian, and Pacific Islanders 153

The Arab-American Community 153

Public Attitudes about the Police 154

How Police Officer Conduct Shapes Attitudes 156

Police Use of Deadly Force 156

The Lack of National Data on Police Shootings 157

Patterns in Police Shootings 157

Controlling Police Use of Deadly Force 159

The Role of Unconscious Bias in Police Shootings 160

Does Skin Tone Matter? 160

“Police Brutality”: Police Use of Physical Force 161

What Is “Police Brutality?” 161

The Prevalence of Force and Excessive Force 161

Race, Police–Community Relations, and Disrespect

for the Police 162

Force in Traffic and Pedestrian Stops 163

The Control of Police Use of Force 164

De-Escalation: A New Approach to Reducing Police

Use of Force 165

Discrimination in Arrests? 166

Arrests and the War on Drugs 167

Traffic Stops: Racial Profiling 169

Profiling Contexts 170

The Data on Traffic Enforcement 171

“A Deep Racial Chasm”: The Experience of Traffic Stops 172

Legitimate and Illegitimate Use of Race and Ethnicity in Policing:

The PERF Model Policy 173

Eliminating Bias in Traffic Enforcement 174

How Formal Policies Can Reduce Bias in Stops and Searches:

The Case of the Customs Bureau 175

The Stop and Frisk Controversy 176

The Problem of Stereotyping and Routine Police Work 177

Verbal Disrespect and Abuse 177

Police Officer Attitudes versus Institutional Practices 178

Police Corruption and Communities of Color 178

Improving Police–Community Relations 179

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xii C O N T E N T S

Citizen Complaints against the Police 180

Citizen Oversight of the Police 182

Police Employment Practices 182

“Not Your Father’s Police Department” 182

Trends in African-American and Hispanic Employment 183

Discrimination in Assignment 184

Does the Composition of a Police Department Make

a Difference? 185

Do Officers of Color Perform Better? 185

Conclusion 186

Discussion Questions 187

Notes 188

5 The Courts: A Quest for Justice during the Pretrial Process 197

African Americans in Court: The Case

of the Scottsboro Boys 198

The Situation Today 200

Decisions Regarding Counsel and Bail 202

Racial Minorities and the Right to Counsel 202

Racial Minorities and Bail Decision Making 212

Charging and Plea Bargaining Decisions 224

Prosecutors’ Charging Decisions 224

Prosecutorial Discretion in the Context of Mandatory

Minimum Sentences and Habitual Offender Laws 228

The Effect of Offender Race and Victim Race

on Charging Decisions 229

Prosecution of Pregnant Women Who Abuse Drugs:

Racial Discrimination? 234

Race and Plea Bargaining Decisions 236

Conclusion 239

Discussion Questions 239

Notes 241

6 Justice on the Bench? Trial and Adjudication in Criminal Court 251

Race/Ethnicity and the Criminal Trial 252

Trial and Adjudication in the Twenty-First Century 252

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xiiiC O N T E N T S

Selection of the Jury Pool 255

Racial Discrimination in Selection of the Jury Pool 255

The Exclusion of Mexican Americans from Jury Service 257

Techniques for Increasing Racial Diversity of the Jury Pool 259

The Peremptory Challenge: Racial Profiling in the

Courtroom? 263

The Supreme Court and the Peremptory Challenge:

From Swain to Batson and Beyond 265

Race and Jury Selection in the Twenty-First Century 274

Exonerating the Innocent: Rape, Race, and Mistaken

Eyewitness Identification 277

Rape, Race, and Misidentification 278

Playing the “Race Card” in a Criminal Trial 279

Race-Conscious Jury Nullification: Black Power

in the Courtroom? 284

Randall Kennedy’s Critique 286

Conclusion 287

Discussion Questions 288

Notes 288

7 Race and Sentencing: In Search of Fairness and Justice 293

Race and Sentencing: Is the United States Moving

Forward or Backward? 294

Racial Disparity in Sentencing 296

Five Explanations for Racial Disparities in Sentencing 297

Empirical Research on Race and Sentencing 300

Reviews of Recent Research 300

When Does Race/Ethnicity Matter? 303

Race/Ethnicity and Sentencing: Direct and Indirect Effects 304

Are Hispanics Sentenced More Harshly Than

All Other Offenders? 306

Are Illegal Immigrants Sentenced Differently Than

U.S. Citizens? 307

Are Asian Americans Sentenced More Leniently Than

All Other Offenders? 310

Native Americans and Sentencing Disparity: Disparity in

State and Federal Courts 311

Race/Ethnicity, Gender, Age, and Employment:

A Volatile Combination? 312

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xiv C O N T E N T S

Differential Treatment of Interracial and Intraracial Sexual

Assault 316

Offender–Victim Race and Sentences for Sexual Assault 319

The Effect of Race on Sentencing for Various Types

of Crimes 323

The Liberation Hypothesis and Offenders Convicted

of Violent Felonies 324

Racial Discrimination in the Sentencing of Misdemeanor

Offenders? 326

Sentencing and the War on Drugs 327

Racial Disparities in Sentences Imposed for Drug Offenses 328

Sentencing of Drug Offenders in State Courts 330

Sentencing of Drug Offenders in Federal Courts 335

Racial Minorities and Cumulative Disadvantage 337

Recent Research: The Effect of Skin Tone on Punishment 338

Summary: Research on Race and Sentencing 339

Does It Make a Difference? A Comparison of the Sentencing

Decisions of African American, Hispanic, and White Judges 339

Decision Making by African-American and White Federal

Judges 341

Decision Making by African-American

and White State Court Judges 343

Reasons for Similarities in Decision Making 345

Conclusion 347

Discussion Questions 348

Notes 349

8 The Color of Death: Race and the Death Penalty 359

The Constitutionality of the Death Penalty 361

Furman v. Georgia 361

Post-Furman Decisions 363

Attitudes toward Capital Punishment 364

Race and the Death Penalty: The Empirical Evidence 368

Statistical Evidence of Racial Disparity 368

Pre-Furman Studies 374

Post-Gregg Studies 378

Race and the Federal Capital Sentencing Process 387

Explanations for Disparate Treatment 391

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xvC O N T E N T S

McClesky v. Kemp: The Supreme Court and Racial Discrimination in the Application of the Death Penalty 392

The Aftermath of McCleskey: Calls for Reform or Abolition

of the Death Penalty 397

The Racial Justice Act 398

The Death Penalty in the Twenty-First Century 400

The Movement to Reform the Death Penalty 402

The Movement to Abolish the Death Penalty 403

Conclusion 406

Discussion Questions 407

Notes 408

9 Corrections in America: A Portrait in Color 419

The Incarcerated: Prison and Jail Populations 423

Minority Overrepresentation 423

Intersectionality with Gender and Age 425

Security Level of Facilities 428

Historical Trends 430

Conclusion 431

Race, Ethnicity, and Recidivism 431

The Age of Mass Incarceration 432

Offender Reentry 433

Community Corrections 434

Parole: Early Release from Prison 434

Success and Failure on Parole 436

Probation: A Case of Sentencing Discrimination? 437

Community Corrections: A Native American Example 438

Adjustment to Prison 443

Hostility among Released Inmates 445

Prisoner Visitation and Successful Reentry 446

Race and Religion 446

Prison Gangs 448

Aryan Brotherhood 449

Black Guerilla Family 450

Mexican Mafia 450

Neta 450

Texas Syndicate 451

Women in Prison 453

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xvi C O N T E N T S

Conclusion 454

Discussion Questions 454

Notes 455

10 Minority Youth and Crime: Minority Youth in Court 461

The Juvenile Population in the United States 463

Young Racial Minorities as Victims of Crime 464

Property Crime Victimization 464

Violent Crime Victimization 465

Victimization of Young African-American Girls 468

Homicide Victimization 469

Young Racial Minorities as Offenders 470

Juvenile Arrests 471

Juveniles of Color and the Police 477

Race/Ethnicity and the Juvenile Justice System 481

Race/Ethnicity, Gender, and Age: Juvenile Justice

in Nebraska 493

Transfer of Juveniles to Criminal Court 495

Explaining Disparate Treatment of Juvenile Offenders 498

Juveniles under Correctional Supervision 500

Conclusion 501

Discussion Questions 502

Notes 503

11 The Color of Justice 511

Explaining Persistent Racial and Ethnic Disparities 513

Explaining the Disparities: Systematic Discrimination? 514

Past and Present 515

The Stubborn Persistence of Racial and Ethnic Disparities 516

Notes 518

S E L E C T E D B I B L I O G R A P H Y 521

I N D E X 547

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xvii

B eginning with the highly publicized shooting of Michael Brown in Ferguson, Missouri, on August 9, 2014, the United States has been in the midst of a

national crisis over policing and race. Deaths of African Americans at the hands of the police, followed by angry protests, have been regular occurrences. The situa- tion took another dramatic turn in July 2016 with the deliberate assassination of police officers in Dallas, Texas, and Baton Rouge, Louisiana. The national crisis is not confined to the police. The refusal of grand juries in Ferguson and other cities to indict police officers on criminal charges has raised a related controversy over how the courts deal with racial issues. Additionally, the United States continues to stand alone internationally because of its enormous prison population, and what critics label the policy of “mass incarceration.”

Since the first edition of The Color of Justice 20 years ago, this book has addressed the key issues related to race, ethnicity, and crime. Over that period, there have been many changes. Crime dropped significantly across the country, although in the last year or two homicides have risen in a number of large cit- ies. Immigration emerged as a national political controversy. Public opinion on imprisonment has also been changing. Beginning around 2009 the prison popu- lation began a small but notable decline, reversing the imprisonment boom that began in the 1970s. Finally, attitudes toward the death penalty have begun to change, and the number of executions has fallen. The sixth edition of The Color of Justice continues to provide the most up-to-date information on this contin- ually changing subject. The book includes some information that became avail- able only weeks before the manuscript went to the printer.

This edition of The Color of Justice continues to address the multira- cial and multiethnic character of American society and even expands that cover- age. There is a significantly growing body of information on the fastest-growing minority segment of the American population and the Hispanic and Latino com- munities, and this edition incorporated this new knowledge. The coverage of other racial and ethnic groups has also been expanded.

Preface

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xviii P R E F A C E

Finally, and particularly important, The Color of Justice continues to pro- vide a critical perspective on all the controversial issues related to race, ethnicity, and criminal justice. Much of what appears in the news media is incomplete or even wrong. The Color of Justice will help readers gain a clear and fact-based understanding of the controversial issues of police shootings, racial profiling, pat- terns of criminal behavior and victimization, the prosecution of offenders, plea bargaining, and the death penalty. By the end of the book, readers will be able to knowledgeably discuss the difficult issues of racial or ethnic disparities in how people are treated and whether or not there are patterns of discrimination.

O R G A N I Z AT I O N

This book is divided into eleven chapters. The organization is designed to guide students through a logical exploration of the subject, beginning with a discussion of the broader social context for race and ethnicity in American society and then moving to the different components of the criminal justice system: police, courts, corrections, the death penalty, and juvenile justice.

N E W T O T H I S E D I T I O N

For the sixth edition, we have significantly updated research and included the most current statistics available, particularly regarding Hispanic groups. We have also included material on some of the most important recent developments in the field—racial profiling in the context of homeland security, for instance, as well as hate crime legislation, the disproportionate attention given to crime victims according to race, minority youth victimization rates, the intersection of race and domestic violence, the impact of the financial crisis on the criminal justice system, and much more:

■ Chapter 1, “Race, Ethnicity, and Crime,” has been revised to reflect changes in the state of the racial and ethnic composition of the United States and how those changes affect the criminal justice system.

■ Chapter 2, “Victims and Offenders,” includes a reexamination of media depictions of crime victims, especially the race of victims, and also includes expanded discussions of environmental racism, immigration and crime, and additional theoretical perspectives on the causes of criminal violence and hate crime.

■ Chapter 3, “Race, Ethnicity, Social Structure, and Crime,” features the most recent data on the social and economic status of African Americans, Hispanics, and white Americans. Particular attention is paid to the impact

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xixP R E F A C E

of the economic recession that struck the nation in 2008 and the growing inequalities of income and wealth in America.

■ Chapter 4, “Justice on the Street,” covers the national police crisis that began in 2014 and the public response. There is important new information of police shootings. Attention is given to the issue of procedural justice, one of the most important new concepts in policing. It also covers the recommen- dations of the 2015 President’s Task Force on 21st Century Policing. Finally, some of the promising innovations regarding police accountability designed to curb police misconduct are covered.

■ Chapter 5, “The Courts,” includes new material reflecting recent research on the relationship between race/ethnicity, pretrial detention, and sentencing, as well as a discussion of the treatment of illegal immigrants in federal courts and expanded coverage of the ways in which race and ethnicity influence prosecutorial charging and plea bargaining decisions. It also includes a dis- cussion of the Duke Lacrosse case and the case of the Jena Six.

■ In Chapter 6, “Justice on the Bench,” there is expanded coverage of race and ethnicity in the jury selection process, with a focus on the 2010 report by the Equal Justice Initiative that documented disparities in eight southern states. There also is a new section on racial profiling in the courtroom, which examines the use of cultural stereotypes of the Hmong people.

■ In Chapter 7, “Race and Sentencing,” there are new sections on sentenc- ing illegal immigrants and Asian Americans in federal courts, as well as new material on Devah Pager’s work on the “mark of a criminal record” and a discussion of unconscious racial bias among judges. Chapter 7 also includes new research exploring the direct and indirect effects of race and ethnicity on sentencing in state and federal courts.

■ Chapter 8, “The Color of Death,” covers the decline in the use of the death penalty. It also covers gendered racism in the use of the death penalty, updated material on Supreme Court decisions that affect the use of capital punishment, and a discussion of the racial justice acts that have been recently enacted. Also in Chapter 8 is a new section focusing on race and the proba- bility of execution.

■ Chapter 9, “Corrections in America,” addresses the issue of “mass incarcer- ation.” There is updated information on federal and state incarceration, jail populations, and tribal jails. The chapter also provides updated information for international incarceration rates and prison gangs and presents new research that addresses the role of race in parole board decision making and in post-release hostility.

■ Chapter 10, “Minority Youth and Crime,” includes a more extensive discus- sion of explanations for the higher violent victimization rate among racial and ethnic minority youth and new material on racial and ethnic disparities in arrests of juveniles; it also features a new section that discusses the victim- ization of African-American girls.

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xx P R E F A C E

List of Reviewers:

Gail Beaudoin, University of Massachusetts at Lowell

Brenda Berretta, Middle Tennessee State University

Michele P. Bratina, Indiana University of Pennsylvania

T. D. Coleman, Rochester, South University

Ken Ezell, Fort Valley State University

Angelina Forde, University of Tennessee

Jay Gilliam, University of Illinois Springfield

Lora Lempert, University of Michigan-Dearborn

Faith Lutze, Washington State University

James P. Mayes, North Carolina A&T State University

Kathleen Rettig, Creighton University

Mike Seredycz, University of Wisconsin-Parkside

Susan F. Sharp, University of Oklahoma

Karen Sternheimer, University of Southern California

Quanda Stevenson, The University of Alabama

Rob Tillyer, University of Texas at San Antonio

S U P P L E M E N T S

Cengage Learning provides a number of supplements to help instructors use The Color of Justice: Race, Ethnicity, and Crime in America in their courses and to aid students in preparing for exams. Supplements are available to qualified adopters. Please consult your local sales representative for details.

MindTap® for Criminal Justice The most applied learning experience available, MindTap is dedicated to preparing students to make the kinds of rea- soned decisions they will have to as criminal justice professionals faced with real-world challenges. Available for virtually every Criminal Justice course, Mind- Tap offers customizable content, course analytics, an e-reader, and more—all within your current learning management system. With its rich array of assets— interactive visual summaries, decision-making scenarios, and quizzes—MindTap is perfectly suited to today’s students of criminal justice, engaging them, guid- ing them toward mastery of basic concepts, and advancing their critical thinking abilities.

Online Instructor’s Manual with Lesson Plans The manual includes learning objectives, key terms, a detailed chapter outline, a chapter summary, les- son plans, discussion topics, student activities, “What If ” scenarios, media tools, and sample syllabi. The learning objectives are correlated with the discussion top- ics, student activities, and media tools.

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xxiP R E F A C E

Downloadable Word Test Bank The enhanced test bank includes a vari- ety of questions per chapter—a combination of multiple-choice, true-false, com- pletion, essay, and critical thinking formats, with a full answer key. The test bank is coded to the learning objectives that appear in the main text, and identifies where in the text (by section) the answer appears. Finally, each question in the test bank has been carefully reviewed by experienced criminal justice instructors for quality, accuracy, and content coverage so instructors can be sure they are working with an assessment and grading resource of the highest caliber.

Cengage Learning Testing Powered by Cognero, the accompanying assess- ment tool is a flexible, online system that allows you to:

■ import, edit, and manipulate test bank content from the text’s test bank or elsewhere, including your own favorite test questions;

■ create ideal assessments with your choice of 15 question types (including true/false, multiple-choice, opinion scale/Likert, and essay);

■ create multiple test versions in an instant using drop-down menus and famil- iar, intuitive tools that take you through content creation and management with ease;

■ deliver tests from your LMS, your classroom, or wherever you want—plus, import and export content into other systems as needed.

Online PowerPoint Lectures Helping you make your lectures more engaging while effectively reaching your visually oriented students, these handy Microsoft PowerPoint® slides outline the chapters of the main text in a classroom-ready presentation. The PowerPoint slides reflect the content and organization of the new edition of the text and feature some additional examples and real-world cases for application and discussion.

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RACE, ETHNICITY, AND CRIME:

American’s Continuing Crisis

L E A R N I N G O B J E C T I V E S

After you have read this chapter:

1. You will understand the basic goals of the book as a whole.

2. You will have an understanding of how race and ethnicity are central to understanding crime and criminal justice in America.

3. You will be able to discuss recent trends in criminal justice, the current crime situation in America, emerging problems in the criminal justice system, and how all of these factors affect race, ethnicity, and justice.

4. You will be familiar with the difference between race and ethnicity. You will also understand whether or not these are really scientific categories, and how they are used by the U.S. Census Bureau and by criminal justice agencies.

5. You will understand the quality of commonly used criminal justice data (e.g., arrests) and whether they provide an accurate picture of what actually happens in the justice system.

6. You will be able to discuss the difference between disparities and discrimination with regard to race and ethnicity.

T H E N AT I O N A L R A C E C R I S I S , 2 0 1 4 – 2 0 1 6

On August 9, 2014, police officer Darren Wilson of the Ferguson, Missouri, police department shot and killed Michel Brown, an unarmed 18-year- old African American. The shooting touched off protests, which eventually

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escalated into looting and violence. Missouri authorities mobilized military equipment that only inflamed the protests. Sympathy demonstrations occurred around the country, and the events in Ferguson were carried live on cable televi- sion stations.

The tragic events in Ferguson touched off a two-year period of events that escalated into a national crisis over policing and race relations, to a degree not seen since the urban riots of the 1960s. The other events included:

■ Three weeks before the shooting of Michael Brown, on July 17, 2014, New York City police officers arrested Eric Garner, an African American, on Long Island for selling illegal cigarettes. Officers sat on him and held him down, not responding to Garner’s repeated cries, “I can’t breathe!” Garner died of suffocation. The events were captured on a cell phone video, which was broadcast over national television.

■ On April 4, 2015 in North Charleston, South Carolina, Walter Scott, a 50-year-old African American, was shot in the back and killed by a police officer as he was running away from the officer. The shooting was captured on a cell phone video and clearly showed the lack of any justification for the shooting.

■ A week later, on April 12, 2015, Freddie Gray, a 25-year-old African American, died in a Baltimore police van of neck injuries. Scott’s death touched off protests and then arson and looting. Six officers were indicted for crimes related to his death (although three were acquitted and charges were dropped against the other three).

■ On the evening of June 17, 2015, Dylan Root, a 21-year-old avowed white racist, walked into the Emanuel African Methodist Episcopal Church, an African-American church, during a prayer meeting, opened fire, and shot and killed nine members of the church. Root later confessed that he hoped to start a “race war.”

The sequence of events provoked a national race crisis. Civil rights activists protesting deaths at the hands of the police organized around the slogan “Black Lives Matter.” President Barack Obama in December 2014 appointed a President’s Commission of 21st Century Policing.1 It was the first-ever presidential commis- sion or task force devoted exclusively to the police. After a series of hearings around the country, the Commission’s Final Report contained a sweeping set of recom- mendations for improving policing and addressing the police-race relations crisis.

In response to the Charleston, South Carolina, church shooting and Dylan Root’s goal of starting a “race war,” the state of South Carolina on July 10, 2015, removed the Confederate flag from in front of the state Capitol Building. For African Americans, the Confederate flag is a symbol of slavery. Soon after, Walmart announced that it would no longer sell items bearing the Confederate flag. Amazon.com and Ebay followed suit. And the four largest flag makers in the United States said they would no longer produce the flag.2

The Confederate flag controversy dramatized the significance of flags and other symbols in conveying social and political messages. Particularly important, when

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a government agency displays a particular symbol, it conveys the message that the meaning behind that symbol is approved by the state of federal government.

Race, Ethnicity, and Justice in America

More than 100 years ago, the great African-American scholar W. E. B. Du Bois declared, “The problem of the twentieth century is the problem of the color line.”3 Racism and racial discrimination, he argued, were the central problems facing modern society.

As the events of 2014–2016 clearly indicate, issues of race and ethnicity con- tinue to be volatile issues today. Criminal justice is one of major focal points of those issues. Nearly every problem in the criminal justice system involves matters of race and ethnicity: Who gets stopped by the police? Who gets arrested? Who goes to prison? Who gets the death penalty? Some of the bare facts of the admin- istration illustrate these issues.

■ In 2014, the incarceration rate for African-American males in state and federal prisons was six times the rate for white males (2,724 vs. 465 per 100,000 respectively). The incarceration rate for Hispanic American males was 2.3 times greater than that for non-Hispanic white males (1,091 vs. 465 per 100,000).4 There were also disparities in the incarceration of white and African-American females, but not as great as for males.

■ The unemployment rate for African Americans in late 2014 was twice the figure for white Americans: 11.3 percent vs. 5.20 percent. The figure for Hispanic Americans was 7.4 percent.5 As we will explain later in this chap- ter, criminologists have always recognized unemployment as a risk factor for involvement in crime. Long-term or even periodic unemployment contrib- utes to poverty and unstable families, both of which are also risk factors for crime.

■ The National Congress of American Indians reported in 2013 that Native Americans and Alaska Natives are 2.5 times more likely to experience vio- lent crime and “at least two times more likely to experience rape or sexual assault crimes” than other racial or ethnic groups.6

■ The Innocence Project reported that as of January 2016, 336 people con- victed of crimes had been exonerated by DNA evidence: 61 percent were African American; 31 percent non-Hispanic white; 7 percent Hispanic; and 0.5 percent Asian American.7

Public Attitudes about Race, Ethnicity, and Criminal Justice The American people are deeply divided along racial lines on issues of crime, race, and ethnicity. A 2016 Pew Research Center report found that blacks and whites were “worlds apart” in their view of race in America, including the criminal justice system. The survey found that 84 percent of African Americans believed that “blacks are treated less fairly than whites in this country … in dealing with the police”, com- pared with 50 percent of white Americans. The divide was almost the same with respect to the courts, with 75 percent of African Americans believing that African

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Americans were treated less fairly by the courts, compared with 43 percent of whites.8

Fear of crime is an extremely complex subject, and there is an important difference between actual victimization and the fear of crime. The National Crime Victimization Survey found that in 2014 African Americans were far more likely to be the victims of a “serious violent crime” (defined as rape, robbery, and aggravated assault) than whites or Hispanics (African Americans, 10.1 per 1,000; Hispanics, 8.3 per 1,000; whites, 7.0 per 1,000).9 Serious violent crimes are par- ticularly destructive, inflicting far more personal and social harm than property crimes, in terms of personal injury and psychological trauma, and in creating fear of crime in the neighborhood.

Yet, fear of crime among whites has been politically very powerful for over 50 years. Fear of crime has been the driving force behind harsher criminal sen- tences and the enormous increase in the American prison population since the mid-1970s. Michelle Alexander has labeled this policy “mass incarceration.”10

In fact, the prison population continued to rise in the 1990s even though crime rates experienced a historic decline that has lasted for two decades in many cities (although a number of cities experienced significant increases in crime in 2015).11

The subject of immigration and crime has been a particularly volatile polit- ical issue. Many Americans believe that immigrants, particularly undocumented immigrants, are involved in high rates of crime. Yet, as we will discuss later in this chapter, research has consistently found that immigrants have lower involvement in crime than nonimmigrants.

For many whites, “crime” is a political code word for fears of social change, and fears of racial change in particular. A study of community crime control efforts in Chicago, for example, found that neighborhood organizations usually were formed in response to perceived changes in the racial composition of their neighborhoods.12

In short, crime and fear of crime pervade virtually every aspect of American society, from the day-to-day lives of people in their neighborhoods to national politics.

I S D I S C R I M I N AT I O N J U S T A M Y T H ?

Some commentators argue that the criminal justice system is not racist and that allegations of systematic discrimination are based on myth. One of the most force- ful advocates of this position is Heather MacDonald, a fellow at the Manhattan Institute. She argues that the primary cause of the high rate of incarceration of African Americans is involvement in criminal behavior, not discrimination by the criminal justice system.13

MacDonald’s argument helps to frame the issues we will examine in The Color of Justice. What are the facts regarding criminal behavior and the performance of the criminal justice system? Does discrimination exist? If so, how serious is it? Is it systematic discrimination, or not? If discrimination exists but is not system- atic, how do we characterize it? What accounts for racial and ethnic disparities in

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arrest rates and imprisonment rates? If discrimination does not exist at all, what accounts for the disparities in arrests and imprisonment?

In her article, “Is the Criminal-Justice System Racist?” MacDonald makes the following arguments:

■ African Americans represent 81 percent of all homicide victims, and 90 per- cent of the offenders in those cases are also African Americans.14 Since mur- der is the crime most likely to result in incarceration (98 percent sentenced to prison; 2 percent to jail in 2009), MacDonald and others argue that this explains part of the imprisonment disparity.15

■ African Americans represent 56 percent of all robbery arrests (2014 FBI data).16 Robbery is also a crime that usually results in incarceration (86 per- cent of all convicted offenders sentenced to either prison or jail in 2009), and this also contributes to the imprisonment disparity.17

■ The National Crime Victimization Survey finds that victims’ reports of the race of robbers and offenders committing aggravated assault are roughly equal to the race of persons arrested for these crimes. This suggests that there is no discrimination in arrests for these crimes.18

MacDonald’s points are based on good criminological data, and for that rea- son they must be taken seriously. But are they the last word on the subject? After all, statistics can be interpreted in many different ways. One of the main issues we will deal with in this book is that “facts” do not speak for themselves. On all of the most important issues, there are often conflicting data and legitimate differ- ences of opinion among experts about how data should be interpreted.

Marc Maurer, director of The Sentencing Project, argues that there are four important factors that contribute to racial disparities in the criminal jus- tice system. They include: (1) disproportionate involvement in crime (which is MacDonald’s principal focus); (2) disparities in criminal justice processing (which she ignores, and which is a major focus of this book); (3) the “overlap of race and class effects” (which we discuss in detail in Chapter 3); and (4) “the impact of ‘race neutral policies’ of criminal justice agencies.” A “race neutral” policy, we should explain, is a policy that does not refer specifically to race or ethnicity, but which has a disparate effect on people of a certain race or ethnicity. An extreme example would be a police department that had a policy of stopping young men with very baggy pants. The effect would be many stops of young African-American men. (We will discuss this issue in more detail later.)19

There are some important issues that MacDonald ignores, and which present a very different picture. They include:

■ With respect to drugs, the National Survey on Drug Use and Health found only slight differences in illicit drug use by race and ethnicity in 2013. Among people 12 years and older, 9.5 percent of whites had used an illicit drug in the previous 12 months, compared with 10.5 percent of African Americans, and 8.8 percent of Hispanics.20 Yet, an ACLU report on mari- juana arrests found that African Americans were 3.73 times more likely to be arrested for marijuana possession than whites.21 In addition to the pain and

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suffering of an arrest itself, the collateral consequences of an arrest impose further harm, including inability to go to work while in jail, possible loss of that job, inability to get future jobs, and so on. The Sentencing Project points out that “a criminal conviction creates a barrier to securing steady employment, and those with felony drug convictions are disqualified from public assistance and public housing in many areas.”22

■ The Justice Department investigation of Ferguson, Missouri, found that the city was using the police department to generate revenue for the city’s budget, by pressuring it to make traffic stops. The city’s “law enforcement practices,” it found, “are shaped by the City’s focus on revenue rather than by public safety needs.” These practices, moreover, “both reflect and exacerbate existing racial bias, including racial stereotypes.”23

■ The fact that African Americans arrested for felonies are less likely to be prosecuted and less likely to be convicted at trial than whites may be explained by the fact that they may be arrested on weaker evidence. Joan Petersilia’s examination of racial disparities in the justice system found that the apparent “leniency” at the prosecution stage of the system occurred in part to correct for inappropriate arrest decisions.24

■ Perhaps most important, the higher rates of offending among African Americans and Latinos can be explained by inequalities in the American social system that are criminogenic: disparities in education, employment, health care, and so on. We will discuss the major theories of crime later in this chapter, and we will examine social and economic inequalities in detail in Chapter 3.

The issue of social and economic inequalities raises a point that is central to this book. The Color of Justice takes a big picture view of race, ethnicity, and crime, looking at all the social and economic factors that criminologists know to be risk factors in criminal behavior. What criminal justice agencies do is important, but it is only one part of the larger picture.

O B J E C T I V E S O F T H E B O O K

Race, ethnicity, and criminal justice are in the news week after week. But what are the facts behind the headlines? The Color of Justice looks beyond today’s news events and the myths surrounding race, ethnicity, and criminal justice and pro- vides an accurate picture of the situation.

First, The Color of Justice offers a comprehensive treatment of all the issues on crime and the administration of criminal justice, which no other book does. There are many excellent articles and books on particular topics (e.g., the death penalty, police use of deadly force), but none covers the full range of topics in a complete and critical fashion. As a result, there is usually no discussion of whether relatively more discrimination exists at one point in the justice system than at others. Our comprehensive approach allows us to link the different parts of the criminal justice system: connecting issues of arrest decisions by the police with

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prosecutors’ decisions to charge offenders. Is there discrimination at both points? How do they reinforce each other?

Second, The Color of Justice examines both race and ethnicity in criminal jus- tice. As this chapter will explain later, race and ethnicity are not the same, and differences are very important to understanding how the criminal justice system works. Most criminal justice textbooks do a very poor job in their treatment of race and ethnicity.25 Most do not identify race and ethnicity as a major issue, or clarify the difference between race and ethnicity. The Color of Justice makes race and ethnicity central to understanding criminal justice in America.

Additionally, this book covers all racial and ethnic groups. We have chosen to title this book The Color of Justice because it covers all people of color. Most other books focus entirely on African Americans. Coramae Richey Mann points out that “the available studies focus primarily on African Americans and neglect other racial minorities.”26 Although research on Hispanic Americans has been growing in recent years, there are still major gaps in our knowledge. There is still little good research on Native Americans or Asian Americans. The Color of Justice includes material on all groups, including Native Americans and Asian Americans. Our examination highlights the significant differences between the experiences of various racial and ethnic groups with respect to crime and justice.

As we will learn, non-Hispanic whites, African Americans, and Hispanics have very different experiences with the police. The experience of Native Americans who live on reservations, where the nearest police officer may be many miles away, is completely different from that of most other Americans.

Third, The Color of Justice offers a critical perspective on the available evidence, something that few other books on the subject do. Is there systematic discrimination in the criminal justice system? Or are there simply disparities that can be explained by factors other than race or ethnicity? Can patterns of discrimination be explained bet- ter in terms of contextual discrimination? What does that term mean? If this pattern exists, where do we find it? How serious is it? What are the causes? Have any reforms succeeded in reducing disparities and discrimination? Data on arrests and sentenc- ing, for example, are extremely complex. Interpreting traffic stop data to determine if there is racial profiling presents a major challenge for criminologists. Later in this chapter, we discuss the crucial distinction between disparities and discrimination.

Fourth, this book presents the best and most recent research on the relevant topics: the patterns of criminal behavior and victimization, police practices, court processing and sentencing, the death penalty, and prisons and other correctional programs. New research continually deepens our understanding of important issues, and this book stays current with the best new research.

Fifth, this book is up-to-date, incorporating important recent developments in criminal justice. As a result of the national police crisis of 2014–2016, we learned that the official FBI data on the number of persons shot and killed by the police every year count only about half of the actual number. The FBI data reported in 2014 that police shot and killed 444 people. Yet, the Washington Post, in a study using all available sources (e. g., news media accounts, social media), found that the annual figure is actually twice what the FBI reports: 986 in 2015.27

Also, beginning in 2011, the American prison population began to decline for the

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first time in 40 years.28 The decline is still small, but compared with the explosion in imprisonment since the mid-1970s, it is a historic shift. The Color of Justice reports these and other recent changes, which have important implications for a complete and up-to-date picture of race, ethnicity, and crime in America.

Sixth, The Color of Justice takes a contextual approach to crime and criminal jus- tice and emphasizes the unique historical, political, and economic circumstances of different crimes, different parts of the justice system, and the different experiences of each racial and ethnic group. Alfredo Mirandé, author of Gringo Justice, argues that historically “a double standard of justice” has existed, one for Anglo Americans and one for Chicanos. Marianne O. Nielsen, meanwhile, argues that the subject of Native Americans and criminal justice “cannot be understood without recognizing that it is just one of many interrelated issues that face native peoples today,” includ- ing “political power, land, economic development, [and] individual despair.”

Regional and local variations in crime and criminal justice also exist. Serious crime has fall sharply over the past 15 years in New York City and San Diego, but not in Baltimore. The death penalty is most widely used in just a few states. In 2013, Texas (16), Florida (7), and Oklahoma (6) conducted 29 of the 39 executions in the entire country.29 The federal sentencing guidelines prescribe very harsh sentences, while the Minnesota sentencing guidelines result in a very low incarceration rate. All of these variations complicate the overall picture of criminal justice in America.

Finally, building on the importance of contextual factors, The Color of Justice offers a contextual theory of race, ethnicity, and criminal justice. We have already rejected Heather MacDonald’s argument that the idea that the criminal justice sys- tem is racist a “myth.” We also argued that it is simplistic to say that the system is completely racist in every decision all the time. Our view is that racial and ethnic disparities exist throughout the criminal justice system (even after taking into account all the variations we have discussed). It is a mistake, however, to view disparities in particular parts of the criminal justice system in isolation from the larger crimi- nal justice process. As Kimberly Kempf-Leonard persuasively argues in a review of 20 years of juvenile justice reform, an arrest can have “a cumulative effect that may grow like a downhill snowball to disadvantaged minority youths”; it can “create an inequity,” which “can influence decisions at subsequent stages” in the justice sys- tem.30 Arrests and confinement of juveniles can affect later decisions when someone is an adult. The cumulative effects of disparities in policing, plea bargaining, sentenc- ing, incarceration, and the use of community-based corrections result in a larger pattern of injustice based on race and ethnicity. Later in this chapter, we will explain in greater detail the important difference between disparities and discrimination.

T H E C O L O R S O F A M E R I C A :

R A C I A L A N D E T H N I C C AT E G O R I E S

The United States is increasingly a multiracial, multiethnic society. In 2014, according to a mid-census estimate, the composition of the American popula- tion by households was 62.2 percent non-Hispanic white, 17.4 percent Hispanic,

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13.2 percent African American, 6 percent Asian or Pacific Islander, 1 percent Native American, and 2 percent who reported being of two or more races. By 2040, the census estimates that the population will be 76.1 percent non- Hispanic white, 21.7 percent Hispanic, 14.9 percent African American, and 7.9 per- cent Asian.31 These figures represent significant changes from 30 years ago, and demographers are predicting steady changes in the immediate future. As Figure 1.1 indicates, Hispanics and Asians are the two fastest-growing racial or ethnic groups in the United States, increasing from a combined 12 percent of the pop- ulation in 1990 to an estimated 29.9 percent by the year 2040. As we will discuss later in a section on “The Geography of Justice,” racial and ethnic groups are unevenly distributed, with important effects on crime and justice.

The Official U.S. Census Categories

Race and ethnicity are extremely complex and controversial subjects, and we do not always have accurate data on important issues. The commonly used categories for race and ethnicity are those developed by the federal Office of Management and Budget (OMB) and are used by the U. S. Census Bureau and other govern- ment agencies.32 Unfortunately, these categories are extremely problematic and do not necessarily reflect the social reality of American life: the reality of how people define themselves; how they are defined by other people; and how they interact with other people on a day-to-day basis. Let’s sort our way through this complex issue.

It is very important to understand that the census is based on self-reported identity. Are you “African American” or “white”? For the census, it depends on what you tell the census. Are you “Hispanic” or not? It depends on your own self- identity and what you tell the census. The census allows people to identify themselves by race and ethnicity. A person can, for example, self-identify as “white” [race] and “Hispanic” [ethnicity], or as “American Indian” [race] and “Hispanic” [ethnicity]. A person can also identify himself or herself by race with no ethnic identification.

A Pew Center report, Who’s Hispanic, explains the self-reporting pro- cess used by the U.S. Census works through a series of questions and answers.

Percentage of the total U.S. population

White African American Hispanic American Indian Asian

1990 83.9 12.3 9.0 0.8 3.0

2000 82.1 12.9 11.4 0.9 4.1

2010 80.5 13.5 13.8 0.9 5.1

2020 79.0 14.0 16.3 1.0 6.1

2040 76.1 14.9 21.7 1.1 7.9

F I G U R E 1.1 Changing Composition of the U.S. Population, by Race and Ethnicity, 1990–2040 SOURCE: Bureau of the Census, Population Projections of the United States by Age, Sex, Race, and Hispanic Origin: 1995-2050 (Washington, DC: Department of Commerce, 1996), Table J, p. 13.

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For example: “Q. My mom is from Chile and my dad is from Iowa. I was born in Des Moines. Am I Hispanic? A. You are if you say so.”33

In short, a person who is very dark-skinned can tell the census that he or she is “white.” And that is how that person will be recorded in the census. Another person who is very light-skinned can tell the census that he or she is “African American,” and that is what the census will record.

Now let’s take a closer look at the different racial and ethnic classifications used by the U.S. Census.

Race

Traditionally, race has referred to the “major biological divisions of mankind,” as distinguished by color of skin, color and texture of hair, bodily proportions, and other physical features.34 The traditional approach identifies three major racial groups: Caucasian, Negroid, and Mongoloid.

Anthropologists and sociologists, however, do not accept the traditional strict biological definition of race. Because of intermarriage and evolution over time, it is virtually impossible to find people who are entirely within one racial cate- gory. Also, scientists have not been able to determine meaningful differences in behavior, intelligence, or other capabilities among people who are commonly referred to as “white,” “black,” or “Asian.” J. Milton Yinger maintains that “we cannot accept the widespread belief that there are a few clearly distinct and nearly immutable races. Change and intermixture are continuous.”35

Experts regard the concept of race as “primarily a social construct.” That is to say, groups define themselves and/or have labels applied to them by other groups. Tradi- tionally, the politically and culturally dominant group in any society defines the labels that are applied to other groups. At times, however, subordinate groups assert them- selves by developing their own labels. As we will discuss shortly, racial designations have changed over the centuries as a result of changes in both political power and racial attitudes. In short, the commonly used terms for different races are socially and politically constructed. This includes such terms as “colored,” “Negro,” and Oriental.” They have no scientific basis, however. Yinger argues that the critical categories for social analysis are the “socially visible ‘racial’ lines, based on beliefs about race and on administrative and political classifications, rather than genetic differences.”36

The cultural designation of who is an African American in American history was driven by the racist “drop of blood” principle. It held that if a person is even of a slight African-American heritage—a great-grandfather, for example—that person was considered an African American. The principle was racist because it did not work the other way around: one “drop” of white blood did not make someone white.37

The term nonwhite was once widely used and is still used by some people. The census now forbids the use of the term. “Nonwhite” implies that people in this category lack something important and are “less than” the majority or the ideal. In a subtle way it is demeaning, and the Association of MultiEthnic Americans and related groups are particularly concerned about the impact of classifications and labels on children.38

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A brief look at a few families highlights the problems with traditional racial categories. Many people have mixed ancestry. What, for example, is the “race” of the child whose father is African American and mother is of Irish-American descent? Or the child whose mother is Japanese American and whose father is of European background? Or the child whose maternal grandmother was Native American, paternal grandfather was English, and whose father is Hispanic? Many “white” Americans have some ancestors who were African American or Native American. Few African Americans have ancestries that are purely African.

The Different Census Categories of Race and Ethnicity The OMB has over the years revised the categories (and the names) used for some of the racial and ethnic groups. The current categories are (1) American Indian or Alaska Native; (2) Asian; (3) black or African American; (4) Hispanic or Latino; (5) Native  Hawaiian or Other Pacific Islander; and (6) white. Previously, OMB used only the term black; the new category is black or African American. Persons may also identify them- selves as Haitian or Negro. Previously, only the term Hispanic was used. The new guidelines use Hispanic or Latino. The OMB considered, but rejected, a proposal to use Native American and retained the old term American Indian.

The OMB defines a black or African-American person as anyone “having origins in any of the black racial groups of Africa.” It defines a white person as anyone “having origins in any of the original peoples of Europe, the Middle East, or North Africa.” Accordingly, a person who is from Morocco or Iran is classified as “white,” and someone from Nigeria or Tanzania is classified as “black.” (But, as we have pointed out, the choice of race is up to each individual.) The category of American Indians includes Alaska Natives and “original peoples of North and South America (including Central America).” Asian includes people from the Far East, Southeast Asia, or the Indian subcontinent. Pacific Islanders are no longer in the same category with Asians and are now included with Native Hawaiians in a separate category.39

The OMB explains that the racial and ethnic categories it created “are not anthropologically or scientifically based.” Instead, they represent “a social-political construct and should not be interpreted as being primarily biological or genetic in reference.”40

Ethnicity

Ethnicity is not the same as race. Ethnicity refers to differences between groups of people based on cultural customs, such as language, religion, foodways, music, family patterns, and other characteristics. Among white Americans, for example, there are distinct ethnic groups based primarily on country of origin: Irish Americans, Italian Americans, Polish Americans, and so on. Yinger uses a three-part defini- tion of ethnicity: (1) The group is perceived by others to be different with respect to such factors as language, religion, race, ancestral homeland, and other cultural elements; (2) the group perceives itself to be different with respect to these factors; and (3) members of the group “participate in shared activities built around their (real or mythical) common origin and culture” [italics added].41

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The terms Hispanic and Latino refer to ethnicity, not race. As we mentioned earlier, the U.S. Census is a self-report system, and a person may identify as Hispanic and then also as a member of a racial category. Someone, for example, can identify himself or herself as “white” and “Hispanic,” or “Native American” and “Hispanic.”

The census is a self-report system. The practices of criminal justice agencies, however, are mixed, and different agencies use their own systems of classification. Historically, most have classified Hispanics as white but have not also collected data on ethnic identity. As a result, most criminal justice data sets do not provide good longitudinal data on Hispanics. We will discuss this issue in more detail later.

The Hispanic American population is extremely diverse in several respects. Hispanics are divided among native-bor n Amer icans and foreign-bor n. Foreign-born may be naturalized citizens, permanent residents with a Green Card, immigrants with a visa, or undocumented. Hispanics often identify themselves primarily in terms of their country of origin. The Pew Hispanic Research Center found that in 2013, of the 53.9 million Hispanics in the United States, 64 per- cent were of Mexican background. (“Background” in this analysis does not mean immigrant; it includes people whose family arrived in the United States from Mexico two or three generations ago, but were from Mexico.) The next largest group was Puerto Ricans, who represented 9.5 percent of all Hispanics. People of Cuban and Salvadoran background were tied at 3.7 percent of all Hispanics.42

Classifying Middle Eastern, Arab Americans, and Muslim Americans Arab Americans are an extremely diverse group. The Arab American Institute estimated that there are about 3.5 million people in the United States of Arab descent and describes them as an ethnicity. About 82 percent are U.S. citizens. The national origins of Arab Americans include Lebanon, Egypt, Syria, and other countries of

B o x 1.1 Who Is “Juanita”?

With respect to race and ethnicity. Who or what am I? Am I white? Black? Latino? How would I know? Is it just what I say I am? Or is it what someone else calls me? Or what label the government places on me? These questions are fundamental to an intelligent discussion of race, ethnicity, and justice in America. We cannot begin to discuss whether or not there are inequalities or whether discrimination exists unless we have accurate data on how people of different races or ethnicities are treated in the justice system.

Many people mistakenly think the answers to these questions are easy. They are not. Consider, for example, the case of “Juanita,” as discussed in the report Donde esta la justicia? Her father is Puerto Rican and her mother is African American. How would she be classified if she were arrested? In Arizona, she would define her own race or ethnicity. In California, she would be counted as African American. In Michigan, she would be classified as Hispanic and then be assigned to a racial group. In Ohio, she would be recorded as biracial.

In short, we have a serious problem. This chapter is designed to help navigate our way through this very complex but very basic issue.

SOURCE: Adapted from Building Blocks for Youth, Donde esta la justicia? (East Lansing, MI: Michigan State University, 2002).

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13R A C E , E T H N I C I T Y , A N D C R I M E

North Africa and southwestern Asia. The census classifies most Arab Americans as “Caucasian,” but that label does not adequately describe the diversity of the community. With respect to the physical features that are popularly (but incor- rectly) used to define “race,” such as skin color or hair texture, Arab Americans are as diverse as are “white” and “black” Americans. The term Arab Americans is, in fact, a social construct that includes people of many different national origins, religions, and ethnicities.

Many people assume that Arab Americans are religiously all Muslim, but this is not true. Arab Americans include Muslim, Christian, Druze, and other reli- gions. Even Christian Arabs are divided among Protestant, Catholic, and Greek Orthodox. In terms of national origins, Arab Americans trace their heritage to Lebanon, Syria, Iraq, Kuwait, Morocco, Algeria, and other countries. (Many peo- ple assume that Turkish people are Arabs. In fact, Turkish is a national identity, referring to people who are citizens of Turkey, and they consist of several differ- ent ethnic identities.) Finally, with regard to ethnicity, Arab Americans may be Kurds, Berbers, Armenian, Bedu, or members of other groups.43

We do not know exactly how many Muslims there are in the United States because the U.S. Census does not collect data on religious affiliation. Religious affiliation is regarded as a highly personal and sensitive issue, about which the government should not collect information. There are, however, private surveys and estimates of religious affiliation and observance. Estimates of the total number of Muslims in the United States range from 1.3 million (the 2008 American Reli- gious Identification Survey, a private and not a governmental survey) to 7 million (the Council on American-Islamic Relations). About 25 percent of all Muslims in the United States are converts, most of whom are African Americans. Malcolm X is probably the most famous person to have fallen in this category. Religious ser- vices are sometimes given in several languages: Urdu, Arabic, or English.44

Problems with Traditional Racial and Ethnic Categories

Understanding the basic racial and ethnic categories used in the United States is only the beginning. We also need to look at some important problems associated with these categories.

Multiracial Americans Many Americans do not fit into the strict racial cat- egories of race that have been traditionally used because they are multiracial or mixed-race. Beginning in 2000 the census allowed people to identify themselves as being of two or more races. In the 2010 census, 2.1 percent of all respondents identified themselves as multiracial.

The Pew Research Center challenges to Census Bureau’s 2.1 percent esti- mate. Their own survey estimated that the real figure was 6.9 percent. (The survey involved 21,224 adults. While far smaller than the census, the sample was large enough to make reliable estimates.) The Pew Survey reached the larger figure by asking questions the census does not. It asked people first, how they iden- tified themselves. Then it asked about the respondent’s parents and whether they were of different races. Finally, it asked about the respondent’s grandparents. The survey found that 1.4 percent chose two or more races to describe themselves;

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14 C H A P T E R 1

2.9 percent described their parents as of different races; and 2.6 percent described their grandparents as of different races (for a total of 6.9 percent).45

Which figure is more accurate? In terms of self-identification in everyday life, the lower census estimate of 2.1 is more accurate. In terms of a more objective estimate of extended family identification, the PEW estimate is more accurate.

Being multiracial is in large part a matter of self-identity. The Association of MultiEthnic Americans (AMEA), which fought for the OMB changes that allow people to designate a multiracial or multiethnic identity, declares that “we believe that every child, every person who is multiethnic/multiracial has the same right as any other person to assert a personal identity that embraces the fullness and integrity of their actual ancestry, and that every multiethnic/multiracial family, whether biological or adoptive, has the same right to grow and develop as any other, and that our children have the right to love and respect each of their par- ents equally.”46

The Uses of Racial and Ethnic Categories Classifying multiracial and mul- tiethnic people are not abstract issues. Census estimates have very real personal, legal, and economic consequences.

An article in the New Yorker magazine highlighted the case of Susan Graham of Roswell, Georgia, who complained, “When I received my 1990 census form, I realized that there was no race category for my children.” She is white, and her hus- band is African American. She called the Census Bureau and was finally told that children should take the race of their mother. No rational reason was given about why the race of her husband, the children’s father, should be arbitrarily ignored. Then, when she enrolled the children in kindergarten, the school classified them as “black.” Thus, she pointed out, “My child has been white on the United States census, black at school, and multiracial at home—all at the same time.”47

Whether a school counts a child as “black” or “white” has important con- sequences in terms of the school’s racial balance. Counting the child (and many others) as “white” might create the appearance that a problem of racial segrega- tion in the school system exists. Counting many mixed-race children as “black” will make the school system appear racially integrated.

The 1965 Voting Rights Act outlaws voter disenfranchisement by “race or color.” If we want to know if a state or county discriminates against voters on the basis of race, we need accurate data on the voting age population in the juris- diction. If the census undercounts African Americans in a particular country, for example, it would disguise possible discrimination in voting.

Preferred Labels within Groups Members of the major racial and ethnic groups are divided among themselves about which term they prefer. A 2013 Gallup Poll found that 17 percent prefer “African American,” 173 percent pre- fer “black,” and 65 percent say it “does not matter.” A 2012 report by the Pew Hispanic Center found complex patterns of self-identification among Hispanics. When asked, what is the first term they use to identify themselves, slightly more than half replied they use their country of origin (i.e., Mexico, Nicaragua). About one third (34 percent) prefer “Hispanic” and 13 percent prefer “Latino.” 48

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15R A C E , E T H N I C I T Y , A N D C R I M E

FOCUS ON AN ISSUE

The Bell Curve Controversy: Race and IQ

A national storm of controversy erupted

in the fall of 1994 over a book titled

The Bell Curve by Richard J. Herrnstein

and Charles Murray.49 The authors argue

that success in life is determined largely by

IQ: the smarter people succeed, whereas

those with lower intelligence, as measured

by standard IQ tests, fail and end up at the

bottom of the social scale. The authors

contend that those at the low end of the

IQ scale do poorly in school and are more

likely to be unemployed, receive welfare,

and commit crime.

The Bell Curve is now over 20 years

old, but the issue continues to resurface

as some people continue to argue that

some races or ethnic groups are inferior

to whites of European descent. Let’s sort

our way through the myths and misunder-

standings and get at the truth.

The most provocative and controver-

sial parts of Herrnstein and Murray’s thesis

are the points that intelligence is inherited

and that there are significant differences in

intelligence between races. The authors cite

data indicating that Asian Americans consis-

tently score higher on IQ tests than white

European Americans, who, in turn, score

higher than African Americans. Herrnstein

and Murray are very clear about the policy

implications of their argument. They argue

that because intelligence is mainly inher-

ited, social programs designed to improve

the performance of poor children, such

as Head Start, are doomed to failure and

should be abandoned.

The Bell Curve was attacked by psy-

chologists, anthropologists, and sociol-

ogists.50 Critics disputed the authors’

assumptions that there is a genetic entity

that constitutes “intelligence” that is

inherited, and also that IQ tests are a valid

measure of intellectual capacity.

Critics also disputed the authors’

handling of the evidence regarding intel-

ligence tests, the impact of environmental

factors as opposed to inherited factors, and

the effect of programs such as Head Start.

There is evidence, for example, that Head

Start does improve IQ test scores in addi-

tion to children’s later success in life.51

The authors of The Color of Justice

reject Herrnstein and Murray’s argument

on the grounds that the vast majority of

anthropologists and sociologists do not

accept the idea of separate races as distinct

biological entities. If there are no scientifi-

cally valid racial differences, the basic argu-

ment of The Bell Curve falls apart.

In response to the long controversy,

the American Anthropological Associ-

ation (AAA) in 1994 issued an official

“ Statement on ‘Race’ and Intelligence.” It

is important to note in this statement and

the one cited in Box 1.3, the AAA places

the word “race” in quotation marks as a

way of indicating that the concept does

not have any scientific validity. The AAA

makes the following statement:

The American Anthropological

Association (AAA) is deeply concerned

by recent public discussions which

imply that intelligence is biologically

determined by race. Repeatedly chal-

lenged by scientists, nevertheless these

ideas continue to be advanced. Such

discussions distract public and scholarly

attention from and diminish support for

the collective challenge to ensure equal

opportunities for all people, regardless

of ethnicity or phenotypic variation.

(Continued )

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16 C H A P T E R 1

Who Is the Minority? Who Is the Majority? The Problem with Labels The term minorities is widely used as a label for people of color. The United Nations defines minority groups as “those nondominant groups in a population—which possess and—wish to preserve stable ethnic, religious or linguistic traditions or characteristics markedly different from those of the rest of the population.” The noted sociologist Louis Wirth adds the element of discrimination to this defini- tion: minorities are those who “are singled out from the others in the society in which they live for differential and unequal treatment, and who therefore regard themselves as objects of collective discrimination.”52

Use of the term minority is increasingly criticized. It has a pejorative con- notation, suggesting “less than” something else, which in this context means

B o x 1.2 Donde está la justicia?

The term Hispanic has been used to refer to people of Spanish descent. The term refers, in part, to people with ties to nations where Spanish is the official language. The U.S. government and legal system historically have insisted on categorizing all Spanish-speaking people as Hispanic and treating them as a monolithic group, regardless of cultural differences.

The term Latino, however, generally refers to people with ties to the nations of Latin America and the Caribbean, including some nations where Spanish is not spoken such as Brazil. It also encompasses people born in the United States whose families immigrated to this country from Latin America in the recent past and those whose ancestors immigrated generations ago. Like the term Hispanic, the catego- rization Latino is a general one that does not recognize the diversity of ethnic sub- groups (e.g., Puerto Rican, Dominican, Guatemalan, Peruvian, and Mexican).

SOURCE: Adapted from Francisco A. Villarruel and Nancy E. Walker, Donde está la justicia? A Call to Action on Behalf of Latino and Latina Youth in the U.S. Justice System (East Lansing, Ml: Institute for Youth, Children, and Families, 2002).

Earlier AAA resolutions against racism

(1961, 1969, 1971, 1972) have spoken to

this concern. The AAA further resolves:

WHEREAS all human beings are

members of one species, Homo sapi-

ens, and

WHEREAS, differentiating spe-

cies into biologically defined “races”

has proven meaningless and unscien-

tific as a way of explaining variation

(whether in intelligence or other traits),

THEREFORE, the American

Anthropological Association urges the

academy, our political leaders and our

communities to affirm, without dis-

traction by mistaken claims of racially

determined intelligence, the common

stake in assuring equal opportunity, in

respecting diversity and in securing

a harmonious quality of life for all

people.

The full AAA statement is available on the organizations website (http://www.aaanet.org).

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17R A C E , E T H N I C I T Y , A N D C R I M E

less than some other groups. The new OMB guidelines for the Census Bureau and other federal agencies specifically “do not identify or designate certain pop- ulation groups as ‘minority groups’.”53 Many people today prefer to use the term people of color, instead of “minority” when referring to African Americans and Hispanics.

The changing American population makes the term minority inaccurate in some geographic areas. In California in 2014, for example, non-Hispanic whites were only 39 percent of the population, with almost as many, 38 percent, being Hispanic. Asians were 15 percent and African Americans were 5 percent of the population. In Texas, non-Hispanic whites were 44 percent of the population, with Hispanics 38 percent, African Americans 12 percent, and Asians 4 percent.54

Some American cities are now majority African American or Latino. Miami, Florida, for example, was 69 percent Hispanic in 2015, while Los Angeles was 48 percent. The Pew Research Center reported that between 2000 and 2013, 78 counties across the country shifted from majority non-Hispanic white to where no racial or ethnic group was a majority, including Mecklenburg County, North Carolina, and Broward County, Florida.55 Atlanta, Georgia, was 54 percent African American, and Detroit was 82 percent in 2015. In these situations, which group is the “majority” and which is the “minority”? From a national perspective, you get one answer. A local perspective gives you a different one.

Diversity within Racial and Ethnic Groups Another important complicating factor is the diversity that exists within racial and ethnic groups. As our previ- ous discussion indicates, both the Latino and the Arab-American communities include people of very different national origins.

African Americans and African Immigrants. The African-American community, meanwhile, consists of people whose families have been in the United States for hundreds of years along with recent immigrants from Africa. In 2015, there were a record number of 3.8 million “black” immigrants in the United States, repre- senting almost 9 percent of the “black” population. In the Miami, Florida, metro- politan area, “black” immigrants represented 34 percent of the “black” population. Some immigrants from Africa do not wish to be labeled African Americans because they identify themselves as Africans.56

The Hispanic Community. The Hispanic community is extremely diverse. (See our earlier discussion above at pp. 16.) It includes native-born Americans and immigrants. Among the native born, some families have been in the United States for many generations, whereas others are first-generation Americans. Immigrants include both legal and unauthorized or undocumented persons. Some immi- grants speak English fluently, others speak only their native language, and many are bilingual.

Native Americans and Alaska Natives. Native American and Alaska Native people numbered 5.2 million in 2010 and were divided among 566 tribal governments recognized by the Bureau of Indian Affairs (which does not necessarily include

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18 C H A P T E R 1

all tribes), some of which have very different languages, cultural traditions, and tribal political institutions. About half, 2.9 million, identified themselves as mul- tiracial. The Cherokee tribe is the largest, with 468,082 members according to the 2010 census. The second largest is the Navajo tribe, with 286,731 mem- bers. About one-third (31 percent) of Native Americans live on reservations or designated areas.57

The census category of Asian, Native Hawaiian, and Pacific Islanders includes many diverse groups. For example, Asian Americans include many people of Chinese or Japanese origin whose families have been in the United States for generations and also many very recent immigrants. The economic status of these different groups is often very different. Many Native Hawaiians, meanwhile, are also well established economically, socially, and politically. Bureau of Justice Statistics (BJS) data on crime victimization, however, collapse these very different people into a single category. The National Council on Crime and Delinquency argues that it is important, where possible, to disaggregate the Asian-American population into its different components because some may have greater involve- ment with the justice system than the group as a whole.58

Diversity has many impacts on criminal justice. A Vera Institute of Justice report on police relations with immigrant communities in New York City con- cluded that “immigrant groups are not monolithic, [but] are made up of ethni- cally, culturally, socio-economically, and often linguistically diverse subgroups ….” This has important implications for criminal justice agencies. The report advised that police departments must “reach out to a variety of community representa- tives,” even within one racial or ethnic group.59

Many recent arrivals to the United States do not fully understand our legal system. As some scholars put it, they do not share the “legal consciousness” that long-time American residents have.60 This legal consciousness includes a sense of “inherent rights” and entitlements regarding the legal system. In practice, this includes a sense of your right to call the police if you have a problem, a right to be treated respectfully by the police and other officials, and a right to file a complaint against the police if you are not treated properly, and do so without a lawyer.

Not calling the police is an important issue for the criminal justice system. In communities with significant numbers of undocumented immigrants, there is a reluctance to call the police for fear that undocumented family or friends will be arrested or reported to immigration authorities. But not calling the police means that crime victims will not receive the benefit of police protection. This is particularly serious in the case of domestic violence incidents. Additionally, if the police are not called, the official crime rate will undercount the amount of actual crime.61

The Politics of Racial and Ethnic Labels There has always been great contro- versy over the proper term for different racial and ethnic groups. The term African American, for example, is relatively new and became widely used only in the 1980s. For many people, it has replaced black as the preferred designation, which replaced Negro in the 1960s. Negro, in turn, replaced colored in the late 1940s and 1950s. The leading African-American civil rights organization is the National Association

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19R A C E , E T H N I C I T Y , A N D C R I M E

for the Advancement of Colored People (NAACP), which reflects the year of its founding, 1909. Ironically, colored replaced African much earlier. In short, we have come full circle in the past 150 years. As John Hope Franklin, the distinguished African-American historian, points out in the 1994 edition of his classic history of African Americans, From Slavery to Freedom, the subjects of his book have been referred to by “three distinct names … even during the lifetime of this book.”62

The controversy over the proper label is political in the sense that it often involves a power struggle among groups. It is not just a matter of which label but who chooses the label. Eric R. Wolf argues that “the function of racial catego- ries within industrial capitalism is exclusionary.”63 The power to label another group is a form of control over that group. Labels, particularly unflattering ones, have historically been used to discriminate against different groups. Conversely, the power to reject the existing label and choose a new one is an assertion of power and autonomy.

The term black emerged as the preferred designation in the late 1960s as part of an assertion of pride in blackness and quest for power by African Americans themselves. The African-American community was making a political statement to the majority white community: This is how we choose to describe ourselves. In a similar fashion, the term African American emerged in the 1980s through a process of self-designation on the part of the African-American community. In this book, we use the term African American. It emerged as the preferred term by most spokespeople for the African-American community and was adopted by the OMB for the 2000 Census and continued for 2010 (and can be used along with black, Negro, and Haitian). It is also consistent with terms commonly used for other groups: Irish Americans, Polish Americans, and Chinese Americans, for example.

The term black is actually not appropriate as the label for a group for the simple reason that it refers to a color. In fact, people who identify themselves as African Americans come in a full range of colors, from the darkest black to essen- tially white. The term white, moreover, is as inaccurate as black. People who are commonly referred to as white have a wide range of skin colors, from very pale white to a dark olive or brown. The term Caucasian is a somewhat more accurate label for people generally referred to as white (but even its accuracy is disputed by some experts).64

A similar controversy exists over the proper term for Hispanic Americans (see Box 1.3). Not everyone, including some leaders of the community itself, prefers this term. Some prefer Latino, and others use Chicano. A 2012 Pew His- panic Center survey found that 33 percent prefer the term Hispanic, 14 percent prefer Latino, and half have no preference.65 Many Hispanic Americans refer to themselves in terms of their country of origin. Many non-Hispanics incorrectly refer to Hispanics as Mexican Americans, ignoring the many people who have a different country of origin.

In this book, we use the term Native Americans to designate those people who have historically been referred to as American Indians. The term Indians, after all, originated through a misunderstanding, as the first European explorers of the Americas mistakenly thought they had landed in Asia.

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20 C H A P T E R 1

P R O B L E M S W I T H C R I M I N A L J U S T I C E D ATA

O N R A C E A N D E T H N I C I T Y

Case Study: How Many People Are Shot and Killed by the Police?

How many people do the police shoot and kill every year? In 2015, Americans discovered that we don’t really know. The major source has always been the offi- cial FBI Uniform Crime Report, which reported that 444 people had been killed by law enforcement officers in 2014.66 Some major news media began investi- gating, compiling all such shootings reported in the media. (And it is unlikely that any police shooting goes completely unreported.) They found that the figure is twice the official FBI figure, that is, 984 in 2015, according to a pioneering national survey by the Washington Post.67

The lack of good, official data on persons shot and killed by the police is a scandal. We have very detailed information about deaths from all forms of cancer and from traffic accidents, and we should have the same quality of data on police shootings. The problem is that the FBI system is a voluntary one, and many police departments do not submit their data.

Without reliable, detailed data, however, we cannot speak authoritatively about racial and ethnic disparities in shootings. How great are the disparities, relative to the local population? If we don’t have good population data, we can- not accurately answer that question. Are the disparities greater in some jurisdic- tions or regions? If so, why? Could reliable data help us to identify causal factors, for example, local crime rates or police department policies on deadly force? The lack of good data is central not just to this book but to the national issue of racial and ethnic justice in our society. Is there discrimination? If so, how much?

B o x 1.3 American Anthropological Association, Statement on “Race,” 1998 (excerpt)

In the United States, both scholars and the general public have been conditioned to viewing human races as natural and separate divisions within the human species based on visible physical differences. With the vast expansion of scientific knowledge in this century, however, it has become clear that human populations are not unam- biguous, clearly demarcated, and biologically distinct groups. Evidence from the analysis of genetics (e.g., DNA) indicates that most physical variation, about 94%, lies within so-called racial groups. Conventional geographic “racial” groupings differ from one another only in about 6% of their genes. This means that there is greater variation within “racial” groups than between them. In neighboring populations, there is much overlapping of genes and their phenotypic (physical) expressions.

Throughout history whenever different groups have come into contact, they have interbred. The continued sharing of genetic materials has maintained all of humankind as a single species.

SOURCE: The full statement, along with other materials, can be found on the website of the American Anthropological Association (http://www.aaanet.org).

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21R A C E , E T H N I C I T Y , A N D C R I M E

If so, have we made any progress in eliminating disparities and discrimination? Are there important differences among racial and ethnic groups? If so, how wide are the gaps?

Counting Race and Ethnicity in Criminal Justice Data

The FBI’s Uniform Crime Reports (UCR) data on arrests use the categories of “white” and “black,” with no category of Hispanic or other ethnic groups. It does report American Indian or Alaska Native and Asian or Pacific Islander as separate races. By including Hispanics as “white,” the UCR overreports the number of arrests of non-Hispanic whites and gives us no data at all on Hispanic arrests.68

The National Crime Victimization Survey (NCVS), on the other hand, does col- lect data on Hispanics and non-Hispanics, and it is a rich source of data on rates of victimization by race and ethnicity.69

Because the NCVS uses a census-style self-identification system with regard to race and ethnicity, the following problem exists.70 What if the NCVS calls the multiracial Graham household we discussed earlier (pp. 14). The NCVS reports data by household. Would their household be classified as “white” or “black”? It depends on which member of the family answers the phone and how that person self-identifies. What if one of their mixed-race children were the victim of a robbery? Would the victimization survey record that as a “white” or “black” victimization?

The BJS Police-Public Contact Survey, which is conducted in cooperation with the National Crime Victimization Survey and uses its technique, interviews people about their experience with the police and therefore contains data about race and ethnicity. The 2011 survey, for example, reports whether the police offi- cer gave a reason for the stop and whether the respondent thought the stop was legitimate.71 Thus, unlike FBI data on arrests, it provides useful data on, for exam- ple, traffic stops of whites, African Americans, and Hispanics.

The Bureau of Justice Statistics National Prisoner Statistics (NPS) program reports data on white, black, and Hispanic prisoners as separate categories. The categories are exclusive, however, meaning that you are one or the other (unlike the Census in which someone can be white/Hispanic or Native American/His- panic). The BJS report on Prisoners in 2014, however, explains that “not all NPS [data] provides information systems categorize race and Hispanic origin in this way.” Thus, data from different states are not completely comparable. The report added that in 1991 “only a few states were able to provide information on His- panic origin separately from race,” and so we do not have any reliable data on Hispanic prisoners or imprisonment rate until about the late 1990s.72

Official data on people under sentence of death use the National Prisoner Statistics data. In mid-2015, there were 2,959 people under sentence of death in the United States. Of those, 43 percent were white, 42 percent were black, 13 percent were Hispanic, and 2 percent were of other race or ethnicity.73

Counting Hispanics as “white” has a major impact on official data and the resulting picture of the criminal justice system. Barry Holman ana- lyzed how using a “white/black” classification system results in an overcount

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22 C H A P T E R 1

of non-Hispanic whites in prison and an undercount of Hispanics. In 2009, 57.2 percent of all federal prisoners were “white.” But 32 percent were His- panic, meaning that only about 25 percent were non-Hispanic whites (39 per- cent were African American), so if you only used the “white” category you would give a misleading picture of federal prisoners. In New Mexico, the mis- representation was even worse. Official data indicated that 83 percent of prison- ers were white, when in fact only 28.9 percent were non-Hispanic white and 54.1 percent were Hispanic.74

The situation with regard to Native Americans is especially complex. Gary LaFree points out that they “fall under the jurisdiction of a complex combination of native and nonnative legal entities” that render the arrest data “problematic.”75

Zoann K. Snyder-Joy characterizes the Native American justice system as “a juris- dictional maze” in which jurisdiction over various criminal acts is divided among federal, state, and tribal governments.76 It is not clear, for example, that all tribal police agencies report arrest data to the FBI’s UCR system. Thus, Native Ameri- can arrests are probably significantly undercounted.

Data on crime on Native American reservations (also referred to as Indian Country) are also seriously inadequate. The National Congress of American Indi- ans argues that this is due to both the underreporting of crimes to tribal authori- ties and underreporting to federal authorities.

The reporting of race and ethnicity by state and local criminal justice agen- cies is not clear and probably varies considerably across the country. Does an arresting officer make his or her judgment about an arrested person? Or do officers ask the person (in which case if would be a reliable self-report)? Do other agencies rely solely on the documents they receive from other agencies (e.g., corrections officials relying on police or court documents related to a new prisoner)? Or do officials make their own judgments, without asking each per- son? They may be poorly trained and may rely on their own stereotypes about race and ethnicity.

In short, the official data reported by criminal justice agencies are very prob- lematic, which creates tremendous difficulties when we try to assess the fate of different groups at the hands of the criminal justice system. The disparities that we know to exist today could be greater or smaller, depending on how people have been classified. We will need to be sensitive to these data problems as we discuss the various aspects of the criminal justice system in the chapters ahead.

In the end, be on guard whenever you see data on “white” and “black” or “nonwhite” people in the justice system. These data do not accurately reflect the reality of crime and justice in America.

T H E C R I M E A N D I M M I G R AT I O N C O N T R O V E R S Y

Immigration is a major political controversy in the United States today and has been for many years. The political debates include a number of proposals that many people find offensive and discriminatory. Let’s begin by sorting out the basic facts of immigration.

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Sorting Out the Facts on Immigration

The 2010 Census reported that there were 40,000,000 foreign-born people in the United States, representing 13 percent of the U.S. population. The foreign-born population includes naturalized citizens, legal permanent residents, temporary migrants, humanitarian migrants (e.g., refugees), and undocumented migrants. Forty-four percent of all foreign-born were naturalized citizens by 2010.77

Twenty-nine percent of the foreign-born were from Mexico (11.9 million people), and another 8 percent were from other Central American countries. The next largest country of origin was China, with 2.2 million people (or 5 per- cent of all of the foreign-born). Canada, with 0.8 million people, was the largest non-Central or South American or Asian country of origin, ranking eleventh among all countries.78

There were an estimated 11,300,000 unauthorized or undocumented immi- grants in 2014 (down from a peak of 12.3 before the recession of 2008), and the number had been stable for about five years. About half of the unauthorized immigrants, 5.6 million people, were from Mexico. That number had declined from a peak of 6.9 million in 2007, mainly because the recession that struck the United States in 2008 discouraged many people from migrating in search of jobs. There were also 1,300,000 unauthorized immigrants from Asia in 2014, 525,000 from Europe or Canada, and 190,000 from the Middle East.79

Humanitarian migrants, or refugees, represent a special case. The U.S. State Department defines a refugee as “someone who has fled from his or her home country and cannot return because he or she has a well-founded fear of persecu- tion based on religion, race, nationality, political opinion or membership in a par- ticular social group.”80 Since 1975, the United States has admitted over 3 million people as refugees. Because they are admitted under a formal State Department program, with elaborate procedures for determining the validity of their claims of persecution, refugees are in the country legally.

Hispanics and Asians have been the two fastest-growing racial/ethnic groups in America in recent decades, with Asians holding the lead since 2010. But there are significant differences in the sources of growth between the two groups. Most of the increase among Hispanics has been due to natural increase (measured in terms of births minus deaths). The growth among Asians, by contrast, has been more due to immigration.81

B o x 1.4 A Note on “Generations”

There is a lot of confusion over the proper terms for different “generations” of Americans. Someone who immigrates to the United States is a “first-generation” American. His or her children are “second generation.” A separate issue involves citi- zenship. A “second-generation” person would be a “first-generation citizen,” unless of course his or her parents became naturalized, in which case the parents would be “first-generation citizens.” There is no such thing as a “second-generation immi- grant”; only one generation can immigrate.

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Immigration from Africa has changed the composition of the black popu- lation in the United States. By 2015, there were a record number of 3.8 mil- lion black immigrants, representing 8.7 percent of the entire black population. In the Miami, Florida, metropolitan area, for example, black immigrants represented 34 percent of the entire black population, while in New York City the figure was 28 percent.82

Public Attitudes about Immigration Public opinion polls consistently indi- cate that Americans are very concerned about illegal immigration. A 2015 survey found that 50 percent of Americans felt that immigrants had made the U.S. econ- omy worse, while 28 percent thought it made the economy better and 20 percent felt that it had “not much effect.” Fifty percent also felt that immigrants had made the crime problem worse, and only 7 percent felt it made crime conditions better. With respect to science and technology, however, 29 percent felt that immigrants made the United States better and only 12 percent felt that it made the United States worse. Half of Americans felt that immigrants made the United States bet- ter in terms of “food, music, and the arts,” while 11 percent felt they made the United States worse.83

The Immigration and Crime Controversy

Although half of all Americans believe that immigration has an adverse impact on crime, research has consistently not supported that view. A 2015 report by the Cato Institute concluded that “with few exceptions, immigrants are less crime prone than natives or have no effect on crime rates.”84

Researchers have used different methodologies to investigate immigration and crime. Butcher and Piehl studied the imprisonment rates for men between the ages 18 and 40 in 1980, 1990, and 2000. Using census data, they found that in each of those years, immigrants were less likely to be incarcerated than native- born Americans. Additionally, the gap widened in more recent years.85 Graham C. Ousey and Charis E. Kubrin studied cities with populations greater than 100,000 between 1980 and 2000. They found that immigration negatively affected crime; cities that experienced increases in immigration experienced decreases in crime. It should be noted that the time period included both years of rising violent crime rates (1980s) and years of sharply falling crime rates (1993–2000).86 Tim Wadsworth also found that between 1999 and 2000, cities that experienced the largest increases in immigration (of all types) had the largest decreases in homi- cide and robbery in the same time period. His study involved FBI UCR data for 459 cities with populations greater than 50,000 people. The period studied included the years of the great “crime drop,” when serious crime experienced a tremendous decline. 87

In short, public attitudes about the impact of immigration on crime are sim- ply not supported by the evidence. All of the studies, including others not cited here, find less crime among immigrants than nonimmigrants.

How do we explain the negative impact of immigration on crime? Ousey and Kubrin suggest that recent immigrant families have lower rates of divorce

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and single-parent households. Criminologists have long established that both of those factors are associated with higher rates of delinquency and crime. The 2009 Pew Hispanic Center report on young Hispanics, Between Two Worlds, found that immigrant Hispanics were less likely to be involved in a gang, or know someone who is, than American-born Hispanics. Young Hispanics are more likely to be incarcerated than young non-Hispanic whites, but only half are as likely to be incarcerated as young African Americans.88

Problems with Immigration Enforcement

Immigration is covered by federal and not state or local law. Being an undoc- umented immigrant is also not a crime; it is a civil offense, not punishable by imprisonment. Immigrants who commit a crime, whether federal or state, can be deported immediately.

Some local law enforcement agencies engage in immigration enforcement. Under Section 287(g) of the 1996 immigration reform act, local police and sher- iffs can establish written agreements with the federal Immigration Control and Enforcement (ICE) agency. The agreement specifies that local officers are trained in immigration enforcement and then authorized to cooperate with federal offi- cials under their direction. Local offices are then authorized to question people about their immigration status, arrest suspects without a warrant for suspected immigration violations, and five other actions. A 2008 PERF report found that only 4 percent of local agencies had signed such an agreement, however. Some states have a rule that local police cannot enter into 287(g) agreements because officers in the state do not have authority to enforce federal civil laws.89

Many people, including law enforcement leaders, believe that immigration enforcement invites discrimination by police officers. How would an officer, for example, suspect that a driver was an undocumented immigrant? There is no behavior that clearly suggests that a person is undocumented. The result would be traffic stops or street stops of people he believes are undocumented. But the offi- cer would probably be wrong in many, if not most, cases, and that would involve discriminatory enforcement.

Immigration enforcement by local police also damages police-community relations, as members of the community will come to fear the police. (See our discussion of “Insecure Communities,” pp. 26). Many police chiefs believe this would happen. In 2008, the Police Chiefs Executive Research Forum (PERF), a professional association of chiefs and top managers, issued a policy statement opposing immigration by local law enforcement.90 Several chiefs pointed out that immigrants, both legal and unauthorized, are victims of crime. They are more likely to be paid in cash, which makes them easy prey for robbers. Because they fear being questioned about their immigration status, they are very reluctant to call the police and report the crime. Also, many immigrants are victims of domes- tic violence but do not call the police because they are afraid that they or other family or friends will be subject to immigration enforcement. Many immigrants are witnesses of crime but are reluctant to come forward to help the police. For all these reasons, the Police Foundation in 2009 concluded that local agencies

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“should employ community-policing and problem-solving tactics to improve relations with immigrant communities and resolve tension caused by expanding immigration.”91

Police chiefs are also concerned that giving police officers responsibility for immigration enforcement will strain their resources and make it difficult to per- form their basic responsibilities. This problem has become worse in the economic recession of 2008–2014, when police departments were unable to hire to replace retiring officers and in some cases have been forced to lay off officers. Local jails, moreover, often do not have the space to hold large numbers of unauthorized immigrants. (Remember, there are about 11.3 million undocumented immi- grants across the country [2014 estimate], down from 12.2 a peak of 12.2 in 2007.) Local courts are also overburdened with cases, and they are facing cutbacks because of the recession. Iowa state courts, for example, were closed one day a week as a cost-saving measure. In short, many police chiefs fear that immigration enforcement could harm their traditional law enforcement mission. In 2009, the Police Foundation, after an extensive review, concluded that the various costs of participating in federal immigration enforcement “outweigh the benefits.”92

“Insecure Communities”: The Impact of Immigration

Enforcement on the Hispanic Community

A 2013 report found that immigration enforcement had an adverse effect on the attitudes of Hispanics toward law enforcement and public safety among His- panic Americans.93 The study was based on a telephone survey of 2004 Latinos in the Chicago, Houston, Los Angeles, and Phoenix metropolitan areas. The survey found that:

■ 44 percent of Hispanics were less likely to contact the police if they were the victims of crime, because they were afraid that the responding officers would ask about their immigration status or the status of people they know.

■ 45 percent of Hispanics were less likely to “voluntarily offer information about crimes, because the officer might ask about their immigration status.”

■ 70 percent of undocumented immigrants said they were less likely to con- tact the police if they were the victims of a crime.

■ 28 percent of U.S.-born Hispanics said they were less likely to contact the police if they were the victims of crime, because they were afraid the police would inquire about immigration status.

Not calling the police puts both individuals and communities at risk. It is well established in American policing that the police cannot serve the public alone. They depend on members of the public to report crimes, to provide information about criminal activity or disorder in their neighborhoods, and to serve as wit- nesses in criminal cases. The important role of citizens in working with the police is called the “co-production” of police services.94 Co-production is one of the foundations of community policing, and the need to build good relations, trust, and cooperation. The victim of a domestic assault who does not call the police is

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more likely to be assaulted again by the same person. Burglars and robbers will remain at large and be able to commit more crimes.

T H E G E O G R A P H Y O F R A C I A L A N D E T H N I C J U S T I C E

The “geography of justice” in the United States with respect to race and eth- nicity var ies across the country. Afr ican Amer icans, Hispanics, Asians, and Native Americans are very unevenly distributed. The population of California was estimated to be 38 percent Hispanic in 2010, compared with 5 percent for Iowa and 1.3 percent for Maine. Mississippi was 37 percent African American in 2010, compared with less than one percent for Vermont and Montana. Asian Americans represented 57 percent of the population of Hawaii, 15 percent of California, and 9 percent of Nevada, the state with the third highest percentage. As a result, issues of race and ethnicity are far more salient in some areas com- pared with others.

One study concluded that “most communities lack true racial and ethnic diversity.”95 In 1996, only 745 of the 3,142 counties or county equivalents had a white population that was below the national average. Only 21 metropolitan areas qualified as true “melting pots” (with the percentage of the white popula- tion below the national average and at least two minority groups with a greater percentage than the national average).

The uneven distribution of the major racial and ethnic groups is extremely important for criminal justice. Crime is primarily the responsibility of state and local governments. Thus, racial and ethnic issues are especially salient in those cit- ies where racial minorities are heavily concentrated. For example, the context of policing is very different in Detroit, which is 82 percent African American, than in Minneapolis, where African Americans are only 18 percent of the population. Similarly, Hispanic issues are different in San Antonio, which is 59 percent His- panic, than in many other cities where few Hispanics live.

These disparities illustrate the point we made earlier that in some areas the traditional “minority” has become the majority. This has important implications for criminal justice. Population concentration translates into votes, political power, and the ability to control police departments, sheriff ’s departments, courts, and correctional agencies. Mayors, for example, appoint police chiefs. If a county is a majority African American or Hispanic, those groups are able to control the elec- tion of the sheriff. African Americans have served as mayors of most of the major cities: New York; Los Angeles; Chicago; Philadelphia; Detroit; Atlanta; Washington, DC; and others.

The concentration of African Americans in the Southeast has at least two important effects. This concentration gives this group a certain degree of polit- ical power that translates into elected African-American sheriffs and mayors. These officials, in turn, may appoint African-American police chiefs. By 2002, for instance, Mississippi had 950 elected African-American officials, more than any other state, including several elected sheriffs. As a result, criminal justice in Missis- sippi is vastly different from what it was in the segregation era.96

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The number of Hispanic elected officials, meanwhile, is growing rapidly. The National Latino Elected Officials Organization reported that there were 6,084 Hispanic elected officials in 2014, a 25 percent increase since 2004. Population growth leads to more voting and political power, particularly at the local level, and greater influence over criminal justice policy and practices.97

D I S PA R I T Y V E R S U S D I S C R I M I N AT I O N

Perhaps the most difficult question we will encounter throughout this book is whether certain data indicate a pattern of racial or ethnic discrimination. Debates over discrimination are often unproductive because of confusion over the meaning of “discrimination.” It is, therefore, important to make two important distinctions. First, there is a significant difference between disparity and discrimination. Second, discrimination can take different forms and involve different degrees of seriousness. To help clarify this issue, Box 1.5 offers a schematic diagram of a disparity/discrimi- nation continuum, which illustrates the various forms that each of the two can take.

Disparity

A disparity involves a difference, but one that does not necessarily involve dis- crimination. Look around your classroom. If you are in a conventional college program, almost all of the students will be relatively young (between the ages 18 and 25). This represents a disparity in age compared with the general population. There are no children, few middle-aged people, and probably no elderly students. This is not a result of discrimination, however. No law, policy or person keeps

B o x 1.5 Discrimination–Disparity Continuum

Definitions

Systematic discrimination—Discrimination at all stages of the criminal justice system, at all times, and at all places.

Institutionalized discrimination—Racial and ethnic disparities in outcomes that are the result of the application of racially neutral factors, such as prior criminal record, employment status, and demeanor.

Contextual discrimination—Discrimination found in particular contexts or circumstances (e.g., certain regions, particular crimes, or special victim–offender relationships).

Individual acts of discrimination—Discrimination that results from the acts of par- ticular individuals but is not characteristic of entire agencies or the criminal justice system as a whole.

Pure justice—No racial or ethnic discrimination at all.

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older people from enrolling in the class. Older groups are not enrolled in the class mainly because of the typical life course of most people, which involves attending college immediately after high school. The age disparity, therefore, is the result of factors other than discrimination.

The example of education illustrates the point that a disparity is a difference that can be explained by legitimate factors that are reasonable and do not raise any legal issues.

In criminal justice, there is a crucial distinction between legal and extralegal factors. Legal factors are those embodied in the law. They include the seriousness of the offense, aggravating or mitigating circumstances in a crime, or an offend- er’s prior criminal record. The criminal law defines murder as a more serious crime than burglary by setting more severe punishments. The law reflects the accepted social norm that taking someone’s life is far more serious than taking someone’s property. Thus, sentencing most murderers to prison and the majority of burglars to probation is a legitimate, legally based difference, and not a case of discrimination.

Extralegal factors are those that have no legitimate legal basis. They include race, ethnicity, gender, social class, and lifestyle (e.g., clothing, grooming, and dress). Because they are not recognized in the law, they are not legitimate bases for decisions by criminal justice officials. It is not legitimate, for example, for the police to stop only African-American drivers for suspected crimes and to not stop white drivers. When that happens, we call it racial profiling. It is not legitimate for a judge to sentence all convicted male burglars to prison but place all con- victed female burglars on probation, despite the fact that both groups had similar criminal records (a legal factor). In short, differences based on extra-legal factors constitute discrimination.

Discrimination

Discrimination involves a difference in outcome based on differential treatment of individuals or groups without reference to behavior, qualifications, or some other legal factor. Excluding women, African Americans, or Hispanics from juries is dis- crimination based on gender, race, or ethnicity, respectively. Sentencing all males to prison for possession of a gram of cocaine, while sentencing all women to pro- bation for possessing the same amount of the drug, is discrimination.

Many debates over discrimination turn on the distinction between intent and result. Where there is a clear intent to treat groups of people differently, discrim- ination clearly exists. If a prosecutor clearly intended to exclude Hispanics from juries during jury selection—and there was evidence to support that—that would be intentional discrimination.

Many controversies, however, involve allegations of discrimination based on disparities in the results. The National Police-Public Contact Survey has consis- tently found racial disparities in traffic stops. In 2011, for example, 12.8 percent of African-American drivers were stopped by the police, compared with 10.4 per- cent of Hispanic drivers and 9.8 percent of white drivers.98 Clearly, racial and eth- nic disparities exist. The difficult question is whether these disparities constitute

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discrimination in violation of the law. Several factors could explain the dispari- ties. It is possible that African-American and Hispanic drivers speed, drive while drunk, or otherwise violate the law more often than whites. Or, given the higher rate of poverty among both African Americans and Hispanics, it is possible that they more often drive cars with expired license plates, broken tail lights, or other violations that would justify a traffic stop. But it is also possible that the police department in a city has an aggressive anticrime or antigang policy that involves a high rate of traffic stops. It is also possible that officers have unconscious biases regarding race, ethnicity, and crime and are more likely to see potential “danger” in drivers of color.99

Courts have found discrimination on the basis of extreme disparities in out- comes in some cases. The most famous recent example is the 2013 decision in Floyd v. New York City, where a federal court found that the disparities in African Americans and Hispanics violated the Equal Protection Clause of the Fourteenth Amendment. (It needs to be said, however, that proving discrimination based on statistical disparities is extremely difficult and requires both extreme disparities and powerful statistical analyses.)100

We should add that the word discrimination has at least two different mean- ings. One has a positive connotation. It is a compliment to say that someone has “discriminating taste” in music, food, or clothes. The person discriminates against bad food and bad music. Our choices in music, food, or clothes, however, are not covered by the law. The other meaning of discrimination has a negative conno- tation. When we say that someone “discriminates” against African Americans or Hispanics, we mean invidious distinctions based on negative judgments about an entire group of people. That is, someone treats Hispanics differently without any reference to a person’s qualifications (as in a job application) or conduct (as in an arrest). Acts that involve racial or ethnic discrimination in employment, housing, or the administration of justice are illegal.

The Problem of Unconscious Bias

Not all forms of bias are conscious. People often act on the basis of unconscious assumptions or stereotypes that are the result of their upbringing or are deeply embedded in American culture. This problem is particularly true with respect to race, ethnicity, and crime. Deeply embedded stereotypes that equate young African-American men with “crime” and “dangerousness” are widespread. Sim- ilarly deeply embedded stereotypes about Hispanics and “illegal immigrants” are also common. Unconscious stereotypes also operate in the other direction, for example, in equating females with no threat of danger. Lorie Fridell, who directs the Fair and Impartial Policing project, explained that in their training scenar- ios police recruits “are consistently under-vigilant with women—not finding the gun in the small of the back.” That is, they do not associate women with danger- ousness and a threat to their safety.101

The President’s Task Force on 21st Century Policing strongly endorsed offi- cer training on unconscious or implicit bias in order to avoid discriminatory actions by the police.102

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The Law of Discrimination

Discrimination occurs whenever people are treated differently in violation of a local, state, or federal law, or a constitutionally protected right. Several different parts of the American legal system make discrimination illegal. The Equal Protec- tion Clause of the Fourteenth Amendment to the Constitution declares that “nor shall any state … deny to any person within its jurisdiction the equal protection of the law.” If a state barred African Americans or women from serving on juries (as some states once did), it would be a violation of the Fourteenth Amendment.

A number of federal laws also forbid discrimination. The most important is Title VII of the 1964 Civil Rights Act, which holds that “It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or, privileges of employment, because of such individual’s race, color, religion, sex, or national origin ….” This law cov- ers employment discrimination by private employers and government agencies, which would include police, court, and correctional agencies. Other federal laws prohibit other forms of discrimination, such as in housing (the 1968 Fair Housing Act), age (the 1967 Age Discrimination Act), or disability (the 1990 Americans with Disabilities Act).

State constitutions and laws also prohibit discrimination. The constitution of each of the 50 states has a provision similar to the Fourteenth Amendment guar- anteeing equal protection of the laws. All states also have laws prohibiting discrim- ination in employment, housing, and other areas. Finally, cities have municipal ordinances that also make various forms of discrimination illegal.

When someone feels that he or she has been discriminated against on the basis of race, ethnicity, or other factor covered by the law, that person bears the burden of proving in court that the disparate treatment involved illegal discrimi- nation. The person’s attorneys need to enlist experts in, for example, police policy and the law to prove that the disparities cannot be explained by legitimate factors.

The Discrimination–Disparity Continuum

To help clarify the debate over disparity versus discrimination, let us examine Box 1.5, which puts the different possible outcomes on a continuum.

Systematic discrimination means that discrimination occurs at all stages of the criminal justice system, in all places, and at all times. That is to say, there is dis- crimination in arrest, prosecution, and sentencing (stages); in all parts of the coun- try (places); and without any significant variation over time. The clearest example of systematic discrimination involved the southeastern states prior to the Civil Rights Era of the 1950s and 1960s. There was systematic discrimination against African Americans in voting, employment, education, housing, and all phases of the criminal justice system.

Institutionalized discrimination involves disparities in outcomes that are based on an organization’s policies. Marc Maurer of the Sentencing Project lists this as one of the four major factors contributing to racial disparities in the criminal justice system.103 One example would be the old police department employment

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32 C H A P T E R 1

standards that required recruits to be at least five feet, six inches tall. This policy reflected the now discredited belief that if officers were too short they would not have a commanding presence, and their authority would be more likely to be challenged. A more recent example is the aggressive “stop and frisk” policy of the New York City Police Department. In 2011, the NYPD stopped 685,724 people. Over half (52.9 percent) were African American and 33.7 percent were Hispanic. The NYPD policy did not mention either race or ethnicity, but a U.S. District Court in 2013 found that the result of the policy violated the Fourteenth Amendment Equal Protection Clause.104 In Chapter 4 (pp. 155), we will discuss an important recent study of traffic stops in the Kansas City metropolitan area, in which investigatory stops (where the police are looking for guns, weapons, or an outstanding warrant) disproportionately affect African Americans. Investigatory stops are typically part of an institutionalized crime-fighting strategy of a police department, and the resulting racial disparities do not reflect bias on the part of individual officers.105

Bail policies in most criminal courts institutionalize preferences in grant- ing nonmonetary pretrial release for defendants who are currently employed. This policy is based on the reasonable assumption that an employed person has a greater stake in the community and is less likely to flee than an unemployed person. Yet, the policy discriminates against people who are unemployed or have been intermittently employed. And because African Americans experience higher unemployment rates, they are more likely to be denied bail.106 Thus, the bail pol- icy has a race effect: a racial disparity in the outcomes that is the result of a cri- terion other than race. We will discuss bail-setting policies in detail in Chapter 5.

Contextual discrimination involves discrimination in certain situations or con- texts. There are a number of examples of different practices within the same agency. Racial profiling involves discrimination in the context of traffic enforce- ment. A police department’s anticrime program may include a high level of traf- fic stops, which in practice has the effect of racial profiling. This was the case in the NYPD stop and frisk policy we discussed above. That same department, however, may have no pattern of race discrimination in arrests or the handling of domestic violence incidents. The federal sentencing guidelines had very harsh sentences people convicted of possession and/or sale of the drug crack, which was very controversial. The result was a pattern of sentencing that had a very adverse effect on African Americans (who are more likely to use that drug than whites). Research on the death penalty has consistently found racial disparities in death sentences for African Americans compared with whites to a degree that does not exist with noncapital crimes.107

Individual acts of discrimination involve those carried out by particular person: a police officer, a judge, a parole officer, and so on. These are discriminatory acts by a person, and they do not represent general patterns of how the criminal justice system operates.

Finally, at the far end of the spectrum in Box 1.5 is the condition we label pure justice. This means that there is no discrimination at any time or place in the criminal justice system. No one seriously argues that, in an imperfect world, such a situation exists anywhere in the American criminal justice system.

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As we discussed earlier, MacDonald argues that the idea that the criminal justice system is racist is a “myth.” Using our discrimination–disparity continuum, her analysis concedes individual discrimination but not broader patterns of dis- crimination in the criminal justice system.

Throughout the chapters in The Color of Justice that follow, we will grapple with the question of whether the disparities that exist represent discrimination. For example, there are racial and ethnic disparities in arrests by the police. In Chapter 4, we examine the evidence on whether these data indicate a clear pat- tern of discrimination, and if so, what kind of discrimination (contextual, individ- ual, or systematic). Chapter 4 also examines the difficulties in interpreting traffic stop data to determine whether there is a pattern of illegal racial profiling. There is also evidence of disparities in plea bargaining and sentencing. Chapters 5, 6, and 7 wrestle with the problem of interpreting the data to determine whether there are patterns of discrimination. Chapter 8 examines the data on the death penalty and the race of persons executed.

A T H E O R E T I C A L P E R S P E C T I V E O N R A C E ,

E T H N I C I T Y, A N D C R I M E

There are many different theories of crime and criminal justice. We believe that the available evidence on race, ethnicity, and crime is best explained by a theoret- ical perspective known as conflict theory.108

The basic premise of conflict theory is that the law is used to maintain the power of the dominant group in society and to control the behavior of individuals who threaten that power.109 A classic illustration of conflict theory involves the law of vagrancy. Vagrancy involves merely being out in public with little or no money and no clear “purpose” for being there. Vagrancy is something engaged in only by the poor. To make vagrancy a criminal act and to enforce vagrancy laws are means by which the powerful attempt to control the poor.110

Conflict theory explains racial disparities in the administration of justice as products of broader patterns of social, economic, and political inequality in U.S. society. These inequalities are the result of prejudicial attitudes on the part of the white majority and discrimination against minorities in employment, edu- cation, housing, and other aspects of society. Chapter 3 explores these inequali- ties in detail. Conflict theory explains the overrepresentation of racial and ethnic minorities in arrest, prosecution, imprisonment, and capital punishment as both the product of these inequalities and an expression of prejudice against minorities.

Conflict theory has often been oversimplified by both advocates and oppo- nents. Criminal justice research has found certain “anomalies” in which racial minorities are not always treated more harshly than whites. For example, there are certain situations in which African-American suspects are less likely to be arrested than white suspects. Hawkins argues that these anomalies can be explained through a revised and more sophisticated conflict theory that takes into account relevant contingencies and contests.111

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One contingency is crime type. Hawkins claims that African Americans may be treated more leniently for some crimes because officials believe that these crimes are “more normal or appropriate for some racial and social class groups than for others.” In the South during the segregation era, for example, African Americans often were not arrested for certain crimes, particularly crimes against other African Americans. The dominant white power structure viewed this behavior as “appropriate” for African Americans.112 The fact that minority offenders were being treated leniently in these situations is consistent with con- flict theory because the outcomes represent a racist view of racial minorities as essentially “childlike” people who cannot control their behavior. Leniency also represents another form of discrimination, in the form of denying justice to African-American victims.

A second contingency identified by Hawkins involves the race or ethnicity of both the offender and the victim. Much research has found that the criminal justice system responds more harshly when the offender is a person of color and the victim is white, particularly in rape and potential death penalty mur- der cases. According to conflict theory, such crimes are viewed as challenges to the pattern of racial dominance in society. The same crime is not perceived as a threat when it is intraracial (e.g., white offender/white victim, African- American offender/African-American victim). A relatively lenient response to crimes by minorities against minorities or crimes in which a racial or ethnic minority is the victim is explained by conflict theory in terms of devaluing of the lives of minority victims.

There may also be important contingencies based on population vari- ables. It may be that crimes by racial minorities are treated more harshly when minorities represent a relatively large percentage of the population and there- fore are perceived as a social and political threat. A substantial body of research has explored the “minority threat” thesis, which holds that racial or ethnic dis- parities will be greater where the white majority feels threatened by a large or growing racial or ethnic minority population in that jurisdiction.113 At the same time, some research on imprisonment has found that the disparity between white and African-American incarceration rates is greatest in states with small minority populations.114 In this context, minorities have little political power.

Alternative Theories

Conflict theory is a sociological explanation of criminal behavior and the admin- istration of justice in that it holds that social factors explain which kinds of behavior are defined as criminal; which people commit crime; and how crimes are investigated, prosecuted, and punished. Sociological explanations of crime are alternatives to biological, psychological, and economic explanations. These other factors may contribute in some way to explaining crime but, according to the sociological perspective, do not provide an adequate general theory of crime. Conflict theory also differs from other sociological theories of crime. Consensus theory, for example, holds that all groups in society share the same values and that criminal behavior can be explained by individual acts of deviance. Conflict

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theory does not see consensus in society regarding the goals or operation of the criminal justice system.

Conflict theory also differs from Marxist theory, although there are some areas of agreement. Conflict theory and Marxist theory both emphasize differ- ences in power between groups. Marxist theory, however, holds that there is a rigid class structure with a ruling class.115 Conflict theory, meanwhile, maintains a pluralistic view of society in which there are different centers of power—business and labor, farmers and consumers, government officials and the news media, reli- gious organizations, public interest groups, and so forth—although they are not necessarily equal. The pluralistic view also allows for changes in the relative power of different groups.

C O N C L U S I O N

The question of race and ethnicity is a central issue in American criminal justice— perhaps the central issue. The starting point for this book is the overrepresentation of racial and ethnic minorities in the criminal justice system. This chapter sets the framework for a critical analysis of this fact about contemporary American soci- ety. We have learned that the subject is extremely complex. First, the categories of race and ethnicity are extremely problematic. Much of the data we use are not as good as we would like. Second, we have learned that there is much controversy over the issue of discrimination. An important distinction exists between disparity and discrimination. Also, there are different kinds of discrimination. Finally, we have indicated the theoretical perspective about crime and criminal justice that guides the chapters that follow.

D I S C U S S I O N Q U E S T I O N S

1. Is there systematic discrimination in the criminal justice system or not? You have read brief statements on two sides of the issue. Which ones did you find most interesting? What do you most want to learn more about in the chap- ters ahead?

2. What are the differences between race and ethnicity? Give some examples that illustrate the differences.

3. When social scientists say that the concept of race is a “social construct,” what exactly do they mean?

4. What are the most recent developments in the debate over immigration and crime? Search the Web and see if there is any new important evidence.

5. Do you think the U.S. census should have a category of “multicultural” for race and ethnicity? Explain why or why not. Would it make a difference in the accuracy of the census? Would it make a difference to you?

6. Explain the difference between discrimination and disparity. Give one example from some other area of life.

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36 C H A P T E R 1

N O T E S

1. President’s Task Force on 21st Century Policing, Final Report (Washington, DC: Department of Justice, 2015). http://www.cops.usdoj.gov/pdf/taskforce/taskforce_ finalreport.pdf.

2. For background on this controversy, see John M. Coski, The Confederate Flag: America’s Most Embattled Emblem (Cambridge: Harvard University Press, 2005).

3. W. E. B. Du Bois, The Souls of Black Folk (New York: W. W. Norton, 1999), p. 17.

4. Nicole D. Porter, Trends in U.S. Corrections (Washington, DC: The Sentencing Project, 2015). http://sentencingproject.org/doc/publications/inc_Trends_in_ Corrections_Fact_sheet.pdf.

5. United States Department of Labor, Fact Sheet: Estimates of Unemployment Rates by Race and Ethnicity at the MSA Level for the Third Quarter 2015 (Washington, DC: Department of Labor, 2015).

6. National Congress of American Indians, Policy Research Center, Statistics on Violence against Native American Women (February 2013). http://www.ncai.org/attachments/ PolicyPaper_tWAjznFslemhAffZgNGzHUqIWMRPkCDjpFtxeKEUVKjubxfp- GYK_Policy%20Insights%20Brief_VAWA_020613.pdf.

7. The Innocence Project, DNA Exonerations Nationwide ( January 5, 2016). http:// www.innocenceproject.org/free-innocent/improve-the-law/fact-sheets/dna- exonerations-nationwide.

8. Pew Research Center, On Views of Race and Inequality, Blacks and Whites Are Worlds Apart (Washington, DC: Pew Research Center, June 27, 2016). http://www.pew socialtrends.org/2016/06/27/on-views-of-race-and-inequality-blacks-and-whites -are-worlds-apart/.

9. Bureau of Justice Statistics, Criminal Victimization, 2014 (Washington, DC: Depart- ment of Justice, 2015), Table 9. http://www.bjs.gov/content/pub/pdf/cv14.pdf.

10. Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: The New Press, 2010).

11. Bureau of Justice Statistics, Criminal Victimization, 2014, Figure 1. Richard Rosenfeld, Documenting and Explaining the 2015 Homicide Rise: Research Directions (Washington, DC: National Institute of Justice, 2016). https://www.ncjrs.gov/ pdffiles1/nij/249895.pdf.

12. Dennis Rosenbaum, D. A. Lewis, and J. Grant, “Neighborhood-Based Crime Prevention: Assessing the Efficacy of Community Organizing in Chicago,” in Community Crime Prevention: Does It Work? Dennis Rosenbaum, ed. (Newbury Park, CA: Sage, 1986), pp. 109–139.

13. Heather MacDonald, “Is the Criminal-Justice System Racist?” City Journal 18 (Spring 2008). http://www.city-journal.org/html/criminal-justice-system- racist-13078.html

14. Federal Bureau of Investigation, Crime in the United States, 2014, Expanded Homi- cide Data, Table 6. https://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2014/ crime-in-the-u.s.-2014/tables/expanded-homicide-data/expanded_homicide_data_ table_6_murder_race_and_sex_of_vicitm_by_race_and_sex_of_offender_2014.xls.

15. Bureau of Justice Statistics, Felony Defendants in Large Urban Counties, 2009 – Statistical Tables (Washington, DC: Department of Justice, 2013). http://www.bjs. gov/content/pub/pdf/fdluc09.pdf.

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16. Federal Bureau of Investigation, Crime in the United States, 2014, Table 43A.

17. Ibid.

18. Bureau of Justice Statistics, Criminal Victimization, 2014.

19. Marc Maurer, “Justice for All? Challenging Racial Disparities in the Criminal Justice System,” Human Rights 37, no. 4 (2010).

A longer discussion is in The Sentencing Project, Black Lives Matter: Eliminating Racial Inequity in the Criminal Justice System (Washington, DC: The Sentencing Project, 2015). http://sentencingproject.org/doc/publications/rd_Black_Lives_ Matter.pdf.

20. Substance Abuse and Mental Health Services Administration, Results from the 2013 National Survey on Drug Use and Health: Summary of National Findings (2014), pp. 26–27. http://www.samhsa.gov/data/sites/default/files/ NSDUHresultsPDFWHTML2013/Web/NSDUHresults2013.pdf.

21. ACLU, The War on Marijuana in Black and White (New York: ACLU, 2013). https:// www.aclu.org/report/war-marijuana-black-and-white.

22. The Sentencing Project, Black Lives Matter: Eliminating Racial Inequity in the Criminal Justice System, p. 4. http://sentencingproject.org/doc/publications/rd_Black_Lives_ Matter.pdf.

23. U.S. Department of Justice, Investigation of the Ferguson Police Department (2015), p. 2. http://www.justice.gov/sites/default/files/opa/press-releases/attach- ments/2015/03/04/ferguson_police_department_report.pdf.

24. Joan Petersilia, Racial Disparities in the Criminal Justice System (Santa Monica: Rand Corporation, 1983).

25. Samuel Walker and Molly Brown, “A Pale Reflection of Reality: The Neglect of Racial and Ethnic Minorities in Introductory Criminal Justice Textbooks,” Journal of Criminal Justice Education 6 (Spring 1995), pp. 61–83.

26. Coramae Richey Mann, Unequal Justice (Bloomington: Indiana University Press, 1988), viii.

27. “Final Tally: Police Shot and Killed 986 People in 2015,” Washington Post (January 6, 2016). https://www.washingtonpost.com/national/final-tally-police-shot-and- killed-984-people-in-2015/2016/01/05/3ec7a404-b3c5-11e5-a76a-0b5145e8679a_ story.html.

28. Porter, Trends in U.S. Corrections.

29. Bureau of Justice Statistics, Capital Punishment, 2013—Statistical Tables (Washington, DC: Department of Justice, 2014). http://www.bjs.gov/content/pub/pdf/cp13st.pdf.

30. Kimberly Kempf-Leonard, “Minority Youths and Juvenile Justice: Disproportionate Minority Contact after Nearly 20 Years of Reform Efforts,” Youth Violence and Juvenile Justice 5 (January 2007), p. 80.

31. U.S. Census, Projections of the Size and Composition of the U.S. Population: 2014-2060 (Washington, DC: Census Bureau, 2015).

32. Office of Management and Budget, Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity (from Federal Register, October 30, 1997). https:// www.whitehouse.gov/sites/default/files/omb/assets/information_and_regulatory_ affairs/re_app-a-update.pdf.

33. Jeffrey Passel and Paul Taylor, Who’s Hispanic? (Washington, DC: Pew Research Center, 2009). http://www.pewhispanic.org/2009/05/28/whos-hispanic/.

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38 C H A P T E R 1

34. The classic study of race is Ashley Montagu, Statement on Race, 3rd ed. (New York: Oxford University Press, 1972), which includes the text of and commentary of four United Nations statements on race.

35. J. Milton Yinger, Ethnicity: Source of Strength? Source of Conflict? (Albany: State University of New York Press, 1994), p. 19.

36. Yinger, Ethnicity, p. 21. Louis Wirth, “The Problem of Minority Groups,” in The Science of Man in the World Crisis, Ralph Linton, ed. (New York: Columbia University Press, 1945), p. 123.

37. Scott Malcolmson, One Drop of Blood: The American Misadventure of Race (New York: Farrar Straus Giroux, 2000).

38. Association of MultiEthnic Americans: http://www.ameasite.org.

39. Office of Management and Budget, Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity.

40. Ibid.

41. James Paul Allen and Eugene James Turner, We the People: An Atlas of America’s Ethnic Diversity (New York: Macmillan, 1988). Yinger, Ethnicity, pp. 3–4.

42. Renee Stepler, Statistical Portrait of Hispanics in the United States, 1980–2013 (May 12, 2015).

43. Nadine Naber, “Ambiguous Insiders: An Investigation of Arab American Invisibility,” Ethnic and Racial Studies 23 (January 2000), pp. 37–61. Helen Hatab Samhan, “Who Are Arab Americans?” Grolier Multimedia Encyclopedia, available on the website of the Arab American Institute.

44. American Religious Identification Survey: http://commons.trincoll.edu/aris/. Council on American-Islamic Relations: http://www.cair.com/.

45. Pew Research Center, Multiracial in America (Washington, DC: Pew Research Center, 2015). http://www.pewsocialtrends.org/2015/06/11/multiracial-in-america/.

46. Web site for the Association of Multiethnic Americans: http://www.mixedheritage center.org/index.php?option=com_content&task=view&id=43&Itemid=29.

47. Lawrence Wright, “One Drop of Blood,” The New Yorker (July 25, 1994), p. 47.

48. Jeffrey M. Jones, U.S. Blacks, Hispanics Have No Preferences on Group Labels (Princeton: Gallup Poll, 2013. http://www.gallup.com/poll/163706/blacks-hispanics-no- preferences-group-labels.aspx. Paul Tayler, Mark Hugo Lopez, Jessica Martinez, and Gabriel Velasco, When Labels Don’t Fit: Hispanics and Their View of Identity (Washing- ton, DC: Pew Hispanic Center, 2012). http://www.pewhispanic.org/2012/04/04/ when-labels-dont-fit-hispanics-and-their-views-of-identity/.

49. Richard J. Herrnstein and Charles Murray, The Bell Curve: Intelligence and Class Structure in American Life (New York: The Free Press, 1994).

50. Steven Fraser, ed., The Bell Curve Wars: Race, Intelligence, and the Future of America (New York: Basic Books, 1995).

51. See the various research reports at U.S. Department of Health and Human Resources, Early Childhood Learning and Knowledge Center, Research Reports and Projects. https://eclkc.ohs.acf.hhs.gov/hslc/data/opre .

52. Louis Wirth, “The Problem of Minority Groups,” in The Science of Man in the World Crisis, Ralph Linton, ed. (New York: Columbia University Press, 1945), p. 123.

53. Office of Management and Budget, Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity.

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54. Monica Anderson, A Rising Share of the U.S. Black Population Is Foreign Born (Washington, DC: Pew Research Center, 2015). http://www.pewresearch.org/ fact-tank/2015/04/08/reflecting-a-racial-shift-78-counties-turned-majority- minority-since-2000/.

55. Jens Manuel Krogstad, Reflecting a Racial Shift, 78 Counties Turned Minority-Majority Since 2000 (Washington, DC: Pew Research Center, 2015). http://www.pew research.org/fact-tank/2015/04/08/reflecting-a-racial-shift-78-counties-turned- majority-minority-since-2000/.

56. Anderson, A Rising Share of the U.S. Black Population is Foreign Born. http://www. pewsocialtrends.org/2015/04/09/a-rising-share-of-the-u-s-black-population -is-foreign-born/.

57. U.S. Census, The American Indian and Alaska Native Population: 2010 (Washington, DC: Bureau of the Census, 2012). http://www.census.gov/prod/cen2010/briefs/ c2010br-10.pdf.

58. Bureau of Justice Statistics, Asian, Native Hawaiian, and Pacific Islander Victims of Crime (Washington, DC: Department of Justice, 2009). National Council on Crime and Delinquency, Created Equal: Racial and Ethnic Disparities in the US Criminal Justice System (Oakland, CA: NCCD, March 2009), p. 2.

59. Anita Khashu, Robin Busch, Zainab Latif, and Francesca Levy, Building Strong Police-Immigrant Community Relations: Lessons from a New York City Project (New York: Vera Institute, 2005). http://www.vera.org.

60. Cecilia Menjivar and Cynthia L. Beharano, “Latino Immigrants’ Perceptions of Crime and Police Authorities: A Case Study from the Phoenix Metropolitan Area,” Ethnic and Racial Studies 27 ( January 2004), pp. 120–148.

61. Nik Theodore, Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement (Chicago: University of Illinois at Chicago, 2013). https://www.policylink. org/sites/default/files/INSECURE_COMMUNITIES_REPORT_FINAL.PDF.

62. John Hope Franklin and Alfred A. Moss Jr., From Slavery to Freedom: A History of African Americans, 7th ed. (New York: Knopf, 1994), p. xix.

63. Eric R. Wolf, Europe and the People without History (Berkeley: University of California Press, 1982), pp. 380–381.

64. Bruce Baum, The Rise and Fall of the Caucasian Race: A Political History of Racial Identity (New York: New York University Press, 2006).

65. Taylor, Lopez, Martinez and Velasco, When Labels Don’t Fit: Hispanics and Their Views of Identity. http://www.pewhispanic.org/2012/04/04/when-labels-dont-fit- hispanics-and-their-views-of-identity/.

66. Federal Bureau of Investigation, Crime in the United States, Expanded Homicide Data, Table 14, Justifiable Homicide 2010–2014 (2015).

67. “Final Tally: Police Shot and Killed 986 People in 2015, Washington Post ( January 6, 2016).

68. Federal Bureau of Investigation, Crime in the United States, 2014.

69. Bureau of Justice Statistics, Criminal Victimization, 2014.

70. Ibid.

71. Bureau of Justice Statistics, Police Behavior during Traffic and Street Stops, 2011 (Washington, DC: Department of Justice, 2013). http://www.bjs.gov/content/pub/pdf/pbtss11.pdf.

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72. Bureau of Justice Statistics, Prisoners in 2014 (Washington, DC: Department of Justice, 2015), pp. 27–28. http://www.bjs.gov/content/pub/pdf/p14.pdf.

73. Death Penalty Information Center, Facts about the Death Penalty (February 3, 2016). http://www.deathpenaltyinfo.org/documents/FactSheet.pdf. Bureau of Justice Statistics, Capital Punishment, 2013—Statistical Tables, Figure 1.

74. Barry Holman, Masking the Divide: How Officially Reported Prison Statistics Distort the Racial and Ethnic Realities of Prison Growth (Alexandria: National Center on Institu- tions and Alternatives, 2001).

75. Gary LaFree, “Race and Crime Trends in the United States, 1946–1990,” in Ethnicity, Race, and Crime: Perspectives across Time and Place, Darnell F. Hawkins, ed., (Albany: State University of New York Press, 1995), pp. 173–174.

76. Zoann K. Snyder-Joy, “Self-Determination and American Indian Justice: Tribal versus Federal Jurisdiction on Indian Lands,” in Ethnicity, Race, and Crime: Perspectives Across Time and Place, Hawkins, ed., p. 310.

77. U.S. Bureau of the Census, The Foreign-Born Population in the United States: 2010 (Washington, DC: Department of Commerce, 2012). https://www.census.gov/ newsroom/pdf/cspan_fb_slides.pdf.

78. Ibid.

79. Pew Research Center, 5 Facts about Illegal Immigration in the U.S. (November 19, 2015). http://www.pewresearch.org/fact-tank/2015/11/19/5-facts-about-illegal- immigration-in-the-u-s/.

80. U.S. State Department, Refugee Admissions. http://www.state.gov/j/prm/ra/.

81. Anna Brown, U.S. Hispanic and Asian Populations Growing, but for Different Reasons (Washington, DC: Pew Research Center, 2014).

82. Anderson, A Rising Share of the U.S. Black Population Is Foreign Born.

83. Pew Research Center, Modern Immigration Wave Brings 59 Million to U.S., Driving Population Growth and Change Through 2065 (2015). http://www.pewhispanic. org/2015/09/28/modern-immigration-wave-brings-59-million-to-u-s-driving- population-growth-and-change-through-2065/.

84. Alex Nowrasteth, Immigration and Crime—What the Research Says (Washington, DC: Cato Institute, 2015). http://www.cato.org/blog/immigration-crime-what- research-says.

85. Ibid.

86. Graham C. Ousey and Charis E. Kubrin, “Exploring the Connection Between Immigration and Violent Crime Rates in U.S. Cities, 1980–2000,” Social Problems 56 (August 2009), pp. 447–473.

87. Tim Wadsworth, “Is Immigration Responsible for the Crime Drop? An Assessment of the Influence of Immigration on Changes in Violent Crime Between 1990 and 2000,” Social Science Quarterly 91 (June 2010), pp. 531–553.

88. Pew Hispanic Center, Between Two Worlds: How Young Latinos Come of Age in America (Los Angeles: Pew Hispanic Center, 2009).

89. Police Executive Research Forum, Police Chiefs and Sheriffs Speak Out on Local Immigration Enforcement (Washington, DC: PERF, April 2008). http://www.policeforum.org/assets/ docs/Free_Online_Documents/Immigration/police%20chiefs%20and%20sheriffs%20 speak%20out%20on%20local%20immigration%20enforcement%202008.pdf.

90. Ibid.

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91. Police Foundation, The Role of Local Police: Striking a Balance between Immigration Enforcement and Civil Liberties (Washington, DC: Police Foundation, 2009), pp. 4–5.

92. Police Executive Research Forum, Police Chiefs and Sheriffs Speak Out on Local Immigration Enforcement (Washington, DC: PERF, April 2008).

93. Nik Theodore, Insecure Communities: Latino Perceptions of Police Involvement in Immi- gration Enforcement (Chicago: University of Illinois at Chicago, 2013). https://www .policylink.org/sites/default/files/INSECURE_COMMUNITIES_REPORT_ FINAL.PDF.

94. Wesley G. Skogan and George E. Antunes, “Information, Apprehension, and Deterrence: Exploring the Limits of Police Productivity,” Journal of Criminal Justice, 7 (Autumn 1979), pp. 217–241.

95. William H. Frey, “The Diversity Myth,” American Demographics 20 (June 1998), p. 41.

96. U.S. Census Bureau, Statistical Abstract of the United States, 2011, Tables 413, 414.

97. NALEO, “At-A-Glance” (August 2016). http://www.naleo.org/at_a_glance.

98. Bureau of Justice Statistics, Police Behavior during Traffic and Street Stops, 2011.

99. The best discussion of how to analyze traffic stop data is Lorie Fridell, By the Numbers: A Guide for Analyzing Race Data from Vehicle Stops (Washington, DC: Police Executive Research Forum, 2004).

100. Floyd v. New York City (2013). See materials on the case on the web site of the Cen- ter for Constitutional Rights. www.ccrjustice.org .

101. Police Executive Research Forum, Re-Engineering Training on Police Use of Force (Washington, DC: Police Executive Research Forum, 2015), pp. 37–38. http:// www.policeforum.org/assets/reengineeringtraining1.pdf. Fair and Impartial Polic- ing project: http://www.fairimpartialpolicing.com/.

102. President’s Task Force on 21st Century Policing, Final Report, Recommendation 5.9, pp. 57–58.

103. Maurer, “Justice for All? Challenging Racial Disparities in the Criminal Justice System.” Also, The Sentencing Project, Black Lives Matter: Eliminating Racial Inequity in the Criminal Justice System.

104. Data on the case is available at New York Civil Liberties Union, Stop and Frisk 2011 (New York: New York Civil Liberties Union, 2012). Court decision: Floyd, et al., v. New York City (2013). Decision and additional data available at www.ccrjustice.org.

105. Charles R. Epp, Steven Maynard-Moody, and Donald Haider-Markel, Pulled Over: How Police Stops Define Race and Citizenship (Chicago: University of Chicago Press, 2014).

106. Theodore Chiricos and William D. Bales, “Unemployment and Punishment: An Empirical Analysis, Criminology 29 (November 1991), pp. 701–724.

107. Death Penalty Information Center: http://www.deathpenaltyinfo.org/.

108. Ronald L. Akers and Christine S. Sellers, Criminological Theories, 6th ed. (New York: Oxford University Press, 2012).

109. Darnell Hawkins, “Beyond Anomalies: Rethinking the Conflict Perspective on Race and Criminal Punishment,” Social Forces 65 (March 1987), pp. 719–745.

110. William J. Chambliss, “A Sociological Analysis of the Law of Vagrancy,” Social Problems 12 (1) (Summer 1964), pp. 66–67.

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42 C H A P T E R 1

111. Darnell Hawkins, “Beyond Anomalies: Rethinking the Conflict Perspective on Race and Criminal Punishment,” Social Forces 65 (March 1987), pp. 719–745.

112. Gunnar Myrdal, An American Dilemma: The Negro Problem and Modern Democracy (New York: Harper, 1944).

113. Malcom D. Holmes, “Minority Threat and Police Brutality: Determinants of Civil Rights Criminal Complaints in U.S. Municipalities,” Criminology 38 (May 2000), pp. 343–368.

114. Alfred Blumstein, “Prison Populations: A System Out of Control,” in Crime and Justice: A Review of Research, Michael Tonry and Norval Morris, eds., Vol. 10 (Chicago: University of Chicago Press, 1988), p. 253.

115. Richard Quinney, The Social Reality of Crime (Boston: Little, Brown, 1970).

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43

2

VICTIMS AND OFFENDERS:

Myths and Realities about Crime

Popular Images of Victims and Offenders:

“Mad Angry Black Woman”

Bethany Storro’s face revealed scars from an incident in September 2010. This twentysomething, white female reported to police that she was at a coffee shop when a stranger spoke to her and threw acid in her face. What type of person would do this? Her report to the police offered a description of the unnamed offender: black female. An indictment of modern race rela- tions: it was a racial hoax. Newspaper reports referred to Storro as “obviously deeply troubled,” but “she was sane enough to make a calculated decision to maximize sympathy and deflect suspicion. She blamed it on a black per- son.”1 The “mad black woman imagery” reflects a disturbing imagery present in modern society about the linkages between race and crime.

The news media exert a powerful impact on how Americans think about crime and justice. Unfortunately, the image the media create is often wildly distorted. Even worse, many of those distorted images have serious racial implications, perpetuating racial stereotypes about criminals and their victims. This chapter attempts to cut through those distorted images and present an evidence-based picture of victims and offenders in America.

L E A R N I N G O B J E C T I V E S

In this chapter, we describe the social context of crime in the United States. The chapter starts with a discussion of the types of crimes and criminals that catch the attention of the American public and then presents the picture of

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44 C H A P T E R 2

the typical victim and typical offender from government victimization and arrest reports.

After you have read this chapter:

1. You will be able to sort your way through basic data on crimes and victims and be able to spot occasions when the news media present a distorted pic- ture of crime in America.

2. You will understand the basic patterns of who commits major crimes and who the principal victims are. You will have a solid grasp of the racial- and ethnic-group patterns related to both victims and offenders.

3. You will understand the concept of “racial hoaxes” and the role they play in distorting public understanding of crime.

4. You will understand the category of “hate crimes,” with special reference to race and ethnicity, and how they are different in important respects from what are called “street crimes” (e.g., robbery and burglary).

5. You will understand the different theoretical explanations for the racial and ethnic gap in offending and victimization.

6. You will have a good understanding of the racial and ethnic aspects of gangs

in America.

M E D I A A N D C R I M E

Racial Hoaxes

Racial hoaxes have a particularly powerful impact on public images of victims and offenders. Katheryn K. Russell asserts that a racial hoax occurs “when some- one fabricates a crime and blames it on another person because of his race OR when an actual crime has been committed and the perpetrator falsely blames someone because of his race.”2 Hoaxes receive a lot of publicity because they are typically sensational and violent crimes that grab media attention. People remem- ber them because of their sensational character. One infamous racial hoax was the case of Susan Smith’s assertion that an African-American man stole her car and kidnapped her children.3 Smith was a white woman. It was later revealed that she drove her car, with her children trapped in their car seats, into a nearby lake. Russell argues that such hoaxes have social and psychological consequences for individuals and the community and significant legal costs.4 In this 1994 case in South Carolina, state and federal officials spent nine days looking for the alleged offender before she confessed to driving the car into the lake and killing her chil- dren. Smith’s attempt to blame someone else for the crime was successful (even if temporarily) because it tapped in to widely held societal fears about the typical criminal.

Russell documents known racial hoaxes in the United States from 1987 to 1996. Although she found that racial hoaxes “are perpetrated by people of all

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45V I C T I M S A N D O F F E N D E R S

races, classes, geographic regions and ages,”5 the majority of racial hoax cases were perpetrated by a white person charging an African-American person (70 per- cent of the cases), with a smaller number of African Americans charging whites in racial hoaxes.6 (In this discussion, the “perpetrator” is the person who makes a false claim of a crime, not a person who actually commits the alleged crime.) Hoax perpetrators have been charged with filing false police reports, but this occurs in less than half of the documented cases.7

In her book, The Color of Crime, Russell makes a compelling argument for a strong legal response to the perpetration of racial hoaxes. She argues that legisla- tion should be passed, similar to hate-crime legislation, that allows for a sentence enhancement to such charges as filing a false police report in the case of racial hoaxes. Such a law would be similar to one proposed in New Jersey in 1995; it would punish citizens who falsely incriminate another as the perpetrator of a crime or submit a fictitious report based on race, color, or ethnicity (as well as religion and sexual orientation).8 In addition to a sentence enhancement (fine, fee, additional supervision/incarceration), the person convicted would have to reimburse the law enforcement agencies whose search actions resulted from the racial hoax.

By 2012, the white female by the name of Bonnie Sweeten, who became known as the “Disney World Hoax Mom,” would receive both state and federal prison sentences for her actions in 2009. The hoax was a 911 call to police in Philadelphia that “claimed she and her 9-year-old daughter had been carjacked by two black men. She said they’d been stuffed into the trunk of another vehicle.”9

The “manhunt” that resulted from another black on white kidnapping charge ended when the FBI “found the pair unharmed the next day at Disney World.”10

It was revealed that her claim of kidnapping by black men was to cover her taking money from an elderly relative and the stealing hundreds of thousands of dollars from the law firm she worked for. Her state and federal prison term of eight years and the one million dollars in retribution did not result from the racial hoax abduction story, however, but from the financial fraud crimes. What makes it seem expedient to make such racially charged claims?

Race and Gender of Crime Victims

Some crime stories capture the attention of the public more than others, arguably because of the nature of the offense, the type of victim, and the type of offender. Recently, media outlets have been charged with favoring the presentation of some crime stories over others. The media consistently portray violent crime as more common than property crime when in fact violent crimes are only about 10 percent of all reported crimes.11 Additionally, the media often suggest crime is increasing at astronomical rates when in fact the great American crime drop (see Chapter 1) brought crime rates to historic lows.

Some critics also charge that the media show bias in the coverage of missing persons, arguing that print and television coverage of stories focuses on missing white women and tends to ignore missing women of color. Essence magazine contends, for example, that “when black women disappear, the media silence is deafening.”12 Spe- cifically, some media critics charge that attention the media give to cases such as Laci

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46 C H A P T E R 2

Peterson, Natalee Holloway, and Chandra Levy far outweighs the emphasis placed on cases such as Evelyn Hernandez, LaToyia Figueroa, and Ardena Carter.

Perhaps the typical American recognizes the details of one of the following pairs of missing person victims but not the other.

The first pair of victims is connected by time and location/geography:

In 2004, Laci Peterson, a missing white female who was eight months pregnant, was found dead in the San Francisco Bay Area. Most Americans know not just the details of her disappearance from her home, the search for her whereabouts, and the subsequent recovery of her body but also that her husband, Scott Peterson, was charged and convicted of this offense.

Few Americans are aware that a few months before Laci Peterson’s body was discovered, the decapitated body of a young, pregnant Hispanic woman, Evelyn Hernandez, was found. Details of her missing person/murder case were not extensively covered by the national media.

The second pair of victims is connected by time, but not geography:

In May 2005, Natalee Holloway, a white American teenager, was reported missing in Aruba. Her story made headlines almost from the moment that she was reported missing. Print and news media covered the inci- dent extensively for weeks following her disappearance.

In July 2005, 24-year-old LaToyia Figueroa, who was pregnant, was reported missing. Her body was later recovered, and her boyfriend was charged with murder. However, her story was initially ignored by the national media, some suggest because she was not white.

The third pair of victims is connected by time and occupation:

In 2003, Chandra Levy, a white female intern in Washington, DC, disap- peared on a morning jog. Considerable attention was paid to her search and recovery in nationwide news stories.13

In 2003, Ardena Carter, a young African American graduate student in Georgia, went missing on her way to the library. Her disappearance and the subsequent recovery of her body garnered no more than regional news coverage.14

Critics of the media coverage of these types of missing person cases argue that the public is being misled about who is really missing.15 Department of Jus- tice data, for example, indicate that in California, nearly twice as many Hispanic women (7,453) are missing than white women (4,032).16 The National Center for Missing Adults reports that of more than 47,000 reported missing women in a recent year, 29,553 were white or Hispanic, 13,859 were African American, 1,199 were Asian American, and 685 were Native American.17 Of these missing persons, 53 percent were men.

This pattern of more media emphasis on white, female missing persons is not necessarily intentional; nonetheless it does signal a devaluation of the lives of nonwhite victims of crime. Professor Todd Boyd notes that the media’s decision

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47V I C T I M S A N D O F F E N D E R S

to focus on white women and not women of color may be “an unconscious deci- sion about who matters and who doesn’t.”18 He asserts, “In general, there is an assumption that crime is such a part of black and Latino culture that these things happen all the time. In many people’s minds it’s regarded as being commonplace and not a big deal.”

A B R O A D E R P I C T U R E O F T H E C R I M E V I C T I M

Our perceptions of crime are shaped to a large extent by the highly publicized crimes featured on the nightly news and sensationalized in newspapers. We read about young African American or Hispanic males who sexually assault, rob, and murder whites, and we assume that these crimes are typical. We assume that the typical crime is a violent crime, that the typical victim is white, and that the typ- ical offender is African American or Hispanic. As Charles Silberman observes, this topic is difficult to address:

In the end, there is no escaping the question of race and crime. To say this is to risk, almost guarantee, giving offense; it is impossible to talk honestly about the role of race in American life without offending and angering both whites and blacks—and Hispanic browns and Native American reds as well. The truth is terrible, on all sides; and we are all too accustomed to the soothing euphemisms and inflammatory rhetoric with which the subject is cloaked.25

In short, compelling evidence suggests that the most widely held picture of crime, criminal, and crime victim in America is at best incomplete and at worst inaccurate, particularly as it concerns race and ethnicity of crime victims.

FOCUS ON AN ISSUE

Central Park Jogger Case: Update

In 1989, a 28-year-old white female jog-

ging in Central Park was brutally raped.

The perpetrators were identified as young

and African American. The media reports

coined a new term “wilding.” This term

was meant to reflect the super-predator

image of a band of young, probably gang

affiliated, minority males. Shortly after

the incident was reported, a group of five

minority male teenagers (ages 14–16) were

arrested, charged, and convicted of attack-

ing and raping “the Central Park Jogger.”

Four from the convicted group spent

roughly 7 years each in prison, while the

final defendant spent 13 years in prison.

The Central Park Jogger Case has

long been used to illustrate the media over

emphasis on certain types of crimes (violent

crime), with certain types of crime victims

(white females), and with certain types of

offenders (a “gang” of young, minority

males). Does this incident reflect a “typical”

criminal event? Many people believe that

it does: a white victim falling prey to the

(Continued )

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48 C H A P T E R 2

violence of minority gang activity. But the

evidence suggests that it is not the typical

criminal event. First, more than 80 percent

of crimes reported to the police are prop-

erty crimes.21 Second, a disproportionate

number of crime victims are minorities.

Third, interracial (between-race) crimes are

the exception, not the rule. Finally, not all

group activity is gang activity, not all gang

actions are criminal, and not all gang mem-

bers are racial or ethnic minorities.

An article in the New York Times

several weeks after the well-publicized

incident described here helps put this

victimization in perspective. A total of

29 rapes were reported in the city that

week (April 16–22, 1989), with 17 Afri-

can-American female victims, 7 Hispanics,

3 whites, and 2 Asians.22 Thus, the typical

rape victim was in fact a minority female.

Although the 29 reports from the New

York Police Department did not indicate

the race of the offender, other sources,

including the national victimization data

discussed later in this chapter, demonstrate

that rape is predominantly an intrarracial

(within-race) crime.23

Subsequent to the investigation of

this event, five young males of color were

eventually convicted and incarcerated for

perpetrating this attack, each serving up

to 8 years in prison. In 2002, with the

assistance of DNA analysis, it was revealed

that the five convicted youths were not

the actual offenders.24 The actual offender

has now been identified and has confessed

to the offense.25 Note that these details

became known only after the young

offenders had served their sentences. Thus,

this infamous case is an example of wrong-

ful prosecution based on faulty police

work, including very questionable inter-

rogation techniques, that had a devastating

impact on young men of color.

After DNA evidence lead police to

identify the correct assailant in this case,

the five convicted men seek exoneration of

their convictions. In 2002, the Manhattan

District Attorney supported the call that the

original verdict be vacated. It is not always

clear how the state should respond to com-

pensate victims of wrongful conviction. In

their civil suit against the city of New York,

the defendants “accused the city’s police and

prosecutors with false arrest, malicious pros-

ecution and a racially motivated conspiracy

to deprive the men of their civil rights”.25

This case has been in the federal courts for

over a decade.26 How should these men

be compensated for this “wrongful prose-

cution”? Recently, New York City Mayor

Bill de Blasio stated that there is a “moral

obligation to right this injustice.” The New

York Times reports that a settlement has been

reached for $40 million, some 25 years,

after the injustice and that “the settlement

averages roughly $1 million for each year of

imprisonment for the men.”

Victimization data, in fact, reveal that people of color are more likely than whites in most circumstances to be victimized by crime.

In the sections that follow, we use victimization data to paint a broad pic- ture of the crime victim, allowing for a view of which racial and ethnic groups are disproportionately the victims of crime. We begin by discussing the National Crime Victimization Survey, the source of most data on criminal victimization in the United States. We then compare the household victimization rates of Non Hispanic African Americans, Non Hispanic Whites, Non Hispanic Other and Hispanic. Personal victimization rates (property and violent offense) are then compared for these groups as well.

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49V I C T I M S A N D O F F E N D E R S

The National Crime Victimization Survey

The most systematic source of victimization information is the National Crime Victimization Survey (NCVS). The survey, which began in 1973, is conducted by the Bureau of Census for the Bureau of Justice Statistics (BJS). Survey data are used to produce annual estimates of the number and rate of personal and house- hold victimizations for the nation as a whole and for urban, suburban, and rural comparisons.27

Once a household is selected for the survey, interviews are conducted at six-month intervals to ask whether household members have been the victims of selected major household and personal crimes during the last six months. Information is collected about/from persons aged 12 and older who are mem- bers of the household selected for the sample. The sample is chosen on the basis of the most recent census data to be representative of the nation as a whole. The NCVS data presented here are estimates based on the interviews that reflect a nationally representative sample of 90,380 households and 158,090 persons, aged 12 years and older. The response rates for the 2014 survey were very high: 84 percent of eligible households and 87 percent of eligible persons responded.28

Members of selected households are contacted either in person or by phone every six months for three years. Household questionnaires are completed to describe the demographic characteristics of the household (income, number of members, and so on). The race and ethnicity of the adult completing the house- hold questionnaire is recorded from self-report information as the race and eth- nicity of the household. Starting in 2003, respondents can self-report more than one race. Incident questionnaires are completed for both household offenses and personal victimizations. The designated head of the household is questioned about the incidence of household burglary, household larceny, and motor-vehicle theft. Personal victimization incident questionnaires are administered to household members aged 12 and older, probing them to relay any victimization incidents of rape, robbery, assault, and personal larceny. Those who report victimizations to interviewers are asked a series of follow-up questions about the nature of the crime and the response to the crime. Those who report personal victimizations are also asked to describe the offender and their relationship (if any) with the offender.

Here is a sample of the questions from the NCVS29:

Question 36a. I’m going to read some examples that will give you an idea of the kinds of crime this study covers. As I go through them, tell me if any of these happened to you in the last six months, that is since _____________ ________, 20 ________.

Was something belonging to YOU stolen, such as

(a) Things that you carry, like luggage, a wallet, purse, briefcase

(b) Clothing, jewelry, or cell phone

(c) Bicycle or sports equipment …. (etc).

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50 C H A P T E R 2

41a. … has anyone attacked or threatened you in any of these ways

(a) With any weapon, for instance, a gun, or knife …

(d) Any rape, attempted rape of other type of sexual attack …

(g) Any attack or threat or use of force by anyone at all? Please mention it even if you are not certain it was a crime.

In many ways, the NCVS produces a more complete picture of crime and the characteristics of those who are victimized by crime than official police records. Most important, it includes victimizations not reported to the police. As the NCVS has consistently reported for over 40 years, only slightly more than one-third of all crimes are reported. In addition, the survey includes questions designed to elicit detailed information concerning the victim, the characteristics of the offender(s), and the context of the victimization. This information is used to calculate age-, sex-, and race-specific estimates of victimization. In addition, estimates of interracial and intraracial crime can be calculated. Furthermore, sup- plements to the survey are done periodically to address victimization issues such as identity theft and school crime and safety.

The NCVS is currently coding race/ethnicity as Non-Hispanic White, Non-Hispanic Black, Non-Hispanic Other (this includes American Indians and Alaska Natives; Asian, Native Hawaiians, and other Pacific Islanders; and per- sons of two or more races). It is important to remember that Hispanics may be of any race (see Chapter 1) Race and ethnicity of the household reflect the self-designation of the head of household responding to the survey. Per- sonal theft and victimization reflect the self-designated status of the individual respondent or proxy.

The NCVS offers the following definitions for ethnicity and race to the interviewers30:

Ethnicity: A classification based on Hispanic culture and origin, regardless of race. Persons are asked directly if they are Spanish, Hispanic, or Latino before being asked about their racial category.

Hispanic: A person who describes himself as Mexican American, Chicano, Mexican, Mexicano, Puerto Rican, Cuban, Central American, South American, or from some other Spanish culture or origin, regardless of race.

Non-Hispanic: Persons who report their culture or origin as something other than “Hispanic” as defined above. This distinction is made regard- less of race.

Race: For this survey, respondents self identify with one or more racial categories. Racial categories for this report are white only, black only, and other race only. The “other” category is composed of Asian Pacific Islanders, and American Indians, Aleuts, and Eskimos, if only one of these races is given. Persons reporting two or more races are included in the category of “more than one race”. The race of the head of house- hold is use for computing household crime demographics.

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51V I C T I M S A N D O F F E N D E R S

The NCVS is an invaluable source of data, but it does have certain limita- tions. For example, it does not cover commercial crime (such as convenience store robberies or bank robberies), state crime, white collar crime, kidnapping, or homicide; the estimates produced are generally for the nation as a whole, how- ever, some data are available by central city compared to suburban areas. These data are not available for particular cities or individual states. Further limitations include how the sample is drawn and the vulnerable nature of the interview for- mat. Specifically, homeless people are not interviewed; and responses are suscepti- ble to memory loss, telescoping (reporting a crime that occurred more than a year ago, which is outside the scope of the survey), exaggeration (e.g., I lost $1,000 in property when in fact it was only $500), misunderstandings about crime catego- ries (e.g., robbery vs. burglary), and interviewer bias.

Household Victimization

The NCVS makes a basic distinction between household crimes and personal crimes. As noted, the NCVS questions the designated head of household about crimes against the household—burglary, household larceny, and motor vehicle theft. Rates are calculated per 1,000 households within the subgroup population identified. The overall Household victimization rate is 118.1 per 1,000 house- holds in 2014.31 It is clear that household victimization rates vary by race and ethnicity (see Figure 2.1).32 The lowest victimization rate for all household crime combined is the Non-Hispanic White group at 111.5 per 1,000 households. Thus, while it is the largest racial group, is has a victimization rate lower than the national average. The overall victimization rates for Non-Hispanic African Ameri- can and Non-Hispanic Other households are similar, and both above the national

150

120

90

60

30

0

R a te

P e r

1 ,0

0 0 H

o u s e h o ld

s

Overall Property Victimization

Motor Vehicle Theft

Theft

Non-Hispanic Black Non-Hispanic Other HispanicNon-Hispanic White

Household Burglary

F I G U R E 2.1 Household Victimization Rates by Race and Ethnicity of Household, 2014 SOURCE: Bureau of Justice Statistics, Rates of property victimizations, household burglaries, motor vehicle theft, and thefts by race/Hispanic origin of head of household, 2014. Generated by NCVS Victimization Analysis Tool (February 20, 2016). www.bjs.gov.

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52 C H A P T E R 2

average (124.5 and 120.1 per 1,000 households, respectively). Hispanic house- holds, of any race, have the highest overall victimization rate, substantially over the national average at 146.6 per 1,000 households.

When the household rates are disaggregated by type of crime, a slightly dif- ferent picture of victimization is revealed. In short, Non-Hispanic White house- holds do not always have the lowest victimization rates and Hispanic household do not always have the highest victimization rates. Household burglary rates, for example, reveal that Non-Hispanic African American households have the high- est victimization rates. Conversely, household theft victimization rates reveal Non-Hispanic African American with the lowest victimization rates.

The Effect of Urbanization

The racial differences in household (property) victimization rates discussed thus far are differences for the United States as a whole. A number of criminologists have asserted that victimization patterns can be expected to vary by structural charac- teristics such as “urbanization.” This section explores victimization rates by degree of urbanization: urban, suburban, and rural. In the most recent data available from the NCVS (Table 2.1), Household victimization rates are highest in urban areas for Non-Hispanic African American, Non-Hispanic White and Hispanic house- holds. Non-Hispanic African Americans and Non-Hispanic Whites have the lowest household victimization rates in rural areas, while the lowest rate for Hispanics is suburban areas. Data for Non-Hispanic Other households (Asian, Pacific Islander, Native American and multi-racial) reveal their highest victimization rates, in rural areas is substantially above average at 191.5 victimizations per 1,000 households.33

What differences exist in rural, suburban, and urban areas that result in these racial and ethnic variations in victimization rates? Glaeser and Sacerdote (1999) speculate that specific aspect of urban life impact the likelihood of suitable targets and the motivation of the offender.34 For example, in urban areas, they argue that the payoff for property crime is higher (the “urban crime premium”), while

T A B L E 2.1 Rates of Property Crime Victimization for Urban, Suburban, and Rural Areas by Race/Ethnicity of Households, 2014

Crime Rate per 1,000 Households

Urban Suburban Rural

Race

Non-Hispanic African American 141.2 111.2 91.3

Non-Hispanic White 146.5 98.2 98.0

Non-Hispanic Other 128.0 98.0 191.5

Hispanic 175.5 117.4 152.6

SOURCE: Bureau of Justice Statistics. Race of property victimizations, household burglaries, motor vehicle thefts, and thefts by race/Hispanic origin of head of household and location of residence, 2014. Generated using the NCVS Victim- ization Analysis Tool (February 20, 2016). www.bjs.gov.

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53V I C T I M S A N D O F F E N D E R S

the probability of victim recognition and certainty of a police arrest response are lower in urban than nonurban areas (deterrence hypothesis). Glaeser and Sacer- dote also speculate the family structure, specifically link to single-parent house- holds, may also explain part of the differences in victimization rates.

The general pattern of urban areas having the highest household victimiza- tion rates for all but Non-Hispanic Other racial groups generally holds when the data are disaggregated by crime type. The exception is that Hispanic household burglary victimization rates are at their highest in rural areas with a rate of 47.4 per 1,000 households in rural areas compared to 36.9 per 1,000 households in urban areas.35 What explains these divergent patters? Are rural areas more racially homogenous? Are “other” racial groups, biracial persons, and Hispanics more likely to be seen as interlopers in rural areas?

Personal Victimization

In addition to questioning the head of the household about crimes against the household, the NCVS interviewers ask all household members aged 12 or older whether they themselves have been the victim of rape (see question above), rob- bery, assault, or personal theft within the past six months. This information is then used to estimate victimization rates for the nation as a whole and for the various subgroups in the population (see Table 2.2).36

Consistent with the pattern of racial disparity found in household victimiza- tions, rates of personal victimization by race and ethnicity reveal that Non- Hispanic African Americans are highest across nearly all violent crime types, note the average victimization rate for simple assault. Non-Hispanic Whites have the lowest personal victimization rates compared to all groups across offense types, except for simple assault where they have the second highest personal victimization rate.

The racial differences across crime-specific types of violence reveal interesting observations. For example, Non-Hispanic African American and Hispanics have

T A B L E 2.2 Rates of Violent Victimization by Race and Ethnicity of Victims and Crime Type, 2014

Victimization Ratesa

All Non-Hispanic

African American Non-Hispanic

White Non-Hispanic

Other Hispanic

Crimes of Violence (all) 23.2 27.8 23.1 26.1 21.3

Rape 1.1 1.5 0.8 .5 1.9

Robbery 2.5 3.8 2.1 2.6 3.2

Assault 20.1 22.5 20.2 23.0 16.2

Aggravated 7.7 10.1 7.0 7.7 8.3

Simple 12.4 12.4 13.2 15.3 7.9

aVictimization rates per 1,000 persons aged 12 and older, per subgroups named.

SOURCE: Bureau of Justice Statistics. Rates of violent victimizations, personal thefts/larcenies, serious violent victim- izations, rape/sexual assaults, robberies, and simple assaults by race/Hispanic origin, 2014. Generated using the NCVS Victimization Analysis Tool (February 20, 2016). www.bjs.gov.

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54 C H A P T E R 2

nearly higher robbery than Non-Hispanic Whites. Hispanic respondents report the highest rape/sexual assault victimization rates, followed by Non-Hispanic African Americans. While the highest aggravated assault victimization rate is among Non-His- panic African Americans, Hispanics have the lowest assault rates, regardless of type.

A recent analysis of the violent offense of carjacking (done by pooling several years of NCVS data) reveals that African Americans were three times as likely to be victims of carjacking than whites.37 Hispanic respondents are substantially more likely than non-Hispanics to be carjacking victims. NCVS respondents reporting carjacking were most likely to identify the race of the offender as Afri- can American. Box 2.1 also shows additional NCVS information on the violent victimization of college students by race and ethnicity compared to similar age respondents who are not college students.

In the Victims of Identity Theft, 2014 report, the Bureau of Justice Statistics, on the basis of NCVS estimates, reported that more than 15.5 million people were the victims of identity theft—roughly 7 percent of Americans38 aged 16 and older. Nearly 15 percent of respondents reveal that they have experienced identity them in their lives to this point. The total out of pocket loss (mean of the popula- tion) for 2014 was almost $3,000. The largest number of victims self-identified as

B o x 2.1 College Students Victimization: NCVS Special Report

The Bureau of Justice Statistics has pooled several years of National Crime Victim- ization Survey (NCVS) data (1995–2002) to offer a picture of violent victimization of college students. About 7.9 million people per year from ages 18 to 24 years were enrolled in college during this time. The consistent pattern of age, race, and victim- ization from the NCVS data set is that young minorities have routinely higher violent victimization rates than whites. However, white college students have higher rates of violent victimization than African-American students and students of “other” races (65 per 1,000 students compared to 52 and 37 per 1,000 students, respectively). Nonstudent victimization rates (ages 18–24) are substantially higher, with African American and whites having the highest rates (83 and 65 per 1,000 population compared to the numbers outlined previously). African-American students have the highest victimization rates for robbery and aggravated assault, but white students have higher rates of victimization for simple assault and rape victimization.

A unique aspect of this data set is that Hispanics are coded to be of any race for these data, so their victimization rates can be compared to whites and African Ameri- cans, rather than simply non-Hispanics. A review of these data indicates that Hispanics have an overall violent victimization rate that is higher than the rate for African Amer- icans but lower than the rate for whites. The exception to this pattern is the Hispanic victimization rate for rape—it is higher than any other racial/ethnic group in the study.

Hart and Rennison (2011) caution that any estimates of campus violence consis- tently underestimate violent victimizations, particularly of women and Hispanics. Even with this limitation Hispanic college students have a lower serious crime victimization rate, but a higher simple assault victimization rate compared to Hispanics not in college.

SOURCES: Katrina Baum and Patsy Klaus, “Violent Victimization of College Students, 1995–2000,” Bureau of Jus- tice Statistics Report (Washington, DC: Government Printing Office, January 2005). Timothy Hart and Callie Marie Rennison. “Violent Victimization of Hispanic College Students,” Race and Justice 1, no. 4 (2011), pp. 362–385.

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55V I C T I M S A N D O F F E N D E R S

white, with an estimated 8 percent of all persons in this racial group being victim- ized. Identity theft victims are found in all racial groups, with roughly 5 percent of African Americans and Hispanics victimized in 2014. While identity theft vic- timizations seemed consistent with the 2012 estimates, the victimization rate for elderly victims is increasing.

The Effects of Urbanization

An analysis of victimization trends by the BJS using NCVS data from 1993 to 1998 indicates that urbanization is a key aspect of understanding violent victim- ization.39 The BJS report also indicated that urban residents, who accounted for 29 percent of the U.S. population, reported 38 percent of all violent and property crime victimizations. Suburban residents comprise 50 percent of the population and experience 47 percent of the victimizations. Rural residents are least likely to experience criminal victimization; they comprise 20 percent of the population and experience 20 percent of all criminal victimizations.

Interesting convergence and divergence patterns by urbanization and race/ ethnicity when data from 2014 are reviewed.40 Violent victimization rates are highest in urban areas for Non-Hispanic whites and Hispanics, only. While vic- timization rates for Non-Hispanic African Americans and Non-Hispanic Whites are similar in rural areas, with each having a rate of 23.2 per 1,000 population, Non-Hispanic African Americans report highest violent victimization in rural areas (24.7 per 1,000 population). Non-Hispanic Other have the highest violent victimization rate in rural areas with 64.2 per 1,000 persons.

The most recent multiyear view of personal theft victimization data by race (no information on Hispanics) indicates that although the overall property victimization (theft and robbery) rate is highest for African Americans in urban areas,42 personal theft victimization rates are always higher for whites, particularly in urban areas.

The work of researchers Glaeser and Sacerdote (1999) addresses issues of vic- timization and urbanization.41 For example, in urban areas, they argue that the

B o x 2.2 Native Americans and Violent Crime

Information on the victimization rates of Native Americans is difficult to compile. This group represents less than 1 percent (0.5 percent) of the sample population of non-Hispanic respondents in the National Crime Victimization Survey (NCVS). Given that the incidence of victimization in the general population is rare, documenting a rare event in a small population is challenging. The Bureau of Justice Statistics has pooled a number of years (1992–2002) to reveal a picture of Native American (nonfa- tal) violent victimization: 101 violent victimizations occurred per 1,000 population of Native Americans aged 12 and older. The average violent victimization rate for Native Americans was 2.5 times the rate for whites (41 per 1,000), twice the rate for African Americans (51 per 1,000), and 4.5 times that rate for Asians (22 per 1,000).43

(Continued )

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56 C H A P T E R 2

When the victimization rates are disaggregated by crime type, Native Amer- icans have higher victimization rates in almost all categories. Their robbery and assault victimization rates are twice that of whites and African Americans. However, the rape victimization rate for Native Americans is higher than for whites but lower than for African Americans. Additionally, in contrast to the general intraracial vic- timization patterns of white and African-American crime, Native Americans report that 6 of 10 violent victimizations were committed by someone they perceived to be white.

In an effort to get more contextual data on American Indian victimization, the Bureau of Justice Statistics awarded three grants to tribes to study victimization: Confederated Tribes of the Umatilla Indian Reservation, Southern Ute Indian Tribe, and Zuni Pueblo Indian Tribe. Respondents on the Umatilla Indian Reservation revealed that nearly two-thirds of respondents had been the victim of a violent crime in the last 12 months. Females are overrepresented as victims in these reports, at roughly two-thirds of respondents reporting violent victimization. The Southern Ute Indian Tribe survey results revealed that roughly twenty percent of respondents experienced a violent victimization in the last 12 months, with the majority of vic- timizations being reported by female respondents. The survey of Zuni Pueblo Indian Reservation revealed that roughly 30 percent of respondents reported violent victim- izations in the last 12 months. Again with this tribe, the majority of violent victimiza- tions were reported by female respondents.

A notable portion of violent victimizations against American Indian women are domestic violence victimizations. Ronette Bachman and colleagues’ recent report on “Violence Against American Indian and Alaska Native Women” reveals that sexual assault victimizations are more likely to be reported by “a friend, family member, or another official” than the victim herself. Additionally, victims reported being aware of a subsequent arrest in only 6 percent of sexual assault cases. This review of victimization data also revealed that “lifetime prevalence rates for physical assaults are also higher for American Indian and Alaska Native women compared to other women … [they] are more likely to be assaulted by known offenders compared to strangers.”44

What is the impact of having such little information on victimization events of Native Americans? What should be the prevention response to such victimization? What should be the crime control response to such victimization? Bachman et al. argue that:

The unique position of American Indian and Alaska Native tribes as both sover- eign and dependent creates problematic jurisdictional barriers that sometimes prohibit an effective criminal justice response to American Indian and Alaska Native victims of violence. Several federal laws have limited tribal government’s power to prosecute offenders including the Major Crimes Act (1885), which mandated that virtually all violent crimes committed on tribal lands were to be prosecuted by the federal government. Although tribes have the power to con- currently prosecute cases of violence, the Indian Civil Rights Act (1968) mandates that tribal courts are not permitted to punish offenders with more than $5,000 in fines, one year in jail or both. Importantly, tribal sovereignty in punishing offend- ers does not apply to non-American Indian and Alaska Natives (Oliphant v. Suqua- mish Indian Tribe, 435 U.S. [1978]).45

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57V I C T I M S A N D O F F E N D E R S

B o x 2.3 Asian Americans, Native Hawaiians, Pacific Islanders, and Violent Crime

Asian Americans, Native Hawaiians, and Pacific Islanders make up less than 4 percent of the population, but they account for 3 percent of property crime victimization in the United States and only 2 percent of nonfatal violent crimes. To estimate their victimization rates, the BJS pooled several years of NCVS (2002–2006) data. These rates indicate that Asian Americans, Native Hawaiians, and Pacific Islanders have a substantially lower victimaization rate than non-Asian Americans.

Average Annual Violent Victimization Rate by Race/Hispanic Origin and Type of Crime, 2002–2006

Rate per 1,000 persons aged 12 or older

Asian/Native Hawaiiian/Pacific Islander 10.6

White 22.6

African American 29.1

Hispanic 24.1

Native American/Alaska Native 56.4

Rates for individual violent victimizations indicate that only for robbery are Asian/NH/PI victimization rates essentially the same as the next lowest group (whites).46

Additional unique patterns emerge from these NCVS analyses with pooled years of data. For example, compared to the non-Asian racial groups, Asian/NH/PI have a higher percentage of stranger assaults for both males (59 percent compared to 77 percent) and females (34 percent compared to 51 percent). Similarly, the per- sistent pattern of intraracial crime events does not hold true for Asian American vic- timizations. When Asian American respondents were asked to report the perceived race of the offender, less than 30 percent of offenders were identified as Asian Americans, whereas 35 percent were identified as white and 26 percent as African American.47

Recall that the NCVS data presented earlier on violent victimization combined Asian/Native Hawaiian/Pacific Islander with Native American/Alaska Native into a group called “other.” What questions emerge when looking at victimization data from this viewpoint of pooled data, which allows for the disaggregation of Asian, Native Hawaiian, Pacific Islander from Native American/Alaskan Native? Given the relatively low victimization rates of one group compared to the high victimization rates of the contrasting constituent group, what victimization patters remain hidden from view? What mistakes are policy makers vulnerable to if looking at the aggregate information compared to the disaggregate information?

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58 C H A P T E R 2

FOCUS ON AN ISSUE

Intersectionality: Violent Victimization and Women of Color

Research on the characteristics of victims

of violent crime generally focuses on the

race of the victim, the ethnicity of the

victim, or the sex of the victim. There are

relatively few studies that examine the

interrelationships among race, ethnic-

ity, sex, and violent victimization or that

attempt to determine if the risk factors

for violent victimization are different for

white women and women of color.

Two studies of nonlethal violent vic-

timization addressed these issues. Janet L.

Lauritsen and Norman A. White used data

from the NCVS to identify the risk of

violence for African American, white, and

Hispanic females. Because they were inter-

ested in the potential relationship between

neighborhood characteristics and risk for

violence, they classified violent incidents

according to whether they occurred

within respondents’ neighborhoods (i.e.,

within one mile of their homes). They also

differentiated violence between incidents

involving strangers and those involving

nonstrangers.48

Lauritsen and White found that the

overall risk of nonlethal violence was

lowest for white females and highest for

African American females, with Hispanic

females in the middle. They also found

that (1) women, regardless of race/ethnic-

ity, faced a lower risk of violence in their

own neighborhoods; (2) African-Amer-

ican women faced a substantially higher

risk of violence at the hands of non-

strangers than either white or Hispanic

women; and (3) both African-American

and Hispanic women faced higher risks of

violence at the hands of strangers than did

white women. These racial/ethnic differ-

ences, which persisted when the authors

controlled for other characteristics of the

respondent that might be associated with

risk of victimization, diminished or dis-

appeared when they included a measure

of neighborhood disadvantage in their

models. When neighborhood disadvan-

tage was taken into consideration, they

found that Hispanic females, but not

African-American females, had a higher

risk of nonstranger violence than white

females and that neither Hispanic females

nor black females faced a higher risk of

stranger violence than white females. Fur-

ther analysis revealed that African-Amer-

ican, white, and Hispanic women who

lived in disadvantaged neighborhoods had

higher risks for stranger and nonstranger

violence than African-American, white,

and Hispanic women who lived in more

advantaged communities. According to

the authors, this means that “the reduc-

tion of violence is unlikely to require

group-specific solutions but will require

attention to both community and indi-

vidual factors that foster safety and harm

reduction”49

Laura Dugan and Robert Apel

took a somewhat different approach to

studying violent victimization of women

of color. They combined eight years of

NCVS data, which generated enough

cases to explore risk factors for white,

African American, Hispanic, Asian/Pacific

Islander, and Native American females.

In predicting violent victimization, the

authors controlled for the respondent’s

age; home environment (type of resi-

dence, marital status, number of children

younger than age 12, and whether the

respondent went out every night); and

things such as the respondent’s income,

education, and job situation. They found

that Native American women faced the

greatest risk of violent victimization, fol-

lowed by black women, Hispanic women,

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59V I C T I M S A N D O F F E N D E R S

white women, and Asian/Pacific Islander

women. The rate for Native American

women, in fact, was almost twice the rate

for black women.50

The authors of this study discovered

that the factors that predicted violent

victimization were not the same for each

group of women. Although being married

was a protective factor for all women and

going out every night and moving often

were risk factors across the board, the

other factors had more variable effects.

Living in an urban area, for example,

increased the risk of violent victimization

only for African-American and Native

American women, and living in public

housing was a risk factor only for Hispanic

women. Living alone with at least one

child, having a job, and working while in

college all had particularly strong effects

on victimization of Asian/Pacific Islander

woman.

The authors also found interesting

racial/ethnic differences in the character-

istics of the violent victimization incidents

that women experienced. White women

were the least likely to be victimized by

someone using a weapon but were the

most likely to be victimized by a spouse.

African-American women, however, were

the group most likely to be victimized by

a boyfriend or at home; they also were

the most likely to be victimized with a

weapon and to be seriously injured. Asian/

Pacific Islander women were the most

likely to be victims of impersonal crimes

(e.g., robbery), to be victimized by strang-

ers, and to be victimized by more than one

offender. African-American women were

the most likely to call the police to report

the victimization; Asian women were the

least likely to do so. Hispanic females were

the least likely to be victimized in the

home, and Native American females were

the most likely to be victimized by some-

one who was using drugs or alcohol at the

time of the incident.

The results of these two studies

suggest that explanations for the violent

victimization of women are compli-

cated and that it is “naive to assume that

all women are uniformly put at risk or

protected regardless of their cultural

background.”51

financial gain from property crime is higher (the “urban crime premium”). The deterrence value of population density is also suspected in the lack of certainty with identification of offenders and subsequent potential for arrest.

Prevalence of Crime Victimization

The NCVS provides evidence of risk for criminal victimization by prevalence rates in addition to victimization rates. The BJS contends that “prevalence rates also describe the level of victimization but are based on the number of unique persons (or households) in the population who experienced at least one victim- ization during a specific time period.”52 Examination of the NCVS data reveals that 8% of all households experienced one or more property victimizations, while 1.1% of persons aged 12 and older in the United States experienced violent crime in 2014. Violent crime data reveal that three times more whites were victimized by violent crime in 2014 than either African Americans or Hispanics. However, the prevalence rates show a more complete racial and eth- nic picture. While whites and Hispanics have similar violent crime prevalence

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60 C H A P T E R 2

FOCUS ON AN ISSUE

School-based Victimizations

Pequero and colleagues ask an important

question: “Does race and ethnicity moder-

ate the relationship between opportunity

and school-based victimization?” (2015,

p. 328).53 They use opportunity theory to

develop research questions to be tested

with a national sample racially and ethni-

cally diverse sample of 10th graders who

have completed a self-report survey. These

researchers look at both violent and vic-

timization to identify which opportunity

(being a suitable target and exposure).54

They find that race and ethnicity are

related to violent and property victimiza-

tions at school. Overall, African Americans,

Hispanics/(Latinos), and Asians have lower

odds of school-based victimization than

white students. Further, for all students

combined, self-reported school-based

misbehavior increases the likelihood of

violent victimization, and participation

in academic extra-curricular activity is

associated with an increase in the odds of

victimization. Whereas participation in

athletic extra- curricular activities is not a

significant risk factor in the likelihood of

victimization.

Peguero and colleagues start with the

premise that “key aspects of opportunity

(i.e., being a suitable target and exposure)

vary among racial and ethnic groups”

(p. 328). The following patterns emerge

from their analysis:

■ Student self-reported misbehavior in

school is a stronger predictor of violent

victimization for white students than stu-

dents of color.

■ Student participation in academic

extra-curricular activities (EX) is associated

with a significant increase in the odds of

violent victimization for African-Ameri-

can, Hispanic, and Asian students compared

to white students.

■ Student participation in athletic

extra-curricular activity (EX) results in

lower odds of violent victimization for

African-American and white students, but

higher odds of violent victimization for

Hispanic and Asian youth.

The researchers look to the work of

Elijah Anderson (Code of the Streets, 1999)

to help understand why certain school

behaviors increase victimization risk by race

and ethnicity and other behaviors do not. Is

it possible that reflecting an image of success

in academic endeavors is perceived differ-

ently by peers than success in an athletic

setting? Moreover, Pequero and colleagues

also findings that the more racially and eth-

nic diverse a school’s population, the lower

the odds of violent victimization. How do

you account for this finding?

Scott Menard asserts that analysis

of cohort data on respondents to the

National Youth Survey “indicated that vio-

lent victimization during adolescence had

a pervasive effect on problem outcomes

in adulthood and increased the chances of

being a perpetrator or victim of violence

in adulthood. In addition, victimization,

specifically violent victimization, showed

a significant impact in terms of financial

loss, physical injury, and short-term asso-

ciations with other problem behaviors and

outcomes. The combination of three fac-

tors, direct costs of victimization (financial

loss and physical injury), the high rate of

violent adolescent victimization, and the

all-encompassing effects of adolescent vio-

lent victimization in adulthood, suggests

the need for interventions to reduce ado-

lescent victimization.”55 (2002, p. 1)

SOURCE: Pequero, Anthony A., Ann Marie Popp,

and Dixie J. Koo. “Race, Ethnicity and School-

Based Adolescent Victimization,” Crime and Delin-

quency, 61(3), pp. 323–349.

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61V I C T I M S A N D O F F E N D E R S

rates (1.1%), African Americans have a prevalence rate of 1.4%. A look at these data over time reveals a decrease in the prevalence of victimization for all racial and ethnic groups.

Lifetime Likelihood of Victimization

Although annual victimization rates are important indicators of the likelihood of victimization, they “do not convey the full impact of crime as it affects people.”56

To gauge the impact of crime, we must consider not just the odds of being vic- timized within the next few weeks or months but the possibility of being robbed, raped, assaulted, or burglarized at some time in our lifetime. Although the odds of being victimized during any given 12-month period are low, the odds of ever being victimized over a lifetime may be high.

The BJS used annual victimization rates for a 10-year period to calculate lifetime victimization rates. These rates, which are presented in Table 2.3, indi- cate that about five out of six people will be victims of a violent crime at least once during their lives and that nearly everyone will be the victim of a personal theft at least once. When the intersectionality with gender is available, we find gender and race differences. Notably, there is a higher lifetime likelihood of rape victimization for African-American females than that for white females. Whereas only 16 out of 10,000 women are rape victims annually, for example, the lifetime likelihood of being raped is much greater: nearly 1 out of every 12 females (and 1 out of every 9 black females) will be the victim of a rape at some time during her life.57

For the individual crimes of violence, the lifetime likelihood of being assaulted is nearly identical for African Americans and whites; about three of every four people, regardless of race, will be assaulted at some time during their lives. The likelihood of assault for white women, however, is lower (this information is not available by race). There are, however, large racial differences for robbery, with African Americans almost twice as likely as whites to be robbed.

T A B L E 2.3 Lifetime likelihood of Victimization by Race and Gender (when available)a

African American White

Total Male Female Total Male Female

Violent Crimes 87 92 81 81 88 71

Rape 11 8

Robbery* 51 (22) 27 (22)

Assault* 73 (62) 74 (62)

Personal Theft 99 99 98 99 99 99

aPercentage of persons who will experience one or more victimizations starting at 12 years of age. *Gender-specific numbers with no race-specific designation.

SOURCE: Bureau of Justice Statistics, U.S. Department of Justice, Lifetime Likelihood of Victimization (Washington, DC: U.S. Government Printing Office, 1987).

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62 C H A P T E R 2

Overall, for serious (nonmurder) violent crimes (including rape), the like- lihood of victimization is much higher for African Americans than for whites. When gender is available, we find that generally women have lower violent vic- timization rates over their lifetime than men (rape not included). Gender differ- ences are present when race and gender are available; African-American females have a higher likelihood of victimization over their lifetime than white females over their lifetime (81% compared to 71%).

There is no difference in the African American and white rates for personal theft over a lifetime; however, the BJS report indicates that a higher percentage of whites than African Americans will be victimized three or more times over their lifetimes. Similarly, a higher percentage of white females will be victimized by personal theft three or more times than African-American females.

Homicide Victimization

The largest and most striking racial differences in victimization are for the crime of homicide. In fact, all of the data on homicide point to the same conclusion: African Americans, and particularly African American males, face a much greater risk of death by homicide than do whites. Lifetime likelihood of homicide victim- ization was last calculated by the BJS in 1997 (for people aged 30), which revealed that victimization odds for white men were 1 out of 283 and for white women were 1 out of 794. The odds of homicide victimization for African-American males were 1 out of 35 and for African American women were 1 out of 171.58

Although the NCVS does not produce estimates of homicide victimiza- tion rates, there are a number of other sources of data. A partial picture is available from the Supplemental Homicide Reports (SHR), 2014, submitted by law enforcement agencies to the U.S. Federal Bureau of Investigation (FBI) as part of the Uniform Crime Reports (UCR) Program.59 This information is collected when available for single victim–single offender homicides and offers a breakdown by race and ethnicity of the victims.60 These data reveal that a disproportionate number of homicide victims are African Americans. In 2014, of the nearly 12,000 homicide victims, African Americans constituted no more than 15 percent of the population but comprised 51.6 percent of all homicide victims. Whites are underrepresented in homicide figures, compared to the population, comprising 45.7 percent of homicide victims. Asian, Pacific Islander, and Native Amer ica/Alaska Natives make up the smallest group of homicide victims at less than 5% of homicides combined. Ethnicity was reported for roughly three quarters of homicides in 2014, with 21% identified as Hispanic.

The SHR data reveal that homicide is a more significant risk factor for African Americans than for whites. Although the minority population, African Americans are largest group of homicide victims a year for nine out of the ten years between 2002 and 2011. Whereas homicide rates have decreased sharply among all groups since the early 1990s, the homicide rate in 2011 indicated that African Americans were 6.3 times more likely to be murdered than whites (17.3 per 100,000 pop- ulation compared to 2.8 per 100,000 population).64 Homicide rates for all other

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63V I C T I M S A N D O F F E N D E R S

racial groups declined during this time as well and have a homicide victimization rate lower than whites at 1.8 per 100,000 population.

In a recent multiyear BJS analysis of homicide data, it was revealed that homicide victimizations by guns decreased by half from 1992 to 2011. The cir- cumstances of homicides that are seen often vary by race.65 Whereas the rate of homicide by firearm decreased for white males over this period, the rate of homi- cide by guns remained stable for African Americans, both male and female.

When exploring the homicide by type of relationship, circumstances, and weapon, interesting racial differences appear.66 While the typical offender in a homicide is nonstranger for either race, a larger portion of white homicide vic- tims are murdered by family. Homicide reports also identify the circumstances of the killing have racial variation. African Americans are overrepresented in homi- cide victimizations involving drugs-related, sex-related, and gang-related killings. Whites are the majority victims in every category except drug-related killings. Workplace killings reflect no racial pattern distinct from U.S. Census population figures. Although whites and African Americans are almost equally likely to be

FOCUS ON AN ISSUE

Victim Assistance: Should Race Matter?

Although most observers agree that the

American criminal justice system should

treat suspects and offenders in a colorblind

fashion, how should we treat victims?

Gregg Barak, Jeanne M. Flavin, and Paul

S. Leighton61 argue that victim assistance

should take the race, ethnicity, gender, and

even class of the victim into consideration.

They state, “Victim counseling needs to be

sensitive to cultural values through which

the victimization experience is interpreted.

Rehabilitation and intervention programs

likewise need to build on cultural values

for maximum effectiveness.”62 For example,

a victim of domestic violence may need

different services depending on their social

realities: a Hispanic woman with children,

no employment history, and a limited

working knowledge of English will require

different services than a white woman with

children, a professional employment history,

and a command of English.

In Bachman and colleagues’ explora-

tion of domestic violence among Native

American women, they assert that “some

American Indian and Alaska Native com-

munities are developing culturally sensitive

interventions for violence against Ameri-

can Indian and Alaska Native women both

within and outside of the criminal justice

system. These family or community forums

emphasize restorative and reparative

approaches to justice. One example of this

is the Navajo Peacemaking system. Other

culturally sensitive victim support services

are being created across the country, in

both urban settings as well as on rural

tribal lands.”63

Should the criminal justice system

be entirely color blind, even in response

to victims? Or does justice actually

require the system to be color conscious

in some situations? Do you support the

victim advocate’s position that victim

services should be racially, ethnically, and

culturally sensitive in their victimization

responses?

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64 C H A P T E R 2

victims of gun homicides, whites constitute nearly 60 percent of the victims in arson and nearly 80 percent of poison cases.

What about the intersectionality of race and gender in homicide victimiza- tion rates?67 The rate for African-American males is consistently seven times the rate for white males and more than 20 times the rate for white females. When examining the homicide rate for African-American females, it is lower than African-American males but consistently three to four times the rate for white females, approximating the homicide rate of white males.

What happens when age is added to race and gender? While homicide victimization rates change over time, young black males (ages 14–24) consis- tently have the highest homicide victimization rates. Teen victimization rates (ages 14–17) are highest for young, African-American males compared to young, white males (31.4 vs 4.5 per 100,000 population). The contrast intensifies with the homicide rates of African-American males ages 18–24 compared to white males (91.1 vs 38.4 homicides per 100,000 population). What factors explain why victimization rates change across age, race, and gender? See the Focus on an Issue related to theoretical explanations for victimization and offending.

Summary: A More Comprehensive Picture of the Crime Victim

The victimization data presented in the preceding sections offer a more com- prehensive picture of the complex reality of crime victim than that found in common perceptions and media presentations. Overall, the demographic char- acteristics of crime victims are seldom the racial (and gender) characteristics you would expect based on the racial composition of the general U.S. population. The data sources used in this section reveal that Non-Hispanic African Americans, Asian/Pacific Islanders, Native Americans, and Hispanics are often more likely than Non-Hispanic whites to be victims of household and personal crimes. These racial and ethnic differences are particularly striking for violent crimes, especially robbery. Moreover, African Americans—especially African-American males—also face a much greater risk of death by homicide than whites. It thus seems fair to conclude that in the United States, the groups at greatest risk of becoming crime victims are those that belong to racial and ethnic minority groups.

P I C T U R E O F T H E T Y P I C A L O F F E N D E R

For many people, the term crime evokes an image of a young African-American or Hispanic male who is armed with a handgun and who commits a robbery, rape, or murder. In the minds of many Americans, “crime” is synonymous with “black (or brown) crime.” It is easy to see why the average American believes that the typical offender is African American. The crimes that receive the most attention—from the media, politicians, and criminal justice policy makers—are “street crimes” such as murder, robbery, and rape. These are precisely the crimes for which African Americans and Hispanics are arrested at a disproportionately high rate (see Table 2.4).

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65V I C T I M S A N D O F F E N D E R S

FOCUS ON AN ISSUE

Environmental Racism Claims Brought under Title VI of the Civil Rights Act

As Michael Fischer notes, since “the early

1980s, environmental justice advocates

have been publicizing and protesting

the fact that environmental hazards at

the workplace, in the home, and in the

community are disproportionately visited

upon poor people and people of color.”

Environmental racism builds on the foun-

dation of the civil rights movement and

the term was coined by African-American

civil rights activist Benjamin Chavis. This

term is used most commonly to refer to

the enactment or enforcement of any

policy, practice, or regulation that nega-

tively affects the environment of marginal

low-income and/or racially homogeneous

communities at a disproportionate level;

thus, the battle against environmental

racism includes claims by Native Amer-

icans, African Americans, and Hispanic

Americans. Fischer notes that environ-

mental racism may occur if “the actions

of those federally-funded state agencies

create a racially discriminatory distribution

of pollution, then a violation of Title VI

has occurred and a civil rights lawsuit is

warranted.”68

Bullard contends that “people of

color in all regions of the country bear

a disproportionate share of the nation’s

environmental problems,” including air

pollution, soil pollution, dumps, and so on.

In 2010, as director of a center dedicated

to grassroots efforts to fight for environ-

mental justice, he observed that a 2007

study found race to be the most potent

predictor of where commercial hazardous

waste facilities are located. Environmental

injustice in people of color communities

is as much or more prevalent today than

20 years ago. People of color make up the

majority (56%) of the residents living in

neighborhoods within two miles of the

nation’s commercial hazardous waste facili-

ties and more than two-thirds (69%) of the

residents in neighborhoods with clustered

facilities.69

Are there instances of environmental

racism in your community or region? Go

to the Environmental Justice Resource

Center at Clark University (http://www.

ejrc.cau.edu/) for more details on specific

contaminated sites.

Instances of environmental racism

continue. Consider the news and fed-

eral agency reports about the lead in the

drinking water in Flint, Michigan.70 The

contaminated water source came into city

wide use in 2014 and remains the primary

city water source in 2016. Flint, Michigan,

is a poor city with a predominantly Afri-

can-American population. The city has

struggled with bankruptcy issues that lead

to the Governor appointing an emergency

manager to make city-level decisions. One

decision was to change the city’s water

source as a money saving measure. This

decision resulted in the corrosion of lead

pipes throughout the city, subsequently

poisoning the residents with toxic levels

of lead. Researchers, activists, and citizens

argue that due to the actions of the Gov-

ernor of Michigan and his appointees that

a generation of children are at risk, due to

lead poisoning, from the everyday actions

of drinking, eating, and bathing. Explore

the current status of this issue and look for

the racial nature of the politics that sur-

round the proposal of an inexpensive.

The Mayo clinic offers the following

information about lead poisoning71: symp-

toms in newborns slow growth and lead to

learning difficulties in children. Older chil-

dren develop signs of learning difficulties,

(Continued )

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66 C H A P T E R 2

irritability, weight loss, vomiting, and hear-

ing loss. Lead poisoning symptoms in adults

includes high blood pressure, abdominal

pain, declines in mental functioning, pain,

numbness or tingling of the extremities,

headache, memory loss, and miscarriage or

premature birth in pregnant women.

SOURCE: Review this news article to see that

these issues are not limited to Flint, Michigan:

http://www.nytimes.com/2016/02/09/us/

regulatory-gaps-leave-unsafe-lead-levels-in-

water-nationwide.html?_r=0.

FOCUS ON AN ISSUE

Human Trafficking

It is difficult to collect data on human

trafficking, partially due to the under-

ground nature of the offense and partially

due to the lack of a consistent definition.

The U.S. State Department refers to

human trafficking as “an umbrella term

used to describe the activities involved

when someone obtains or holds a per-

son in compelled service.” (visit http://

www.state.gov/j/tip/ for the Office to

Monitor and Combat Trafficking in Per-

sons). Modern slavery is a modern tactic

in armed conflicts around the works,

such as the group ISIS, and it is a “supply

chain” for domestic needs in such areas

as farm labor and sex services (adults and

minors). The NCVRW offers a picture

of sex trafficking victims and labor traf-

ficking victims by race. Acknowledging

that their data are an underrepresentation

of actual trafficking offences, a picture

does emerge. Note Black, White, Asian,

Other and Hispanic are used here as these

victims could be citizens or noncitizens.

All racial groups are represented among

victims, and some racial groups are diffi-

cult to assign (see other), Blacks make up

the largest percentage of sex trafficking

victims (40.4%) and Hispanics make up

the largest percentage of labor trafficking

victims (55.7%).

As a result of the William Wil-

burforse Trafficking Victims Protection

Reauthorization Act of 2008, the FBI,

through the UCR, began collecting

offense and arrest data on human traffick-

ing. Definitions used by the UCR are:

White 25.6%

Hispanic 23.9%

Other 5.8%

Sex Trafficking

Asian 4.3%

Black 40.4%

White 1.6%

Hispanic 55.7%

Other 18.0%

Asian 14.8%

Black 9.8%

Labor Trafficking

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67V I C T I M S A N D O F F E N D E R S

In this section, we use a number of criminal justice data sources to paint a picture of the typical criminal offender. We summarize the offender data pre- sented in official police records, victimization reports, and self-report surveys. Because each of these data sources varies both in terms of the offender informa- tion captured and the “point of contact” of the suspect with the criminal justice system, the picture of the typical offender that each produces also differs some- what. We note these discrepancies and summarize the results of research designed to reconcile them.

Official Arrest Statistics

Annual data on arrests are produced by the UCR system, which has been admin- istered by the FBI since 1930. Presented here are arrest rates, reported to the Federal Bureau of Investigation through the Uniform Crime Report Program. Currently, 12,320 agencies, covering an estimated population of 250,194, 950, are reporting arrest figures for Part 1 (Crime rate categories) and Part 2 offenses. Five racial categories are reported: White, African American, Asian, Hawaiian/ Pacific Islander, and Native American/Native Alaskan. Ethnicity of arrestees is also reported by a smaller portion of agencies. This information is collected at the booking stage of police processing. Arrest rates do not necessarily present an accurate picture of offending. Many crimes are not reported to the police, and many of those reported do not result in an arrest. Crime in the United States, 2014, is the source of arrest data in this section.

Human Trafficking/Commercial

Sex Acts: inducing a person by

force, fraud, or coercion to partic-

ipate in commercial sex acts, or in

which the person induced to per-

form such act(s) has not attained 18

years of age.

Human Trafficking/Involuntary Ser-

vitude: the obtaining of a person(s)

through recruitment, harboring,

transportation, or provision, and

subjecting such persons by force,

fraud, or coercion into involuntary

servitude, peonage, debt bondage, or

slavery (not to include commercial

sex acts).

In 2014, the FBI had nearly 6,000

agencies participating in trafficking data

collection, reporting a total of 443 inci-

dents and clearance of 120 cases. The

arrested offenders were typically male, over

the age of 18 and predominantly white

(nearly 90%). Nearly one third of arrestees

were Hispanic (32.4%), predominantly for

commercial sex trafficking.

SOURCE: 2013 NCVRW Resource Guide.

http://www.victimsofcrime.org/docs/ncvr-

w2013/2013ncvrw_stats_humantrafficking.pdf?s-

fvrsn=0. Pages 24–25; Department of Justice/FBI.

Crime in the United States, 2014. Human Traffick-

ing. Offender arrest information by location and

race and ethnicity; additional information: Duran

Banks and Tracey Kyckelhahn. Characteristics of

Suspected Human Trafficking Incidents, 2008–

2010. Bureau of Justice Statistics (2011).

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68 C H A P T E R 2

Problems with UCR Data

The information on offenders gleaned from the Uniform Crime Reports is incomplete and potentially misleading because it includes only offenders whose crimes result in arrest. The UCR data exclude offenders whose crimes are not reported to the police and offenders whose crimes do not lead to arrest. A second limitation is that the UCR reports include arrest statistics for five racial groups (white, African American, Asian, Pacific Islander, and Native America/Alaska Native), but only ethnicity data for Hispanic and non-Hispanic, and not from all agencies. See “Focus on an Issue: A Proposal to Eliminate Race from the Uni- form Crime Report” for further discussion of the controversy surrounding the reporting of race in UCR figures.

A substantial proportion of crimes are not reported to the police. In fact, the NCVS reveals that fewer than half of all violent victimizations and only one third of all property victimizations are reported to the police. Factors that influence the decision to report a crime include the seriousness of the crime and the relation- ship between the victim and the offender; violent crimes are more likely than property crimes to be reported, as are crimes committed by friends or relatives rather than strangers.72

FOCUS ON AN ISSUE

A Proposal to Eliminate Race from the Uniform Crime Report

In 1993, a group of mayors, led by Minne-

apolis Mayor Donald Fraser, sent a letter to

the U.S. Attorney General’s office asking that

the design of the Uniform Crime Report

(UCR) be changed to eliminate race from

the reporting of arrest data. The mayors were

concerned about the misuse of racial data

from crime statistics. They charged that the

current reporting policies “perpetuate racism

in American society” and contribute to the

general perception “that there is a causal

relationship between race and criminality.”

Critics of the proposal argued that race data

are essential to battling street crime because

they reveal who the perpetrators are.

Using inductive reasoning, the

over-representation of minority race

groups in arrest data (see Table 2.4) can be

suggestive of at least two causal inferences:

(1) certain racial groups characterized by

differential offending rates, or (2) arrest

data reflective of differential arrest patterns

targeted at minorities. What steps must a

researcher take to move beyond descrip-

tions of racial disparity in arrest data to an

exploration of causal explanations for racial

patterns evident in arrest data? Causal fac-

tors that explain race and sentencing can

be found only through multivariate analy-

sis, not through descriptive data.

A review of federal arrest data report-

ing in 2014 reveals that the FBI, through

the data collection for yearly UCR tables,

has expanded its data gathering to include

both race and ethnicity of arrested offend-

ers. The UCR tables now reflect the U.S.

Census designation of five racial groups and

have added the ability to report ethnicity.

Not all agencies are reporting ethnicity at

this time but are able to report an arrested

offender as Hispanic or non-Hispanic.

What kind of warning would you

write for users of UCR arrest data by race

and ethnicity?

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69V I C T I M S A N D O F F E N D E R S

Victimization surveys reveal that victims often fail to report crimes to the police because of a belief that nothing could be done, the event was not import- ant enough, the police would not want to be bothered, or it was a private matter. Failure to report also might be based on the victim’s fear of self-incrimination or embarrassment resulting from criminal justice proceedings that result in publicity or cross-examination.73

The NCVS indicates that the likelihood of reporting a crime to the police also varies by race. African Americans are slightly more likely than whites to report crimes of theft and violence to the police, whereas Hispanics are substan- tially less likely than non-Hispanics to report victimizations to the police. Michael J. Hindelang found that victims of rape and robbery were more likely to report the victimization to the police if there was an African-American offender.74

Even if the victim does decide to report the crime to the police, there is no guarantee that the report will result in an arrest. The police may decide that the report is “unfounded”—in this case, an official report is not filed and the incident is not counted as an “offense known to the police.” Furthermore, even if the police do file an official report, they may be unwilling or unable to make an arrest. In 2014, only about 47.4 percent of violent crimes and 20.2 percent of property crimes were cleared by the police. Moreover, differences in clearance rates vary by crime, ranging from serious crimes ranged from 13.6 percent for burglary to 64.5 percent for murder.75

Police officer and offender interactions also may influence the inclination to make an arrest, and cultural traditions may influence police–citizen interactions. For instance, Asian communities often handle delinquent acts informally, when other communities would report them to the police.76 Hispanic cultural traditions may increase the likelihood of arrest if the Hispanic’s tradition of showing respect for an officer by avoiding direct eye contact is interpreted as insincerity.77 African Americans who appear “hostile” or “aggressive” also may face a greater likelihood of arrest.78

The fact that many reported crimes do not lead to an arrest, coupled with the fact that police decision making is highly discretionary, suggests that we should exercise caution in drawing conclusions about the characteristics of those who commit crime based on the characteristics of those who are arrested. To the extent that police decision making reflects stereotypes about crime or racially prejudiced attitudes, the picture of the typical offender that emerges from official arrest statistics may be racially distorted. If police target enforcement efforts in minority communities or concentrate on crimes committed by racial minorities, then obviously racial minorities will be overrepresented in arrest statistics.

A final limitation of UCR offender information centers on the information not included in these arrest reports. The UCR arrest information fails to offer a full picture of the white offender entering the criminal justice system. Specifically, additional sources of criminal justice data present the white offender as typical in the case of many economic, political, and organized crime offenses. Russell, in detailing the results of her “search for white crime” in media and academic sources, supports the view that the occupational (white-collar) crimes for which whites are consistently overrepresented may not elicit the same level of fear as the street crimes highlighted in the UCR but nonetheless have a high monetary and

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70 C H A P T E R 2

B o x 2.4 The Operationalization of Race in Criminal Justice Data

The concept of race is measured—operationalized—in a number of ways, depend- ing on the discipline and depending on the research question. Most biologists and anthropologists recognize the difficulties using traditional race categories (white, black, red, yellow) as an effective means of classifying populations, and most social scientists rely on administrative definitions for recordkeeping, empirical analysis, and theory testing. Given these conditions, however, the term “race” still carries the con- notation of an objective measurement with a biological/genetic basis.

As Knepper81 notes, the recording of race in the UCR can be traced to a prac- tice that has no formal theoretical or policy relevance. From available accounts, this information was recorded because it was “available” and may be a side effect of efforts to legitimize fingerprint identification. Currently, the UCR manual gives detailed information on the definitions for index offenses and Part 2 offenses and provides specific instructions about the founding of crimes and the counting rules for multiple offenses. What is lacking, however, are specific instructions on the recording of race and ethnicity information. Administrative/census definitions pro- vided by local law enforcement agencies on agency arrest forms are calculated and reported, but no criteria for the source of the information are given. Thus, some records will reflect self-reporting by the offender, whereas others will reflect obser- vations of police personnel. Some police arrest reports have black, white, American Indian, Asian, and possibly, Hawaiian/Pacific Islander, whereas many use the category of “other.” A new convention is the attempt to add ethnicity to arrest reports. The terms Hispanic and Non-Hispanic are now reported to the FBI by a small percentage of agencies. The FBI’s National Incident-Based Reporting System does log additional information based on race and ethnicity for victims and offenders, but the informa- tion available in that data set for 2014 reflects reporting for just over 6,000 agencies in 33 states representing only 25 percent of the U.S. population in 26 states.82

moral cost.79 (See Box 2.4 for information on the “operationalization,” or mea- surement, of race in crime data.)

Arrest Data

The arrest data presented in Table 2.4 reveal that the public perception of the “typ- ical criminal offender” as an African American is generally inaccurate. Examination of the arrest statistics for all offenses, for instance, reveals that the typical offender is white; more than two-thirds (69.4 percent) of those arrested in 2014 were white, less than one third (27.8 percent) were African American, and less than 4 percent were American Indian/Alaska Native, Asian, and Native Hawaiian/Other Pacific Islander combined. Similarly, only 18.9 percent of those arrested were Hispanic. The vast majority (81.1 percent) or persons arrested were Non-Hispanic. These racial and ethnic percentages are similar when reviewing those arrested for Part 1 violent crimes and property crimes with a majority of arrestees being white (59.4 percent and 68.8 percent, respectively, for race and 76.0 percent and 83.2 per- cent for Non-Hispanic, respectively). In fact, the only crimes for which the typical offender was African American were murder, robbery, and gambling.80

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71V I C T I M S A N D O F F E N D E R S

(C o

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Copyright 2018 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-202

72 C H A P T E R 2

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(C o n ti n u e d

)

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73V I C T I M S A N D O F F E N D E R S

Examining the percentage of all arrests involving members of each racial group must be done in the context of the distribution of each group in the gen- eral population. In 2014, whites comprised approximately 83 percent of the U.S. population, African Americans comprised 13 percent, Native Americans com- prised less than 1 percent, and combined Asian and Pacific Islanders comprised 3 percent. A more appropriate comparison, then, is the percentage in each racial group arrested in relation to that group’s representation in the general popula- tion, rather than simply stating the “typical offender” by the largest proportion of offenders by racial group.

Although whites are the people most often arrested in crime categories reported in the UCR, it appears that African Americans are arrested at a dis- proportionately high rate for nearly all offenses. The total combined rate for all offenses, 27.8% (see Table 2.4), indicates that the arrest rate for African Americans is two times higher than would be predicted by their representation in the popu- lation. The disproportion is even larger for the most serious Part 1/index offenses reported in the UCR; the arrest rate is two and a half times higher for African Americans than predicted by their representation in the population.

Among the individual offenses, however, the degree of African-American overrepresentation varies. The largest disparities are found for robbery and mur- der. The arrest rate for African Americans is nearly four times what we would expect for murder and robbery, given their representation in the population. These differences also are pronounced for rape, motor vehicle theft, gambling, vagrancy, prostitution, stolen property offenses, and weapons offenses.

Table 2.4 also presents arrest statistics for whites, American Indians/Alaska Natives, Asians, and Native Hawaiians/Other Pacific Islanders. Whites are over- represented for some UCR offenses. Specifically, whites are overrepresented for driving under the influence (DUIs) and typically liquor law violations (though not in 2014) compared to their representation in the general population. Whites are found in numbers consistent with their representation in the population for drunkenness arrests.

The overall pattern for American Indian/Alaska Native arrest figures is a slight overrepresentation compared to their representation in the population (1.6 percent of those arrested versus 0.8 percent in the population); however, the pattern across crimes is more erratic. For Part 1/index crimes, Native Americans are slightly more likely to be arrested for violent crimes (particularly forcible rape and aggravated assault) and for property crimes (particularly larceny-theft) and arson than their representation in the population suggests. Native Americans are overrepresented in several Part 2 offenses, including other assaults, vandalism, sex offenses (not rape and prostitution), offenses against family and children, driv- ing under the influence, liquor law violations, drunkenness, disorderly conduct, and vagrancy. Conversely, the proportion of Native American offenders arrested for a number of offenses—forgery and counterfeiting, embezzlement, prostitu- tion/commercialized vice, and gambling—at lower than what is expected given their proportion in the population. Additionally, the arrest figures for a number of other offenses—murder, robbery, burglary, and drug abuse violations—are consis- tent with their proportion in the general population.

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74 C H A P T E R 2

Caution is required when interpreting Native American arrest figures because arrests made by tribal police and federal agencies are not recorded in UCR data. Using information from the Bureau of Indian Affairs, K. Peak and J. Spencer83

found that although UCR statistics revealed lower-than-expected homicide arrest rates for Native Americans, homicide rates were nine times higher than expected across the 207 reservations reporting.

For overall figures and each index offense, Asian Americans and Native Hawaiian/Other Pacific Islanders are underrepresented in UCR arrest data (1.7 percent of arrests in 2014 compared to 3 percent of the population). The notable exception to the pattern of underrepresentation is the Part 2 Offense with Asians significantly overrepresented in gambling arrests. The arrest rate for this offense can reach twice what is expected given the representation of Asians in the popu- lation. Notably, Asian Americans and Native Hawaiian/Other Pacific Islanders are underrepresented in arrest figures for nearly all Part 1 and Part 2 offenses.

UCR arrest rates offer a limited view of Hispanic offenders, as not all agen- cies are reporting this information (see Table 2.4). Given that caveat, Hispanics are overrepresented in arrest statistics if they represent more than 17% of arrests in a particular category. Thus, Hispanics are overrepresented in the total arrest figures, representing 18.9% of arrests for all Part 1 and Part 2 offenses compared to their percentage in the population. Hispanics are overrepresented for vio- lent Part 1 offenses, but not for property offenses. They are overrepresented for murder, rape, and motor vehicle offenses. Further examination of Part 2 offenses reveals that Hispanics are underrepresented in arrest figures for fraud, embez- zlement, offenses against family and children, liquor laws, and disorderly con- duct. However, Hispanics are overrepresented in arrest figures for stolen property, vandalism, weapons, prostitution, sex offenses, drug violations, gambling, and drunkenness.

Homicide offenders. In 2009, Alexia Cooper and Erica Smith released a report based on FBI/SHR that in the near 30-year period of their study (1980–2008) homicide reports revealed significant changes.84 This study highlights that the profile of homicide offenders is different from the characteristics of the general population. African Americans are overrepresented as arrested homicide offenders. Arrest figures are used to estimate an offending rate that is eight times higher than the offending rate for whites (34.4 per 100,000 population vs 4.5 per 100,000 population). Offending rates for African Americans was at its lowest in 2004 at 24.1 per 100,000 population and at its peak in 1991 at 51.1 per 100,000 popula- tions. Another snap shot of homicide offending can be seen in UCR arrest rates, with 52.5% of homicide arrests are of African Americans, compared to 45.3% of homicide arrests are of whites.

Supplemental homicide reports from 201485 reveal that the peak age for homicide offending for males is between 17 and 24; it drops significantly after the age of 30. Women are identified as committing less than 10 percent of homicides, and their offending patterns mirror those of males with the peak offending years between 17 and 24 and a significant decline after age 30. While whites are iden- tified as homicide offenders in more than 50 percent of cases where the offender

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75V I C T I M S A N D O F F E N D E R S

FOCUS ON AN ISSUE

Immigration and Crime: The Mythical Connection

Many researchers and social critics are con-

cerned that the infromation we “know”

about crime is distorted. The negative

images of immigrants being criminals and

immigration rates causing crime rates to

rise are commonly presented by both news

figures and politicians. These messages

are numerous and constant, especially in

light fears that the number of immigrants

is rising and the quality of immigrants is

changing (drug dealers and radical Islamic

terrorists).

Individual-level research based on

self-report data fail to support the immi-

gration and crime link that some fear.

Specifically, first-generation immigrants

are less likely than native born people to

commit crime. The pattern changes with

second-generation (socialized) immigrant

populations to reflect offending patterns

similar to native born populations. Piquero

and colleagues suggest that this connection

can be explained by unique perceptions of

immigrants who “tend to have more pos-

itive views of the law, less cynical attitudes

toward the legal system, and report more

social costs associated with punishment.”86

The immigration and crime link is

not supported at the community level

either. An examination of crime rates

reported by the FBI reveals that over the

last few decades crime rates have fallen in

most cases, remained stable in others, and

even declined dramatically in other areas.

On a community level, two recent studies

come to the same conclusion about the

crime benefit of immigrant populations.

First, a California study revealed that

“California cities with large populations

of recently arrived immigrants showed no

significant relationship between immigrant

inflows and property crimes, and a nega-

tive relationship with violent crimes.”87

Second, Stowell and colleagues’

research asserts that the multivariate find-

ings from their multijusrisdictional data set

“indicate that violent crime rates tended to

decrease as metropolitan areas experienced

gains in their concentration of immigrants.

The inverse relationsip is especially robust

for the offense of robbery. Overall, our

results support the hypothesis that the

broad reductions in violent crime during

recent years are potentially attributable

to increases in immigration.”88 Schnapp’s

findings, conversely, fail to support a nega-

tive influence of immigration on homicide

rates but also do not find a positive effect.

He was also unable to isolate the influence

of particular country of immigrant origin

on –homicide rates.

In short, the most accurate assessment

of the data and research on the immigration

and crime link is that first-generation immi-

grants are less likely than native born people

to commit crime. Consistently, self-report

data and incarceration data present a similar

picture of crime by immigrants as less likely

than native born and second-generation

(socialized) immigrant populations.89

race is known, the peak age of offending varies little by the race of offender. The main difference by age and race is that black offenders start offending at high levels at an earlier age than white offenders (13–16 years of age); however, white offenders continue to offend at a significant rate until a later age range (into their 40s).

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76 C H A P T E R 2

Perceptions of Offenders by Victims

Clearly African Americans and sometimes Hispanics are arrested at a disproportion- ately high rate. The problem, of course, is that we do not know the degree to which arrest statistics accurately reflect offending. As noted previously, not all crimes are reported to the police and not all of those that are reported lead to an arrest.

One way to check the accuracy of arrest statistics is to examine data on offenders produced by the NCVS. Respondents who report a “face-to-face” encounter with an offender are asked to indicate the race of the offender. If the percentage of victims who report being robbed by an African American matches the percentage of African Americans who are arrested for robbery, we can have greater confidence in the validity of the arrest statistics. We can be more confident that differences in the likelihood of arrest reflect differences in offending.

If, however, the percentage of victims who report being robbed by an African American is substantially smaller than the percentage of African Americans who are arrested for robbery, we can conclude that at least some of the disproportion in the arrest rate reflects what Hindelang refers to as “selection bias” in the crimi- nal justice system. As Hindelang notes, “If there are substantial biases in the UCR data for any reason, we would expect, to the extent that victimization survey reports are unbiased, to find large discrepancies between UCR arrest data and victimization survey reports on racial characteristics of offenders.”90

Problems with NCVS Offender Data

There are obvious problems in relying on victims’ “perceptions” of the race of the offender. Respondents who report a victimization are asked if the offender was white, African American, or some other race. These perceptions are of question- able validity because victimizations often occur quickly and involve the element of shock. In addition, victim memory is subject to decay over time and to “ret- roactive reconstruction” to fit the popular conception of a criminal offender. If a victim believes that the “typical criminal” is African American, this may influence his or her perception of the race of the offender.

Relying on victims’ perceptions of offenders’ race creates another poten- tial problem. If these perceptions are based on skin color, they may be unreliable indicators of the race of an offender. There are many very light-skinned African Americans and dark-skinned “white” people. Hispanics are of a wide range of skin colors. A person may self-identify in a way not reflected by his or her skin color. Thus, individuals may appear in different racial groupings in victimization reports than they do on a police arrest report. A light-skinned offender who identifies himself as Hispanic and whose race is thus recorded as “other” in arrest data might show up in victimization data as “white.” If this occurs with any frequency, it obvi- ously will affect the picture of the offender that emerges from victimization data.

Perceptions of Offenders

With these caveats in mind, we compare the NCVS data on the perceived race of the offender for single-offender violent victimizations for a recent year where

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77V I C T I M S A N D O F F E N D E R S

this information is available. As Table 2.5 shows, although the typical offender for all of the crimes is white (or is perceived to be white), African Americans are overrepresented as offenders for all of the offenses listed. The most notable dispro- portion revealed by Table 2.5 is for robbery, with 37 percent of the offenders in single-offender robberies identified as African American. Also, African Americans are overrepresented as offenders for rape/sexual assault, aggravated assault, and simple assault. Note that the “not known” category ranges from 17.0 percent of respondents for rape/sexual assault to 7.3 percent of respondents for simple assault cases.

We argued earlier that one way to check the accuracy of arrest statistics is to compare the race of offenders arrested for various crimes with victims’ perceptions of the race of the offender. These comparisons are found in Table 2.6. There is a relatively close match in the figures for white offenders for robbery and aggra- vated assault between victim perception data and arrest data. These comparisons also suggest that whites may be overrepresented in arrest data for rape and under- represented in arrest data for simple assault. For African Americans, however, the pattern is more consistent—that is, African Americans are represented in arrest figures in much higher proportions than the perception of offenders from victim interviews for all offenses examined, with more than one-third higher represen- tation in arrest figures than in victim-perception percentages. These comparisons indicate that the racial disproportion found in arrest rates for these four offenses cannot be used to resolve the dilemma of differential arrest rates by race ver- sus a higher rate of offending among African Americans. It may be reasonably argued that such evidence actually suggests the presence of both differentially high offending rates by African Americans for serious violent offenses and the presence of differentially high arrest rates for African Americans, particularly for rape offenses.

The comparison of “other” race offers a consistent pattern of underrepresen- tation of “other” race in arrest figures compared to the victim-perception figures. This observation could mean that Asian/Pacific Islander and Native American/

T A B L E 2.5 Perceived Race of Offender for Single-Offender Crimes of Violence

Perceived Race of the Offender

Type of Crime White African

American Other Race not known

All Crimes of Violence 59.0% 22.4% 10.8% 7.9%

Rape/Sexual Assault 48.8 18.1 16.2 17.0

Robbery 39.7 37.0 15.2 8.9

Assault 61.1 21.4 10.1 7.4

Aggravated 56.2 24.1 12.0 7.6

Simple 62.8 20.5 9.5 7.3

SOURCE: Bureau of Justice Statistics, Criminal Victimization in the United States—Statistical Tables, 2006 (Washington, DC: U.S. Department of Justice, 2008). http://bjs.ojp.usdoj.gov/content/pub/pdf/cvus0602.pdf.

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78 C H A P T E R 2

Alaska Native are committing crimes at a higher rate than they are arrested for. However, these figures also suggest that NCVS respondents may be classifying offenders they perceive as Hispanic/Latino/Mexican in appearance to be of “other” race. Citizens commonly assume that Hispanic is a racial category, not an ethnic category. It may be argued, then, that dark-skinned offenders who do not appear African American may be classified as “other” because Hispanic is not an option for the race-identification question. Additionally, NCVS respondents are not asked to identify the perceived ethnicity of the offender.

Hindelang used early victimization data to determine which of these expla- nations (differential offending versus differential enforcement) was more likely. His initial comparison of 1974 arrest statistics with victimization data for rape, robbery, aggravated assault, and simple assault revealed some evidence of “differen- tial selection for criminal justice processing”91 for two of the offenses examined. For rape and aggravated assault, the percentage of African-American offenders in the victimization data was smaller (9 percentage points for rape, 11 percentage points for aggravated assault) than the proportion found in UCR arrest statistics.

However, once Hindelang controlled for victimizations that were reported to the police, the discrepancies disappeared, and the proportions of offenders identified as African American and white were strikingly similar. Hindelang con- cluded that “it is difficult to argue (from these data) that blacks are no more likely than whites to be involved in the common law crimes of robbery, forcible rape, assault.”92

Hindelang’s analysis of victimizations reported to the police also revealed a pattern of differential reporting by victims. Specifically, Hindelang found that for rape and robbery, those victimized by African Americans were more likely than those victimized by whites to report the crime to the police. Hindelang suggested that this is a form of selection bias—victim-based selection bias.

Hindelang concluded his comparison of UCR arrest rates and victimiza- tion survey data by separating the elements of criminal justice—system selec- tion bias, victim-based selection bias, and differential offending rates. He argued that both forms of selection bias were present, but that each was outweighed by

T A B L E 2.6 A Comparison of UCR and NCVS Data on Offender Race, 2006

Whites African Americans Other

Arrested Perceived Arrested Perceived Arrested Perceived

Rape 65.3 58.8 32.5 21.8 2.2 19.5

Robbery 42.2 43.2 56.3 40.3 1.6 8.8

Aggravated 63.2 60.1 34.5 26.0 2.3 12.9

Assault

Simple Assault 65.2 67.8 32.2 22.1 2.6 10.2

SOURCE: Federal Bureau of Investigation, Crime in the United States, 2006. http://www.fbi.gov/ucr/cius2006/data/ table_43.html; Bureau of Justice Statistics, Criminal Victimization in the United States—Statistical Tables, 2006. http://bjs. ojp.usdoj.gov/content/pub/pdf/cvus0602.pdf.

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79V I C T I M S A N D O F F E N D E R S

the overwhelming evidence of differential involvement of African Americans in offending.

Using NIBRS arrest data (17 states), Stewart J. D’Alessio and Lisa Stol- zen-berg try to disentangle differential offending from differential enforcement by deriving research questions from the social threat hypothesis. They use racial composition of a jurisdiction to approximate the social threat of racial minority populations to determine if law enforcement arrest practices vary by the racial composition of reporting jurisdictions, and thus differentiate differential arrest practices from differential offending practices. They report that the odds of arrest were actually higher for whites than blacks in three of the four crime types exam- ined. They conclude that their findings suggest that “the disproportionately high arrest rate for black citizens is most likely attributable to differential involvement in reported crime rather than to racially biased law enforcement practices.”93

Self-Report Surveys

Self-report surveys are another way to paint a picture of the criminal offender. These surveys question respondents about their participation in criminal or delinquent behavior. Emerging in the 1950s, the self-report format remains a popular source of data for those searching for descriptions and causes of criminal behavior. One of the advantages of asking people about their behavior is that it gives a less-distorted picture of the offender than an official record because it is free of the alleged biases of the criminal justice system. However, it is not at all clear that self-report survey results provide a more accurate description of the criminal offender.94

Problems with Self-Report Surveys

One of the major weaknesses of the self-report format is that there is no single design used. Moreover, different surveys focus on different aspects of criminal behavior. Not all self-report surveys ask the same questions or use the same or similar populations, and very few follow the same group over time. Usually, the sample population is youth from school settings or institutionalized groups.

In addition to the problems of inconsistent format and noncomparable sam- ples, self-report surveys suffer from a variety of other limitations. The accuracy of self-report data is influenced by the respondents’ honesty and memory and by interviewer bias.

One of the most confounding limitations in criminal justice data sets is present with self-report surveys: the comparisons are overwhelmingly between African Americans and whites. Little can be said about Native Americans, Asian Americans, or Hispanic Americans. Some studies suffer from the additional lim- itation of homogenous samples, with insufficient racial representation. These lim- itations make it difficult to draw conclusions about how many members of a racial group commit delinquent activity (prevalence) and how frequently racial minorities commit crime (incidence).

Although self-report surveys generally are assumed to be reliable and valid, this assumption has been shown to be less tenable for certain subgroups of

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80 C H A P T E R 2

offenders.95 Specifically, it has been shown that there is differential validity for white and African-American respondents. Validity is the idea that, as a researcher, you are measuring what you think you are measuring. Reverse record checks (matching self-report answers with police records) have shown that there is greater concurrence between respondent answers and official police arrest records for white respondents than for African-American respondents.96 This indicates that African American respondents tend to underreport some offending behavior.

Delbert Elliot and colleagues caution against a simplistic interpretation of these findings.97 They find that African-American respondents are more likely to underreport index-type offenses than less-serious offenses. Therefore, they suggest that this finding may indicate the differential validity of official police records rather than differential validity of the self-report measures by race. An example of differential validity of police records would occur if police reported the clearly serious offenses for whites and African Americans but reported the less-serious offenses for African Americans only. In short, most self-report researchers con- clude that racial comparisons must be made with caution.

Characteristics of Offenders

Usually juvenile self-report surveys record demographic data and ask questions about the frequency of certain delinquent activities in the last year. The delin- quent activities included range in seriousness, that is, from less-serious actions like skipping class and drinking liquor to more-serious behaviors such as stealing something worth more than fifty dollars, stealing a car, or assaulting someone.98

Early self-report studies, those conducted before 1980, found little difference in delinquency rates across race (African American and white only). Later, more refined self-report designs have produced results that challenge the initial assump- tion of similar patterns of delinquency.99 Some research findings indicate that African-American males are more likely than white males to report serious crim- inal behavior (prevalence). Moreover, a larger portion of African Americans than whites report a high frequency of serious delinquency (incidence).100

Theoretical Explanations for the Racial Gap in Offending

The traditional paradigms of criminological theory developed from Lombroso to the emergence of the general theory of crime was essentially, “one size fits all” in the sense of racial differences. While theory testing traditionally uses race of offenders as a control variable, it is given no more attention than one of the “usual suspects.” Such a racial theorizing (African Americans and Hispanics com- mit crimes for the same reason than whites commit crime) is essentialized in the assumptions of General Strain Theory that there is “invariance” in the racial/eth- nic indicators for crime. With the emergence of critical race theory and Unne- ver and Gabbidon’s Theory of African American Offending,101 this thesis is being challenged. Unnever and colleagues (2016) hypothesize a racial “invariance” in the predictors of self-reported violent delinquency in a cohort of young males in Chicago.102 They find that African-American youth report a significantly higher

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81V I C T I M S A N D O F F E N D E R S

level of discrimination from police than other racial groups and are more likely to be negatively impacted by this action than other racial groups. Of specific focus is the influence of perceived discrimination on the delinquency of African American compared to white youth. These results support the belief that delin- quent behavior (like any behavior) is impacted by the “unique lived experiences” of subordinate groups in fundamentally distinct ways compared to superordinate groups.

Deena Isom, with the same data set, more directly explores the question: Is race criminogenic?103 If so, how? Starting with the foundation of the Theory of African American Offending, she explores the hypothesis that microaggres- sion (five items asking were you discriminated against when you wanted ser- vices, etc.) and criminal justice injustices (have you been discriminated against in the last year?) independently increase the likelihood of offending. She asserts that “racial microaggressions and criminal justice injustices lead to negative emotions, weaken social bonds and increase the likelihood of negative outcomes (violent delinquency).”104 She finds support for her hypothesis, findings that, “when con- sidered together, microagressions and criminal justice injustices are significantly associated with serious and violent offending, increasing the likelihood by 102% and 57%, respectively” (p. 42). Further analysis suggests that positive racial iden- tity in the presence of racial discrimination can reduce the likelihood of serious offending.

These studies converge in their support the need to continue to develop race-specific offending theories and subsequent empirical theory test.

Community Influence on the Racial Gap in Offending Rates

Criminological theory at the beginning of the twentieth century focused on white immigrant communities with reportedly high delinquency rates to develop such theories as Social Disorganization theory and Culture Conflict theory. More recent research by Sampson and colleagues indicates that minority immigrant populations in Chicago neighborhoods have lower rates of self-reported delin- quency than white and African-American populations. In their recent cohort study, Sampson and colleagues find that first-generation immigrants from Puerto Rico and Mexico have lower self-reported delinquency rates than second- and third-generation immigrants.

Theoretical explanations based on the importance of neighborhood effects as a locus for and moderator of causes of offending by race have received substantial support from the works of Anderson, Stewart and Simons, Stowell and colleagues (discussed earlier in the chapter), and Sampson and colleagues (discussed earlier in the chapter).

Furthermore, Sampson and colleagues find that self-report data collected in a cohort study of juvenile and young adults from Chicago neighborhoods indi- cate that there is a “racial” gap in offending between African American, Mexican, Puerto Rican, and white youth. In an attempt to explain these descriptive find- ings, they control for neighborhood-level effects, individual constitutional char- acteristics (IQ and impulsivity), and so on. They find that once controlling for

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82 C H A P T E R 2

FOCUS ON AN ISSUE

Code of the Street: Predicts Violent Delinquency

In Elijah Anderson’s work, he sets forth a

“Code of the Street” perspective to explain

the causes of violent delinquency among

African Americans. This work suggests a

learning environment conducive to the

commission of violence as individuals

develop “social identities” consistent with

the predominant street culture.107 Recent

work by Eric Stewart and Ronald Simons

offers a multivariate analysis of the “code

of the street” perspective by testing two

key hypotheses, finding support for each.

Using a data set of 700 African-American

youth in response to a survey designed to

“identify neighborhood and family pro-

cesses that contribute to African-American

children’s development in families living in

a wide variety of community settings,”108

these researchers found the following:

First, based on the assumption of the

existence of a neighborhood-based

street culture of violence, Stewart and

Simons hypothesize that “neighbor-

hood street culture would be related

significantly to violent delinquency

above and beyond individual level

street code values.”109 Their findings

indicate that neighborhood street

culture does in fact predict violent

delinquency beyond the individual

respondent’s personal commitment to

street code values.

Second, based on the ideas pre-

sented by Anderson that suggest “ the

neighborhood street culture moderates

the effect of individual-level street

code values of violence” thus leading

to the assumption that “neighbor-

hood street culture tends to amplify

the violence-provoking effect of

personnel commitment to the street

code” Stewart and Simons proposed

B o x 2.5 Monitoring the Future

The only student-based self-report survey done on a yearly basis with a nation- wide sample is Monitoring the Future.105 Responses to their delinquency questions reveal few differences in self-report delinquent behavior by white compared to African-American youth. White youth were slightly more likely to report being in a serious fight within the last year, using a weapon to get something from a person, taking something from a store, and taking a car that did not belong to someone in their family. African-American youth were slightly more likely to report taking some- thing from a store without paying for it, taking something not belonging to them worth less than $50, and going into some house or building without permission.

David Huizinga and Elliot explored whether African-American youth have a higher prevalence of offending than whites and whether a higher incidence of offending by African Americans can explain differential arrest rates. Their analysis revealed few consistent racial differences across the years studied, either in the pro- portion of African American and white youth engaging in delinquent behavior or in the frequency with which African American and white offenders commit delinquent acts. Contrary to Hindelang, they suggest that the differential selection bias hypothe- sis cannot be readily dismissed because the differential presence of youth in the crimi- nal justice system cannot be explained entirely by differential offending rates.106

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83V I C T I M S A N D O F F E N D E R S

the economic indicators, the gap in offending by race and ethnicity effectively disappears.111

Drug Offenders

A prevalent image in the news and entertainment media is the image of the drug user as a person of color. In particular, trend arrest data for nonalcoholic drug abuse violations reflect an overrepresentation of African Americans and often an overrepresentation of Native Americans for alcohol-related offenses. A more com- prehensive picture of drug users emerges from self-report data that ask respon- dents to indicate their use of and their prevalence of use for particular drugs. In a recent report on the use of licit and illicit drugs among people of color, through the National Survey on Drug Use and Health, funded by the National Institutes of Health (NIH) reveals racial and ethnic variations among young people and adults. For all residents aged 12 and older,112 10.1 percent report using illicit drugs in the last year. The lowest use pattern was with Asians Americans (3.1 percent), followed by Hispanics (8.8 percent), whites (9.5 percent), and African Americans (10.5 percent). The highest level of use was reported by American Indians/Native Alaskans (12. 3 percent) and Hawaiian/Pacific Islander (14.0 percent), and bira- cial/multiracial respondents (17.0 percent).

College student drug use (ages 18–22) was more the double the use of gen- eral population at 22.3 percent. Asian Americans reported significantly lower than average use (9.4 percent). Whereas African-American and Hispanic college stu- dents (19.7 percent and 21.5 percent, respectively) report slightly lower than aver- age use. Whites have the highest level of drug use in college at 25.1 percent. The typical drug of choice for college students was marijuana.

In a multivariate analysis of earlier NSDUH data, McCabe and colleagues find that male students are generally more likely to report drug use than female students; however, they find that, “Hispanic and white students were more likely to report drug use and abuse than Asian and African American students prior to coming college or during college.”113 Additionally, the use of marijuana by college students reveals that it is more often used by Hispanic college students, followed by white, Asian American, and then African American college students.

For the U.S. population aged 12–17, survey data reveal interesting patterns for “licit” (cigarettes and alcohol) and “illicit” drug use114 (marijuana). Examina- tion of the data reveals that the pattern of cigarette and alcohol use varies by race and ethnicity. While 5.6 percent of this age group indicated they had smoked in

a second hypothesis in which they

expect: “the effect of street code values

to be associated strongly with violent

delinquency in settings where strong

evidence is found of a neighborhood

street culture.” Their findings indicate

that support for the position that

“neighborhood street culture moder-

ates individual-level street code values

on violence in neighborhoods where

street culture is widespread.”110

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84 C H A P T E R 2

the last month, white youth had the highest reported cigarette use (7.2 percent). Hispanic and Native Hawaiian/Pacific Islander youth have half the level of white youth smoking cigarettes in the last month (3.7 percent and 3.6 percent, respec- tively). African-American and Asian youth report the lowest levels of smoking cigarettes (3.2 percent and 2.5 percent, respectively). Whites also chow the highest use of smokeless tobacco. All racial groups show a decline in smoking since 2009. As for alcohol use, youth were asked if they started drinking in the last year, with 10.5 percent of white youth initiating alcohol use, followed by a lower percentage of Hispanic and African-American youth (9.1 percent).

The initiation patterns of drug use by youth in the last 12 months also diverge by race and ethnicity.115 The pattern, however, is the same across drug type. Spe- cifically, white youth reporting the highest initiation of alcohol, cigarettes, and nonmedical use of prescription drugs compared to African-American and His- panics youth. The use patterns differ between Hispanic and African-American youth as the former report higher levels of initiation for cigarettes and nonmedi- cal use of prescription drugs.

Monitoring the future is another self-report drug use survey. This annual sur- vey asks a sample of high school students from around the nation their daily to lifetime drug use for a range of licit and illicit drugs.116 The primary observation about race, given prevalence estimates across three years, is “12th grade African American students reported lifetime, annual, 30 day, and daily prevalence rates for nearly all drugs as lower—sometimes dramatically so—than those for white and Hispanic 12th graders …. Also, usage rates for most drugs were generally lower for African American students than for white and Hispanic students in 8th and 10th

grade.”117 As with college students, marijuana use is highest among Hispanics, and Hispanics have the highest annual and lifetime prevalence for crack and cocaine use. White students have the highest annual and lifetime use for hallucinogens (including LSD), tranquilizers, amphetamines, and sedatives.

To the extent we see a face of color when we picture drug users, we are only aware of a small portion of the picture of drugs use across racial and eth- nic groups. Often whites report the highest use levels. Neighborhood charac- teristics and family environment may serve as risk factors contributing to drug use. For example, the National Household Survey on Drug Abuse data reveal the disturbing observation that a far greater number of African-American and Hispanic youth (approximately one third) reported seeing people sell drugs in the neighborhood occasionally or more often than whites did (less than 10 percent).

Mass Shooting Offenders

Given the information available on homicides in single incident cases, we now turn to the question, “Do Mass shooters have a race”? This section reviews two aggregate, descriptive accounts of criminal incidents that lead to the massive injury and death in the United States. One account is a journalistic from a major news magazine, Mother Jones, of Mass shooting events, while the other account is from a federal law enforcement agency describing active shooter event. Both

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85V I C T I M S A N D O F F E N D E R S

accounts identify the offenders as being overwhelmingly male (more than 95% of the time). Note, this percentage is far in excess of the roughly 50 percent of the U.S. population that is identified in the U.S. Census as male. However, do mass shooters and active shooters have a race? The discussion of mass shooters identi- fies the gender, race, and often age of the offenders, while the government source identifies gender and age, but not race of the shooters. Race is difficult to define at times and may best be considered as a self-defined status; however, an attribu- tion of race by another (such as by a journalist from a photograph) clearly has a racial impact. Does the absence of race in a government report on active shooters raise important questions?

Definitions for mass shootings and the similar active shooter incidents are varied; however, they do have an overlap of incidents. Mother Jones has constructed a data base of mass shooting incidents (typically killing four or more people with little or no break), which includes offender information. Their database reveals the vast majority of mass shooters are whites. This is a different picture of the typ- ical offender than we see in typical (individual victim) accounts in the SHR made available by the FBI that are addressed above. Mother Jones reveals that in more than 75 incidents since 1982, the typical shooter is white (in over 80 percent of the cases), and in the remaining cases, the shooter is identified as Asian or African American.118 This pattern of 80 percent of mass shooters being whites persists in Columbine copycat shootings as well, which have resulted in 21 attacks, with 89 fatalities and 126 wounded since 1999.119

The Federal Bureau of Investigation released a report in 2014, entitled, “A Study of Active Shooter Incidents Between 2000 and 2013.120 An active shooter incident is defined as “a situation in which a shooting is in profess and an aspect of the crime may affect the protocols used in responding to and reacting at the scene of the incident” (Blair et al., p. 4). Highlights from this study (Blair et al., 2014, pp. 5–7) reveal that critical shooter incidents have occurred in 40 of the 50 states; 160 incidents were identified, with an average of 6.4 incidents in the first 7 years studied and 16.4 incidents in the last 7 years studies; 1,043 people were injured or killed.

Further review of these data reveals that incidents are typically in business locations or an educational environment. The report states that “though this study does not focus on the motivation of the shooters, the study did identify some shooter characteristics” (Blair et al., 2014, p. 20):

- In 158 incidents, the shooter acted alone;

- Shooters are predominantly male, with fewer than 4 percent of incidents involving a female;

- A number of shooters were identified as middle school or high school age.

No race information is presented in the report for the shooters, even though 97% of them are dead or in custody. Moreover, no race information is offered in the description of victims, either. The conclusion is that males are overrepresented as offenders in active shooter events, but we have no information from the FBI

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86 C H A P T E R 2

about shooter race. This report stands in contrast with the UCR, the SHR, and the Hate Crime statistics that report race of arrestees, and in the last two reports, race of suspect.

Can you picture an offender without picturing a race? Can law enforcement act effectively with a shooter profile that does not include race? Is race assumed to be connected with motivations, thus, excluded?

In a recent New York Times op-ed piece,121 Anthea Bulter, professor of Reli- gious and Africana Studies at the University of Pennsylvania, highlights the racial- ized nature of reporting on homicides and mass shootings. In short, minority homicide offenders are “street thugs” and white mass killing offenders are trou- bled by mental illness. Metzel and MacLeish conclude in their recent research that “notions of mental illness that emerge in relation to mass shootings frequently reflect larger cultural stereotypes and anxieties about matters such as race/ethnic- ity, social class, and politics. These issues become obscured when mass shootings come to stand in for all gun crime, and when ‘mentally ill’ ceases to be a medical designation and becomes a sign of violent threat.”122

Summary: A Picture of the Typical Criminal Offender

The image of the typical offender that emerges from the data examined here conflicts somewhat with the image in the minds of most Americans. If by the phrase “typical offender” we mean the offender who shows up most frequently in arrest statistics, then for all crimes except murder and robbery the typical offender is white, not African American.

As we have shown, focusing on the number of persons arrested is somewhat misleading. It is clear from the data discussed thus far that African Americans are arrested at a disproportionately high rate. This conclusion applies to prop- erty crime and violent crime. Moreover, victimization data suggest that Afri- can Americans may have higher offending rates for serious violent crime, but examinations of victim perception of offender with official arrest data reveal that some of the overrepresentation of African-American offenders may be selection bias on the part of criminal justice officials, but this dilemma remains unsettled.

If part of the view of the typical criminal offender is that the typical drug offender is a minority, we have shown that self-report data from youth popula- tions in the United States reveal that people of color do not have consistently higher drug-use rates than whites. This picture varies slightly by type of drug, with Hispanic youth showing higher rates of use with some drugs and Native American youth with other drugs, but there is little evidence of differential pat- terns of higher use rates by African Americans than other racial groups.

The typical offender in mass shooting situations has a race, and even when it is not reported in government publications, media outlets provide such infor- mation in their data bases. The typical mass shooter has a race: white. Moreover, the depiction of this type of crime is conflated with media depictions of “street thugs” versus the mentally ill.

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87V I C T I M S A N D O F F E N D E R S

C R I M E A S A N I N T R A R A C I A L E V E N T

In the minds of many Americans, the term crime conjures up an image of an act of violence against a white victim by an African-American offender.123 In the pre- ceding sections, we demonstrated the inaccuracy of these perceptions of victims and offenders; we illustrated that the typical victim is a racial minority and that the typical offender, for all but a few crimes, is white. We now turn to a discussion of crime as an intraracial event.

National Crime Victimization Survey

Few criminal justice data sources, including the NCVS, offer comprehensive information on the racial makeup of the victim–offender dyad. Recall that the NCVS asks victims about their perceptions of the offender’s race in crimes of violence and data presented distinguish among only African Americans, whites, and “others” (victims’ perceptions of the offender as Hispanic are not available).

With these limitations in mind, NCVS data on the race of the victim and the perceived race of the offender in single-offender violent victimizations can be examined.124 These data indicate that almost all violent crimes by white offenders were committed against white victims (73 percent). This pattern also character- ized the individual crimes of robbery, sexual assault, aggravated assault, and sim- ple assault. The typical white offender, in other words, commits a crime against another white person.

This intraracial pattern of violent crime is also reported by African-American victims. In short, crimes of robbery, sexual assault, aggravated assault, and simple assault of African Americans are predominantly intraracial. The only NCVS crime type that does not follow this pattern is a white robbery victim with injury. These

B o x 2.6 Civil Rights Cold Cases

Pursuant to the passage of the Emmett Till Unsolved Civil Rights Crime Act (“Emmett Till Act”), signed into law on October 8, 2008, the Department of Justice and the FBI are working together to address “violations of criminal civil rights statutes … result[ing] in death” that “occurred not later than December 31, 1969.” Toward that end, each of the 56 FBI field offices searched their “cold case files” to identify inci- dents that might be ripe for investigation. Since February 2007, the FBI and the Divi- sion have partnered with the National Association for the Advancement of Colored People (NAACP), the Southern Poverty Law Center (SPLC), and the National Urban League to identify additional cases for investigation and to solicit their help.

(Excerpt from https://www.justice.gov/crt/cold-case-initiative)

What Civil Rights era criminal cases were left unresolved in your state? Can you identify a case the FBI might be able to solve through this initiative?

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88 C H A P T E R 2

victims are nearly as likely to be victimized by perceived offenders who are white or African American.

Uniform Crime Report Homicide Reports

A final source of data on the victim–offender pair is the Supplemental Homi- cide Report. Contrary to popular belief, a 29-year review of UCR/SHRs reveals that homicide is essentially an intraracial event.125 Specifically, in data spanning 1980–2008,

■ 93 percent of African-American murder victims were slain by other African Americans;

■ 84 percent of whites were victimized by whites;

■ 26.7 percent of stranger homicides were interracial;

■ 9.7 percent of friend or acquaintance victimization was interracial;

Cross-sectional UCR data for 2008 alone reveals126:

■ 63 percent of Asian/Hawaiian/Pacific Islanders were victimized by Asian/ Hawaiian/Pacific Islanders; and

■ 57 percent of Native American/American Indians were victimized by Native American/American Indians.

The small percentage of interracial homicides are more likely to occur with young victims and young offenders and are slightly more likely to be black-on- white offenses than white-on-black offenses. This analysis also reveals that most homicides are intraracial, regardless of relationship with the offender: stranger homicides (7 in 10 are intraracial) than homicides by victim or acquaintance (9 in 10 are intraracial).127

Summary

The general pattern revealed is one in which white offenders consistently victim- ize whites, whereas African-American offenders, and particularly African-American males, more frequently victimize both African Americans and whites. As noted, the politicizing of black criminality continues, and the emergence of and subsequent focus on racial hoaxes persists.128 See “Focus on an Issue” sections for a discussion of the politicizing of black criminality and the persistence of racial hoaxes.

C R I M E A S A N I N T E R R A C I A L ( H AT E ) E V E N T

Not all interracial criminal events are considered hate crimes. The term hate crime (or bias crime) is most often defined as a common law offense that contains an element of prejudice based on the race, ethnicity, national origin, religion, sexual orientation, or disability status of the victim (some statutes add gender). Generally,

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89V I C T I M S A N D O F F E N D E R S

FOCUS ON AN ISSUE

Politicizing Black-on-Black Crime and Ignoring White-on-White and White-on-Black Crime

Bing and Russel note that, “Much atten-

tion has been devoted to ‘black-on-black’

crime … It is not unusual to see in the

written press or to hear in the electronic

media stories depicting the evils of liv-

ing in the black community. [This] has

occurred with such frequency that some

individuals now associate black people

with criminality. Simply put, it has become

fashionable to discern between crime and

black-on-black crime. Rarely does one

read or hear about white crime or ‘white-

on-white’ crime. This is troubling when

one considers that most crimes, including

serious violent crimes, are committed by

and against whites as well as blacks.”129

Some researchers have challenged

the assertion that crime is predominantly

intraracial.130 These critics point to the fact

that a white person has a greater likelihood

of being victimized by an African-Ameri-

can offender than an African American has

of being victimized by a white offender.

Although this is true, it does not logically

challenge the assertion that crime is pre-

dominantly an intraracial event. Remem-

ber that the NCVS reveals that the typical

offender is white, not African American.

An exception to the predominant

intraracial pattern of crime occurred with

the examination of Native American and

Asian victimization patterns. Native Amer-

icans report most victimizations occurring

by whites, and Asians report victimizations

occurring almost equally by whites, Afri-

can Americans, and other racial groups

(with no group committing the majority

of offenses).

Braga and Brunson, reporting for the

Executive Session on Policing held at the

Kennedy School (2015), assert that “the

term ‘black-on-black violence’, while sta-

tistically supported [in some situations] is

simplistic and emotionally charged defini-

tion of urban violence when used by polit-

ical commentators, politicians and police

executives.”131 Does this term suggest

that urban violence is a “black problem”?

These authors note that television and

print media coverage may be presented

without the appropriate contextual infor-

mation and may be perceived as reflecting

the actual racial distributions of crime and

offenders. They sight damaging examples

of unsupportable statements and erroneous

facts used by commentators, mayors, and

police chiefs. A discussion of what can be

done in a constructive manner focuses on

community-level issues, such as building

collective efficacy. Papachristos, Braga and

Hura’s examination of homicide in Boston

(over a 13-year period), reveals that “black-

on-black” homicide is largely concen-

trated in a small number of disadvantaged

neighborhoods, with offenders that were

involved in criminal activity.132 Further,

a large number of incidents could be

explained by the actions of a small number

of “career” criminals.

Do we consider any particular crimes

to be “white-on-white crimes”? Why or

why not? Consider financial crimes. What

about state crime? If the government is a

majority white government, if it commits a

crime against predominantly black cities, is

this “white-on-black crime”? Consider the

Flint, Michigan, lead-poisoning scandal.

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90 C H A P T E R 2

Disabilities 1.5 %

Racial Bias 48.3%

Sexual Orientation/ Gender Identity Bias

20.1%

Religious Bias

17.1%

Ethnicity Bias

12.4%

F I G U R E 2.2 Hate Crime Offenses by Bias Type, 2014 SOURCE: FBI, Hate Crime Statistics, 2014 (2015).

hate crime legislation is enacted in the form of enhancement penalties for com- mon law offenses (ranging from assault to vandalism) that have an element of prejudice. Justifications for the creation of such legislation include the symbolic message that certain actions are exceptionally damaging to an individual when they are “provoked” by the status of race and ethnicity and that such actions are damaging to the general community and should be condemned.

The FBI has been mandated by Congress to collect and disseminate infor- mation on hate crime in the United States.133 In 2014, the FBI Hate Crime Data Collection Program received reports from nearly 15,494 law enforcement agencies, representing nearly 85 percent of the U.S. population. The FBI offers this caution in its annual report: “The reports from these agencies are insufficient to allow a valid national or regional measure of the volume and types of crimes motivated by hate; they offer perspectives on the general nature of hate crime occurrence.”

The FBI received reports of 5,479 bias-motivated criminal incidents in 2014, consisting of 6,418 offenses. Most offenses reported (63.1 percent) involved crimes against a person, with 36.1 percent of the offenses designated as prop- erty offenses. A small number of offenses (less than 1 percent) were designated as crimes against society.134 As shown in Figure 2.2, most common offense were the crimes of intimidation (27.2 percent), followed by destruction/vandalism of prop- erty (26.4percent), simple assault (23.6 percent), and aggravated assault (12.0 per- cent).135 The most commonly reported hate crime motivation was identified as race bias (48.3 percent), followed by 20.1 percent reflecting sexual orientation or gender identity bias, 17.1 percent reflecting bias based on religion, and 12.4 per- cent reflecting a bias based on ethnicity/national origin (Figure 2.2).

The victims of race bias crimes were reflective of all race categories, includ- ing a multiracial group category. Three racial groups reported high percentage of victimization than their representation in the population: 63.5 percent were motivated by African-American bias, with 5.5 percent resulting from anti-Asian bias and 4.6 percent motivated by American Indian/Alaska Native bias. White

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91V I C T I M S A N D O F F E N D E R S

victims made up of 22.8 percent of bias-motivated offenses were reported, mak- ing them the second largest group of race-based hate crime victims. Asian/Pacific Islanders accounted for 0.01 percent of hate crime victimization.

Offender information is also available in the FBI Hate Crime Reporting Program reports. This information is provided by victims reporting their percep- tions, rather than being based on arrest or charging information. In 73.9 percent of the hate crime offenses reported, the offender was known and the perception of race was reported by the victim. In these cases, suspected offenders were most often identified as white (56.7 percent), and suspected offenders represented all four race categories and were occasionally identified as multiracial.136 In short, all race groups have individuals who have been victimized by bias crimes and all race groups have individuals who are suspected offenders of bias crimes.

Information on the trends of victimization and offending in bias-crime events is limited, but patterns for both whites and African Americans have emerged. African Americans are most often victimized by whites. And whites are most often victimized by African Americans.137 Native American, Asian Amer- ican, and Pacific Islander/Hawaiian Native bias-crime victims identified whites as the offender in more than half of incidents. Whereas Native Americans were rarely identified as offenders, they were as likely to have white victims as Afri- can-American victims, and the offender identified as Asian American is found to victimize African Americans more than the other racial groups.138

In 2005, the Bureau of Justice Statistics released a Special Report comparing the picture of hate crime incidents and offenders that appears in victim self-re- port survey information (the NCVS) with the picture found in police-based data (UCR).139 The NCVS requires corroborating evidence of hate-based motiva- tion before it records an event as a hate crime. Specifically, the offender must use derogatory language, display a hate symbol, or have a confirmed hate crime report by local law enforcement. Pooling several years of NCVS data (2000–2003) results in an average of 191,000 hate incidents, of which 92,000 were reported to police (44 percent). These data reveal approximately 3 percent of all violent crimes reported in the NCVS were perceived by the victim as hate crimes. Nearly one third of the offenses were violent crimes such as rape and serious assault, and nearly 25 percent of the offenses were household vandalism that was perceived to be motivated by hate. The most common motivation identified by victims was based on race (55 percent), association with someone of a different race (such as a multiracial couple; 31 percent), or ethnicity (29 percent).

Key information describing the offender and the incident is also available from the NCVS data. Offenders are predominately male and most likely to be white and a stranger to the victim. The event is most likely to be a violent crime and occur in a public place. When comparing hate offenders to non-hate offend- ers, NCVS data reveal that perceived gang membership and use of weapons do not vary from hate- to non-hate-related events. However, a larger percentage of females are identified as offenders in hate events than non-hate events. Similarly, the perceived racial makeup of offenders is different with hate- and non-hate- related events. Forty-four percent of offenders are white in hate events; 62 per- cent of offenders are identified as white in non-hate events. Conversely, a larger

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92 C H A P T E R 2

percentage of hate offenders are perceived as African American than non-hate offenders (39 percent compared to 24 percent).140

When the racial composition of victims and offenders is examined, interest- ing differences appear. First, white victims report that nearly half of their offend- ers were white offenders and nearly half of the offenders were African Americans. However, African-American victims perceive their offenders to be white in more than 85 percent of offenses, with African-American offenders identified in only 15 percent of cases.141

The official UCR recording of hate crime incidence from this time period (2000–2003) gives an annual average of 8,227 incidents.142 What accounts for the disparity? First, the motivation of association is not recognized by the UCR classification system (identified above as the second most common motivation in the NCVS). Second is the lack of victimization reporting to the police. The NCVS respondents reveal the hate incidents they report to the police are confirmed by police investigation in fewer than 10 percent of incidents. This study also reveals that victims are less likely to report hate-related events to the police than similar non-hate-related events. Additionally, the NCVS data may reflect an overreporting by respondents, perhaps due to telescoping events forward in time.

James Jacobs argued that hate crime statutes create a law unlikely to deter, and its implementation will widen social division. He also argued that hate crime legislation represents an ill-advised insertion of the civil rights paradigm into the criminal law. Specifically, Jacobs reasons that civil rights legislation is an attempt to extend “positive rights and opportunities to minorities and women … directed at the conduct of government officials and private persons who govern, regulate, or sell goods and services. By contrast, hate crime law deals with conduct that is already criminal and with wrongdoers who are already criminals.” He concluded that the “possibility that criminals can be threatened into not discriminating in their choice of crime victims is slight.”143

In a recent study examining the potential for community disorganization to explain the occurrence of hate crime, Christopher Lyons hypothesized that socially disorganized communities will have higher rates of hate crime. In his multivariate analysis of communities in Chicago, he characterized social disor- ganization with such measures as youths who skipped school, the presence of graffiti, and fighting in front of a respondent’s house. He also controlled for unemployment, poverty, percentage of families on public assistance, and percent- age of families with single mothers. Additionally, he controlled for racial compo- sition and percentage change in minority racial composition over the last decade. The dependent variables for this study were the occurrence of anti-black and anti-white hate crimes. His findings indicate that “anti-black hate crimes are most numerous in relatively organized communities with higher levels of informal social control, and especially in internally organized white communities undergoing the threat of racial invasion” and are most common in “economically affluent com- munities.” Anti-white hate crimes, however, have a different set of causes, since these crimes are identified as “somewhat more likely in disadvantaged communi- ties, especially with higher levels of residential mobility.”144

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93V I C T I M S A N D O F F E N D E R S

FOCUS ON AN ISSUE

Disability and Crime Victims

The FBI Hate Crimes statistics report

bias incidents occurring against people

with disabilities. Although these events are

rare—95 incidents in 2014, and approxi-

mately 1 percent of all reported hate crime

incidents—this status of victimization is

still relevant to a discussion of minorities

and criminal justice.146 These data distin-

guish between those with physical disabil-

ities (27.3 percent) and those with mental

disabilities (72.6 percent). Of the known

reported incidents, 42.8 percent occurred

in the residence/home, higher than the

percentage for this location for any other

bias-crime offense.

A recent report from the Bureaus of

Justice Statistics based on the National

Crime Victimization Survey (2009–2013)

indicated a victimization rate was more

than twice that of persons without disabil-

ities (36 vs. 14 per 1,000 population).147

The definition used in this survey is

broader than the mental or physical dis-

ability used by the FBI reporting data,

encompassing restrictions to full partic-

ipation in activities at home, school and

work, that could include hearing, vision,

ambulatory, and cognitive issues. Thus,

roughly 21 percent of all violent victim-

izations occurred against someone with a

disability. African Americans with disabil-

ities reported victimization rates similar

to those without disabilities; however, the

remaining racial groups had higher rates

for members with a disability than those

without a disability. The disability victim-

ization rate did not vary significantly by

gender, with males and females both hav-

ing a higher victimization rates than the

non-disabled population.

Examination of FBI Hate Crime Sta-

tistics revealed a larger percentage of dis-

bility bias offenses were committed against

whites identifying a disability than against

African Americans identifying a disability.

The vicimization of Hispanics was signifi-

cantly lower than for non-Hispanics. Age

differences emerged in these data that indi-

cate a higer percentage of disiblity-based

bias crimes occurred against people aged

21 and over, compared with respondents

aged 20 or younger.148

Victims identifying their offenders

indicated that their offenders were more

likely to be a combination of male/female

offenders than one or the other, signifi-

cantly more likely to be white than Afri-

can American, and more likely to be 20

or younger than 21 or older. This report

indicates significantly more victimizations

during this time period than the FBI Hate

Crime statistics that police agencies report.

Persons with disabilities report being

victimized by non-strangers at higher per-

centage than persons without disabilities

(more than 60 percent of the time, com-

pared to less than 50 percent of the time).

Karla Westjohn challenges stereotypes

that disabled people can also be offenders,

because some of the offenders known to

the victim were also disabled. She also

asserts the need for law enforcement and

the courts to be more responsive to dis-

abled victims as able witnesses.149

Lyons concludes that “the correlates of anti-black crimes are distinguishable from those of crime in general,” while anti-white crime, “like other forms of crime … appear[s] to be the product of social disorganization brought about by population turnover.”145 The logical extension of this research is that different

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94 C H A P T E R 2

prevention strategies may be needed for different types of hate crime incidents. Moreover, this research again highlights the importance of criminological theory based on neighborhood context to explain the causes of crime and victimization (this is addressed more in Chapter 3).

E T H N I C Y O U T H G A N G S

In the minds of most Americans, the words gang, race, and crime are inextricably linked. Recall the incident described at the beginning of this chapter, in “Focus on an Issue: Central Park Jogger” (earlier in the chapter), in which a woman was raped and believed to be attacked by a group of minority teenagers in Central Park. The media labeled these youths a “gang.” This designation, however, was challenged by those who argued that the teenagers allegedly involved in the inci- dent were not organized, had no gang identity, and behaved more like a mob than a gang.150 This insistence on the perceived “group” nature of the offense led investigators to arrest and the court to convict the “gang” suspects, ignoring the evidence of the single “real” offender identified later by DNA testing.

A comprehensive review of recent research on ethnic youth gangs is beyond the scope of this chapter. Instead we discuss some of the prevailing myths and new realities about gangs and gang membership. The National Gang Intelligence Center indicates that there are over 1 million gang members in more than 30,000 distinct gangs. This report offers a quick synopsis of three types of gangs151:

(Youth) Gangs—(U.S. Department of Justice’s definition) “(1) an association of three or more individuals; (2) whose members collectively identify them- selves by adopting a group identity which they use to create an atmo- sphere of fear or intimidation frequently by employing one or more of the following: a common name, slogan, identifying sign, symbol, tattoo or other physical marking, style or color of clothing, hairstyle, hand sign, or graffiti; (3) the association’s purpose, in part, is to engage in criminal activ- ity and the association uses violence or intimidation to further its criminal objectives; (4) its members engage in criminal activity, or acts of juvenile delinquency that if committed by an adult would be crimes; (5) with the intent to enhance or preserve the association’s power, reputation, or economic resources; (6) the association may also possess some of the following characteristics: (a) the members employ rules for joining and operating within the association; (b) the members meet on a recurring basis; (c) the association provides physical protection of its members from other criminals and gangs; (d) the association seeks to exercise control over a particular location or region, or it may simply defend its perceived interests against rivals; or (e) the association has an identifiable structure.”

Street Gangs—(neighborhood-based and national street gangs) “gangs located throughout the United States, and their memberships vary in number, racial and ethnic composition, and structure. Large national street gangs pose the greatest threat because they smuggle, produce,

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95V I C T I M S A N D O F F E N D E R S

transport, and distribute large quantities of illicit drugs throughout the country and are extremely violent. Local street gangs in rural, suburban, and urban areas pose a steadily increasing threat transporting and distrib- uting drugs within specific areas. The local street gangs often imitate the larger, more powerful national gangs in order to gain respect from their rivals”

Outlaw Motorcycle Gangs (OMGs) “are organizations whose members use thei r motorcycle clubs as conduits for criminal enterprises. OMGs are highly structured criminal organizations whose members engage in criminal activities such as violent crime, weapons trafficking, and drug trafficking. There are more than 300 active OMGs within the United States, ranging in size from single chapters with five or six members to hundreds of chapters with thousands of members worldwide.”

Gang Myths and New Realities

We have shown that popular perceptions of crime, crime victims, and criminal offenders often are inaccurate. While gangs are consistently identified as groups using violence to further goals, who act primarily to generate income, many of the prevailing beliefs about gangs are similarly mistaken. In the sections that fol- low, we discuss some of the myths surrounding gangs and gang activity. We show that although there is an element of truth in each of these myths, there also are a number of inaccuracies.

Myth 1: Gangs are a uniquely twentieth and twenty-first century phenomenon.

L. Sante documents that some historians believe there is evidence to suggest that gangs began in the United States just after the Revolutionary War, around 1783. Still others document the emergence of street gangs in growing American cities several decades later, in the early 1800s.152

A recent report on the “History of Gangs in the United States” also docu- ments unique regional factors that have contributed to the emergence of gangs around the country.153 For example, Northeast and Midwest gangs are largely rooted in the immigration patterns from white ethnic groups leaving Europe for America. These groups were settling in large industrial cities in very segregated housing situations and experienced prejudices that made achieving the American Dream difficult (see subculture theory in Chapter 3). In the West, the clash of American expansion and preexisting Mexican cultures lead to the emergence of street gangs. Subsequent immigration patterns to the West Coast from Mexico, immigrants looking for farm work, contributed to the growth of street gangs. Migration patterns by African Americans moving from the South to these three regions (the Northeast, the Midwest, and the West) added an additional dimen- sion of gang formation that is still prevalent today. In the decades to come addi- tional groups of Hispanics (Puerto Ricans, Panamanians, Cubans, and so on) and Asian immigrants (Filipinos, Chinese, Vietnamese, and so on) would continue to fuel the gang cultures in these regions. Native American gangs would emerge at a later point, both on and off tribal lands.154

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96 C H A P T E R 2

Outlaw motorcycle gangs have not always been seen as threats to public safety; however, recent events have changed that perception. For example, in 2012, the motorcycle gang Hell’s Angels Rock Hill in South Carolina was convicted of drug dealing, robbery, arson, and firearms violations. Also in 2012, the Wheels of Soul motorcycle gang was convicted of federal racketeering charges linked to murder. These gangs are found throughout the United States and include but are not limited to Hells Angels Motorcycle Club, Pagans, Banditos, Outlaws, and Iron Horsemen. This threat has been identified as a serious concern by policing exec- utives due to their perceived criminal sophistication. These groups are found in urban, as well as, rural areas.

Myth 2: All gang members are African American and belong either to the

Bloods or the Crips. The Bloods and the Crips are predominantly African American and are very widely known. These two street gangs are heavily involved in illegal drug activities and are characterized by a confederation of local gangs that stretch across the country.155 They are not, however, exclusively African American. S. Mydans156 provided examples of well-to-do white youth joining California Crips and Bloods. The most recent National Gang Survey identified as least one group of Asian Crips.

Although members of the racial minority groups we focus on in this book are overrepresented in gangs, they do not comprise the entire gang problem. (It is somewhat misleading to categorize gangs as Hispanic or Asian. The terms “His- panic” and “Asian” are very broad and mask the variety within each group. In reality, gangs are ethnically specific by nationality; there are Puerto Rican, Cuban, Mexican American, Vietnamese, Cambodian, Korean, Chinese, and Japanese gangs.)

The earliest gangs in the Northeast region of the United States were pre- dominantly white, reflecting the major waves of European immigration, first from northern and Western European countries and later from middle and Eastern European countries. These immigration trends, along with the rapid growth of industrial center cities, left a situation of poverty and unemployment that created fertile ground for the formation of gangs. Sante notes the earliest gangs were commonly Irish, with the Chinese establishing tongs as early as 1860. Italian and Jewish gangs emerged after the Civil War.157

Currently, white ethnic gangs are not as prevalent. Covey and colleagues158

argue that “the relative absence of white ethnic gangs in official studies may be a product of a number of factors including the difficulty of identifying them159 and biases in reporting and public perception.”160 Many of the white ethnic groups that do exist are characterized by white supremacist activities or Satanism.

Myth 3: Gangs are only found in large cities. It is important to understand that the gang phenomenon is not a homogeneous one. Although many gangs are located in urban areas, gangs are increasingly found in suburban and rural communities and on Indian reservations.161 The National Youth Gang Survey in 2007, collected by the National Youth Gang Center from law enforcement agencies, estimated that gangs were present in 86 percent of large cities and 35 percent of smaller cities.

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Additionally, this survey revealed that suburban and rural counties each reported the presence of gangs (50 percent and 15 percent).162 The National Youth Gang Center also tracks the size of urban, suburban, and rural gangs over time. Since 2002 the general estimate of the number of self-identified gang problem jurisdictions went up 25 percent. However, this increase was largely fueled by the 33 percent rise in suburban gangs compared to the 12 percent rise in large city gangs.

Myth 4: Gangs are the result of poverty and a growing underclass. It is overly simplistic to attribute the existence of gangs solely to poverty. The National Youth Gang Survey indicated that although the majority of gang members are identified as underclass, 35 percent were identified as working class, 12 percent as middle class, and 3 percent as upper middle class.163 Gangs exist for a variety of reasons: the growth of the underclass, the disintegration of the African American and Hispanic family, poverty, difficulty assimilating into American culture, mar- ginality, political and religious reasons, and general rebellion against adult and conventional society.164 However, Curry and Decker argued that gang formation and gang delinquency are more likely to be explained at a community level rather than at an individual level.165

Myth 5: All gang members are males. Although it is true that males are over- represented in gang membership, there are female gang members and female gangs. The early sociological literature on gangs only discussed males; females who accompanied male gang members were often described in terms of an “ auxiliary”—present, but not a formal part of the criminal activity.

More recent studies have found both fully active female gang members and a few solely female gangs. The NGIC reports that 1 in 4 jurisdictions report female gang members (up from 1 in 7 in 2007), with up to 10 percent of gang mem- bership made up of females. Moreover, more than half of recognized gangs have female members, with smaller cities reporting the largest percentage of female gang members compared to larger cities, suburban counties, and rural counties.166

Anne Campbell identified several all-female gangs in New York City. “The Sand- man Ladies,” for example, were Puerto Rican females with a biker image. “The Sex Girls” were African American and Hispanic females involved in drug deal- ing. Currently, female gang members are known to assist with the “movement of drugs and weapons for male gang members and [the gathering of] intelligence from rival gangs.”167

The presence of female gang members differs by ethnicity as well. Females are found in Hispanic, African American, and white ethnic gangs, but they appear to be conspicuously absent in both journalistic and scholarly accounts of Asian American gangs.168

In December 2012, federal authorities arrested 40 members of the Bronx Trinitarios gang. They were charged them with multiple counts of murder and attempted.169 The arrests included the leader of the all-female faction called “Bad Barbies,” who was charged in connection with the shooting death of a rival gang member in 2005. She was identified as one of as many as a hundred women who run the Bronx Trinitarios.

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Myth 6: Gangs involve only young people and have few ties to organized

crime. For a number of years, gang researchers have documented generational patterns of gang membership in a number of Hispanic and African-American gangs. Moreover, outlaw motorcycle gangs are predominantly 20 years of age and older. Furthermore, in a recent survey law enforcement, officials report that gangs in their jurisdiction were associated with organized crime. Law enforcement agencies report that street gangs are associated with transnational criminal orga- nizations (Mexico, Central America, and the Caribbean), Asian organized crime groups, Russian organized crime, and outlaw motorcycle gangs.170 These street gangs include but are not limited to Bloods, Crips, Gangster Disciples, Almighty Latin King and Queen Nation, and Mara Salvatrucha (MS-13).

New realities in gang behavior include:

- Gangs are present in middle schools and high schools. In a recent survey of students, sponsored by the Office of Juvenile Justice and Delinquency Prevention, nearly half of high school students respond that gangs are present in their schools while more than one third of middle-school students report gangs presence in their schools.171

- Gangs now employ cell phone, computer technologies, and social media to identify target and communicate gang operations. The National Gang Intelligence Center (NGIC) has also documented use of online gaming systems such as Playstation and Xbox.172 Gang activities have been iden- tified to include cyber-bullying and cyber-crime.

- In addition to tradition crimes of violence (for keeping territory and extortion), drug running (most common income activity), and prosti- tution, gangs are now using identity theft, credit card fraud, insurance fraud, counterfeiting (i.e., designer products, currency, and so on) and human trafficking to generate income.

- The NGIC, on the basis of a law enforcement survey, assert that 40 per- cent of street gangs are involved in some level of weapons trafficking. Theft is another source of weapons, including law enforcement and mil- itary targets.

- Recently, gangs have started pursuing jobs in law enforcement and the military to exploit sources of information to protect their enterprises and to gain information on rivals. As of June 2013, the NGIC identified “at least 60 gangs whose members or associates have been either enlisted or have attempted to gain employment in the military or various gov- ernment agencies. Of these gangs, 54 had members who served in the military or who were otherwise affiliated with the military.”173 The resulting weapons and tactics skills are highly valued by street gangs.

- The NGIC has also documented increased gang presence on college campuses. It is argued that street gang members have also sought out college degrees, all as ways to increase the skill set that is needed to maintain and expand modern gangs.

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Varieties of Ethnic Street Gangs

We already noted that, contrary to popular wisdom, all gang members are not African Americans. There are also Hispanic, Native American, Asian, and white gangs. In a recent year, the National Youth Gang Survey indicated that 49 per- cent of gang members are identified as Hispanic, 35 percent as African American, 9 percent as white, and 9 percent as other.

Covey and colleagues stated, “[Ethnicity] is not the only way to understand gangs, but gangs are organized along ethnic lines, and it would be a mistake to ignore ethnicity as a variable that may affect the nature of juvenile gangs.”174

Most ethnic gangs reflect a mixture of their members’ culture of origin and the American “host” culture; indeed, many gangs form as the result of a clash between the two cultures. The National Gang Intelligence Center reports that law enforcement agencies identify more and more gang collaboration, likely due to the networks needed to generate profits through drug trafficking and counter- feiting schemes.

African American

The most widely known African-American gangs are the Bloods and the Crips. Each gang has unique “colors” and sign language to reinforce gang identity. It is believed that these gangs are really “national confederations of local gangs” in American cities.175 They are characteristically very territorial and use violence at intimidation. They are also linked to nationwide drug distribution that is supplied by international criminal organizations. They have also been linked with human trafficking.

Other African-American gangs exist across the United States. Researchers have identified many big-city African-American gangs that are oriented toward property crime rather than drug sales. In addition, African-American gangs have formed around the tenets of Islam, with corresponding political agendas.176

Native American

The circumstances among which Native American youth are becoming part of the gang culture in the United States include the emerging presence of gangs in the semi-sovereign tribal lands throughout the country and the formation of gangs located in urban and rural non-reservation areas around 20 years ago.177 In 2010, of 132 tribal communities in the United States, 81 percent were identified as having dome gang activity. Specifically, the Navajo nations have  documented the presence of youth gangs consisting of tribal members. They have reported the presence of more than 60–70 gangs with more than 1,500 members on the tribal lands. Similarly, the Pine Ridge Indian reservation reports 30–40 active gangs. Some Native American gangs identify themselves with the native culture of their unique areas (such as the Native Out-lawz, Red Nation Kligue, and Native Mob), whereas other gang names indicate alliances with more nationally recognized

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groups like the Bloods and Gangster Disciples (with names like the Indian Bloods, Native Gangster Disciples, and Native Latin King). Actual evidence of structural alliances with these other urban gangs seems to be in doubt. Some gang researchers speculate that such affiliation is “utilized for the purposes of notoriety and intimidation.” Most gang crimes on tribal lands seem to be property based, but there is increasing concern about violence and drug distribution (especially methamphetamine and marijuana).178

Gang activity includes the presence of graffiti, vandalism, drug usage, and assault, up to burglary, robbery, and murder. Grant has found, through his inter- view based research, that lack of connection to tribal cultural heritage is a risk factor for gang membership. Conversely, he asserts that connection with cultural heritage may be successful in Native-American-based reintegration programs.

Asian American

As previously stated, there are a variety of Asian ethnic gangs. Most Asian gang researchers attribute the formation of these gangs, at least in part, to feelings of alienation due to difficulty assimilating into American culture.179 Similarities between Asian gangs include an emphasis on economic activity and a pattern of intraracial victimization. The tendency to victimize others in the Asian commu- nity may contribute to lower reporting rates of gang victimization to local law enforcement.

The origins of Chinese American gangs can be traced to the early 1890s and the secret “Tong” societies. Chinese American gang activity has increased with the relaxation of immigration laws in the mid-1960s. The research on Chinese gangs reveals that these entities have a commitment to violence, both for its own sake (gang warfare) and also as a means for generating income (through robbery, burglary, extortion, and protection). Gang researchers report that it is not unusual for Asian-organized crime groups to work with street gangs in such activities as “drug trafficking, credit card fraud, illegal gambling and money laundering.” K. Chin noted that generally the structure of Chinese American gangs is very hierarchical; he also explains that gang members may participate in legitimate business, establish drug distribution and sale networks, and form national and international networks.180 Vietnamese American gang activity is not as structured as that of Chinese American gangs. The increase in gang activity for this ethnic group can also be tied to an influx in immigration. Overall, Vietnamese American gang activity is less violent, usually economically oriented, and most likely to tar- get other Vietnamese Americans.181

Asian gangs are traditionally found in a number of costal states across the United States such as California, Oregon, New York, Massachusetts, and Con- necticut.182 Asian gangs are also emerging in the South. More gangs are emerging in Atlanta, Georgia, fueled by an increase in Asian population since 2000 (87 per- cent increase). The largest numbers of Asian gang members are Indians, followed by Koreans and Chinese ethnicities.183

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Hispanic

Hispanic gangs have identifiable core concer ns: brotherhood/sisterhood, machismo, and loyalty to the barrio (neighborhood). Many Hispanic gangs have adult and juvenile members, and gang members may be involved in the use and sale of drugs. The importance of machismo may explain the emphasis of many Hispanic gangs on violence, even intragang violence.184

Hispanic gangs make up the largest ethnic population of gang membership in the country. Hispanic gangs have the most gang members in large cities, small cities, and suburban counties. This trend reverses for rural counties where His- panic gangs comprise 32 percent of gang members, while African-American gang members comprise 44 percent of the identified gang members. Prominent His- panic gangs vary by region. In the western part of the country, Sur 13 and The Latin Kings are most evident. The former is strongly associated with the prison gang Mexican Mafia (discussed in Chapter 9). Law enforcement agencies have identified Hispanic gangs in Northern California in alliance with outlaw motor- cycle gangs to transport drugs (primarily methamphetamine). International con- nections emerge with such gangs as the MS-13 (Mara Salvatrucha), which has El Salvadoran roots. Other gangs are reported to have connections to crime groups in Honduras, Guatemala, and other Central American countries.185

The National Alliance of Gang Investigators report that some Central Amer- ican gang members, from El Salvador and Honduras, have gained Temporary Pro- tective Status (granted by the Bureau of Immigration and Custom’s Enforcement) in the United States as a result of the gang prosecution efforts in their own coun- tries. The Department of Homeland Security requires migrants to be deported if they have been convicted of a felony or two or more misdemeanors, but some gang members are able to remain for a period of time if they are looking for work.186

White

The white ethnic gangs—composed of Irish, Polish, and Italian youth—identified by researchers earlier in this century are less evident in today’s cities. Contem- porary white ethnic gangs are most often associated with rebellion against adult society; with suburban settings; and with a focus on white supremacist, domestic terrorist, or Satanist ideals. Larger cities report that about 8 percent of gangs are comprised of white members, while smaller cities and suburban and rural counties identify between 14 percent and 17 percent of gang members as white.187 “Skin- heads” may be the most well-known example of a white ethnic gang. Covey and colleagues describe them in this way: “Skinhead gangs usually consist of Euro- pean American youths who are non-Hispanic, non-Jewish, Protestant, working class, low income, clean shaven and militantly racist and white supremacist.”188

Skinheads have been located in cities in every region of the country and have been linked to adult domestic terrorist organizations such as the White Aryan Resistance (WAR) and other Neo-Nazi movements. Skinheads are unique in the

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sense that they use violence not to protect turf, protect a drug market, or commit robberies, but rather “for the explicit purpose of promoting political change by instilling fear in innocent people.”189

Youth gangs with connections to domestic terrorist groups comprise less than 10 percent of known gang activity. These groups include the Ku Klux Klan, Aryan Resistance, National Socialist Movement, and various militia groups. Little evidence exists of youth gang connections with international terrorist groups because most evidence suggests recruitment is more common in adult prisons (see Chapter 9).190

“Stoner” gangs, another form of white ethnic gangs, are characterized by an emphasis on Satanic rituals. This doctrine is supplemented by territoriality and the heavy use of drugs.191

In recognizing the racial nature of gangs, it is important to clarify the role of racism in the formation of gangs. Most gangs are racially and ethnically homog- enous. Some researchers argue that this situation is merely reflective of the racial and ethnic composition of neighborhoods and primary friendships—that is, “where schools and neighborhoods are racially and ethnically mixed, gangs tend to be racially and ethnically mixed.”192

Although violent conflicts do occur between and within ethnic gangs, vio- lence is seldom the reason for gang formation. Racism as a societal phenomenon that creates oppressive conditions can contribute to gang formation. However, individual racism explains very little in terms of the formation of gangs or the decision to join gangs. Skinhead membership is a notable exception, being almost exclusively a function of individual racism.193

C O N C L U S I O N

We began this chapter with a discussion of the presentation of crime stories in the media in comparison to their actual occurrence. We argued that incidents such as missing person reports and racial hoaxes shape perceptions of crime in the United States. In the minds of many Americans, the typical crime is an act of violence involving a white victim and a minority offender. We have used a variety of data sources to illustrate the inaccuracy of these perceptions and offer a more compre- hensive view of victimization and offending.

We have shown that people of color are overrepresented as victims of both household and personal crime and have demonstrated that this pattern is par- ticularly striking for crimes of violence. We have demonstrated that the typical offender for all crimes except robbery and gambling is white; however, African Americans are arrested at a disproportionately high rate. We also have shown that most crimes involve an offender and victim of the same race, which means that crime is predominantly an intraracial event.

The information provided in this chapter may raise as many questions as it answers. Although we have attempted to paint an accurate picture of crime and victimization in the United States, we are hampered by limitations inherent in existing data sources. Some victimization events are not defined as crimes by the victims, many of those that are defined as crimes are not reported to the police,

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and many of those reported to the police do not lead to an arrest. There is no data set that provides information on all crimes that occur.

We have attempted to address this problem by using several different sources of data. We believe that we can have greater confidence in the conclusions we reach if two or more distinct types of data point in the same direction. The fact that both NCVS data and data from the SHRs consistently reveal that racial and ethnic minorities are more likely than whites to fall victim to crime, for exam- ple, lends credence to the need for a more comprehensive picture of victims and offenders. Similarly, the fact that a variety of data sources suggest that crime is predominantly an intraracial event enhances our confidence in this conclusion as well.

We have less confidence in our conclusions concerning the racial makeup of the offender population. Although it is obvious that African Americans are arrested at a disproportionately high rate, particularly for murder and robbery, it is not clear that this reflects differential offending rather than selective enforcement of the law. Arrest statistics and victimization data both indicate that African Amer- icans have higher rates of offending than whites, but some self-report studies sug- gest that there are few, if any, racial differences in offending. We suggest that this discrepancy limits our ability to draw definitive conclusions about the meaning of the disproportionately high arrest rates for African Americans.

One final caveat seems appropriate. The conclusions we reach about victims and offenders are based primarily on descriptive data; they are based primarily on percentages, rates, and trends over time. These data are appropriate for describing a disproportionate representation of people of color as the victims of crime and as the criminal offender, but these data are not sufficient for drawing conclusions concerning causality. The data we have examined in this chapter can tell us that the African-American arrest rate is higher than the white arrest rate for a partic- ular crime, but they cannot tell us why this is so. We address issues of causation in subsequent chapters.

D I S C U S S I O N Q U E S T I O N S

1. What are the social and psychological costs of racial hoaxes? What do you think? Should states have racial hoax sentence enhancement statutes? What should the content of such legislation be?

2. Does the media systematically discriminate against crime victims, favoring white victims? Or is the discrimination contextual (see Chapter 1)? How does the media cover racial hoaxes? Does this coverage perpetuate the view of young African American males as the typical criminal offenders?

3. What are some of the possible explanations for the overrepresentation of minorities as crime victims? Are minority communities particularly vulnera- ble to crime? Why?

4. The descriptive information in UCR arrest data depicts an overrepresenta- tion of African-American offenders for most violent and property crimes.

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What are the possible explanations for such disparity? Is this picture of the offender the result of differential offending rates or differential enforcement practices? What must a researcher include in a study of “why people com- mit crime” to advance beyond a description of disparity to test for a causal explanation?

5. Should hate be a crime? What arguments can be made to support the use of sentencing enhancement penalties for hate crimes? What arguments can be made to oppose such statutes? Are hate crime laws likely to deter offenders and reduce crime?

6. If most youth gangs are racially and ethnically homogenous, should law enforcement use race- and ethnic-specific strategies to fight gang formation and to control gang crime? Or should law enforcement strategies be racially and ethnically neutral? What dilemmas are created for police departments that pursue each of these strategies? Is the likely result institutional or con- textual discrimination?

N O T E S

1. Nikole Hannah-Jones, “The Sordid History of Racial Hoaxes,” The Root (September 21, 2010, 11:49 A.M.). http://www.theroot.com/views/sordid-history-racial-hoaxes.

2. Katheryn K. Russell, The Color of Crime (New York: New York University Press, 1998), p. 70.

3. Ibid.

4. Ibid.

5. Ibid., p. 76.

6. Ibid.

7. Ibid., p. 75.

8. Ibid., p. 88.

9. Disney World Hoax Mom Sentenced: Bonnie Sweeten Gets 8 years for 1M Fraud. Huffington Post Crime ( January 26, 2012). www. Huffingtonpost.com/2012/01/26/ Disney-world-hoax-mom-sentenced_n_123448.

10. Ibid.

11. Crime in the United States, 2014 (Washington, DC: U.S. Department of Justice, 2015).

12. National Center for Missing Adults, quoted in Anne-Marie O’Connor, “Media Coverage of Missing Women Draws Ire,” Lincoln Journal Star (Monday, August 8, 2005), p. 8A.

13. Erin Bruno, quoted in Fahizah Alim, “Missing White Women Get Lion’s Share of Media Coverage,” Sacramento Bee (June 28, 2005).

14. Ibid.

15. Ibid.

16. Ibid.

17. Erin Bruno, quoted in Anne-Marie O’Connor, “Media Coverage of Missing Women Draws Ire,” Lincoln Journal Star (Monday, August 8, 2005, p. 8A).

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18. Professor Todd Boyd, quoted in Anne-Marie O’Connor, “Media Coverage of Miss- ing Women Draws Ire,” Lincoln Journal Star (Monday, August 8, 2005), p. 8A.

19. According to Uniform Crime Report index crime totals for 2,000, roughly 90 per- cent of crimes were property crimes. It is believed that rapes are severely under- reported, but similar arguments can be made for property crimes, especially fraud. Even if the rape numbers are low, the numbers of violent criminal events do not overshadow property crime.

20. New York Times (May 29, 1989), p. 25.

21. Robert M. O’Brien, “The Interracial Nature of Violent Crimes: A Reexamination,” American Journal of Sociology 92 (1987), pp. 817–835.

22. Joe Mahony, “Five Cleared in Central Park Jogger Assault,” Daily News (New York, January 7, 2005).

23. Ibid.

24. Charles Silberman, Criminal Violence, Criminal Justice (New York: Random House, 1978), pp. 177–118.

25. Benjamin Weiser, 5 Exonerated in Central Park Jogger Case Agree to Settle Suit for $40 Million.

26. Benjamin Weiser, 5 Exonerated in Central Park Jogger Case Agree to Settle Suit for $40 Million (June 19, 2014). http://www.nytimes.com/2014/06/20/nyregion/5-exoner- ated-in-central-park-jogger-case-are-to-settle-suit-for-40-million.html?_r=0.

27. The original National Crime Survey (NCS) was renamed the National Crime Vic- timization Survey (NCVS) to clearly emphasize the focus of measuring victimiza- tions. The Bureau of Justice Statistics was formerly the National Criminal Justice and Information Service of the Law Enforcement Assistance Administration.

28. Data Collection National Crime Victimization Survey (NCVS). http://www.bjs. gov/index.cfm?ty=dcdetail&iid=245#Methodology on 2/20/2016.

29. Bureau of Justice Statistics. NCVS-1 Basic Screen Questionnaire (February 20, 2016). http://www.bjs.gov/content/pub/pdf/ncvs1_2014.pdf.

30. http://www.bjs.gov/index.cfm?ty=tp&tid=922#terms_def.

31. Truman, Jennifer, and Lynn Langston (2015) Criminal Victimization, 2014. http:// www.bjs.gov/content/pub/pdf/cv14.pdf.

32. Bureau of Justice Statistics, Rates of property victimizations, household burglaries, motor vehicle theft, and thefts by race/Hispanic origin of head of household, 2014. Generated by NCVS Victimization Analysis Tool (February 20, 2016). www.bjs.gov.

33. Bureau of Justice Statistics. Race of property victimizations, household burglaries, motor vehicle thefts, and thefts by race/Hispanic origin of head of household and location of residence, 2014. Generated using the NCVS Victimization Analysis Tool (February 20, 2016). www.bjs.gov.

34. Edward L. Glaeser and Bruce Sacerdote, “Why is There More Crime in Cities?” Journal of Political Economy 107 (1999), pp. S225–S258.

35. Ibid. BJS source for Table 2.1.

36. Bureau of Justice Statistics. Rates of violent victimizations, personal thefts/larcenies, serious violent victimizations, rape/sexual assaults, robberies, and simple assaults by race/Hispanic origin, 2014. Generated using the NCVS Victimization Analysis Tool (February 20, 2016). www.bjs.gov.

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37. Criminal Victimization, 2004. www.ojp.usdoj.gov/bjs/cvict_v.htm.

38. Erika Harrell, Victims of Identity Theft, 2014 (2015). US Department of Justice.

39. Duhart, Urban, Suburban, and Rural Victimization, 1993–1998.

40. Bureau of Justice Statistics. Rates of violent victimizations, personal thefts/larcenies, serious violent victimizations, rape/sexual assaults, robberies, aggravated assaults, and simple assaults by race/Hispanic origin and location of residence, 2014. Generated using the NCVS Victimization Analysis Toll (February 20, 2016). www.bjs.gov.

41. Edward L. Glaeser and Bruce Sacerdote. 1999. “Why is There More Crime in Cit- ies?” Journal of Political Economy 107 (1999), pp. S225–S258.

42. Criminal Victimization in the U.S., 2002. http://www.ojp.usdoj.gov/bjs.

43. Callie Rennison, Violent Victimization and Race, 1993–1998. http://www.ojp.usdoj. gov/bjs/pub/pdf/vvr98.pdf. See also, Lawrence A. Greenfeld and Steven K. Smith, American Indians and Crime (Washington, DC: Bureau of Justice Statistics, 1999).

44. Ronette Bachman, Heather Zaykowski, Rachel Kallmyer, Margarita Poteyeva, and Christina Lanier, Violence Against American Indian and Alaska Native Women and the Crim- inal Justice Response: What is Known (National Institute of Justice Publication, 2008), p. 7.

45. Ibid., pp. 7–8.

46. Erika Harrell, Asian, Native Hawaiian, and Pacific Islander Victims of Crime. http:// www.ojp.usdoj.gov/bjs/abstract/anhpivc.htm.

47. Renisson, Violent Victimization and Race.

48. Janet L. Lauritsen and Norman A. White, “Putting Violence in Its Place: The Influ- ence of Race, Ethnicity, Gender, and Place on the Risk for Violence,” Crime and Public Policy 1 (2001), pp. 37–59.

49. Ibid., p. 51.

50. Laura Dugan and Robert Apel, “An Exploratory Study of the Violent Victimiza- tion of Women: Race/Ethnicity and Situational Context,” Criminology 41 (2003), pp. 959–977.

51. Ibid., p. 972.

52. Jennifer L. Truman and Lynn Langton (2015). Criminal Victimization, 2014. Bureau of Justice Statistics. NCJ 248973 quote from page 4.

53. Pequero, Anthony A., Ann Marie Popp, and Dixie J. Koo. “Race, Ethnicity and School-Based Adolescent Victimization,” Crime and Delinquency 61 (2015), pp. 323–349.

54. While there are racial and ethnic differences in the rate of property victimization, findings indicate no significant impact of opportunity variables on victimization risk. IBIB Pequero.

55. https://www.ncjrs.gov/App/Publications/abstract.aspx?ID=191210.

56. Bureau of Justice Statistics, Lifetime Likelihood of Victimization (Washington, DC: U.S. Department of Justice, 1987), p. 1.

57. Ibid., p. 3.

58. https://www2.fbi.gov/ucr/Cius_99/99crime/99cius5.pdf. Retrieved February 13, 2016.

59. Department of Justice, Crime in the United States, 2014. Expanded Homicide Data. https://www.fbi.gov.

60. Ibid. Table 1.

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61. Gregg Barak, Jeanne M. Flavin, and Paul S. Leighton, Class, Race, Gender, and Crime: Social Realities of Justice in America (Los Angeles: Roxbury, 2001).

62. Ibid., p. 102.

63. Bachman, Zaykowski, Kallmyer, Poteyeva, and Lanier, Violence Against American Indian and Alaska Native Women and the Criminal Justice Response, p. 10.

64. Erica Smith and Alexis Cooper, Homicide Trends in the U.S. Known to Law Enforcement, 2011. Bureau of Justice Statistics, DOJ (NCJ 243035).

65. Ibid.

66. Alexia Cooper and Erica L. Smith, “Homicide Trends in the United States, 1980–2008,” Bureau of Justice Statistics, 2011 (NCJ 236018).

67. Ibid. Cooper and Smith.

68. Michael Fischer, “Environmental Racism Claims Brought under Title VI of the Civil Rights Act,” Environmental Law 25 (1995), p. 285; Commission for Racial Justice, United Church of Christ, Toxic Wastes and Race in the United States: A National Report On The Racial and Socioeconomic Characteristics of Communities With Hazardous Waste Sites (New York: Public Data Access, Inc., 1987).

69. Robert Bullard, Dumping in Dixie: Race, Class, and Environmental Quality (1990). http://www.ejrc.cau.edu; Robert Bullard, Message from the Director (November 29, 2010). http://www.ejrc.cau.edu.

70. Jeremy C. F. Lin, “The Reach of Lead in Flint’s Water Supply,” New York Times ( January 15, 2016). http://www.nytimes.com/interactive/2016/01/15/us/ flint-lead-water-michigan.html.

71. http://www.mayoclinic.org/diseases-conditions/lead-poisoning/basics/symptoms/ CON-20035487. Accessed February 28, 2016.

72. Rennison, Criminal Victimization, 2000.

73. D. L. Decker, D. Shichor, and R. M. O’Brien, Urban Structure and Victimization (Lexington, MA: D.C. Heath, 1982), p. 27.

74. Michael J. Hindelang, “Race and Involvement in Common Law Personal Crimes,” American Sociological Review 43 (1978), pp. 93–109.

75. U.S. Department of Justice, Crime in the United States, 2003.

76. John Huey-Long Song, “Attitudes of Chinese Immigrants and Vietnamese Ref- ugees toward Law Enforcement in the United States,” Justice Quarterly 9 (1992), pp. 703–719.

77. Margorie Zatz, “Pleas, Priors, and Prison: Racial/Ethnic Differences in Sentencing,” Social Science Research 14 (1985), pp. 169–193.

78. Donald Black, “The Social Organization of Arrest,” in The Manners and Customs of the Police, Donald Black, ed. (New York: Academic Press, 1980), pp. 85–108.

79. Russell, The Color of Crime.

80. Crime in the United States, 2008 (Washington, DC: U.S. Department of Justice, 2009). http://www.fbi.gov/ucr/cius2008/data/table_43.html.

81. Paul Knepper, “Race, Racism and Crime Statistics,” Southern Law Review 24 (1996), pp. 71–112.

82. Uniform Crime Reporting (UCR) Program, National Incident-Based Reporting System (NIBRS), NIBRS Participation by State. https://www.fbi.gov/about-us/cjis/ ucr/nibrs/2013/resources/nibrs-participation-by-state.

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83. K. Peak and J. Spencer, “Crime in Indian Country: Another Trail of Tears,” Journal of Criminal Justice 15 (1987), pp. 485–494.

84. Erica Smith and Alexis Cooper, “Homicide Trends in the U.S. Known to Law Enforce- ment, 2011. Bureau of Justice Statistics, DOJ (NCJ 243035).

85. UCR, 2015, Supplemental Homicide Tables found at www.fbi.gov.

86. Peguero, Alex R., Bianca E. Bersani, Thomas A. Loughran, and Jeffrey Fagan, “Lon- gitudinal Patterns of Legal Socialization in First-Generation Immigrants, Second Generation Immigrants, and Native –Born Serious Youthful Offenders. Crime and Delinquency. Published online August 2014, pp. 1–21.

87. Kristin Butcher and Morrison Piehl, San Diego Union-Tribune (March 2008).

88. Eric Stowell, Steven Messner, Kelly McGreever, and Lawrence Raffalovich, “Immigra- tion and the Recent Violent Crime Drop in the United States: A Pooled, Cross-sec- tional Time-Series Analysis of Metropolitan Areas,” Criminology 47 (2009), pp. 889–928.

89. Sampson et al., 2005; Butcher and Piehl, 2005.

90. Hindelang, “Race and Involvement in Common Law Personal Crimes,” p. 93.

91. Ibid., p. 99.

92. Ibid., pp. 100–101.

93. Stewart J. D’Alessio and Lisa Stolzenberg, “Race and the Probability of Arrest,” Social Forces 80 (2003), pp. 1381–1397.

94. Gwynn Nettler, Explaining Crime, 3rd ed. (New York: McGraw-Hill, 1984).

95. Patrick G. Jackson, “Sources of Data,” in Measurement Issues in Criminology, Kimberly Kempf, ed. (New York: Springer-Verlag, 1990).

96. Michael Hindelang, Travis Hirschi, and Joseph G. Weis, Measuring Delinquency (Beverly Hills, CA: Sage, 1981); Delbert Elliot, David Huizinga, Brian Knowles, and Rachel Canter, The Prevalence and Incidence of Delinquent Behavior: 1976–1980: National Estimates of Delinquent Behavior by Sex, Race, Social Class, and Other Selected Variables (Boulder, CO: Behavioral Research Institute, 1983); Robert M. O’Brien, Crime and Victimization Data (Beverly Hills, CA: Sage, 1985).

97. Elliot et al., The Prevalence and Incidence of Delinquent Behavior.

98. National Youth Survey questionnaire in O’Brien, Crime and Victimization Data.

99. O’Brien, Crime and Victimization Data.

100. Delbert S. Elliot and S. S. Ageton, “Reconciling Race and Class Differences in Self-Reported and Official Measures of Delinquency,” American Sociological Review 45 (1980), pp. 95–110; Hindelang et al., Measuring Delinquency.

101. Read more in J. D. Unnever and S. L. Gabbidon, A Theory of African American Offending (New York, NY: Routledge, 2011).

102. J. D. Unnever, J. C. Barnes, and F. T. Cullen. “The Racial Invariance Thesis Revis- ited: Testing an African American Theory of Offending,” Journal of Contemporary Criminal Justice 21 (2016), pp. 7–26.

103. Deena Isom, “Microagressions, Injustices, and Racial Identity: An Empirical Assess- ment of the Theory of African American Offending,” Journal of Contemporary Crimi- nal Justice 32 (2016), pp. 27–59.

104. Deena Isom, 2016, p. 33.

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105. Principal Investigators of the Monitoring the Future Project are Lloyd D. Johnston, Jerald G. Bachman, and Patrick M. O’Malley. Data available in the Sourcebook of Criminal Justice Statistics, 2000. http://www.albany.edu/sourcebook/.

106. David Huizinga and Delbert S. Elliot, “Juvenile Offenders: Prevalence, Offender Incidence, and Arrest Rates by Race,” Crime and Delinquency 33 (1987), pp. 206–223.

107. Elijah Anderson, “The Code of The Streets,” Atlantic Monthly 273 (1994), pp. 81–94; Elijah Anderson, Code of the Street: Decency, Violence, and the Moral Life of the Inner City (New York: W.W. Norton, 1999).

108. Eric Steward and Ronald Simons, “Race, Code of the Street, and Violent Delin- quency: A Multilevel Investigation of Neighborhood Street Culture and Individual Norms of Violence,” Criminology 48 (2010), pp. 569–605.

109. Ibid., p. 756.

110. Ibid., pp. 578, 570.

111. Robert Sampson, Jeffrey Morenoff, and Stephen Raudenbush, “Social Anatomy of Racial and Ethnic Disparities in Violence,” American Journal of Public Health 95, no. 2 (2005), pp. 224–232.

112. Substance Abuse and Mental Health Services Administration, Results from the 2013 National Survey on Drug Use and Health: Summary of National Findings, NSDUH Series H-48 HHS Publication N. (SMA) 12-4863. Rockville, MD: SAM- HSA, 2014.

113. Sean E. McCabe, Michele Morales, James A. Cranford, Jorge Delva, Meinee D. McPherson, and Carol J. Boyd. “Race/Ethnicity and Gender Differences in Drug Use and Abuse Among College Students,” Journal of Ethnicity and Substance Abused 6, no. 2 (2007), pp. 75–95, p. 75.

114. Substance Abuse and Mental Health Services Administration. Behavioral Health Barometer: United States 2014. HHS Publication No. SMA-15-4895. Rockville, MD: SAMHSA, 2015.

115. Ibid.

116. R. A. Miech, L. D. Johnson, P. M. O-Malley, J. G. Bachman, and J. E. Schulenburg (2015). Monitoring the Future National Survey Results on Drug Use, 1975–2014, Vol. 1, Secondary School Students. Ann Arbor: Institute for Social Research, The Univer- sity of Michigan. http://monitoringthe future.org.

117. Ibid., p. 99.

118. Mark Follman, Gavin Aronsen, and Deanna Pan, “A Guide to Mass Shootings in America” in Mother Jones. Updated February 26, 2016. Accessed at http://www. motherjones.com/politics/2012/07/mass-shootings-map on March 17, 2016.

119. Mark Follman and Becca Andrews, “The Columbine Effect” in Mother Jones, November/December issue, 2015. Accessed at http://www.motherjones.com/ politics/2015/10/columbine-effect-mass-shootings-copycat-data on March 17, 2016.

120. J. Pete Blair and Katherine W. Schweit, A Study of Active Shooter Incidents, 2000 –2013 (Texas State University and Federal Bureau of Investigation, U.S. Department of Justice, Washington, DC, 2014).

121. December 3, 2015. New York Times.

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122. Metzel, Jonathan M. and Kenneth T. MacLeish, “Mental illness, mass shootings, and the politics of American firearms,” American Journal of Public Health 105, no. 2 (2015), pp. 240–249, p. 240.

123. Lori Dorfman and Vincent Scharaldi, “Off Balance: Youth, Race, and Crime in the News,” Berkeley Media Studies Group, 2001. http://www.building-blocksforyouth. org/media.html.

124. NCVS, 2003.

125. Cooper and Smith, Homicide Trends in the United States, 1980–2008.

126. C. Puzzanchera and W. Kang, “Easy Access to the FBI’s Supplementary Homicide Reports: 1980–2008” (2010). http://www.ojjdp.gov/ojstatbb/ezashr/.

127. Ibid.

128. Bing and Russell, Politicizing Black-on-Black Crime; Russell, The Color of Crime.

129. Bing, Politicizing Black-on-Black Crime; Russell, The Color of Crime.

130. William Wilbanks, “Is Violent Crime Intraracial?” Crime and Delinquency 31 (1985), pp. 117–128.

131. Anthony A. Braga and Rod K. Brunson, The Police and Public Discourse on ‘Black-on- Black’ Violence (National Institute of Justice, May 2015), p. 1.

132. Andrew V. Papachristos, Anthony A. Braga, and David M. Hureau, “Social Net- works and the Risk of Gunshot Injury,” Journal of Urban Health 89, no. 6 (2012), pp. 992–1003.

133. Hate Crimes Act of 1990; Violent Crime and Law Enforcement Act of 1994; Church Arson Prevention Act, 1996.

134. Federal Bureau of Investigation, Hate Crime Statistics, 2014. http://www.fbi.gov/ ucr/hatecm.htm.

135. Ibid.

136. Ibid.

137. Ibid.

138. Ibid.

139. Caroline Wolf Harlow, Hate Crime Reported by Victims and Police (Washington, DC: BJS, 2005).

140. Ibid.

141. Ibid.

142. Hate Crime Statistics, 2000–2003. http://www.fbi.gov/ucr.

143. James Jacobs, “Should Hate Be a Crime?” Public Interest (1993), pp. 3–14.

144. Christopher Lyons, “Community (Dis)Organization and Racially Motivated Crime,” American Journal of Sociology 113 (2007), p. 848.

145. Ibid., p. 847.

146. Hate Crime Statistics, 2014. www.fbi.gov/ucr/hatecm.htm. Tables 1, 10.

147. Erika Harrell, Crimes Against Persons with Disabilities, 2009–2013. Statistical Tables (2015). (NCJ 248676).

148. Federal Bureau of Investigation, Hate Crime Statistics, 2008. http://www.fbi.gov/ ucr/hatecm.htm.

149. Karla Westjohn, “Beyond Stereotypes and Good Intentions: An Examination of Blind- ness and Criminal Victimization,” Master’s Thesis (Western Illinois University, 2008).

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150. A. K. Cohen, “Foreword and Overview,” in Gangs in America, C. Ronald Huff, ed. (Newbury Park, CA: Sage, 1990).

151. National Gang Intelligence Center. 2013 National Gang Report. https://www.fbi. gov/stats-services/publications/national-gang-report-2013.

152. Luc Sante, Low Life: Lures and Snares of Old New York (New York: Vintage Books, 1991).

153. James C. Howell and John P. Moore, “History of Street Gangs in the United States,” Washington, DC: Bureau of Justice Assistance, National Gang Center Bulletin 4 (2010).

154. M. K. Conway, Gangs on Indian Reservations (Washington, DC: U.S. Department of Justice, Federal Bureau of Investigation, 1998).

155. Covey et al., Juvenile Gangs.

156. Seth Mydans, “Not Just the Inner City: Well To Do Join Gangs,” New York Times National (April 10, 1991), A–7.

157. Luc Sante, Low Life: Lures and Snares of Old New York (New York: Vintage Books, 1991).

158. Covey et al., Juvenile Gangs, p. 64.

159. C. J. Friedman, F. Mann, and H. Aldeman, “Juvenile Street Gangs: the Victimization of Youth,” Adolescence 11 (1976), pp. 527–533.

160. William J. Chambliss, “The Saints and The Roughnecks,”’ Society 11 (1973), pp. 341–355.

161. National Alliance of Gang Investigators Association, 2005 National Gang Threat Assessment. http://ojp.usdoj.gov/BJA/what/2005_threat_assesment.pdf.

162. Office of Juvenile Justice and Delinquency Prevention, 2009. Highlights of the 2007 National Youth Gang Surveys. www.ncjrs.gov/pdffiles1/ojjdp/225185. pdf.

163. Highlights of the 1999 National Youth Gang Survey, Office of Juvenile Justice and Delinquency Prevention, 2000. http://www.iir.com/nygc/.

164. J. M. Hagedorn, People and Folks (Chicago: Lake View Press: 1989); D. Ronald Huff, Gangs in America; W. K. Brown, “Graffiti, Identity, and the Delinquent Gang,” Inter- national Journal of Offender Therapy and Comparative Criminology 22 (1978), pp. 39–45; J. W. C. Johnstone, “Youth Gangs and Black Suburbs,” Pacific Sociological Review 24 (1981), pp. 355–375; Thrasher, The Gang; J. D. Moore and Vigil R. Garcia, “Resi- dence and Territoriality in Chicano Gangs,” Social Problems 31 (1983), pp. 182–194; Ko-Lin Chin, Jeffrey Fagan, and Robert J. Kelly, “Patterns of Chinese Gang Extor- tion,” Justice Quarterly 9 (1992), pp. 625–646; Calvin Toy, “A Short History of Asian Gangs in San Francisco,” Justice Quarterly 9 (1992), pp. 645–665; M. G. Harris, Cholas: Latino Girls in Gangs (New York: AMS Press, 1988); J. D. Vigil, Barrio Gangs (Austin, TX: University of Texas Press, 1988); Anne Campbell, Girls in the Gang: A Report from New York City (Oxford: Basil Blackwell, 1984); E. G. Dolan and S. Fin- ney, Youth Gangs; James F. Short, Jr., and Fred L. Strodbeck, Group Process and Gang Delinquency (Chicago: University of Chicago Press, 1965).

165. Curry and Decker, Confronting Gangs.

166. Mydans, “Not Just the Inner City”; Esbensen and Huizinga, “Gangs, Drugs and Delinquency”; Jeffrey Fagan, “Social Process of Delinquency and Drug Use Among Urban Gangs,” in Gangs in America, C. Ronald Huff, ed. (Newbury Park, CA: Sage, 1990); Anne Campbell, The Girls in the Gang, 2nd ed. (Cambridge, MA: Basil Black- well, 1991).

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167. National Alliance of Gang Investigators Association.

168. Covey et al., Juvenile Gangs.

169. New York Daily News. “Feds bust 40 members Bronx gang members, including the head of the all-female ‘Bad Barbies’ faction, on a slew of murder charges.” December 2012. www.nydaily news.com/news/crime/bad-barbies-bronx-gang- members-busted-article-1.1218874#ixzz2Yr6CgL5t.

170. Ibid.

171. Bureau of Justice Statistics, “Responding to Gangs in the School Setting,” National Gang Center Bulletin, No. 5; November 2010.

172. 2013 National Gang Report.

173. 2013 National Gang Report, p. 29.

174. Covey et al., Juvenile Gangs, p. 49.

175. Ibid., p. 52.

176. John P. Sullivan, Third Generation Street Gangs, Crime and Justice International Maga- zine (April 24, 2011). http://cjmagazine.com.

177. Christopher M. Grant, “Native American Involvement in the Gang Subculture: Current Trends and Dynamics. US Department of Justice (2013). http://www. communitycorrections.org/images/publications/NAInvolveinGangs-Trends.pdf.

178. National Alliance of Gang Investigators Association, 2005 Threat Assessment, pp. 11–12.

179. James D. Vigil and S. C. Yun, “Vietnamese Youth Gangs in Southern California,” in Gangs in America; Chin et al., “Patterns in Chinese Gang Extortion”; Toy, “A Short History.”

180. K. Chin, “Chinese gangs and extortion,” in Gangs in America, C. Ronald Huff, ed. (Newbury Park, CA: Sage, 1990).

181. Vigil and Yun, “Vietnamese Youth Gangs in Southern California.”

182. Covey et al., Juvenile Gangs, p. 67; NAGIA, 2005 Threat Assessment, p. 18.

183. Fighting Back: What gangs can offer young Asian Americans. The Economist. June 13, 2015. http://www.economist.com/news/united-states/21654076-what- gangs-can-offer-young-asian-americans-fighting-back.

184. Covey et al., Juvenile Gangs.

185. NAGIA, 2005 Threat Assessment, pp. 7–8.

186. Ibid., p. 9.

187. National Youth Gang Survey (2007).

188. Covey et al., Juvenile Gangs, p. 65.

189. Mark S. Hamm, American Skinheads (Westport, CT: Praeger, 1994), p. 62.

190. NAGIA, 2005 Threat Assessment, p. 5.

191. I. A. Spergel, “Youth Gangs: Continuity and Change,” in Crime and Delinquency: An Annual Review of Research, vol. 12, Michael Tonry and Norval Morris, eds. (Chicago: University of Chicago Press, 1990).

192. Covey et al., Juvenile Gangs, p. 48.

193. Hamm, American Skinheads.

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3

RACE, ETHNICITY, SOCIAL

STRUCTURE, AND CRIME

L E A R N I N G O B J E C T I V E S

The objectives of this chapter are to examine the broader structure of Amer- ican society with respect to race and ethnicity and to analyze the relation- ship between social structure and crime. As we learned in Chapter 2, people of color are disproportionately involved in the criminal justice system, as crime victims, offenders, persons arrested, and persons in prison. In very general terms, there are two possible explanations for this overrepresentation. The first is discrimination in the criminal justice system. We explore the data related to this issue in Chapters 4 through 10. The other possible explanation is the American social structure, which involves patterns of inequality that are criminogenic. In this chapter, we will discuss the social and economic inequalities in American society and their relationship to crime and criminal justice.

We should first define what we mean by social structure. Social structure is “a general term for any collective social circumstance that is unalterable and given for the individual.” The analysis of social structure reveals patterned relationships between groups of people that form the basic con- tours of society. The patterned relationships are related to employment, income, residence, education, religion, gender, and race and ethnicity. In combination, these factors explain a person’s circumstances in life, relation- ships with other groups, attitudes and behavior on most issues, and pros- pects for the future.

This chapter explores the very complex relationship among social and economic inequality, race and ethnicity, and participation in crime.

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After you have read this chapter:

1. You will be able to knowledgeably discuss inequalities in income and wealth with respect to race and ethnicity.

2. You will better understand the nature and extent of inequality in American society with respect to racial and ethnic minorities.

3. You will be able to explain whether the social and economic gap between whites and people of color is narrowing or growing.

4. You will understand how inherited wealth perpetuates inequality in terms of opportunities for employment and education.

5. You will understand what we know about the relationship between social and economic inequality and crime, and how the leading theories of crime help explain that relationship.

6. You will be knowledgeable about the impact of social and political reform efforts designed to reduce inequality, including the civil rights movement and different antipoverty efforts.

A S N A P S H O T O F C O M I N G H O M E F R O M P R I S O N :

S O C I A L I N E Q U A L I T Y A N D C R I M I N A L J U S T I C E

What happens when a young man comes home from prison? Where does he live that first night? What kind of resources does he have? What happens in the first weeks and months? Does he go right back to involvement in crime? Where does he stand at the end of a year?

The following is a snapshot of one hypothetical young African-American male who just returned home to Cleveland, Ohio, after a term in the state pen- itentiary. It is adapted from a report by the Urban Institute on people reentering society from prison in Cleveland, Chicago, and other cities. The report is one of many published by the Urban Institute on the subject of reentry.

Let’s call our hypothetical person Fred Jones, a 26-year-old African Amer- ican from Cleveland who just returned home after two years and two months in prison. Fred spends his first night with a family member or members. Upon release, he has no money, and in fact has some sizeable child support debts. He will tell people that over the next year support from family members will be the most important factor in helping him stay out of prison, far more important even than having a job. But some of Fred’s friends have a different family situation. Some of their family members are involved in crime, and this will affect their chances for successful reentry.

After a year back in society, Fred will be among the more than half of his fellow returnees who still do not have a full-time legal job. When he left prison, he did not have either a valid driver’s license or a Social Security card, as is the case with many offenders reentering society. Getting these basic forms of identi- fication, moreover, is a challenge. Fred has no car, and public transportation to the department of motor vehicles is weak. So he has to rely again on family or friends to get there.

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Instead of a full-time job, Fred will be among the one third of the people leaving prison who support themselves with “off the books” or “under the table” work. That kind of work provides some income, but it is typically part-time, irregular work, with no benefits such as health insurance and no real prospects for advancement. And Fred’s job prospects were not so good to begin with. Along with 55 percent of the other returnees, he has only a high school diploma (and was never a star pupil), and like 42 percent of the group, he had never worked 40 hours a week before going to prison.

One of Fred’s major problems is his health. Along with 59 percent of his peers, he has some kind of physical illness, and he is among the 30 percent who suffer from depression. And like almost 30 percent of his peers, he has a history of drug usage.

Along with about two-thirds of his peers, Fred reports that his parole officer has been helpful with him making the transition from prison over the first-year home. But like 30 percent of the group, after one year out he reports that he has committed another crime, with half involving drug possession. After only one year out, 15 percent of his peers were back in prison.

Fred’s situation and experience in his first-year home from prison highlight the impact of social and economic factors on his life and his future. Cleveland is a city where the old economy of blue-collar jobs has been hit very hard. Fred arrives home with little education and work experience and is initially very dependent on family members (who themselves are struggling to get by), living in an environment with few job opportunities, debts, and poor health, especially his mental health, and the immediate presence of family, friends, or residents in the neighborhood who are involved in crime.

In short, people like Fred who leave prison on parole face many challenges regarding simple day-to-day living, such as finding a place to live and getting a job. Meanwhile, no matter how determined he is to establishing a productive law-abiding life, he has family members, friends, and people in the neighborhood who invite him back into a life of crime. All poor people face the same chal- lenges; the ex-offender just has some additional burdens. And as we shall learn in this chapter, African Americans, Hispanics, and Native Americans disproportion- ately face these challenges.

SOURCE: Adapted from Christy A. Visher and Shannon M. E. Courtney, One Year Out: Experiences of Prisoners Returning to Cleveland (Washington, DC: Urban Institute, 2007).

I N E Q U A L I T Y A N D C R I M E

It’s Not Just the Criminal Justice System

If we are serious about both understanding racial and ethnic disparities with respect to crime in America, we need to look beyond the criminal justice system. Marc Maurer, director of The Sentencing Project, lists four factors that contribute to racial and ethnic disparities in crime rates. He cites “disproportionate crime rates,” “disparities in criminal justice processing,” “the overlap of race and class

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116 C H A P T E R 3

effects,” and the “impact of ‘race neutral’ policies.”1 This chapter focuses on the second on those factors, the deeply embedded social and economic inequalities in American society.

Something as simple as owning a telephone, to take just one example, can affect the quality of justice a person receives. Maurer explains that before trial a person who has a cell phone or even a home-based landline can allow the court to stay in touch with him and thereby increase the chances of pretrial release. The poor person who cannot afford any kind of phone is more likely to both be unable to afford bail in the first place and then be less likely to be released before trial. As we will learn in Chapter 5, remaining in jail before trial increases the chances of being convicted and then being sentenced to prison. A criminal con- viction has enormous consequences, especially on a person’s ability to get a job.

In short, from small things, such as having a phone, large adverse conse- quences can grow.

Inequality in America: Long-Term Trends and the Recession

Economic and social inequality is directly related to crime. Social and economic inequality explains a great deal about who commits crime, who are the victims of crime, who is arrested and prosecuted, and who goes to prison. Does inequal- ity cause crime? No. All poor people do not commit crime, and poverty does not make someone become a criminal. But poverty correlates with crime. Poverty involves circumstances that contribute to criminal behavior.

The United States has had long-standing patterns of social and economic inequality by race and ethnicity. African Americans, Hispanics, and Native Amer- icans are much worse off by every measure than non-Hispanic whites and Asian Americans. In this chapter, we will explain how those factors directly affect crime and criminal justice and account for much of the much-publicized disparities in the prison population.

Two Societies?

Almost 50 years ago, the Kerner Commission, which was appointed to study the riots of the 1960s, warned that “our Nation is moving toward two societies, one black, one white—separate and unequal.”2 Twenty-four years later, political sci- entist Andrew Hacker published a book on American race relations titled Two Nations: Black and White, Separate, Hostile, Unequal.3 Hacker’s subtitle indicates that the Kerner Commission’s dire warning has come true: instead of moving toward greater equality and opportunity, since the 1960s we have moved backward.

Economic inequality has steadily worsened. The gap between the very rich and ordinary Americans has grown tremendously. By 2015, the richest 1 percent of Americans controlled half of all the wealth in the country; the richest 10 per- cent controlled 88 percent; and the bottom 50 percent of Americans controlled only 1 percent of all the wealth. As we will discuss later, wealth includes income, savings, property, and all other tangible assets. The economic well-being of both middle-class and poor Americans has declined since the 1970s.4

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Second, the recession that struck in 2008 accentuated the long-term trends. Unemployment rose significantly in 2008–2009 but has fallen steadily since then (although not as fast as most economists and political leaders want). Job oppor- tunities, however, have grown in relatively lower paid service industries, while better paying blue-collar industrial jobs have fallen. These trends have hit African Americans and Hispanics particularly hard. The unemployment rate for African American in 2015 was twice the rate for non-Hispanic whites (8.8 percent vs. 4.3 percent) and 37 percent higher for Hispanics (5.9 percent vs. 4.3 percent).5

E C O N O M I C I N E Q U A L I T Y

There are three important patterns of economic inequality in America: (1) the large gap between rich and poor, without regard to race or ethnicity; (2) the large economic gap between white Americans and communities of color, particularly African Americans and Hispanics; and (3) the growth of the very poor—a group some analysts call an underclass—in the past 40 years. (We discuss the concept of an underclass later on pp. 127.)

The standard measures of economic inequality are income, wealth, unemploy- ment, and poverty status. We will discuss all four in detail. There is also increased social science interest in the concept of well-being, which includes the quality of a person’s family life, the social and physical environment, and personal safety.6

Income

Median family income is a standard measure of economic status. It measures how much money a family earned during one year. U.S. Census Bureau data reveal wide gaps between racial and ethnic groups. In 2014, the median household income for all American households was $53,657. But as with all economic indi- cators, strong racial and ethnic disparities exist. Asian-American household had the highest median family income at $74,297, followed by non-Hispanic whites at $60,256, Hispanic households at $42,491, and African-American households at $35,398.7 Historical trends put these figures in perspective. African Ameri- cans made significant progress relative to whites in the 1950s and 1960s, when the American economy was growing, but since then, according to the National Research Council, “the economic status of blacks relative to whites has, on aver- age, stagnated or deteriorated.”8

The median household income figures mask two important issues. First, as we will discuss shortly, there is a very large and growing gap between the very rich and the rest of Americans. Second, there are significant differences in median income within racial and ethnic groups. One of the most significant developments over the past 40 years has been the growth of an African-American middle class that is doing much better than its lower-income counterparts.9 A similar class difference exists within the Hispanic community. These cleavages are the result of two factors. First, the civil rights movement opened the door to employment

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for African Americans and Hispanics in careers from which they previously had been excluded: white-collar, service, and professional-level jobs. Second, the end of blatant housing discrimination has allowed middle-class African Americans and Hispanics to move out of segregated neighborhoods. This process, however, has resulted in a concentration of disadvantage in the older neighborhoods, with, as we will explain shortly, a resulting concentration of factors that are criminogenic. The concentration of disadvantage, for example, means that a teenager is surrounded by a concentration of bad peer influences: other kids who are involved in drugs, guns, gangs, and crime.

Among both African Americans and Hispanics, then, there is a greater gap between the middle class and the poorest than at any other time in our history. Later, we will see how changes in housing patterns among people of color have resulted in a greater concentration of disadvantage in certain areas. This has a direct impact on crime in poor neighborhoods.

Wealth

Annual income is only part of a person’s or a family’s economic status. Wealth includes all the assets you own: your home (or homes, for some people); your cars; other property (the rent you earn from a rental property is counted as income, but the value of the property itself is counted as wealth); your savings, including stocks and bonds; and so forth.

At the basic level, the family that owns a house, for example, has far more wealth than the family that rents an apartment or house. The person or family that has a large stock portfolio has far more wealth than people with no savings at all.

The relative wealth of different groups of Americans has been changing sig- nificantly in recent years. Three trends stand out. The wealth of the very richest

$70

$60

$50

$40

$30

$20

$10

$0

T h

o u s a n d

s

White

60,256

Hispanic

42,491

African American

35,398

F I G U R E 3.1 Median Household Income, by Race and Ethnicity, 2014 SOURCE: U.S. Census Bureau, Income and Poverty in the United States: 2014 (Washington, DC: Department of Commerce, 2015). https://www.census.gov/content/dam/Census/library/publications/2015/demo/p60-252.pdf\.

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Americans has soared; the wealth of middle-income Americans has stagnated and even begun to decline; and the wealth of the poorest has actually declined. Between 2000 and 2011, which includes the years of the great recession (2008– 2009), the average net worth of all American households declined by 6.8 percent (or a total of $5,046). But different racial and ethnic and income-level groups had very different experiences.10

Non-Hispanic whites exper ienced an increase of 3.5 percent in that period, but only those households in the top 60 percent enjoyed that increase. African-American households saw their net worth decrease by a substan- tial 37.2 percent between 2000 and 2011. Most of that was experienced by the poorest 40 percent of African-American households. The upper 40 percent (the  African-American middle class) experienced an increase in net worth of 5.4 percent. The overall net worth of Hispanic Americans, meanwhile, decreased by 42.1 percent, a greater decline than for African Americans. Most of that loss was among the bottom 60 percent of households; the top 40 percent enjoyed gains of 17.9 percent.11

Several points need to be emphasized. First, the gap between whites and both African-Americans and Hispanic households increased in the decade of the 2000s.

T h o u s a n d

s

White

141,900

Hispanic

13,700

African American

11,000

$140

$150

$130

$120

$110

$100

$90

$80

$70

$60

$50

$40

$30

$20

$10

$0

F I G U R E 3.2 Median Family Wealth, by Race and Ethnicity, 2013

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120 C H A P T E R 3

Non-Hispanic white households had 17.5 times the net worth as African Amer- icans in 2011, compared with 10.6 times in 2000. And non-Hispanic whites had 14.4 times the net worth as Hispanics in 2011, compared with 8.1 in 2000.12

The reasons for the huge gap in net worth are easy to understand. Middle-class households are able to save each month; the poor struggle to get by day-to-day and week-to-week, and unable to put aside any savings. The middle-class family is able to buy a house, which counts as wealth, and typically increases in value. A family can use its savings to send its children to college, which gives that gener- ation a head start in life over their less-fortunate peers. Students who graduate with no student loan debts, because their parents could pay for college, begin with an enormous advantage over those with large student loan depts. Middle-class people typically buy homes in neighborhoods where property values are rising. Lower-middle-class families, regardless of race, are often able to buy homes at neighborhoods where property values grow slowly and might even be stagnant. As a result, their wealth does not increase very much. Poor people, of course, can- not buy a house at all and as a result continually fall behind in terms of wealth.

The absolute decline in the wealth among the poorest Americans has dra- matic implications for crime and criminal justice. As families grow poorer, they are less able to move to a better neighborhood, thereby exposing their children to the bad peer influences of high-crime neighborhoods (the concentration of pov- erty effect). As the National Crime Victimization Survey consistently finds, living in higher crime neighborhoods means they are more likely to be victims of both violent and property crimes.13 And being the victim of a crime imposes dollar costs that the poor are the least able to cope with: medical car, loss of days from work, a car or television that needs to be replaced, and so on.

The 2008–2009 recession had a devastating effect on many families. The more important source of wealth for most Americans is the value of their home. In the pre-2008 housing boom, many people bought homes that were more expansive than they normally would have, because they expected the value to quickly increase. The crash, however, caused housing values to plummet, wiping out all of their home-related savings. Many people were forced into foreclosure, leaving them far worse off than ever.

Wealth plays an important role in perpetuating inequality. Savings can cush- ion a family against temporary hard times, such as loss of a job or an unexpected medical crisis. The construction worker or plumber who is without work for an extended period of time because of an economic slowdown may lose his or her home, and as a result slide down the economic scale. In the next section, we will discuss the impact of inheritance in transferring wealth from one generation to the next, and in the process perpetuating inequality.

The gap between whites and African Americans remains wide, despite the tremendous changes over the decades as a result of the civil rights movement and a series of both liberal and conservative economic policies designed to increase opportunity. The National Research Council found “persisting disparities between black and white Americans” over the course of several decades. Later in this chapter, we will examine the impact of the civil rights movement and other social and political changes on the problem of persistent inequality.

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The “Family Thing”: Emergency Assistance and Inheritance

Families (and sometimes friends) are important sources of support for people during times of financial emergencies. When the car breaks down or needs new brakes, or there is a family medical crisis, people turn to those closest to them. People whose relatives or friends have savings and can help out are better able to survive a temporary financial crisis. African-American families are actually more likely to receive financial support from family and friends: 15.9 percent of all African-American families, compared with 0.4 percent of Hispanic families, and 6.5 percent of white families. In part, this is because they have fewer per- sonal resources (savings, for example) than whites. But African-American families receive the second lowest average amount of family help. Whites receive an aver- age of $589, compared with $383 for nonimmigrant Hispanics, $278 for African Americans, and $208 for immigrant Hispanic families.14

Inheritance is sometimes called the “family thing,” and it is extremely import- ant in perpetuating disparities in wealth from one generation to the next. The media, however, present a very distorted picture of the reality of inheritance in America. It focuses on the very wealthy, and “rich kids” who inherit fortunes, or entire businesses, or trust funds. The reality for most Americans is very different.

In a powerful analysis of the gap between whites and African Americans, Thomas Shapiro argues that “inheritance is a frightful conveyor and transmitter of inequality.” In a series of family interviews, he found that 25 percent of white families enjoyed an inheritance from parents or other family members, compared with only 5 percent of African-American families. And that is only part of the story. One study found that among those inheriting anything, whites averaged $144,652, whereas African-American families averaged only $41,985.15 The Fed- eral Reserve, meanwhile, estimates that the average white American family inher- its only $20,000 from their parents, whereas the average African-American family inherits a mere $2,000.

Inheritances provide many advantages. An inheritance can help tide over a young person who is still trying to find a job and career. It helps to buy a house. Shapiro argues that almost half of all whites (46 percent) made the down payment on their houses with help from family or other sources in addition to their own savings. Only 12 percent of African Americans enjoyed that extra help.16 A house in a middle-class neighborhood is more likely to increase in value than one in an economically marginal neighborhood—thereby increasing a family’s wealth over time. Some inheritance can help with college expenses, either for the child or later for that person’s children.

The Growing Gap between the Very Rich

and the Rest of Americans

The gap between the very richest Americans and most Americans in terms of both annual income and total wealth has been growing dramatically over the past few decades. Many commentators today talk and write about a crisis of inequality, particu- larly with regard to the gap between the richest 1 percent and the rest of Americans.

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The most dramatic change in inequality in the past few decades is that the very rich own an increasing share of all wealth. It is now estimated that the rich- est 1 percent of Americans own half of all the wealth in the country, while the bottom 50 percent of Americans control only 1 percent of all wealth. By 2016, the United States is the least equal of all industrialized countries. The middle class control only 19.6 percent of all wealth, compared with 39.9 percent for middle-class Germans and 49 percent for middle-class Japanese.17

The problem with the gap between the richest 1 percent and the rest of Americans is not necessarily that the 1 percent has too much, but that ordinary Americans do not have enough to get by, be able to handle financial emergen- cies, educate their children as well as they might, and be able to move up in the world.

Unemployment

The unemployment rate is another standard measure of economic well-being. The rate fluctuates month-to-month and year-to-year with the health of the national economy. Whatever the national rate, for decades there has been a racial and eth- nic gap in unemployment. In January 2016, the official national unemployment rate was 4.9 percent. For whites the rate was 4.3 percent, compared with 3.7 percent for Asian Americans, 5.9 percent for Hispanics, and 8.8 percent for Afri- can Americans. Historically, going back into the 1950s, the African- American unemployment rate has consistently about twice the white’s unemployment rate, during times of prosperity and times of recession.18

The unemployment situation for African-American teenagers (16–19 years old) is particularly acute. For both boys and girls, the unemployment rate in Jan- uary 2016 was 25.2 percent, compared with 14.4 percent for whites and 18 per- cent for Hispanics.19

The high unemployment rates for all racial and ethnic groups is a matter of great concern, as criminologists consistently find that unemployment correlates with involvement in delinquent behavior, gang activity, and participation in more serious crime, and the likelihood of adult criminal careers. Involvement in crime peaks during the teenage years. Arrests peaked at age 18 for both burglary and robbery in 2014.20 Providing meaningful employment opportunities in those

T A B L E 3.1 Wealth Inequality in the United States, 2014

Percentage of the Population Percentage of All Wealth

Top 1% 43%

To 2–4% 29%

Remaining 85% 28%

SOURCE: Nicholas Kristoff, “An Idiots Guide to Inequality,” New York Times, July 22, 2014.

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years would have a direct impact on overall crime rates. The concentration of high rates of teenage unemployment in low-income neighborhoods, moreover, creates a critical mass of peer influences that help to introduce young people into criminal activity.

The official data on unemployment do not tell the whole story, however. The official unemployment rate counts only those people who are actively seeking employment. This problem is similar to the official FBI UCR data on the crime rate, which only counts crimes that are reported to police. The official unem- ployment rate does not count three important groups: (1) discouraged workers who have given up and are not looking for work; (2) part-time employees who want (and probably need) full-time jobs but cannot find them; and (3) workers in the “underground economy,” who are paid in cash to avoid paying taxes and Social Security withholding. During a recession, when job opportunities are scarce, it is even more likely that people will not bother to look for work. Many economists believe that people of color are disproportionately represented among those not counted by the official unemployment rate.21

The unemployment situation with regard to Native Americans is possibly the bleakest of any group. A 2013 report found 15 Native American tribes where the unemployment rate was over 80 percent. The Rosebud Sioux Tribe, with a total population of 26,237 tribal members, had 14,428 members available for work, with 11,909 unemployed, for an unemployment rate of 83 percent.22

Later in this chapter, we discuss the major theories of crime as they relate to race and ethnicity. For virtually every theory, the teenage unemployment rate is particularly relevant in terms of the likelihood of participation in crime. The peak years of criminal activity for Index crimes occur when people are between the ages of 14 and 24. Arrests peak at age 18 for violent crimes and at age 16 for prop- erty crimes. The persistently higher rates of unemployment for African-American and Hispanic teenagers help explain their higher rates of criminal activity com- pared with those of whites.

For all people, one important consequence of unemployment is that losing your job can affect your health. Being laid off from your job imposes new stress: the shock of being laid off, the loss of self-esteem and social status, and the worry about finding another job. Families need to spend down their savings and as a result be less able to cope with the next experience of unemployment. The sud- den decline in income may cause the family to relocate to a less-expensive neigh- borhood, disrupting family and social relations. If the family has to relocate to a poor, high-crime neighborhood, the children will be exposed to crime-involved peers.23

T A B L E 3.2 Unemployment Rate, by Race and Ethnicity, July 2016

4.3% 8.4% 5.4% 3.8%

White African American Hispanic Asian

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124 C H A P T E R 3

Poverty Status

The economic status of racial and ethnic groups is also measured by the per- centage of families in poverty. The federal government first developed an official definition of poverty in 1964 that was designed to reflect the minimum amount of income needed for an adequate standard of living. In 2014 the official poverty threshold was $24,230 for a family of four. That year, 14.8 percent of all Amer- icans (46.6 million people) were below the poverty line, up from 12.5 percent in 2004. A strong racial and ethnic gap exists here as with other economic indi- cators. Among non-Hispanic whites, 10.1 percent were below the poverty line, compared with 12 percent of Asian-American, 23.6 percent of Hispanics, and 26.2 percent of African Americans.25

Insurance Coverage

Another important measure of well-being is insurance coverage. The 2010 Afford- able Care Act (generally referred to as Obamacare) significantly expanded health care coverage. In 2014, 33 million Americans (10.4 percent of the population) had no health insurance. That represented a significant decline from 41 million uninsured (13.3 percent of the population) in 2013. Significant racial and ethnic variations in health insurance coverage remained in 2014, however. While 9.7 percent of non-Hispanic whites were uninsured, 19.9 percent of African-Ameri- cans and 24.4 percent of Hispanics were uninsured.26

B o x 3.1 The Low-Income Trap: Payday Loans

Some low-income people facing an unexpected financial squeeze turn to so-called payday loans. Every year, about 12 million Americans take out these loans, where they borrow against an expected paycheck. They do it to pay for the cost of car repair, an unexpected medical expense, or to pay the rent or phone bill, and so on. The fees for payday loans (which can be considered interest rates) are exorbitant and often trap the borrowers into continuing loans as they borrow to pay off the previous loan. A Pew Research Center study found that the average payday loan borrower takes out eight loans of $375 per year, with an average fee of $55 each. Thus, borrowers are paying almost $500 in fees for loans totaling $3000. In some states, where state regulations on lending are weak, the fees average $100 on a $375 loan.24

Middle-income people with savings for emergency, or with family members who can help out, do not have to turn to payday loans, and consequently do not either pay the very high fees or run the risk of a cycle of loans. Social and economic factors explain the likelihood of taking this option. The odds of turning to payday loans are 57 percent higher for renters than homeowners, 103 percent higher for people who are separated or divorced compared with people who are married, and 105 percent higher for African Americans compared with whites or Hispanics.

In short, payday loans provide quick relief for low-income people when a finan- cial emergency arises. But they involve high “fees” that are in effect interest rates that serve to trap them into still more difficult economic situations.

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Lack of health insurance makes a big difference in a person’s life. If you can- not take care of routine health problems, you are likely to develop major health problems that affect your economic status. If you are chronically sick, you miss work and eventually have trouble holding a steady job. One of the major advan- tages of expanded health care is access to preventive medical care that helps to identify and correct problems that might eventually lead to much more serious problems. Prenatal health care is extremely important for the health of the fetus, with major impacts later in life. Lack of health insurance can also affect a person or family’s economic status. In 2015, 62 percent of personal bankruptcies in the United States were due to medical bills not covered by insurance.28 Bankruptcy can cause many families to fall from middle- or even upper-middle-class status to lower-middle-class or even to poverty status.

S O C I A L C A P I TA L A N D C U LT U R A L C A P I TA L

A person’s current social status and future prospects involve more than just money. Also important are what are called social capital and cultural capital. Social the- orist Pierre Bourdieu identified three different types of capital. Economic capital, obviously, refers to financial resources. Social capital includes a person’s network

B o x 3.2 The Minimum Wage and Poverty

A minimum-wage job paying $7.25 per hour (the federally mandated level in 2016; a growing number of cities and states have raised their minimum wages) yields an annual income of $14,500 ($7.25 × 40 hours/week × 50 weeks). If two parents who have two children, both have minimum-wage jobs, their total annual income is $29,000, which is higher than the 2016 official federal poverty level for a family of four ($24,250). The problem is that minimum-wage jobs are not always full-time jobs. If both parents work only 30 hours a week at the minimum wage, their com- bined annual income of $21,750 falls below the poverty line.

The most disturbing aspect of the poverty figures is the percentage of children in poverty. The National Center for Children in Poverty calculates that about half of all children live in poor families (with poor defined as families at or below the offi- cial federal poverty level). And because of the 2008–2009 recession, the percentage in low-income families has risen. The racial and ethnic disparities are stark and very alarming. While 28 percent of white non-Hispanic adolescents live in low-income families, the figures are 33 percent for Asian Americans, 58 percent for Native Amer- icans, 60 percent for Hispanics, and 61 percent for African Americans.27

The implications of these figures for delinquency and crime are obvious. Child- hood poverty is associated with so many other factors that are in turn associated with misbehavior and ultimately serous criminal activity: inadequate nutrition and health care, which affect physical and intellectual development; educational achieve- ment; residence in higher-crime neighborhoods, with the resulting concentration of peers already involved in delinquency, crime, and gangs; the lack of job opportuni- ties in the immediate neighborhood; and so on.

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of friends, relationships, and other contacts. Cultural capital includes education, knowledge, or skills that give a person an advantage.29

Social capital is defined by the World Bank as “the institutions, relationships, and norms that shape the quality or quantity of a society’s social interactions.”30

The sources of social capital include families, communities, and organizations. With respect to employment, one important form of social capital is having family, friends, or neighbors who may own a business and can offer a job, or who are able to refer a young person to their employer for a possible job. Family and friends can also offer specific advice or assistance about a problem that has arisen.31

Social capital can also be collective in form, particularly at the neighborhood level. A neighborhood, for example, may have many strong religious institutions, which promote neighborhood activity and social cohesion that benefit the entire area. We will explore the importance of this later in our discussion of social disor- ganization theory (pp. 134).32

Criminologist Elliot Currie described how some people benefit from social capital while other people do not by citing a study of juvenile delinquents who graduated from the Lyman School in Massachusetts and the Wiltwyck School in New York in the 1950s. The predominantly white Lyman graduates often had personal connections who helped them find good employment. One graduate explained: “I fooled around a lot when I was a kid. … But then I got an uncle on the [police] force. When I was twenty he got me my first job as a traffic man.”33

The predominantly African-American and Hispanic graduates of Wiltwyck did not have similar kinds of personal resources. As a result, they returned to criminal activity at a much higher rate. In short, the conditions of extreme poverty dimin- ish the human and social capital that young people possess and, as a consequence, contribute to higher rates of criminal activity.

The noted sociologist Alejandro Portes points out, however, that social capital can also have a downside. The most obvious example is neighborhood gangs. A drug gang provides friends, income, self-esteem, and protection from other gangs. It also provides work experience, including negotiating skills, leadership skills, and experience in handling money (but also the skills of lying, threatening people, and using guns). All these skills are gained in the service of criminal activity that might lead to prison or even death. Nonetheless, the positive aspects of the gang experience are a major part of the attraction of gangs, which is far stronger than moralizing about how bad gangs, drugs, and crime are.34

The World Bank argues that government institutions, “the public sector,” are an important part of the network of social capital. Assume that a neighborhood has stable families and a strong sense of community. Responsive government insti- tutions can help translate their aspirations and efforts into effective services: good schools, attractive parks for recreation, streets that are repaired, a public transpor- tation system that allows people to find and hold jobs, and so on.35

The police and the criminal justice system are also important elements of the public aspect of social capital. If the police effectively control crime and disorder, community members will feel better about their neighborhood and feel empow- ered to work for its improvement. The community policing movement began

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with the idea that policing can be made more effective by developing partner- ships with community organizations and developed programs that reduce crime and disorder. The resulting feeling among neighborhood residents that they can effectively influence neighborhood conditions is what criminologists call collec- tive efficacy. We will discuss this in more detail shortly.

The Debate over the Underclass

Some of the most pessimistic observers of inequality in America use the term underclass to describe the very poor who are concentrated in the inner cities. The idea of an underclass is more than a matter of semantics. It is not merely another euphemism for poor people, along with “the poor,” “the deprived,” “the impov- erished,” “the disadvantaged,” “the at-risk,” and so on. It describes a new kind of poverty, from which people are not able to escape, and the conditions of poverty recreate.36

Extended periods of poverty lead to dysfunctional families, which in turn lead to children who do poorly at school, become involved in delinquency and crime, and become negative peer influences for other kinds in the immediate neighborhood. Kids who are arrested acquire criminal records that bar them from many job opportunities. Gangs dominate street life, disrupting positive social rela- tion. And on it goes, and the underclass perpetuates itself.

Evidence suggests that the nature of urban poverty has changed in signifi- cant ways. First, the industrial sector of the economy has eroded, eliminating the entry-level jobs that were historically available to the poor. Second, conditions in the underclass generate circumstances, particularly concentrated disadvantage, and the resulting behavior that perpetuate poverty.

Gary Orfield and Carole Ashkinaze’s study of economic conditions in Atlanta during the 1980s found growing inequality amid overall growth and prosperity. The authors found that although most people in the Atlanta metropolitan area fared better economically, “the dream of equal opportunity is fading fast for many young blacks in metropolitan Atlanta.” For the African-American poor in the inner city, “many of the basic elements of the American dream—a good job, a decent income, a house, college education for the kids—are less accessible … than was the case in the 1970s.”37 Most of the economic growth occurred in the largely white suburbs, whereas opportunities declined in the predominantly African-American inner city. At the same time, most of the expanding oppor- tunities occurred in the service sector of the economy: either in white-collar professional-level jobs, health care professions, or in minimum-wage service jobs (e.g., fast food restaurants). The poor cannot realistically compete for the professional-level jobs, and many of the service-sector jobs do not pay enough to support a family or are out of reach by public transportation.

Patterns of residential segregation contribute to the development of the urban underclass. Job growth over the past 30–40 years has been strongest in suburban areas outside the central cities. Inner-city residents, regardless of color, find it extremely difficult both to learn about job opportunities and to travel to and from work. Public transportation systems are either weak or nonexistent in

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most cities, particularly with respect to traveling to suburban areas. A private car is almost a necessity for traveling to work. Yet one of the basic facts of poverty is the lack of sufficient money to buy a reliable car. And as we already discussed, peo- ple returning from prison often lack a driver’s license. Concentration of the very poor and their isolation from the rest of society erode the social networks that are extremely important for finding employment. And, finally, as we have already mentioned, the recession has hit poor and low-income people particularly hard, aggravating the trends over the previous 30 years.

C O M M U N I T Y S O C I A L S T R U C T U R E

The social structure of communities has an important impact on crime. Commu- nity in this respect refers to both large metropolitan communities and local neigh- borhoods. The social structure of a community involves the spatial distribution of the population, the composition of local neighborhoods, and the patterns of interaction between and within neighborhoods. Our focus is on the social struc- ture of local residential neighborhoods.

Residential Segregation

American metropolitan communities are characterized by strong patterns of resi- dential segregation. Segregation itself is nothing new. Historically, American cities have always been segregated by income, ethnicity, and race. One of the central insights of the Chicago School of Sociology was that new arrivals to the city— either immigrants from other countries or migrants from rural areas—settled in the central city, with older immigrant groups and the middle class moving to neigh- borhoods farther out or to suburban communities. (We discuss the Chicago School of Sociology again, on pp. 134.) Racial and ethnic segregation in housing has been the result of several factors: the historic practice of de jure segregation, covert dis- crimination, and group choice. In the southern and some northern communities, local ordinances prohibited African Americans from living in white neighborhoods.

Particularly in the North, many property owners adopted restrictive cov- enants that prohibited the sale of property to African Americans or Jews. The Supreme Court invalidated restrictive covenants in 1948 in the case of Shelley v. Kraemer.38 Real estate agents maintained segregation by steering minority buyers away from white neighborhoods. Banks and savings and loan companies refused to offer mortgages in poor and minority neighborhoods—a practice known as “redlining.” (The term comes from the idea that real estate agents and banks drew red lines on maps to designate disfavored areas for sales and mortgages).39 Finally, segregation has been maintained by personal choice. People often prefer to live among members of their own group. Thus, European immigrants tended to form distinct ethnic neighborhoods, many of which still exist (e.g., Little Italy).

Despite federal and state laws outlawing housing discrimination, residential segregation persists today. Social scientists have devised an index of residential segregation that measures the proportion of neighborhoods in any city that are

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racially homogeneous. The data indicate that in the 1980s, from 70 to 90 percent of the people in the major cities lived in racially homogeneous neighborhoods. The residential segregation indices for both Detroit and Chicago in 1980, for example, were 88, meaning that 88 percent of all people lived in either all-white or all-African-American neighborhoods.40

“Distressed Communities”:

The Growing Gap in Community Well-Being

The growing gap between family incomes, which we discussed earlier, is also reflected in an increasing economic status gap between communities. The Eco- nomic Innovation Group developed a Distressed Communities Index, analyzing changes in 26,000 zip code areas (covering 99 percent of the U.S. population) between 2010 and 2014, using seven factors: percentage of adults (25 years old or older) without a high school degree; housing vacancy rate; adults not working; poverty rate; median income ratio (compared with the state median income); change in the number of jobs (plus or minus); change in the number of business establishments in the area.41

The report found a widening gap in community well-being between 2010 and 2013. In the wealthiest communities, the number of jobs increased by 20 per- cent, while in the poorest, jobs fell sharply. In the poorest neighborhoods, the number of businesses fell by 10 percent. In the most distressed communities 55 percent of the adults were not working, 27 percent of the residents lived in poverty, and 14 percent of the homes were vacant.

Crime and Neighborhood Deterioration

The concentration of low-income people in particular neighborhoods has a direct impact on crime by concentrating high-rate offenders in one area. This is a major part of what is called concentrated disadvantage. As a result, law-abiding residents of those areas suffer high rates of robbery, burglary, and other predatory crimes. The National Crime Victimization Survey found that in 2014 the house- hold burglary rate was almost three and a half times higher for the poorest house- holds (less than $7,500 annual income) than the highest income group ($75,000 a year or more). The robbery and auto theft rates were also higher.42 The obvious questions are: Why do burglars prey on the households that have the least? Why not go where there is more to steal? The answer to both is that burglars them- selves are generally poor, and they attack the most available homes, those in the immediate neighborhood.

The concentration of high-rate offenders in an area increases the influence of crime-involved peers among young people. As Robert Crutchfield points out, unemployed or marginally employed people in the secondary labor mar- ket “spend more time with each other,” and as a result, they are more likely to influence each other in the direction of a greater propensity to commit crime.43

Even in stable families, the sheer weight of this peer influence overwhelms positive parental influence. In the worst of situations, teenagers are coerced into joining

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crime-involved gangs. Thus, many individuals are socialized into crime when this would not be the case if they lived in a more diverse neighborhood with less crime.

In one of the great ironies of recent history, some of the great gains of the civil rights movement have hurt the poorest racial minority communities. Since the 1960s, the civil rights movement has opened up employment opportunities in business and the professions, creating a greatly expanded African-American mid- dle class. The end of blatant residential racial segregation created housing oppor- tunities for families in that new middle class. Following the example of their white counterparts, these families move out of low-income, inner-city neighbor- hoods and into the suburbs where there is less crime and better schools.

The result is that the old neighborhoods abandoned by the African-American middle class are stripped of important stabilizing elements—what William Julius Wilson refers to as a “social buffer.”44 The neighborhood loses its middle-class role models, who help socialize other children into middle-class values, and an important part of its natural leadership, the people who are active in neighbor- hood associations and local school issues. Wesley G. Skogan reports that educated, middle-class, home-owning residents are more likely to be involved in neighbor- hood organizations than are less educated, poorer, renting residents.45 And, as we have already noted, the middle class is composed of the people who can provide the social networks that lead to good jobs. In short, we are left with concentrated disadvantage in the old neighborhoods.

All of these factors contribute directly to neighborhood deterioration and indirectly to crime. As more of the people with better incomes move out, the overall economic level of the neighborhood declines. Houses often go from owner-occupied to rental property. As the area loses purchasing power, neighbor- hood stores lose business and close. James Q. Wilson and George Kelling, two of the early theorists of community policing, argue that the physical deterioration of a neighborhood (abandoned buildings and cars, unrepaired houses, and so forth) is a sign that people do not care and, consequently, is an “invitation” to crimi- nal behavior.46 As the composition of the neighborhood changes, meanwhile, an increasing number of crime-involved people move in, changing the context of peer pressure in the neighborhood.

Skogan describes the impact of fear of crime on neighborhood deteriora- tion as a six-stage process. It begins with withdrawal. People choose to have less contact with other neighborhood residents; the ultimate form of withdrawal is to move away. This leads to a reduction in informal control over behavior by residents: people no longer monitor and report on the behavior of, say, their neighbors’ children. Then, organizational life declines: fewer residents are active in community groups. These factors lead to an increase in delinquency and disorder. As the neighborhood becomes poorer, commercial decline sets in. Local shops are closed, and buildings are abandoned. The final stage of the process is collapse. At this point, according to Skogan, “there is virtually no ‘community’ remaining.”47

Community policing and problem-oriented policing are designed to stop the process of neighborhood deterioration. They do this in several ways. First, many programs address small signs of disorder that cause people to withdraw: accumulated trash in the neighborhood, graffiti, parks with broken playground

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equipment, and so on. Second, police-initiated partnerships and block meetings are designed to strengthen networks among residents and help to give them a feeling of empowerment or collective efficacy in dealing with neighborhood problems. Block meetings were one of the core elements of CAPS, the Chicago community policing initiative.48

Much of the gun violence in high-crime neighborhoods involves conflict between gangs seeking to control drug trafficking. This was particularly true during the crack cocaine epidemic in the mid-1980s. The violence resembled the famous “beer wars” in Chicago in the late 1920s, as rival gangs fought for control of bootlegging during Prohibition.49 Because of drive-by shootings and other gang-related violence, the streets are even less safe than before. This is the stage in neighborhood decline that Skogan describes as neighborhood “collapse.”

Well-Being

The quality of neighborhood life affects residents’ sense of well-being. The purely economic factors of income and wealth are important, of course, but well-being includes many other factors. In a 2015 report on America’s Children, the Urban Institute identified seven different domains that affect well-being. In addition to economic circumstances, they include the family and social environments (e.g., living arrangements, child care, child maltreatment), health care, the physical envi- ronment and safety (e.g., the risk of criminal victimization), personal behavior (e.g., smoking, alcohol or drug use), education, and health.50 Pride in the neigh- borhood and social relations with neighbors are important factors. Poor neigh- borhoods are typically filled with dilapidated or abandoned buildings. It is hard to take pride in this kind of area. People who do take pride in their neighborhood invest time and energy in keeping up their own residence, even when they are renters. They pick up loose trash, take care of the law, fix a fence, and don’t leave old furniture on the porch or on the law.

An important part of vibrant and healthy neighborhoods is social bonds among residents and participation in organizations such as religious institutions and civic groups. Knowing other people and believing that they care about you and the neighborhood provides a great deal of satisfaction. As we will see later (pp. 135), criminological research has found that neighborhoods with these kinds of bonds are likely to have lower rates of crime than similar neighborhoods that do not have these bonds. Being able to work together to fight disorder and crime is referred to as “collective efficacy.”51

T H E O R E T I C A L P E R S P E C T I V E S O N

I N E Q U A L I T Y A N D C R I M E

Inequality has both direct and indirect impacts on crime. As a result, the signifi- cant racial and ethnic and economic and social inequalities have a disparate effect on the likelihood of poor people of color participating in crime, being the victim

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of crime, and suffering inequalities at the hands of the criminal justice system. In the next section, we examine the major theories of crime and discuss how each one explains crime and criminal justice.

Social Strain Theory

Robert Merton’s social strain theory holds that each society has a dominant set of values and goals along with acceptable means of achieving them. Not every- one is able to realize these goals, however. The gap between approved goals and the means people have to achieve them creates what Merton terms social strain. If someone cannot achieve his or her goals through legitimate means, he or she may turn to illegitimate means: crime. Let’s say, for example, that you want to be rich but are a high school dropout with no job skills. You might become a drug dealer in order to get rich.52

As Steven F. Messner and Richard Rosenfeld argue in Crime and the Amer- ican Dream, the dominant goals and values in American society emphasize suc- cess through individual achievement.53 Success is primarily measured in terms of material goods, social status, and recognition for personal expression (e.g., through art or athletics). The indicators of material success include a person’s job, income, place of residence, clothing, cars, and other consumer goods.

The accepted means of achieving these goals are also highly individualistic, emphasizing hard work, self-control, persistence, and education. The traditional American work ethic holds that anyone can succeed if only he or she will work hard enough and keep trying long enough. Failure is regarded as a personal, not a social, failure. Yet, as we have seen, many people in the United States do not enjoy success in these terms: unemployment rates remain high, and millions of people are living in poverty. Minorities are the victims of racial and ethnic discrimination.

Merton’s theory of social strain holds that people respond to the gap between society’s values and their own circumstances in several different ways: rebellion, retreatism, and innovation. Some of these involve criminal activity.

Rebellion involves a rejection of society’s goals and the established means of achieving them, along with an attempt to create a new society based on different values and goals. This stage includes revolutionary political activity, which in some instances might be politically related criminal activity such as terrorism. Rebel- lion can also take the form of artistic expression. Many famous artists rebelled against established norms, created new art forms, and eventually became very famous. Think of some of the most famous rap music artists.

Retreatism entails a rejection of both the goals and the accepted means of achieving them. A person may retreat, for example, into drug abuse, alcoholism, vagrancy, or an alternative lifestyle. Retreatism helps explain the high rates of drug and alcohol abuse in America. Many forms of drug abuse involve crimi- nal behavior: the buying and selling of drugs, robbery or burglary as a means of obtaining money to purchase drugs, or involvement in a drug-trafficking network that includes violent crime directed against rival drug dealers.

There is considerable debate among cr iminologists over the relation- ship between drugs and crime.54 Studies of crime and drugs have found mixed

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patterns: some individuals begin their criminal activity before they start using drugs, whereas for others, drug use precedes involvement in crime. Moreover, some individuals “specialize” and either use (and/or sell) drugs but engage in no other criminal activity, or they commit crimes but do not use illegal drugs.55

Innovation involves an acceptance of society’s goals but different means of attaining them. Some people may choose to be highly innovative with the normal means (think of the famous pioneers in the digital age). Others may choose alter- native and even illegal means. Crime is one mode of innovation. The person who embezzles money seeks material success but chooses an illegitimate (criminal) means of achieving it. Some Wall Street investors pushed the limits of the law in developing new ways to make money. In some cases, they did break the law and were eventually caught and prosecuted. In today’s digital world, computer fraud is a possible avenue of crime. Gang formation and drug trafficking are manifestations of entrepreneurship and neighborhood networking. Unfortunately, they include lawbreaking and often have destructive side effects (e.g., gang- related shootings) rather than law obedience. These are examples of what Alejandro Portes and Patricia Landolt refer to as the “downside” of social capital.56 The person who steals to obtain money or things is seeking the external evidence of material suc- cess through illegal means.

Applying the Theory

Social strain theory helps explain the high rates of delinquency and criminal behavior among racial and ethnic minorities in the United States. Criminal activ- ity will be higher among those groups that are denied the opportunity to ful- fill the American dream of individual achievement. The theory also explains far higher rates of retreatist (e.g., drug abuse) and innovative (e.g., criminal activ- ity) responses. The high levels of economic inequality experienced by minorities, together with continuing discrimination based on race and ethnicity, mean that minorities are far less likely to be able to achieve approved social goals through conventional means.

Differential Association Theory

Edwin Sutherland’s theory of differential association holds that criminal behavior is learned behavior. The more contact a person has with people who are already involved in crime, the more likely that person is to engage in criminal activity.57

Applying the Theory

Given the structure of American communities, with its high degree of both eco- nomic and racial and ethnic segregation, differential association theory has direct relevance to the disproportionate involvement of racial and ethnic minorities in the criminal justice system. A person who is poor and African American and lives in a high-crime neighborhood, for example, will have more personal contact with people who are already involved in crime than a middle-class white person.

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The concentration of people involved in crime in underclass neighborhoods pro- duces enormous peer pressure to become involved in crime. In neighborhoods where gangs are prevalent, young people often experience tremendous pressure to join a gang simply as a means of personal protection. In schools where drug use is prevalent, juveniles will have more contact with drug users and are more likely to be socialized into drug use themselves. As noted earlier, Crutchfield argues that the secondary labor market brings together high concentrations of people with a weak attachment to their work and the future, who then socialize with one another and influence one another’s propensity to commit crime.58

Parents have a basic understanding of differential association theory: they warn their children to avoid the “bad” kids in the neighborhood and encourage them to associate with the “good” kids. This also explains choices people make in where they live. They choose to live in what they see as “good” neighbor- hoods, where there are “good” schools and where their children will not meet “bad” kids.

Social Disorganization Theory

The Chicago School of urban sociology developed the social disorganization the- ory of crime.59 Focusing on poor inner-city neighborhoods, this theory holds that the conditions of poverty undermine the institutions that socialize people into conventional, law-abiding ways of life. As a result, the values and behavior leading to delinquency and crime are passed on from one generation to another.

The Chicago sociologists found, for example, that recent immigrants tended to have lower rates of criminality than the first American-born generation. Immi- grants were able to preserve old-world family structures that promoted stabil- ity and conventional behavior. These older values broke down in the new urban environment, however, which led to higher rates of criminality among the next generation. The Chicago sociologists noted the spatial organization of the larger metropolitan areas, with higher rates of criminal behavior in the poorer inner- city neighborhoods and lower rates in areas farther out.

The conditions of poverty contribute to social disorganization and crimi- nality in the ways we have already discussed in this chapter. Poverty and unem- ployment undermine the family, the primary unit of socialization, which leads to high rates of single-parent families. Lack of parental supervision and positive role models contributes to crime and delinquency. The concentration of the poor in certain neighborhoods means that individuals are subject to strong peer-group influence tending toward non-conforming behavior. Poverty is also associated with inadequate prenatal care and malnutrition, which contribute to develop- mental and health problems that, in turn, lead to poor performance in schools.

The principal proponent of social disorganization theory today is Robert J. Sampson, whose research has focused on Chicago neighborhoods. Out of his research has emerged the related theory of collective efficacy.60 If the people in a neighborhood have resources they can rely on as a group, they can resist and possibly even overcome the impact of social disorganization. Measures include

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friendship networks, control of teenagers’ activity on the streets, and participation in neighborhood organizations. These resources include bonds among neigh- borhood residents based on mutual trust; strong neighborhood institutions such as churches, synagogues, or mosques; and neighborhood leaders such as small business owners or religious leaders. Effective community policing or problem- oriented policing programs can reinforce these resources.

Applying the Theory

Social disorganization theory helps explain the high rates of crime and delin- quency among racial and ethnic minorities. As our discussion of inequality suggests, minorities experience high rates of poverty and are geographically con- centrated in areas with high rates of social disorganization. Sampson’s research on Chicago found that neighborhoods with higher levels of collective efficacy had lower levels of violent crime, after controlling for other variables.

In Baltimore, Maryland, Ralph Taylor, Stephen Gottfredson, and Sidney Brower interviewed residents of 687 households, asking whether they belonged to neighborhood organizations and whether they felt responsible for conditions in their neighborhood. People who answered affirmatively to both questions were more likely to live on neighborhood blocks with lower levels of violent crime than people on blocks who did not belong to organizations and did not feel responsible for their area.61

Social disorganization theory is consistent with other theories of crime. It is consistent with social strain theory, in that persons who are subject to conditions of social disorganization are far less likely to be able to achieve the dominant goals of society through conventional means and, therefore, are more likely to turn to crime. It is consistent with differential association theory, in that neighborhoods with high levels of social disorganization will subject individuals, particularly young men, to strong influences tending toward delinquency and crime.

Social disorganization theory and the related theory of collective efficacy underpin a number of criminal justice innovations, particularly community policing and problem-oriented policing. As Sampson puts it, the more promis- ing approach to controlling crime is in “changing places, not people.”62 Tradi- tional rehabilitation programs seek to change people; community policing and related approaches seek to change the quality of life in neighborhoods. Commu- nity policing and problem-oriented policing, for example, seek to reduce social disorder and to make neighborhoods appear safer and actually be safer. Reducing the fear of crime helps to keep people from moving out of the area and also to be more involved in neighborhood activities. “Hot spots” policing, meanwhile, is directed toward specific areas where crime is concentrated. Crime prevention through environmental design seeks to eliminate features that invite crime (e.g., hidden walkways or unlighted building entrances).63

One of the basic principles of community policing and problem-oriented policing is that neighborhood-focused police efforts can help communities develop the resources (including trust in the police) that represent collective efficacy.64

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Culture Conflict Theory

Culture conflict theory holds that crime will be more likely to flourish in het- erogeneous societies where there is a lack of consensus over society’s values.65

Human behavior is shaped by norms that are instilled through socialization and embodied in the criminal law. In any society, the majority not only defines social norms but also controls the making and the administration of the criminal law, which punishes behavior that deviates from the established norm (hence, the concept of deviant behavior). In some instances, certain groups do not accept the dominant social values. They may reject them on religious or cultural grounds or feel alienated from the majority because of discrimination or economic inequal- ity. Conflict over social norms and the role of the criminal law lead to certain types of lawbreaking.

One example of religiously based culture conflict involves peyote, a cactus that has mild hallucinogenic effects when smoked and that some Native American religions use as part of their traditional religious exercises.66 Today, many observ- ers see national politics revolving around a “culture war” involving such issues as abortion, homosexuality, and religion in the public schools.67 Some groups believe that abortion is murder and should be criminalized; others argue that it is a medical procedure that should be governed by the individual’s private choice. Homosexuality is a dramatic example of how cultural norms can change dra- matically. Up until the 1960s, homosexuality was regarded as a deviant behavior and was illegal in many respects. Yet, many states today have made discrimination based on sexual orientation illegal and have enacted statutes legalizing same-sex marriage, and in 2015, the U.S. Supreme Court legalized same-sex marriage.

Applying the Theory

Culture conflict theory helps explain some of the differential rates of involvement in crime in society, which is extremely heterogeneous, characterized by many different races, ethnic groups, religions, and cultural lifestyles. The theory encom- passes the history of racial conflict—from the time of slavery, through the Civil War, to the modern civil rights movement—as one of the major themes in U.S. history. There is also a long history of ethnic and religious conflict. Americans of white, Protestant, and English background, for instance, exhibited strong preju- dice against immigrants from Ireland and southern and eastern Europe, particu- larly Catholics and Jews.68

An excellent example of cultural conflict in American history is the long struggle over the consumption of alcohol that culminated in national Prohibition (1920–1933). The fight over alcohol was a bitter issue for nearly 100 years before Prohibition. To a great extent, the struggle was rooted in ethnic and religious differences. Protestant Americans tended to take a very moralistic attitude toward alcohol, viewing abstinence as a sign of self-control and a means of rising to middle-class status. For many Catholic immigrant groups, particularly Irish and German, alcohol consumption was an accepted part of their cultural lifestyle. The long crusade to control alcohol use represented an attempt by middle-class Prot- estants to impose their lifestyle on working-class Catholics.69

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Conflict Theory

Conflict theory holds that the administration of criminal justice reflects the unequal distribution of power in society.70 The more powerful groups use the criminal justice system to maintain their dominant position and to repress groups or social movements that threaten their position.71 Variations on conflict theory include feminist conflict theory, race conflict theory, and economic conflict theory. Darnell Hawkins points out that conflict theory was developed primarily with reference to social class and gave relatively little attention to race and ethnicity.72

The most obvious example of conflict theory in action was the racial segre- gation era in the South (1890s–1960s), when white supremacists instituted de jure segregation in public schools and other public accommodations.73 The criminal justice system was used to maintain the subordinate status of African Americans. Because African Americans were disenfranchised as voters, they had no control or influence over the justice system. The result, as described by Gunnar Myrdal in his classic study of American race relations, An American Dilemma, was four distinct systems of criminal justice. Crimes by whites against whites were treated as nor- mal crimes, while crimes by whites against African Americans went unpunished. Crimes by African Americans against whites were treated extremely harshly— especially in the case of rape or even a rumor of a rape—while crimes by African Americans against African Americans often just ignored.74 Meanwhile, outside of the South, discrimination also limited the influence of minorities over the justice system. The civil rights movement has eliminated de jure segregation and other blatant forms of discrimination. Nonetheless, pervasive discrimination in society and the criminal justice system continues.

Applying the Theory

Conflict theory explains the overrepresentation of racial and ethnic minorities in the criminal justice system in several ways. The criminal law singles out certain behavior engaged in primarily by the poor. Vagrancy laws are the classic example of the use of the criminal law to control the poor and other perceived “threats” to the social order. The criminal law has also been used against political movements challenging the established order: from sedition laws against unpopular ideas to disorderly conduct arrests of demonstrators.

Finally, “street crimes” that are predominantly committed by the poor and disproportionately by racial and ethnic minorities are the target of more vigorous enforcement efforts than are those crimes committed by the rich. The term crime refers more to robbery and burglary than to white-collar crime. In these ways, conflict theory explains the overrepresentation of racial and ethnic minorities among people arrested, convicted, and imprisoned.

Routine Activity Theory

Routine activity theory shifts the focus of attention from offenders to criminal incidents. Marcus Felson explains that the theory examines “how these incidents originate in the routine activities of everyday life.”75 Particularly important, the

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theory emphasizes the extent to which the daily routine creates informal social control that helps prevent crime or undermines those informal controls and leads to higher involvement in crime. Informal social control includes, for example, the watchfulness of family, friends, and neighbors. Formal social control is exercised by the police and the rest of the criminal justice system. Felson offers the example of parental supervision of teenagers. He cites data indicating that between 1940 and the 1970s, American juveniles spent an increasing amount of time away from the home with no direct parental supervision.76

The changes in patterns of parental supervision were rooted in the chang- ing nature of work and family life in contemporary society (as opposed to some kind of moral failing). The new circumstances have increased the probability that young people will engage in crime. To cite an earlier example, in the 1920s many people were alarmed that the advent of the automobile created the opportunity for young men and women to be alone together without direct parental supervi- sion, with a resulting increase in premarital sexual behavior.

Applying the Theory

Routine activity theory is particularly useful in explaining crime when it is integrated with other theories. If parental supervision represents an important informal social control, then family breakdown and single-parent households will involve less supervision and increase the probability of more involvement in crime. High rates of teenage unemployment will mean that more young people will have unsupervised time on their hands, and if unemployment is high in the neighborhood, they will have more association with other unemployed young people, including some who are already involved in crime.

The Limits of Current Theories

All of the theories discussed here attempt to explain the relationships among race, ethnicity, and crime in terms of social conditions. Hawkins argues that this approach represents the liberal political orientation that has dominated American sociology and criminology since the early twentieth century. He also believes that there are important limitations to this orientation. The liberal emphasis on social conditions arose out of a reaction to racist theories of biological deter- minism, which sought to explain high rates of crime among recent European immigrants and African Americans in terms of genetic inferiority. Herrnstein and Murray’s controversial book, The Bell Curve, represents a recent version of this approach.77 (See our discussion of The Bell Curve controversy in Chapter 1.) The liberal emphasis on social conditions, however, tends to become a form of social determinism, as criminologists focus on the social pathologies of both minority communities and lower-class communities. Although consciously avoiding bio- logically based stereotypes, much of the research on social conditions has the unintended effect of perpetuating a different set of stereotypes about racial and ethnic minorities.

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Hawkins suggests that if we seek a comprehensive explanation of the rela- tionships among race, ethnicity, and crime, the most promising approach will be to combine the best insights from liberal criminology regarding social conditions and conflict perspectives regarding both the administration of justice and inter- group relations.78

I N E Q U A L I T Y A N D S O C I A L R E F O R M

The most disturbing aspect of social inequality in America has been its persistence over 50 years despite a national effort to reduce or eliminate it. Paul E. Peterson refers to this as the “poverty paradox”: the problem is not just the persistence of poverty in the richest country in the world but its persistence in the face of a major attack on it.79

The national effort has taken several different forms. The civil rights move- ment fought to eliminate racial discrimination, and several different government policies sought to create economic opportunity and eliminate poverty. In the 1960s, liberals adopted the War on Poverty and other Great Society programs. In the 1980s, conservative economic programs of reducing both taxes and govern- ment spending sought to stimulate economic growth and create job opportunities.

Not only has inequality persisted but as we discussed earlier the gap between rich and poor and between whites and minorities has also gotten worse in many respects.80 What happened? Did all the social and economic policies of the past generation completely fail?

There are four major explanations for the persistence of inequality, pov- erty, and the growth of the underclass.81 Many liberals argue that it is the result of an inadequate social welfare system. Social welfare programs in the United States are not nearly as comprehensive as those in other industrialized coun- tries, lacking paid family leave, publicly supported child care programs, compre- hensive unemployment insurance, and until the advent of the Affordable Care Act (“Obamacare”), a national health care system. Other liberals argue that it is the result of globalization, which involves the transformation of the national (and international) economy, including the shift of industr ial production, with its good-paying blue-collar jobs, overseas. This process has steadily elimi- nated economic opportunities in the inner city and reduced earnings of many blue-collar jobs.

Many conservatives argue that the persistence of poverty is the result of a “culture of poverty” that encourages attitudes and behavior patterns that keep people from rising out of poverty.82 Closely related to this view is the conser- vative argument that many government social and economic programs provide disincentives to work. These conservatives believe, for example, that the wel- fare system encourages people not to work and that the minimum wage causes employers to eliminate rather than create jobs.83

The prominent African-American social critic Cornell West argues that the traditional liberal–conservative debate on the relative importance of social

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structure versus individual character is unproductive. He points out that “struc- tures and behavior are inseparable, that institutions and values go hand in hand.”84

In short, the problem of the persistence of inequality is extremely complex. The next section examines some of the major forces that have reshaped American life in the past generation and their impact on inequality.

The Impact of the Civil Rights Movement

The civil rights movement between 1945 and 1965 was one of the most import- ant events in U.S. history. A revolution in the law ended de jure discrimination in public schools (the Supreme Court’s landmark 1954 decision in Brown v. Board of Education) and public accommodations in the South (the 1964 Civil Rights Act), ended discrimination in voting (the 1965 Voting Rights Act), and established equality as national policy.85 The movement inspired attacks on other forms of discrimination. Title VII of the 1964 Civil Rights Act banned employment dis- crimination against women. The 1990 Americans with Disabilities Act outlawed employment discrimination against people with disabilities. In 1967, the Supreme Court in Loving v. Virginia declared unconstitutional a Virginia law barring inter- racial marriage. A number of states and cities have banned discrimination against people on the basis of their sexual orientation.86

The civil rights revolution had a profound impact on the operations of every social institution, including the criminal justice system. Public schools in the South were racially integrated. Police departments began hiring African- American officers. As a result of the 1965 Voting Rights Act and the resulting greater voter participation, the number of African-American-elected officials increased dramatically nationwide, from 33 in 1941 to 1,469 in 1965 and 8,830 in 1998. The total number of Hispanic-elected officials increased from 3,174 in 1985 to 5,129 in 2007.87

With the development of educational and employment opportunities, African-American and Hispanic middle classes emerged, and some individuals became wealthy business owners or professionals. As we learned in our discus- sion of wealth, as measured by family net worth, the gap between higher-income African Americans and Hispanics and their lower-income counterparts increased in the decades of the 2000s. The gaps between white and African American and white non-Hispanic and Hispanic remain large.

The National Academy of Sciences in 1989, for example, found a large gap between middle-class and poor African Americans.88 Not everyone agrees with this pessimistic assessment, however. In America in Black and White: One Nation, Indivisible, Stephan Thernstrom and Abigail Thernstrom argue that African Amer- icans have made remarkable progress since the 1940s, economically, socially, and politically, observing that “the signs of progress are all around us.”89 Using Gunnar Myrdal’s classic study of American race relations, An American Dilemma (1944), as their baseline, they find that the percentage of African-American families in pov- erty fell from 87 percent in 1940 to 21.9 percent in 2000. The number of African Americans enrolled in college increased 30-fold in the same period, increasing

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from 45,000 students in 1940 to 1,400,000 in the late 1990s. Contrary to Hacker’s pessimistic assessment that we are “two nations” (p. 116 of this chapter), they argue that we are today less separate; less unequal; and, in their view, less hostile than was the case in 1940.90

Where does the truth lie? Is the United States progressing, stagnating, or regressing in terms of social and economic inequality? The answer is that there is a degree of truth in all three interpretations. It depends on which segment of the population we are talking about. We can make sense of this complex subject by examining different components and contexts.

First, it depends on what baseline you use. The Thernstroms use 1940 as a baseline, and few can question the amount of progress since that time, when seg- regation still prevailed in the South and there was much discrimination in the rest of the country. When you use the mid-1970s as your baseline, however, a very different picture emerges. African-American progress has stagnated (even the Thernstroms concede this point), and in some respects their situation has gotten worse. The real income for all working Americans has also fallen since then.91

Second, as we have already discussed, aggregate data for all racial and ethnic groups mask very important differences within groups. So it is important to disag- gregate the data for each group. Among African Americans, for example, there has been the simultaneous development of a new middle class and the deteriorating status of the very poor.92 A similar trend exists for Hispanics. Asian Americans are also divided into those who are doing well and those who are not. Among Native Americans, some individuals and entire tribes have benefited from the economic opportunities provided by the development of tribal gaming, whereas others remain mired in poverty.

Economists generally blame the economic stagnation since the 1970s on the disappearance of industrial-level jobs, particularly from the inner city, including the transfer of manufacturing plants to other countries. The economic policies of both liberal Democratic and conservative Republican presidents since the 1960s have attempted to stimulate the economy and create jobs. The major liberal Democratic effort was the War on Poverty, begun in 1965 with the Economic Opportunity Act. The federal attack on poverty and inequality also included major programs related to health care, education, Social Security, food stamps, and other forms of government assistance. The major conservative Republican effort in the 1980s involved tax cuts (e.g., Reaganomics in the 1980s, the Bush tax cuts of 2002), which seek to stimulate investment that will create jobs.

The impact of these different measures is a matter of great controversy. Con- servatives argue that the War on Poverty and other liberal policies of the 1960s not only failed to eliminate poverty but actually made things worse by impeding economic growth and removing the incentives for poor people to seek employ- ment.93 Liberals, meanwhile, argue that Reaganomics and the Bush tax cuts increased the gap between rich and poor, benefiting the wealthy and eliminating programs for the poor.

The evidence suggests that neither liberal nor conservative policies over the years have effectively addressed the fundamental changes that have overtaken

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American society. Neither policies have reduced the disappearance of manufac- turing jobs or halted the increasing structural inequality in American society. The disappearance of manufacturing jobs has led to high rates of unemployment or underemployment, with all the disastrous impact of families and neighborhoods that we have discussed in this chapter.

The complex changes in the economy over the past three decades have directly affected the racial and ethnic dimensions of crime and criminal justice. The persistence of severe inequality and the growth of the underclass have cre- ated conditions conducive to high rates of crime. The different theories of crime we discussed earlier—social strain theory, differential association theory, social dis- organization theory, culture conflict theory, conflict theory, and routine activity theory—all would predict high rates of crime, given the changes in the economy that have occurred. Because racial and ethnic minorities have been disadvantaged by these economic trends, these theories of crime help explain the persistently high rates of crime among minorities.

C O N C L U S I O N

As we stated at the beginning of this chapter, if we want to understand crime in America and its relationship to race and ethnicity, it is necessary to look beyond the criminal justice system. The American social structure plays a major role in shaping patterns of crime with respect to race and ethnicity. American society is characterized by deep inequalities related to race, ethnicity, and economic status. There are enormous and growing inequalities in income, wealth, and poverty. These inequalities create conditions that are criminogenic: that is, they tend to cause people to commit crime.

The major theories of crime explain the relationship between inequality and criminal behavior. In different ways, social strain, differential association, social disorganization, culture conflict, conflict, and routine activity theories all predict higher rates of criminal behavior among the poor and racial and ethnic minorities.

D I S C U S S I O N Q U E S T I O N S

1. Do you agree with the Kerner Commission’s conclusion that we are “mov- ing toward two societies, one black [and] one white”? Explain your answer.

2. Explain the difference between median family income and family wealth. What does each one measure?

3. Explain how residential discrimination on the basis of race or ethnicity contributes to crime.

4. What is meant by the concepts of social capital and cultural capital? How do they affect criminal behavior?

5. What has been the impact of the civil rights movement on social and economic conditions that affect crime and criminal justice?

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6. Which theory of crime do you think best explains the prevalence of crime in the United States?

7. Explain the concept of collective efficacy. What impact does it have on crime in a neighborhood?

N O T E S

1. Marc Maurer, “Justice for All? Challenging Racial Disparities in the Criminal Justice System,” Human Rights 37, no. 4 (2010). http://www.americanbar.org/publications/ human_rights_magazine_home/human_rights_vol37_2010/fall2010/justice_for_ all_challenging_racial_disparities_criminal_justice_system.html.

2. Kerner Commission: National Advisory Commission on Civil Disorders, Report (New York: Bantam Books, 1968), p. 1.

3. Andrew Hacker, Two Nations: Black and White, Separate, Hostile, Unequal (New York: Scribner’s, 1992).

4. Credit Suisse Research Institute, Global Wealth Report 2015 (Zurich: Credit Suisse, 2015), pp. 11, 25, 33. Marina Vornovitsky, Alfred Gottschalck, and Adam Smith, Distribution of Household Wealth in the U.S. 2000–2011 (Washington, DC: Bureau of the Census, 2013). http://www.census.gov/people/wealth/files/Wealth%20High lights%202011.pdf.

5. Bureau of Labor Statistics, The Employment Situation—January 2016 (Washington, DC: Department of Labor, 2016). http://www.bls.gov/news.release/pdf/empsit.pdf.

6. Urban Institute, America’s Children in Brief: Key National Indicators of Well-Being, 2015 (Washington, DC: Urban Institute, 2010). http://www.childstats.gov/pdf/ac2015/ ac_15.pdf.

7. U.S. Census Bureau, Income and Poverty in the United States: 2014 (Washington, DC: Department of Commerce, 2015). https://www.census.gov/content/dam/Census/ library/publications/2015/demo/p60-252.pdf\.

8. Gerald David Jaynes and Robin Williams Jr., eds., A Common Destiny: Blacks and American Society (Washington, DC: National Academy Press, 1989), p. 6.

9. Stephan Thernstrom and Abigail Thernstrom, America in Black and White: One Nation, Indivisible (New York: Simon & Schuster, 1997).

10. Marina Vornovitsky, Alfred Gottschalck, and Adam Smith, Distribution of Household Wealth in the U.S. 2000–2011 (Washington, DC: Bureau of the Census, 2013). http://www.census.gov/people/wealth/files/Wealth%20Highlights%202011.pdf.

11. Ibid.

12. Ibid.

13. Bureau of Justice Statistics, Criminal Victimization, 2014 (Washington, DC: Depart- ment of Justice, 2015).

14. Signe-Mary McKenrnan, Caroline Ratcliffe, Margaret Simms, and Sisi Zhang, Do Financial Support and Inheritance Contribute to the Racial Wealth Gap? (Washington, DC: Urban Institute, 2012).

15. Thomas Shapiro, The Hidden Cost of Being African American: How Wealth Perpetuates Inequality (New York: Oxford University Press, 2004), pp. 67–71, 84.

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16. Thomas Shapiro, Tatjana Mesche, and Sam Osoro, The Roots of the Widening Racial Wealth Gap: Explaining the Black-White Economic Divide (Waltham, MA: Institute on Assets and Social Policy, 2013).

17. Credit Suisse Research Institute, Global Wealth Report 2015. https://www.credit- suisse.com/ch/en/about-us/research/research-institute/global-wealth-report.html.

18. U.S. Department of Labor, Bureau of Labor Statistics, The Employment Situation— January 2016 (February 5, 2016). http://www.bls.gov/news.release/archives/ empsit_02052016.pdf.

19. Ibid.

20. Federal Bureau of Investigation, Crime in the United States, 2014, Table 38. https:// ucr.fbi.gov/crime-in-the-u.s/2014/crime-in-the-u.s.-2014/tables/table-38.

21. Bureau of Labor Statistics, How the Government Measures Unemployment (2016). http://www.bls.gov/cps/cps_htgm.htm.

22. “Getting Jobbed: 15 Tribes with Unemployment Rates over 80 Percent,” Indian Country Today Media Network (August 29, 2013). http:// indiancountrytodaymedianetwork.com/2013/08/29/ danger-zone-15-tribes-unemployment-rates-over-80-percent-151078.

23. Kate W. Strully, “Job Loss and Health in the U. S. Labor Market,” Demography 46 (May 2009), pp. 221–246.

24. Pew Charitable Trusts, Payday Lending in America: Who Borrows, Where They Borrow, and Why (Washington, DC: Pew Charitable Trusts, 2012). http://www.pewtrusts.org/~/ media/legacy/uploadedfiles/pcs_assets/2012/pewpaydaylendingreportpdf.pdf.

25. U.S. Census Bureau, Income and Poverty in the United States: 2014 (Washington, DC: Department of Commerce, 2015). https://www.census.gov/content/dam/Census/ library/publications/2015/demo/p60-252.pdf.

26. U.S. Census Bureau, Health Insurance Coverage in the United States: 2014 (Washington, DC: Department of Commerce, 2015).

27. National Center for Children in Poverty, Basic Facts about Low-Income Children: Chil- dren Aged 12 through 17 Years, 2013 (New York: NCCP, 2015). http://www.nccp.org/ publications/pub_1099.html.

28. Theresa Tamkins, “Medical Bills Prompt More Than 60 Percent of U.S. Bankrupt- cies,” CNN Health, June 5, 2009.

29. Pierre Bourdieu and Jean-Claude Passeron, Reproduction in Education, Society and Culture (Newbury Park, CA: Sage, 1990).

30. Christiaan Grootaert and Thierry van Bastelaer, Understanding and Measuring Social Capital: A Synthesis of Findings and Recommendations from the Social Capital Initiative (Washington, DC: The World Bank, 2001), “Conceptual Framework: What Is Social Capital,” pp. 4–10. http://siteresources.worldbank.org/INTSOCIALCAPITAL/ Resources/Social-Capital-Initiative-Working-Paper-Series/SCI-WPS-24.pdf.

31. Toby L. Parcel and Elizabeth G. Menaghan, Parents’ Jobs and Children’s Lives (New York: Aldine deGruyter, 1994), p. 1.

32. Hartmut Esser, “The Two Meanings of Social Capital,” in Handbook of Social Capital, Dario Castiglione, Jan W. Van Deth, and Guglielmo Wolleb, eds. (New York: Oxford University Press, 2008), pp. 22–49.

33. Elliot Currie, Confronting Crime (New York: Pantheon Books, 1985), p. 243. The original study is by William McCord and Jose Sanchez, “The Treatment of Deviant

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Children: A Twenty-Five Year Follow-Up Study,” Crime and Delinquency 29 (March 1983), pp. 239–251.

34. Alejandro Portes and Patricia Landolt, “The Downside of Social Capital,” The Amer- ican Prospect 26 (May–June 1996), pp. 18–21, 94; Mark E. Warren, “The Nature and Logic of Bad Social Capital,” in Handbook of Social Capital, Castiglione et al., eds., pp. 122–149.

35. Grootaert and Bastelaer, Understanding and Measuring Social Capital: A Synthesis of Findings and Recommendations from the Social Capital Initiative. http://siteresources. worldbank.org/INTSOCIALCAPITAL/Resources/Social-Capital-Initiative- Working-Paper-Series/SCI-WPS-24.pdf.

36. William Julius Wilson, The Truly Disadvantaged (Chicago: University of Chicago Press, 1987); Christopher Jencks and Paul E. Peterson, eds., The Urban Underclass (Washing- ton, DC: Brookings Institution, 1991); William Julius Wilson, ed., The Ghetto Under- class (Newbury Park, CA: Sage, 1993).

37. Gary Orfield and Carole Ashkinaze, The Closing Door: Conservative Policy and Black Opportunity (Chicago: University of Chicago Press, 1991), p. xiii.

38. Shelley v. Kraemer, 334 U.S. 1 (1948).

39. Gregory D. Squires, From Redlining to Reinvestment: Community Responses to Urban Disinvestment (Philadelphia: Temple University Press, 1992).

40. Jaynes and Williams, A Common Destiny, pp. 78–79. Ben Feldmeyer, “The Effects of Racial/Ethnic Segregation on Latino and Black Homicide,” Sociological Quarterly 51, no. 4 (2010), pp. 600–623.

41. Economic Innovation Group, The 2016 Distressed Communities Index (Wash- ington, DC: Economic Innovation Group, 2016). http://eig.org/wp-content/ uploads/2016/02/2016-Distressed-Communities-Index-Report.pdf. “Poorest Areas Have Missed Out on Booms of Recovery, Study Finds,” New York Times, February 25, 2016.

42. Bureau of Justice Statistics, Criminal Victimization, 2014.

43. Robert D. Crutchfield, “Ethnicity, Labor Markets, and Crime,” in Ethnicity, Race, and Crime, D. F. Hawkins, ed. (Albany: State University Press of New York, 1995), p. 196.

44. Wilson, The Truly Disadvantaged, pp. 137, 144; see also Bill E. Lawson, “Uplifting the Race: Middle-Class Blacks and the Truly Disadvantaged,” in The Underclass Question, Bill E. Lawson, ed. (Philadelphia: Temple University Press, 1992), pp. 90–113.

45. Wesley G. Skogan, Disorder and Decline (New York: Free Press, 1990), pp. 132–133.

46. James Q. Wilson and George Kelling, “Broken Windows: The Police and Neighbor- hood Safety,” Atlantic Monthly 249 (March 1982), pp. 29–38.

47. Wesley Skogan, “Fear of Crime and Neighborhood Change,” in Communities and Crime, A. Reiss and M. Tonry, eds. (Chicago: University of Chicago Press, 1986), pp. 215–220.

48. Wesley G. Skogan and Susan M. Hartnett, Community Policing, Chicago Style (New York: Oxford University Press, 1997).

49. “Beer Wars” described in Illinois Association for Criminal Justice, Illinois Crime Survey [1929] (Montclair, NJ: Patterson Smith, 1968).

50. Urban Institute, America’s Children in Brief: Key National Indicators of Well-Being, 2010 (Washington, DC: Urban Institute, 2010). http://www.childstats.gov/pdf/ac2015/ ac_15.pdf.

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51. Robert J. Sampson, Stephen W. Raudenbush, and Felton Earls, “Neighborhoods and Violent Crime: A Multilevel Study of Collective Efficacy,” Science 277 (August 15, 1997), pp. 918–924. Robert J. Sampson, Great American City (Chicago: University of Chicago Press, 2012).

52. Robert K. Merton, Social Theory and Social Structure (New York: Free Press, 1957).

53. Steven F. Messner and Richard Rosenfeld, Crime and the American Dream, 5th ed. (Belmont, CA: Cengage, 2012).

54. Michael Tonry and James Q. Wilson, eds., Drugs and Crime, Crime and Justice: A Review of Research, vol. 13 (Chicago: University of Chicago Press, 1990).

55. David N. Nurco, Timothy W. Kinlock, and Thomas E. Hanlon, “The Drugs–Crime Connection,” in Handbook of Drug Control in the United States, James A. Inciardi, ed. (New York: Greenwood, 1990), pp. 71–90.

56. Alejandro Portes and Patricia Landolt, “Unsolved Mysteries: The Tocqueville Files II,” The American Prospect 7, no. 26 (May–June 1996), p. 10.

57. Edwin H. Sutherland, Principles of Criminology, 3rd ed. (Philadelphia: Lippincott, 1939).

58. Crutchfield, “Ethnicity, Labor Markets, and Crime,” p. 196.

59. W. I. Thomas and Florian Znaniecki, The Polish Peasant in Europe and America (Bos- ton: Gorham, 1920); Clifford R. Shaw, Frederick M. Forbaugh, and Henry D. McKay, Delinquency Areas (Chicago: University of Chicago Press, 1929).

60. Robert J. Sampson and W. Byron Groves, “Community Structure and Crime: Test- ing Social-Disorganization Theory,” American Journal of Sociology 94 (January 1989), pp. 774–802; Sampson, Raudenbush, and Earls, “Neighborhoods and Violent Crime.” Sampson, Great American City.

61. Ralph Taylor, Stephen Gottfredson, and Sidney Brower, “Block Crime and Fear: Defensible Space, Local Social Ties, and Territorial Functioning,” Journal of Research in Crime and Delinquency 21 (November 1984), pp. 303–331.

62. Robert J. Sampson, “Crime and Public Safety: Insights from Community-Level Perspectives on Social Capital,” in Social Capital and Poor Communities, Susan Saegert, et al., eds. (New York: Russell Sage Foundation, 2001), pp. 89–114.

63. Michael S. Scott, Problem-Oriented Policing: Reflections on the First 20 Years (Washing- ton, DC: Department of Justice, 2000); Jack R. Greene, “Community Policing in America: Changing the Nature, Structure, and Function of the Police,” in Policies, Processes and Decisions of the Criminal Justice System (Washington, DC: Department of Justice, 2000), pp. 299–370.

64. Scott, Problem-Oriented Policing: Reflections on the First 20 Years; Greene, “Community Policing: Changing the Nature, Structure, and Function of the Police.”

65. Thorsten Sellin, Culture Conflict and Crime, Bulletin 41 (New York: Social Science Research Council, 1938).

66. Christopher Vecsey, ed., Handbook of American Indian Religious Freedom (New York: Crossroad, 1991).

67. James Davison Hunter, Culture Wars: The Struggle to Define America (New York: Basic Books, 1991).

68. Gustavus Myers, History of Bigotry in the United States (New York: Random House, 1943).

69. Joseph R. Gusfield, Symbolic Crusade (Urbana: University of Illinois Press, 1966).

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70. Austin T. Turk, Criminality and Legal Order (Chicago: Rand McNally, 1969); Richard Quinney, The Social Reality of Crime (Boston: Little, Brown, 1970).

71. Allen E. Liska, ed., Social Threat and Social Control (Albany: State University Press of New York, 1992).

72. Darnell F. Hawkins, “Beyond Anomalies: Rethinking the Conflict Perspective on Race and Criminal Punishment,” Social Forces 65 (March 1987), pp. 719–745; Darnell F. Hawkins, “Ethnicity: The Forgotten Dimension of American Social Con- trol,” in Inequality, Crime, and Social Control, George S. Bridges and Martha A. Myers, eds. (Boulder, CO: Westview, 1994), pp. 99–116.

73. C. Vann Woodward, The Strange Career of Jim Crow, 3rd ed., rev. (New York: Oxford University Press, 1974).

74. Gunnar Myrdal, An American Dilemma (New York: Harper & Brothers, 1944).

75. Marcus Felson and Rachel Boba, Crime and Everyday Life, 4th ed. (Thousand Oaks, CA: Pine Forge Press, 2009), p. xi.

76. Ibid., p. 104.

77. Richard J. Herrnstein and Charles A. Murray, The Bell Curve: Intelligence and Class Structure in American Life (New York: Free Press, 1994).

78. Darnell F. Hawkins, “Ethnicity, Race, and Crime: A Review of Selected Studies,” in Ethnicity, Race, and Crime, pp. 31, 39–41.

79. Paul E. Peterson, “The Urban Underclass and the Poverty Paradox,” in The Urban Underclass, pp. 3–27.

80. Hacker, Two Nations: Black and White, Separate, Hostile, Unequal. Orfield and Ashkinaze, The Closing Door: Conservative Policy and Black Opportunity.

81. Peterson, “The Urban Underclass and the Poverty Paradox,” in The Urban Underclass, pp. 3–27.

82. The concept of a culture of poverty originated with Oscar Lewis, Five Families: Mexican Case Studies in the Culture of Poverty (New York: Basic Books, 1959).

83. Charles Murray, Losing Ground: American Social Policy, 1950–1980 (New York: Basic Books, 1984).

84. Cornell West, Race Matters (Boston: Beacon, 1993), p. 12. Summarized in Peterson, “The Urban Underclass and the Poverty Paradox,” in The Urban Underclass, pp. 9–16.

85. Hugh Davis Graham, The Civil Rights Era: Origins and Development of National Policy, 1960 –1972 (New York: Oxford University Press, 1990).

86. Loving v. Virginia, 388 U.S. 1 (1967). Peter Wallenstein, Tell the Court I Love My Wife: Race, Marriage, and Law. An American History (New York: Palgrave, 2002).

87. Data on African-American and Hispanic-elected officials is available at the Gender and Multi-Cultural Leadership Project. http://www.gmcl.org/library.htm.

88. Jaynes and Williams, A Common Destiny, p. 4.

89. Thernstrom and Thernstrom, America in Black and White, p. 17.

90. Ibid., p. 534. Gunnar Myrdal, An American Dilemma (1944; reprinted New York: Harper and Row, 1962).

91. Thernstrom and Thernstrom, America in Black and White.

92. Ibid., Chapter 7, “The Rise of the Black Middle Class,” pp. 183–202. U.S. Census Bureau, Income and Poverty in the United States: 2014.

93. Murray, Losing Ground: American Social Policy, 1950–1980.

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4

JUSTICE ON THE STREET?

The Police and People of Color

L E A R N I N G O B J E C T I V E S

This chapter explores the complex issues in the relationship between the police and racial and ethnic minority communities, and helps sort through the often conflicting evidence on policing, race, and ethnicity. The chapter begins with a discussion of the national police crisis that erupted in 2014 as a result of the tragic shooting in Ferguson, Missouri, and the controver- sies that followed. The next section outlines a contextual approach to polic- ing that presents a full picture of policing and all the different racial and ethnic groups in the United States. An examination of public opinion about the police follows. The evidence compares the attitudes of whites, African Americans, and Hispanics (unfortunately, there is little evidence on other racial and ethnic groups).

The main part of the chapter reviews the evidence on police con- duct, including the use of deadly force, use of less lethal force, stops and frisks, arrests, and so on. An entirely new section discusses the issue of unconscious bias among police officers and how it affects police actions. The next section covers citizen complaints against the police, including citizen oversight of the police. The chapter concludes with a discussion of police employment practices, with attention to the law of employment discrimination and the presence of officers of color in American police departments.

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After you have read this chapter:

1. You will be familiar with the most important issues related to police and people of color.

2. You will be able to make sense of the complex data on police shootings, use of force, racial profiling, and other issues.

3. You will be able to discuss the difference between racial disparities and racial discrimination.

4. You will be able to discuss the most important reforms in policing and whether or not they have succeeded in reducing racial disparities.

5. You will be knowledgeable about police–community relations programs and which ones work and do not work in terms of improving relations between the police and communities of color.

6. You will be familiar with the trends in the employment of people of color in policing, and you will be able to discuss what difference it makes in terms of actual police work.

U N E Q U A L J U S T I C E ? T H E N AT I O N A L P O L I C E C R I S I S

The small community of Ferguson, Missouri, a suburb of St. Louis, burst into national prominence on August 9, 2014, when police officer Darren Wilson shot and killed Michel Brown, an unarmed 18-year-old African American. Protests followed. Missouri authorities mobilized military equipment in response, which only inflamed the protests, and rioting and property destruction followed. Sym- pathy demonstrations occurred around the country, and the events in Ferguson were carried live on cable television stations. Soon it was clear that a national police crisis existed.1

The Post-Ferguson Events

Even before the Ferguson events, on July 17, 2014, New York City police officers arrested Eric Garner, an African American, for selling illegal cigarettes. Officers sat on him, holding him down, and not responding to his cries, “I can’t breathe!” Garner died of suffocation. The incident was captured on a cell phone video, which provoked national outrage when it was broadcast over national television.

Other incidents of gross police misconduct soon followed. In April 2015, a white police officer shot in the back and killed Walter Scott, a 50-year-old African American. The shooting was captured on a cell phone video and clearly showed the lack of any justification for the shooting. A week later, on April 12, 2015, Freddie Gray, a 25-year-old African American, was arrested by Baltimore police, suffered neck injuries in a “rough ride” in a police van, and died on April 19. Scott’s death touched off protests and then arson and looting.

In response to the growing national police crisis, President Barack Obama appointed a President’s Task Force on 21st Century Policing, the first-ever

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national commission or task force exclusively devoted to policing. After extensive public hearings, the Task Force issued a report in April 2015 with a sweeping set of recommendations for improving policing and in particular improving relations with communities of color. The report began by noting the “rifts in the relation- ships between local police and the communities they protect and serve.”2

In short, by mid-2015, there had not been such national concern about the police and communities of color since the riots of the 1960s. This chapter examines the issues surrounding the police and communities of color. The evidence shows that racial and ethnic disparities do exist with regard to police shootings, use of physical force, stops and frisks, arrests, and other police actions. None of these issues is a simple matter, however. Interactions between the police and people of color are complex. The available data on police use of force and arrests, for example, require careful analysis. As we discussed in Chapter 1, there is an important difference between disparities and discrimination. By the end of the chapter, you will have a clearer understanding of the nature of the patterns of injustice that do exist.

A Long History of Conflict

Police shootings, protests, and riots are nothing new in American history. Rela- tions between the police and racial and ethnic communities of color have been filled with conflict since the early twentieth century. With respect to African Americans, there were three periods of major conflict and riots: during and after World War I, during World War II, and in the 1960s.3

Discrimination and conflict have never been confined to the African- American community, however. Controversies over injustice have also existed and continue to exist today with respect to other racial and ethnic groups. The next section provides a brief overview of the full context to racial and ethnic issues involving the police.

A C O N T E X T U A L A P P R O A C H T O P O L I C I N G

C O M M U N I T I E S O F C O L O R

The African-American Community

African Americans experience greater contact with the police than any other racial or ethnic group in America. Many years ago, David H. Bayley and Harold Mendelsohn observed, “[T]he police seem to play a role in the life of minority people out of all proportion to the role they play in the lives of the dominant white majority.”4 This is still true today.

The pattern of greater contact with the police is a result of several factors. Because of higher crime rates in low-income and African-American communities, there are higher levels of police patrol in those areas, which make the police a far more visible presence than in other areas. (In 2014, the violent crime victimiza- tion rate for African Americans was 10.1 per 1,000, compared with 8.3 for His- panics and 7.0 for whites.)5 It is also true that African Americans call the police at

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a higher rate than other groups, both as crime victims and in response to problems requiring police assistance.6 Finally, certain police tactics such as aggressive preven- tive patrol and stops and frisks involve high rates of police-initiated contacts with African Americans. Those contacts are more likely to involve conflict, including the use of force. A survey of Cincinnati residents found that nearly half (46.6 percent) of all African Americans said they had been personally “hassled” by the police, com- pared with only 9.6 percent of all whites. Hassled was defined as being “stopped or watched closely by a police officer, even when you had done nothing wrong.”7

As police reform expert David Kennedy explains, and we will discuss later in this chapter, the long history of police–community relations problems has left a toxic legacy of mistrust on both sides of police–citizen encounters. Both sides bring their own “narratives” of past conflict and distrust to an encounter, and that creates a greater possibility of conflict in that encounter.8

The Hispanic Community

Hispanic Americans have a unique pattern of experiences with the police. Alfredo Mirandé describes that history in terms of Gringo Justice, involving a fundamental “clash between conflicting and competing cultures, world views, and economic, political and judicial systems.”9 The most famous event was the so-called Zoot Suit Riot in Los Angeles in 1943, which involved attacks on Hispanic men by police and by white Navy personnel on shore leave.10

A report by the Julian Samora Institute at Michigan State University con- cluded, “Latinos may have unique experiences with police which shape attitudes toward law enforcement officials.”11 Immigration patterns are a major factor. His- panics are the fastest growing racial or ethnic community in the United States, along with Asian Americans. Relations with the police are complicated in part by language barriers because of the number of Hispanics who do not speak English, and the number of recent immigrants, some of whom are undocumented.

Unfortunately, there is much less research on Hispanics and the police, com- pared with African Americans. Ronald Weitzer concludes that the existing research is “rather scarce” and “suffers from some important deficiencies.”12 As we pointed out in Chapter 1, official data on Hispanics and the criminal justice system are very weak. Many agencies do not separate race and ethnicity and record Hispanics as “whites.” Weitzer adds only a “handful” of public opinion surveys are large enough to include samples of non-Hispanic whites, African Americans, and Hispanics. Addi- tionally, studies ignore the diversity of the Hispanic community, failing to take into account variations by ancestry and nativity: American-born versus foreign-born people; and different national origins of immigrants (e.g., Mexico, Puerto Rico, Central American countries). Most qualitative studies focus on Hispanics alone, yielding no comparative findings with respect to whites and African Americans.

The Native American Community

Native Americans also have a unique history in the United States and spe- cial problems related to the police. Native American tribes are legally recog- nized as semi-sovereign nations with broad (although not complete) powers

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of self-government. There are about 330 federally recognized reservations, and approximately 200 have separate law enforcement agencies. About 22 percent of Native Americans live in areas off reservations.13

Law enforcement is complicated by the competing authority among tribal police agencies, local county sheriff or city police departments, and federal authorities. An additional complicating factor is that there are five different types of tribal law enforcement agencies: (1) those operated and funded by the federal Bureau of Indian Affairs (BIA); (2) those federally funded but operated by the tribe under an agreement with the BIA (called PL 96–638 agencies); (3) those operated and funded by the tribes themselves; (4) those operated by tribes under the 1994 Indian Self-Determination Act; and (5) those operated by state and local governments under Public Law 280.14

When a routine crime occurs, which law enforcement agency has juris- diction depends on where the crime was committed, what the crime was, and who committed it. Tribal police have jurisdiction only over crimes committed on Indian lands by Native Americans. A crime committed by a non-Indian per- son on a reservation is the responsibility of the county sheriff. In addition, tribal authorities have jurisdiction only over less serious crimes. Murder and robbery, for example, are the responsibility of federal authorities.15

Reservations suffer from high rates of violent crime, but tribal police depart- ments suffer from inadequate budgets and equipment, poor management, high levels of personnel turnover, and considerable political influence. There are also serious practical problems on many reservations that inhibit effective law enforce- ment. Some reservations involve vast territory (500,000 acres in some cases), and many residents do not have telephones. Thus, it is often difficult for people to receive basic police services.16

Asian, Native Hawaiian, and Pacific Islanders

The Asian, Native Hawaiian, and Pacific Islander American community is extremely diverse in terms of country of origin. The six largest groups by country of origin are Chinese (23.2 percent of all Asians), Filipino (19.7 percent), Indian (18.4 percent; often referred to as South Asian Indians to distinguish them from Native Americans), Vietnamese, Korean, and Japanese. Three quarters of Asian American adults were born outside the United States, and about half report that they speak English very well. They are also members of a variety of religious faiths: Christian, Buddhist, Hindu, Muslim, Sikh, and other smaller groups.17

Asian Americans have the least amount of contact with the police, compared with other racial and ethnic groups. They have lowest victimization rates of any racial or ethnic group in the United States and as a result call the police less often than other groups. Even when they are victimized, however, they are much less likely to report property crimes to police than other racial or ethnic groups.18

The Arab-American Community

There are an estimated 4 million Arab Americans in the United States, represent- ing about 2 percent of the U.S. population.19 The major concern among Arab

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Americans regarding law enforcement is racial profiling, whereby the police, par- ticularly federal authorities, identify individuals as suspects solely on the basis of their national origin. In the wake of 9/11, there were a number of incidents involving discrimination against Arab Americans attempting to fly on airlines. A 2008 American-Arab Defense Committee (ADC) report found relatively few instances of discrimination by local police and concluded that the most serious problems involved the federal government’s Joint Terrorism Task Forces (JTTFs).20

A second issue involves hate crimes, specifically attacks on Arab Americans because of their national origin or religion. The ADC reported more than 700 violent attacks on Arab Americans in the first nine weeks following the 9/11 terrorist attack.

P U B L I C AT T I T U D E S A B O U T T H E P O L I C E

Public attitudes about the police are a good starting point for understanding relations between the police and communities of color. Race and ethnicity are consistently the most important factors in shaping attitudes about the police. Yet, these attitudes are complex and often surprising.

A sizeable racial and ethnic gap exists among Americans in their perception of police fairness. When asked in 2016 whether “blacks are treated less fairly than whites in this country” by the police, 84 percent of African Americans answered yes, compared with 50 percent of whites. A gap of nearly the same size existed when the same question involved the courts. Unfortunately, the survey did not include Hispanics, but see the 2014 data in Table 4.1.21 Two aspects of the survey deserve comment. The gap between white and African-American opinions about the police has persisted at almost the same level for 50 years. In a 2012 survey, 23 percent of African Americans expressed “very little” confidence in the police, compared with 14 percent of whites. In 1967, the President’s Crime Commission reported that twice as many people of color as whites felt the police did a “poor” job, and 10 times as many believed the police were “corrupt.”22 This gap has persisted for decades despite continuing police reform efforts. Second, the gap between the atti- tudes of African Americans and Hispanics illustrates the point the different racial and ethnic groups have different experiences and opinions regarding the police.

T A B L E 4.1 Perception of Police Unfairness, by Race and Ethnicity, 2014

Q: African Americans in your community are treated less fairly than whites.

Percentage answering yes.

37 70 51

Whites African Americans Hispanics

SOURCE: Monica Anderson, Vast Majority of Blacks View the Criminal Justice System as Unfair (Washington, DC: Pew Hispanic Center, August 12, 2014).

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In this chapter, we will examine the police practices that are at the source of African-American alienation from the police, particularly among young men. We will find racial disparities in arrests (pp. 166), traffic stops (pp. 169), and stops and frisks (pp. 176). In their interviews with people in the Kansas City metropoli- tan area, Epp, Maynard-Moody, and Haider-Markel found that African Americans “deeply resent” investigatory stops, where the stop is not prompted by speeding or other traffic safety concerns but suspicion about the driver (is a gang member or active criminal, for example).23

Policing is a highly complex enterprise, and many seeming contradictions often appear. While African Americans complain about excessive policing, in arrests, stops and frisk, and uses of force, for example, they also see too little policing in their communities. The lack of adequate policing can include insuf- ficient levels of patrol in the neighborhood, failure to respond quickly to 911 calls, and failure to make arrests in some cases, particularly domestic violence incidents. A Police Foundation survey in Washington, DC, found that 54.8 per- cent of African-American residents feel there are “too few” police officers in their neighborhood; only 25.7 percent of whites felt that way about their neighborhoods.24

The attitudes of African Americans about the police are not monolithic, however, and are also affected by social class. Weitzer found that middle-class Afri- can Americans in Washington, DC, had a much more favorable view of relations with the police in their neighborhood than did poor African Americans. Their attitudes on this point, in fact, were much closer to those of white, middle-class Washington residents than of poor African Americans.25

Shootings and other highly publicized incidents involving the police have a significant short-term effect on public attitudes. In the immediate aftermath of the 1991 beating of Rodney King by Los Angeles police officers, the percentage of white Los Angeles residents who said they “approve” of the Los Angeles police fell from more than 70 percent to 41 percent. The approval ratings by African Americans and Hispanics in the city, which were low to begin with, also fell. The approval ratings of all groups eventually returned to their previous levels, but white attitudes rose much more quickly than those of African Americans and Hispanics.26

Age has an important impact on attitudes toward the police. This is not sur- prising, and it is important for most of the controversies over police conduct, which we will discuss in this chapter. Young men are more likely to be out on the street and have more contact with the police. Young people are also more involved in illegal activity than middle-aged or older people and have more con- tact with the police as a result. A series of interviews of young African Ameri- cans on Chicago’s South Side by Craig Futterman and his colleagues found that for 14- to 18-year-old African Americans being stopped by the police was “an everyday thing.” How often does it occur?, one teenager was asked. He repelled, “Pretty much every times I go outside.”27 A 2009 PEW Hispanic Center national report on young Hispanics, meanwhile, found that 29 percent of all Hispanic young males and 13 percent of females had been questioned by the police in the past year. That is an extraordinarily high percentage.28

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How Police Officer Conduct Shapes Attitudes

A growing body of research has found that citizen attitudes are heavily influenced by how they feel officers treat them in an encounter. The theory of procedural justice holds that attitudes are shaped not just by what the police do, but how they do it.29 In everyday terms, a traffic ticket is the outcome of an encounter, while the attitude of the officer (rudeness, for example) is the process. There is a close anal- ogy to this in in education. As a student you are naturally upset by a low grade (for example, a D). But if the teacher takes the time to explain the basis for the grade (failure to mention important points covered in class, incomplete sentences, and so on), you are more likely to understand and accept the result. If the teacher, on the other hand, refuses to meet with you and explain the grade, you are likely to be very upset.

Wesley G. Skogan found that people who had been stopped by the police had more favorable attitudes if they felt they were treated fairly, if the officer(s) explained the situation to them, were polite, and paid attention to what they had to say on their own behalf. Procedural justice research in other areas of life (e.g., employment) consistently finds that people are more satisfied if they feel they had a chance to tell their side of the story. Skogan also found important racial and ethnic differ- ences in citizen perceptions, however. African Americans and Spanish-speaking Hispanics, for example, were “far less likely to report that police had explained why they had been stopped.” Less than half of the African Americans and Hispan- ics thought the police treated them politely, and both groups thought they were treated unfairly.30 The 2011 Police-Public Contact Survey also found that African Americans were less likely to believe that the traffic stop was legitimate (with 67.5 percent believing the stop was legitimate), compared with Hispanics (73.6 percent) and whites (80 percent).31

The 2015 report of the President’s Task Force on 21st Century Policing strongly recommended that police departments “adopt procedural justice as the guiding principle … to guide their interactions with the citizens they serve.”32

We will discuss the implications of procedural justice and police conduct when we get to the subjects of stops and frisks and abusive language by police officers.

P O L I C E U S E O F D E A D LY F O R C E

The police are a unique agency in American society. Police officers are the only government officials who have the legal authority to take human life. As the events in Ferguson, Missouri, and other cities in 2014–2016 dramatically illus- trated, the fatal shooting of African Americans by the police is a very volatile issue in this country. The slogan “Black Lives Matter” reflects the deeply held percep- tion among African Americans that the police shoot and kill far too many young African-American men, many of whom are unarmed. In the 1970s, the police fatally shot eight African Americans for every one white person.33 James Fyfe, one of the leading experts on the subject, asked whether the police have “two trigger fingers,” one for whites and one for African Americans and Hispanics.34

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The Lack of National Data on Police Shootings

The national police crisis of 2014–2016 exposed the scandalous fact that we do not have reliable data on the number of people shot and killed by the police every year. The FBI reports data on people shot and killed by the police, but the data collection system is voluntary. Local police departments are not required to submit their data on police shootings and many do not. The official FBI figure for 2014 was 444 people shot and killed by the police.35 The Washington Post began collecting data on police shootings using all possible sources (local news media, public records, internet sources) and found that in 2015 the police shot and killed 986 people—twice what the FBI had been reporting in the preceding years. Additionally, African Americans were shot and killed at three times the rate of whites.36The Guardian undertook a similar count of police shootings using all possible sources of information, and its report The Counted reached an even higher count for 2015: 1,134 people shot and killed by the police.37 Both the Washington Post and The Guardian continued their counts into 2016.

The lack of reliable national data on persons shot and killed is inexcusable. We have very detailed data, for example, on death rates for all types of cancer and deaths in motor vehicle accidents. These data are readily available and are widely used in research.38 A reliable national data system would permit analyses of local variations and possible causes. Data on cities where the police have high and low rates of police shootings, for example, would permit analyses of whether the variations are associated with local crime rates, department deadly force policies, or other factors.

Patterns in Police Shootings

Despite the shortcomings of national data on police shootings, several patterns are evident. The first is that African Americans are overrepresented among peo- ple shot and killed by the police. In the 1960s, the ratio of African Americans to whites shot and killed was 8 to 1. That ratio declined from 4 to 1 in the 1980s, and by 2015 it was about 3 to 1.39 The comprehensive data for 2015 com- piled by the Washington Post found that African Americans were three times as likely to be shot and killed as whites. Particularly, alarming was the finding that

B o x 4.1 People Shot and Killed by the Police, 2014–2015

444 986 3:1 40%

Official FBI Data, 2014

Washington Post Estimate, 2015

Ratio of African Americans to Whites Killed, 2015

Percentage of Unarmed People Shot and Killed by Police Who Were African American

SOURCE: FBI, Crime in the United States 2014, 2014 Expanded Homicide Data Table 14. “Final Tally,” Washington Post, January 6, 2015

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African Americans represented 40 percent of all unarmed people shot and killed by the police. The racial disparity is especially high for young men, the age group that is the most likely to have contact with the police.

There is little data on the shootings of Hispanics and none on Native Amer- icans or Asian Americans. As we discussed in Chapter 1 (pp. 21), criminal justice agencies did not begin doing a good job of collecting data on Hispanics until recent years. In the past, Hispanics shot and killed by the police were probably classified as “whites.” In an earlier study, William A. Geller and Kevin J. Karales found that between 1974 and 1978, Hispanics were about twice as likely to be shot and killed by the Chicago police as whites, but only half as likely to be shot as African Americans.40

A second pattern in police shootings is that the police are more likely to shoot unarmed African Americans than unarmed whites. In 2015, as we men- tioned, 40 percent of all unarmed people shot and killed were African American. The disparity used to be even worse. Between 1969 and 1974, for example, police officers in Memphis shot and killed 13 African Americans but only one white person in the “unarmed and not assaultive” category (Table 4.2). In fact, half of all the African Americans shot and killed were unarmed. When the Memphis police replaced the permissive fleeing felon rule with the more restrictive defense of life policy, the overall number of people shot and killed dropped significantly and no unarmed people were shot and killed.41 As we will discuss shortly, department policies that limit police use of deadly force have had a significant impact in terms or reducing the number of fatal shootings and also in reducing the racial dispari- ties in shootings.

Research involving simulated shootings has found that unconscious racial bias plays a significant role in the shooting of African Americans. We discuss this later in this chapter in the section on “Unconscious Bias” (pp. 160).42

A third important pattern is that there are substantial—and surprising— differences among police departments regarding the number of people shot and killed. The Mapping Police Violence project found that in 2015, Bakersfield, California, Oklahoma City, Oklahoma, Oakland, California, and Indianapolis, Indiana, had the four highest rates of fatal shootings. Surprising to many people,

T A B L E 4.2 Citizens Shot and Killed by Police Officers, Memphis

1969–1974 1985–1989

White African

American White African

American

Armed and assaultive 5 7 6 7

Unarmed and assaultive 2 6 1 5

Unarmed and not assaultive 1 13 0 0

Totals, by race 8 26 7 12

Total 34 19

SOURCE: Adapted from Jerry R. Sparger and David J. Glacopassi, “Memphis Revisited: A Reexamination of Police Shoot- ings after the Garner Decision,” Justice Quarterly 9 (June 1992), pp. 211–225.

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New York City had one of the lowest shooting rates, one-tenth of Bakersfield, and less than one half of the largest 60 cities. Detroit and Philadelphia also had shooting rates below the national average. The kind of systematic national data that the Mapping Police Violence Project has compiled (but which the FBI has not) can provide a starting point for analyzing why some police departments do so much better than others with respect to fatal shootings.43

Controlling Police Use of Deadly Force

One of the most significant police shootings in the U.S. history occurred on October 3, 1974, in Memphis, Tennessee. Two Memphis police officers shot and killed Edward Garner, a 15-year-old African American. Garner was 5'4" tall, weighed 110 pounds, and was shot in the back of the head while fleeing with a stolen purse containing $10.44

The Memphis officers acted under the old fleeing felon rule, which allowed a police officer to shoot to kill, for the purpose of arrest, any fleeing suspected felon. The rule gave police officers very broad discretion, allowing them to shoot, for example, a juvenile suspected of stealing a bicycle worth only $50. Edward Gar- ner’s parents sued, and in 1985, the Supreme Court in the landmark case of Ten- nessee v. Garner declared the fleeing felon rule unconstitutional. The Court ruled that the fleeing felon rule violated the Fourth Amendment protection against unreasonable searches and seizures, holding that shooting a person was a seizure.45

Even before the Garner decision, mainly in response to civil rights protests, police departments had been adopting the defense of life rule to limit shoot- ings. The turning point came in 1972 when New York City Police Commis- sioner Patrick V. Murphy replaced the fleeing felon rule with a defense of life policy, which meant that officers could only resort to deadly force if there was an immediate threat to the life of the officer or another person. The new pol- icy also prohibited warning shots, shots to wound the suspect, and shots at or from a moving vehicle. To ensure compliance with the new policy, officers were required to file a written report on each firearms discharge (e.g., any time the weapon was fired, regardless of the circumstance), and reports were automati- cally reviewed by supervisors.

James J. Fyfe studied the impact of the new defense of life policy and found that it reduced the total number of firearm discharges by almost 30 percent over the next three years. Moreover, the new policy did not cause the crime rate to go up nor did it result in more officer injuries.46 Other police departments quickly began adopting similar deadly force policies. As a result, the number of people shot and killed by police declined from a peak of 559 in 1975 to 300 in 1987. (But remember, even current official data undercount the number of people shot and killed, and it is very likely that the undercount was even greater in the 1970s and 1980s.)47

The important lesson from what we know about police shootings is that unacceptable police conduct can be brought under control by effective depart- ment policies. Later in this chapter, we will discuss how that lesson applies to police use of excessive force, stops and frisks, and offensive language.

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The Role of Unconscious Bias in Police Shootings

One factor in some police shootings involves unconscious stereotypes and bias regarding race and ethnicity. Racial prejudice pervades American society, and police officers are no exception. Bias is not always conscious, as in someone say- ing “I don’t want to sit next to that black guy.”

In policing, one of the most prevalent stereotypes is the association of African- American men with “dangerousness.” This stereotype can lead officers to stop and frisk young African-American men in the belief that they are gang members or active criminals. Another example is where many people associate Hispanics with being immigrants, and even undocumented immigrants. Lorie Fridell, director of the Fair and Impartial Policing project, explained that many police recruits underestimate the dangerousness of women and in training situations do not search for the gun hidden in a woman’s back “because they stereotype women as not being a threat.”48

Research using computer simulations of encounters between police officers and suspects of different race or ethnicity has confirmed that racial or ethnic ste- reotypes affect the decision to shoot. In one study, three different groups partici- pated in a video game simulation, which included images of armed and unarmed white and African-American men in a variety of situations. They included 25 images each of an armed white, unarmed white, armed African American, and unarmed African American. The unarmed images included objects that were not weapons: wallets, cell phones, a beer or soft drink can, and so forth. Participants were instructed to shoot as quickly as possible anyone who appeared to be an “imminent threat” and to push the “don’t-shoot” button as quickly as possible for those who did not pose an imminent threat. The three groups included Denver police officers, citizens from the community those officers served, and a group of police officers attending a training seminar.49

The study found “robust racial bias” in the speed with which both the offi- cers and the non-officers fired their simulated weapons. In terms of accuracy in correctly assessing an imminent threat, the non-officer participants were less accurate than the officer participants, meaning they were more likely to see an imminent threat from the African-American images where one does not exist. In a replication study, participants had a shorter time frame to make their decisions; as a result, the error rate increased. In the end, the study confirmed that racial stereotypes played a significant role in the decision to shoot. Police officers, the study directors concluded, performed better than other participants because of their formal police training on use of deadly force.

Does Skin Tone Matter?

Does skin tone matter in police decisions? Are people who are very dark-skinned more likely to be stopped, arrested, or even shot than light-skinned African American?

In a pioneering study, Karletta M. White investigated the impact of skin tone on the likelihood of being stopped by the police. Wave III of the National Lon- gitudinal Study of Adolescent Health (generally referred to as ADD Health) had

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the investigators conducting in-home surveys to record respondents’ skin tone on a five-point scale (black, dark brown, medium brown, light brown, white). Respondents reported their own race and identity and also their experience in being stopped by the police.50

White found that “skin tone is related to the likelihood of being stopped or arrested by the police” for African Americans. “As skin tone darkens,” she found, “the odds of being stopped or arrested increase significantly.” The findings with regard to Hispanics were ambiguous, however, because of the small number of dark-skinned Hispanics.

More research on the issue of skin tone is needed. If skin tone affects police decisions to stop people, does it also have an effect on police shootings or use of physical force?

“ P O L I C E B R U TA L I T Y ” : P O L I C E

U S E O F P H Y S I C A L F O R C E

“Q: Did you beat people up who you arrested?”

“A: No. We’d just beat people in general. If they’re on the street, hanging around drug locations . . .”

“Q: Why?”

“A: To show who was in charge.”51

What Is “Police Brutality?”

This exchange between the Mollen Commission and a corrupt New York City police officer in the mid-1990s dramatized the unrestrained character of police bru- tality in poor, high-crime neighborhoods in New York City. There is much contro- versy and misunderstanding about the issue of police use of force and the prevalence of excessive force. Let’s sort our way through this important and complex issue.

The term police brutality is a political term with no precise legal meaning. A proper understanding of this issue begins with the category of force, meaning all uses of physical force by a police officer. A police officer is legally justified in using force to protect himself or herself from physical attack, to subdue a suspect who is resisting arrest, or to accomplish a lawful police purpose. Force can include grabbing a person’s arm in order to handcuff him; taking someone to the ground; use of a police baton; or a choke hold (although they are banned by many depart- ments). The term excessive force is defined as any physical force that is more than reasonably necessary to accomplish a lawful police purpose.

The Prevalence of Force and Excessive Force

The prevalence of both police use of force and excessive force is a matter of con- troversy. Many critics of the police argue that excessive force is a routine, nightly occurrence, whereas others believe that it is a rare event. There is a wide racial

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disparity in the perception of police use of excessive force. Ronald Weitzer and Stephen A. Tuch asked Washington, DC, residents if they felt police used exces- sive force in their neighborhood. Among African Americans, 30 percent felt it happened “very often” or “fairly often,” compared with only 8 percent of whites and 23 percent of Hispanics.52 The study of African-American teenagers on Chi- cago’s South Side found powerful testimony that all police encounters are terrify- ing. “It’s scary because you don’t know that’s gonna happen next,” explained one female high school senior. As many others explained,” They [the cops] have all the power.”53

Research using direct observation of police patrol work has consistently esti- mated that police officers use force in about 1 and 2 percent of all encounters with citizens and that excessive force incidents represent about one third of those incidents.54 Many people find these estimates hard to believe because they are so low. When we put the 1–2 percent estimate in the context of routine police work, however, it takes on new meaning.

In patrol work, the vast majority of police–citizen encounters are uneventful: a residential burglary call where the officer simply takes a report, a call for police assistance, and so on. If you take 1.5 percent of all 911 calls to a police department and then divide that figure by 52, you will get an estimate of the number for force incidents every week. Divide that by seven and you get an estimate of the num- ber per day—every day, 365 days a year. (But remember, these are estimates and not counts of actual incidents.) In most cases, the resulting estimates are startling and disturbing. Divide the weekly or daily estimates by one third and you get the estimates for excessive force. And remember, 911 calls represent only a portion of all police–citizen contacts. You need to add traffic stops and police-initiated pedestrian tops to get a more complete estimate.

The observational studies of police patrol work consistently find that police use of force is higher in certain situations. Police officers are four or five times more likely to use force against males, people being arrested, people who are disrespectful or challenge their authority, and people who are drunk or under the influence of drugs. African Americans are also more likely to have force used against them, in part, because they are more likely to be disrespectful or believed to be disrespectful by the officer. This complex and important issue requires closer analysis.

Race, Police–Community Relations, and Disrespect for the Police

The issue of disrespect for the police needs serious discussion. There is a long history of police officers inappropriately using force against and making arrests of people they believe are disrespectful, even where there is no physical challenge to the officer. This phenomenon has been labeled “contempt of cop”: the officer perceives a challenge to authority and escalates the encounter to assert his or her authority. See, for example, the Mollen Commission testimony we cited (p. 161) where an officer said he used excessive force “to show who was in charge.” The perceived disrespect may involve not looking the officer in the eye, not answering the officer’s questions, a look of contempt on the person’s face, verbal disrespect, or a verbal challenge to the officer’s authority. Christy Lopez argues that “there is

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abundant evidence that police overuse disorderly conduct and similar statutes to arrest people who ‘disrespect’ them or express disagreement with their actions.”55

Patterns of real or perceived disrespect for the police have an important racial dimension. Donald Black found that after controlling for all other variables, Afri- can Americans were far more likely to be disrespectful to the police than were whites.56 The explanation for this lies in the long history of police–community relations problems. African Americans are more likely to bring to an encounter the community memory of past abuses by the police, including knowledge of recent incidents, and express disrespect for the officer. Albert Reiss argued that in low-income, high-crime, and predominantly African-American neighborhoods, incidents of police abuse accumulate over time, creating a perception of systematic harassment.57 A police program of frequent stops and frisks and/or traffic stops reinforces this sense of harassment.58 Additionally, the police are the symbolic rep- resentatives of the established order, including societal race discrimination. The officer, meanwhile, brings to the encounter a memory of community criticisms of the police, and many officers see hostility everywhere in African-American neighborhoods.

Police reform expert David Kennedy explains the dynamic we just described in terms of each side bringing its own “narrative” (or script) to an encounter: people on the street see a continuation of a long history of police abuse; officers see bad communities (high crime rates and other problems) and bad people (gang members, drug dealers, and criminals). In his book, Don’t Shoot, he suddenly real- ized he had been seeing this phenomenon for 15 years in his research “but had never put a name to it.” “The real issue,” he concluded, is that “the relationship between the police and community was being poisoned by toxic racial narra- tives.”59 The result is a vicious cycle of misconduct, disrespect, use of force, more disrespect, and so on.

The question is how to break the vicious cycle and replace the toxic racial narrative with a positive cycle of mutual respect. Procedural justice, where officers treat people with respect and answer their questions is one approach. Another alternative is the policy of police de-escalating encounters to keep them from escalating into uses of force. We discuss this important innovation on pp. 165. Other approaches, which we also discuss are better police department policies to control officer use of force (pp. 164) and to curb offensive language by officers which can provoke citizens and lead to a use of force incident (pp. 177).

Force in Traffic and Pedestrian Stops

A second estimate of police use of force is in the BJS Police–Public Contact Sur- vey. This estimate uses the victimization survey technique of calls to citizens and is confined to traffic stops (and more recently pedestrian stops). A 2015 PPCS report, using all the survey data from 2002 to 2011, found that police threatened or used force in 1.6 percent of all contacts with people. Respondents in the sur- vey reported that officers threatened or used excessive force in 1.2 percent of all contacts (representing 75 percent of all force incidents). There are two important points to keep in mind about these data. First, the survey reports citizen perceptions

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164 C H A P T E R 4

of officer conduct and not an independent assessment (as is the case in the direct observations of patrol work). Second, it reports threatened as well as actual use of force, which will necessarily yield a higher estimate than actual uses of force. Despite these differences from direct observation research, the 1.6 percent esti- mate is remarkably close to the estimate from direct observation studies.

The PPCS report found significant racial disparities in both overall threatened use of force and actual use of force, and also use of excessive force. Non-Hispanic whites reported police threatening or using force in 1.4 percent of all contacts, compared with 2.1 percent for Hispanics and 3.5 percent for African Americans.60

The race or ethnicity of the officer has little apparent influence on patterns of the use of physical force. Some people have the erroneous stereotype that police use of excessive force involves white cops beating up African-American men. Observational studies of police patrol work have not found a clear racial pattern of officer use of force.61 The data on citizen complaints against police reinforce the point that the race or ethnicity of the officer is not a significant factor in police misconduct. In New York City, whites represented 53.4 percent of all officers in 2009 and 49.5 percent of all officers receiving citizen complaints; African Americans represented 16.4 percent of all officers and 17.2 percent of those receiving complaints; Hispanics represented 28.4 percent of all officers and 25.2 percent of those receiving complaints. A similar pattern was found in San Jose, California.62

At the same time, however, it is important to note that police officers of different races have very different perceptions of how the police in general use force and treat people of color and the poor. A Police Foundation survey of offi- cers nationwide found that 57 percent of African-American officers agreed or strongly agreed with the statement, “Police officers are more likely to use physical force against blacks and other minorities than against whites in similar situations,” compared with only 5 percent of white officers. The responses to this statement reflected not what officers said they personally do but what they perceived officers in general do (which probably means other officers in their own department).63

The Control of Police Use of Force

The standard police department approach to controlling officer use of force is to have a formal policy indicating the circumstances in which force may be used and requiring the officer to complete a report on every use of force incident. This requirement follows the approach we discussed earlier (pp. 156) with respect to the use of deadly force. Some poorly managed police departments, however, allow officers to not file force reports at all or to file reports that do not accu- rately state what happened in the incident (and justify the officer’s use of force in the process). The 2014 Justice Department investigation of the Cleveland, Ohio, police department, for example, found that “force incidents often are not prop- erly reported, documented, investigated, or addressed with corrective measures.” Also, “until recently, each officer at the scene was not required to write a report documenting the incident.” Reports often did not “adequately convey the force [the officers used] and why.”64

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165J U S T I C E O N T H E S T R E E T ?

Do these policies work in terms of controlling office use of force? The Los Angeles Police Department (LAPD) has had a long history of bad community relations, marked by riots in 1965 and 1992. Because of its problems with use of force, the U.S. Justice Department intervened and obtained a consent decree in 2001 requiring the department to improve its procedures for the reporting and investigation of officer use of force. An evaluation of the impact of the consent decree by a team from Harvard University found that between 2004 and 2008, use of the most serious forms of force by LAPD officers declined by 30 percent. Additionally, use of force incidents involving African-American and Hispanic people declined more than they did against whites.65

The Oakland, California, police department also had a history of abu- sive practices regarding the use of excessive force. A lawsuit by private plaintiffs resulted in a consent decree that required reforms similar to those in the LAPD case. It took several years for the department to fully implement the reforms, but when it finally did, the results were significant. Use of force incidents dropped from 1,200 in 2014 to 606 in 2014. Complaints against officers dropped from 2,593 in 2012 to 1,067 in 2014. And officer-involved shootings fell from 15 in 2011–2012 to only 2 in 2014–2015.66

The lesson of these two cases is similar to the experience with the New York City police department deadly force policy: the implementation of policies limiting officer use of force can effectively reduce uses of force and related police performance problems.

De-Escalation: A New Approach to Reducing Police Use of Force

The most important new approach to reducing police use of force involves de- escalation. De-escalation is a policy under which officers are instructed that unless force is absolutely necessary they should attempt to use alternative techniques to resolve a citizen encounter without conflict or the use of force. Those techniques include keeping some distance from the person in question, in order to avoid a direct confrontation, verbal persuasion to gain compliance, or simply saying noth- ing in response to disrespectful words by the person.

The new Seattle Police Department policy adopted in late 2013 states, “When Time, Circumstances, and Safety Permit, Officers Will Take Steps to Gain Compliance and De-escalate Conflict Without Using Physical Force.” It is important to note that the policy says “will take steps. De-escalation is the required option when the circumstances permit. The policy lists the possible de-escalation techniques: “advisements, warning, verbal persuasion, and other tactics in order to reduce the need to use force.” A later section of the policy emphasizes the importance of taking steps to increase the options in an incident by gaining time, maintaining distance from the person, and calling in backup. De-escalation does not represent a “weak” or “soft” style of law enforcement, as some critics charge. The Seattle policy clearly states that when no other option is available an officer may use force.67

Since the use of force, and the perception that the police use excessive force and use it frequently, is such a major issue in police–community relations, reducing

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166 C H A P T E R 4

the use of force through the use of de-escalation can be a major step in the direc- tion of building community trust in the police. Law enforcement participants at a Police Executive Research Forum meeting explained how de-escalation can be very effective in dealing with mentally ill people and that de-escalation can reduce uses of force and help to improve community relations.68 The President’s Task Force Report on 21st Century Policing, meanwhile, strongly recommended that police “training on use of force should emphasize de-escalation … where appropriate.”69

D I S C R I M I N AT I O N I N A R R E S T S ?

Allegations of race discrimination in arrests have been a controversy in Ameri- can policing for decades. Civil rights advocates charge that police arrest people of color without probable cause and in cases where whites are not arrested for the same offense. FBI data on arrests clearly indicate racial disparities in arrests for some crimes, especially robbery, but not for all crimes. African Americans, for example, were 56 percent of all people arrested for robbery in 2014, but only 30 percent of those arrested for burglary and 13 percent of those arrested for drunk driving.70

The question of whether race is a factor in arrests is a complex matter, because the likelihood of arrest is shaped by several factors: the seriousness of the offense, the strength of the evidence, the preference of the crime victim, the rela- tionship of the victim to the offender (especially if they are married or have an ongoing relationship vs. being strangers), and other factors.71

Tammy Rinehart Kochel, David B. Wilson, and Stephen D. Mastrofski under- took a systematic review of all available studies of police arrests. They found 40 studies, reaching back into the 1960s, that met the highest standards of research, including controls for all relevant variables in arrest decisions. In the end, they found that “race matters,” and that there is “a clear pattern of evidence” that “minorities and Blacks have higher odds of arrest” than whites. On average, the probability of an African American was 30 percent higher than for a white per- son. The race effect existed even when they controlled for the seriousness of the crime (a factor they hypothesized might even out the likelihood of an arrest).72

One underlying cause of racial disparities in arrests involves aggressive anti- crime programs by police in high-crime neighborhoods, which are typically predominantly African American or Hispanic. Programs such as a heavy police presence in certain neighborhoods or aggressive stops and frisks have a number of destructive effects. One is the sense of harassment on the part of young African- American men in the community. As one African-American teenager on Chicago’s South Side explained, “I’ll just be walking with my friends or something . . . And then they [the cops] pull up and yell ‘Get on the car!, Or, Get on the wall! [mean- ing line up with your hands on the patrol car or a wall] Spread your legs. Put your hands up.’73Another is the cumulative effect of arrests on subsequent decisions in the criminal justice system. Kimberly Kempf Leonard’s observations about juvenile justice apply to the adult justice system as well: there is a “cumulative effect that may grow like a downhill snowball,” with the result that “early-stage decisions create an inequity” that “influence[s] decisions at subsequent stages.”74

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167J U S T I C E O N T H E S T R E E T ?

High levels of arrests in a community have a destructive community effect, making arrest and imprisonment seem “normal.” The Sentencing Project in 2013 estimated that one in three African-American males can expect to go to prison at some point in his lifetime. This compared with 1 in 6 Hispanic males and 1 in 17 white males.75 For these reasons, the President’s Task Force on 21st Cen- tury Policing recommended that police departments “should consider the poten- tial damage to public trust when implementing crime fighting strategies.” 76

The demeanor of a person on the street, particularly where an officer perceives disrespect, has an important impact on arrest patterns. As we have already mentioned, observational studies of police arrest patterns have consistently found that officers’ decisions to arrest are determined largely by situational factors: the seriousness of the crime, the strength of the evidence, the preference of the victim for arrest, the rela- tionship of the victim and the suspect, and also the demeanor of the suspect. Donald Black found that African Americans are more likely to be disrespectful to the officer than whites and therefore more likely to be arrested.77 Christy Lopez, meanwhile, characterizes demeanor-based arrests as “contempt of cop”: the officer makes an arrest for disorderly conduct, for example, because he or she regards the perceived disrespect as contempt for his or her authority as a police officer. And finally, as David Kennedy argues, the higher levels of disrespect by young African-American men are rooted in the shared community “narrative” of police–community relations problems.78

Arrests and the War on Drugs

The war on drugs is the most extreme case of race discrimination in arrests, and it has resulted in an enormous prison population, which Michelle Alexander has

FOCUS ON AN ISSUE

The Scandal of Ferguson: Arrests as a Revenue Source

The word “Ferguson” became a house-

hold word in America because of the fatal

shooting of Michael Brown in Ferguson,

Missouri, on August 9, 2014, and the pro-

tests and violence that followed. When the

U.S. Justice Department investigated the

incident, it uncovered a deeper scandal that

was at the heart of the conflict between

the African-American community and the

Ferguson police.

The Justice Department report found

that “Ferguson’s law enforcement practices

are shaped by the City’s focus on revenue

rather than by public safety needs.” City

officials applied direct pressure on the

police to write tickets in order to raise

funds to support city government oper-

ations. In March 2010, for example, the

Finance Director wrote the chief of police

to warn that “unless ticket writing ramps

up significantly,” the city would face a

budget crisis.79

The pressure to raise funds, the Justice

Department concluded, had “a profound

effect” on the police department’s oper-

ations, shaping “patrol assignments and

schedules” in the direction of “aggressive

enforcement,” with little concern about

(Continued )

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168 C H A P T E R 4

labeled “mass incarceration.”80 A 2013 ACLU report found that between 2001 and 2010 there were over 8 million arrests for marijuana possession in the United States, which accounted for half of all drug arrests. African Americans were 3.73 times more likely than whites to be arrested for marijuana possession. The pattern in marijuana arrests, moreover, was nationwide and not confined to particular cities or regions.81

The enormous disparity in arrests for drug possession is not consistent with patterns of marijuana usage. The 2014 survey of drug use by the Monitoring the Future project found that reported marijuana use by 12th-grade high school seniors was nearly identical for whites (35.1 percent all students), African Amer- icans (35.9 percent), and Hispanics (37.1 percent).82 No national survey of drug use has found a significant racial disparity between usage by whites and African Americans that approaches the 3.73 disparity found in arrests.

The ACLU report added that the enormous racial disparity in marijuana arrests imposed “a tremendous human and financial cost” on those arrested, a cost that can “linger for years, if not a lifetime.”83 As Kimberly Kemp-Leonard argues, an arrest can “snowball” and result in adverse effects later in the criminal jus- tice system.84 A conviction can affect a person’s sentence in a subsequent offense, where prior criminal history is taken into account. An arrest record can affect chances of employment or housing. If one group is disproportionately arrested, their employment opportunities will be adversely affected to the same degree. In addition, Justice Department surveys of state criminal history information systems have consistently found that many do not include information on the final dispo- sition of cases. As a result, someone whose case was dismissed, or who was acquit- ted, will still have an official arrest record with the implication of a conviction.85

The argument in the ACLU report is supported by a longitudinal study of drug arrests by Ojmarrh Mitchell and Michael S. Caudy, using data from 13 waves of data from the National Longitudinal Survey of Youth (NLS), beginning in

effective public safety. Officers on the

street responded to the pressure with

arrests for minor or false charges. The

report cited one case where eight sepa-

rate arrest charges included not wearing a

seat belt even though the car was parked,

using a short version of his name (“Mike”)

instead of his full legal name (“Michael”),

providing an address that was legitimate

but different from the one on his driver’s

license, and others.

The result of Ferguson’s revenue-

generating approach to policing “under-

mine[d] community trust and coopera-

tion.” It seems evident that the lack of trust

and anger toward the police were a major

part of the fuel that exploded in the pro-

tests that followed Michael Brown’s fatal

shooting.

Many observers believe that other

small towns in America have a policy of

writing tickets to generate revenue for the

city. In that regard, Ferguson, Missouri, is

only one example of a broader misuse of

the police for purposes having nothing to

do with public safety.

SOURCE: U.S. Department of Justice, Civil

Rights Division, Investigation of the Ferguson

Police Department (March 4, 2015), p. 3. https://

www.justice.gov/sites/default/files/crt/leg-

acy/2015/03/04/ferguson_findings_3-4-15.pdf.

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169J U S T I C E O N T H E S T R E E T ?

1997. Their study found that racial disparities in arrests were not due to reported differences in drug usage or to different patterns in drug purchasing (from strang- ers vs. friends) or patterns in use (public places vs. private places). Instead, the racial disparities were explained by “racial bias in law enforcement,” meaning the strategic and tactical decisions by police departments and officers about how to conduct the war on drugs.86

T R A F F I C S T O P S : R A C I A L P R O F I L I N G

Robert Wilkins, an African-American attorney, was stopped by the Maryland state police on Interstate 95 and subjected to a prolonged detention and ille- gal search. To support Wilkins’s legal challenge to the stop, his lawyers sponsored observational research on traffic and enforcement patterns on I-95. The research found that African Americans did not speed on I-95 at a higher rate than white drivers but constituted 73 percent of all drivers stopped for possible violations. Even worse, they represented 81 percent of all drivers whose cars were searched after being stopped.87

FOCUS ON AN ISSUE

The Chicago Gang Ordinance

In an effort to control gangs and gang-

related crime, the city of Chicago enacted

a Gang Congregation Ordinance in 1992.

The story of the law is an excellent exam-

ple of a “crackdown” approach to crime

fighting: a policy designed to “get tough”

with crime that in practice resulted in

massive arrests of people of color.

The Chicago gang ordinance made

it a crime for a known “gang member” to

“loiter” on the street with one or more

people with “no apparent purpose.” In

enforcing the law, Chicago police officers

had to “reasonably believe” the person

was a gang member, order the person to

disperse, and make an arrest if the person

did not disperse. Violations could be pun-

ished by a fine of $500, six months in jail,

and/or 120 days of community service.88

In three years, the Chicago police

issued 8,000 dispersal orders and arrested

42,000 people. Enforcement of the law fell

heavily on the African-American and His-

panic communities in Chicago. The police

department enforced it only in areas where

it believed gangs were a problem, but it did

not inform the public about which areas

they were. The basic question was whether

the law gave the police too much discre-

tion in enforcing the law.

The Supreme Court ruled the

Chicago Gang Ordinance unconstitutional

in the case of Chicago v. Morales (1999),

concluding that it was unconstitution-

ally vague, because it failed to “give the

ordinary citizen adequate notice of what

is forbidden and what is permitted.” The

definition of loitering was vague and

did not distinguish between standing on

the street for a good purpose (waiting

for a friend) or a bad purpose (planning

a crime). There was also no mens rea

(Continued )

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170 C H A P T E R 4

requirement: the police did not have to

show that a person had criminal intent.

Almost comically, the law did not apply

to people who were walking and excluded

specific acts that are the most intimidating

kinds of conduct: for example, approaching

someone in a possibly threatening manner.

Finally, the law violated the First Amend-

ment right of freedom of association,

which includes the right to freely travel in

public places.

The Chicago gang ordinance also

raised questions about the lists of gang

members that are maintained by police

departments. The Chicago law authorized

officers to enforce the law against people it

“reasonably believed” to be gang members.

But how does an officer reasonably know

that a young man on the street is a gang

member? Is there an official gang list, or is

the officer making a subjective judgment

on the spot? If the department does have a

gang list, how was it compiled? Who pro-

vided the information? Was the informa-

tion verified? If a young man dropped out

of a gang he belonged to, was he still listed

as a “gang member”? How do you ever

get off the list? In many cities, there have

been controversies over the arbitrary and

discriminatory uses of police department

gang lists.89

F U RT H E R R E A D I N G

Chicago v. Morales, 527 U.S. 41 (1999).

Malcolm Klein, The American Street Gang

(New York: Oxford, 1995).

Charles M. Katz, “The Establishment of a

Police Gang Unit: An Examination

of Organizational and Environmental

Factors,” Criminology 39 (2001),

pp. 37–75.

The Wilkins case focused national attention on racial disparities in traffic enforcement and helped to give it a name: racial profiling, defined as the use of race or ethnicity as part of a profile of criminal suspects, with the result that African-American and Hispanic drivers are stopped either entirely or in part because of their race or ethnicity and not because of any illegal activity. The term driving while black is also used to describe this practice. A 2014 poll found that 70 percent of Americans disapproved of racial profiling (in an earlier 2004 poll, 50 percent of white Americans believed that racial profiling exists, compared with 67 percent of African Americans and 63 percent of Hispanics). Interestingly, the 2014 poll found that while 78 percent of Americans had a “favorable” view of the police, 45 percent believed that officers are not held accountable for their conduct. The issue of profiling is not confined to traffic enforcement. All racial and ethnic groups also believe that racial profiling is widespread in shopping malls and stores.90

Profiling Contexts

Racial profiling occurs in at least three different contexts. One context is the war on drugs, where officers are targeting African Americans or Hispanics in the belief that they are very likely to be engaged in drug trafficking. This approach represents a profile of criminal suspects based on racial and ethnic stereotypes. The ACLU argues that the Drug Enforcement Administration (DEA) encouraged racial profiling by state and local departments through its “Operation Pipeline.” DEA training materials, they claim, stereotype African Americans and Hispanics as drug traffickers.91

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171J U S T I C E O N T H E S T R E E T ?

A second context involves stopping citizens who appear to be out of place, such as an African American in a predominantly white neighborhood or a white person in a predominantly African-American neighborhood. Police actions in this context involve racial stereotypes about who “belongs” in a particular area. It ignores the possibilities that, for example, an African American in a predomi- nantly white neighborhood may live there, may have friends who live there, or may be there on a legitimate business call (e.g., an insurance salesperson calling on a customer). Similarly, the white person in a predominantly African-American neighborhood might be there for similar reasons: to see a friend, a classmate, or a teammate. In a study of traffic stops in a predominantly white community bor- dering a largely African-American city, Albert J. Meehan and Michael J. Ponder found that the “proactive surveillance” of African-American drivers “significantly increases as African Americans travel farther from ‘black’ communities and into white communities.”92 Epp et al. in their study of traffic stops in the Kansas City, Missouri, metropolitan area found that “investigatory stop especially target Afri- can Americans in Kansas City’s white suburbs.”93

A third context involves a crackdown on crime. A police department may have an aggressive anticrime policy that emphasizes traffic stops or stops and frisks of people on the street. In the next section (pp. 176), we will discuss the New York City stop and frisk program that a federal court found to be a violation of the Equal Protection Clause of the Fourteenth Amendment because of the huge dis- parities in African-American and Hispanic men that were stopped.94

The Data on Traffic Enforcement

The racial profiling controversy led to the first significant research on police traffic enforcement. National data are collected by the Bureau of Justice Statistics Police-Public Contact Survey (PPCS). The surveys have yielded two basic find- ings. First, traffic stops are the most common form of contact between the police and the public. Second, there are racial and ethnic disparities existing in contacts with the police, searches, arrests, and uses of force.

The 2011 PPCS found that 15 percent of Native American drivers reported having been stopped by the police, compared with 12.8 percent of African American, 10.4 percent of Hispanic, 9.8 percent of white drivers, and 9.4 percent of Asian American drivers. Disparities also existed among those who were ticketed: 8 per- cent of African American, 6.2 percent of Hispanic, and 4.8 percent of white drivers. The greatest disparities involved searches by the police: 6.6 percent of Hispanic, 6.3 percent of African American, but only 2.3 percent of white drivers were searched.95

As Lorie Fridell’s report By the Numbers explains in detail, racial and eth- nic dispar ities in traffic stops pose a difficult question with respect to whether the disparities represent discrimination.96 (See our discussion of the Discrimination–Disparity Continuum in Chapter 1, pp. 28.) Disparities can be explained by a number of different factors. The resident population of a city or county does not reflect the racial composition of the people who are actually driving. There are differences in who actually drives. The Monitoring the Future survey found similar racial differences. In 2009, 34.1 percent of African American

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172 C H A P T E R 4

high school students responded that they drove “not at all,” compared with only 13.6 percent of whites.97 Among those who do drive, there are significant differ- ences in driving habits. Whites have the highest rates of reported driving while impaired by alcohol (which is likely to increase the chances of being stopped by the police), while African Americans report a comparatively low rate.98

A best method for studying traffic stops is through direct observations of traffic on a particular roadway and comparing the racial and ethnic composition of those observed speeding compared with those who are stopped by the police. The direct observation method is very expensive, however, and is rarely used. An alternative method involves peer officer comparisons, or internal benchmarking. Comparing officers working similar assignments (e.g., a high-crime area on the same shift), it is possible to identify those officers who stop more African-American or Hispanic drivers than their peers.

Determining whether traffic stop disparities represent illegal discrimination depends on how we look at the issue. Official data on aggregate traffic stops do not allow us to determine whether an individual traffic stop was motivated by racial or ethnic bias. Official data on racial or ethnic patterns of traffic stops can, however, be used to determine that a department is guilty of discrimination. A mere disparity is not sufficient. The data have to be sufficiently powerful to con- vince a judge that an illegal pattern of discrimination exists. That happened in the case of the New York City stop and frisk program (see pp. 176) where a U.S. District Court judge found the statistical evidence powerful enough to rule the program an unconstitutional violation of the Fourteenth Amendment.

“A Deep Racial Chasm”: The Experience of Traffic Stops

In a study of traffic stops in the Kansas City, Missouri, metropolitan area, using both qualitative and quantitative methods, Epp et al. found “a deep racial chasm” in the experience of traffic stops.99

Traffic stops, they remind us, are the common experience with law enforce- ment for all Americans. But there is a vast difference in the kind of stops whites and African Americans experience, how they are treated in stops, and how they interpret that experience. There are two basic kinds of stops: traffic safety stops, mainly for speeding or suspected drunk driving, and investigatory stops, where the purpose is to investigate the driver, for possible possession of a weapon or drugs,

T A B L E 4.3 Traffic Stops by Race and Ethnicity

Percentage of Drivers in the Racial

Group Stopped

Percentage of Those Stopped

Who Were Searched

Percentage Who Felt The Stop

Was Legitimate

White 10 2.3 83.6

African American 13 6.3 67.5

Hispanic 13 6.6 73.6

SOURCE: Bureau of Justice Statistics, Police Behavior during Traffic and Street Stops, 2011 (Washington, DC: Department of Justice, 2015).

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173J U S T I C E O N T H E S T R E E T ?

or an outstanding warrant. Most traffic safety stops are nondiscretionary: the car is dangerously speeding or weaving. Investigatory stops are highly discretionary, made at the choice of the officer. Typically, the pretext of a minor violation is used for the stop: a burned out tail light, or failure to signal for a lane change, for example.100

Epp and his colleagues found that investigatory stops are at the heart of racial profiling controversy. African Americans experience far more investigatory stops than whites. Forty percent of African Americans under the age 25 in their study were likely to be stopped in any year, compared with only 13 percent of whites. In fact, African-American women were more likely to be stopped (about 17 per- cent) than white men.101

Investigatory stops are far more intrusive than traffic safety stops, and Epp and his colleagues found that they are “deeply resented” by African Americans. The officer is looking for something incriminating about you and is not concerned with your driving. In the case of traffic safety stops, people of both races typically concede that they were speeding; it’s not about you, it’s your driving. Investigatory stops more often lead to a search and even possible arrest. And because it is about you, investigatory stops are seen as “deeply unfair.” And for this reason, investiga- tory stops have a powerful effect in undermining trust in the police. The personal experience of being singled out as a suspicious person is deeply alienating. Per- sonal experiences, meanwhile, are compounded by knowledge of similar experi- ences of friends. Epp et al. found that 37 percent of the African Americans they surveyed had heard a story of police disrespect, compared with only 15 percent of whites. The overall experience is one of “ongoing, pervasive surveillance.”102

Epp et al. argue that investigatory stops are an institutionalized practice: the prod- uct of an organizational decision to use traffic stops as a crime-fighting strategy. The practice is supported by the endorsement of law enforcement professional associa- tions, a department policy choice, and the training-provided officers. Investigatory stops are a classic example of institutionalized discrimination in our Discrimination– Disparity Continuum, which we discussed in Chapter 1 (pp. 28). It is not a matter of bad people (in this case, patrol officers) making bad decisions; it is a matter of an orga- nizational policy choice made for what are believed to be a good reason: fighting crime.

Pulled Over makes a powerful case for the argument that the impact of inves- tigatory traffic stops goes far beyond the criminal justice system. As the book’s subtitle indicates, stops “define race and citizenship.” A pattern of investigatory stops, which involve suspicion about you, and not just your driving, “convey[s] powerful messages about citizenship and equality.”103 The message is that you are not a full member of our society. The sense of constant surveillance and being the object of suspicion has a profound alienating impact. It is almost impossible to gauge the effect on peoples’ commitment to American society and its institutions, including a commitment to law-abiding behavior.

Legitimate and Illegitimate Use of Race and Ethnicity in

Policing: The PERF Model Policy

The racial profiling controversy focused attention on the question of when police officers can legitimately use race or ethnicity in a traffic stop, making an arrest,

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174 C H A P T E R 4

or taking some other police action. Obviously, if a robbery victim describes the robber as a tall Hispanic wearing a Los Angeles Dodgers baseball jersey and base- ball cap, the police are justified in looking for a Hispanic suspect dressed that way. What is not permissible is stopping all Hispanic men.

To guide police officers in the proper use of race and ethnicity in traffic stops and other police actions, the Police Executive Research Forum issued a model policy in its report, Racially Biased Policing: A Principled Response.104 (See Box 4.2.) It clearly states that race cannot be the sole or even the primary factor in determining whether to stop a citizen. Officers may, however, take race or ethnicity into account when it is information related to a “specific suspect or suspects” that links the suspect or suspects to a particular crime. This information, moreover, must come from a “trust- worthy” source. In practice, the police can use race, for example, when they have a credible report of a robbery committed by a young African-American male wearing a baseball cap and a red jacket. If they have a description of the suspect’s vehicle, they can stop similar vehicles. They cannot, however, stop all African-American men.

The PERF policy also recommends specific steps that police officers should take to help reduce the perception of bias. Officers should “be courteous and pro- fessional” in a traffic stop, “state the reason for the stop as soon as practical,” “answer any questions the citizen may have,” “provide name and badge number when requested,” and “apologize and/or explain if he or she determines that the reason- able suspicion was unfounded.” Procedural justice research (p. 175) has found that how the police act has a major impact on citizen attitudes toward police.105

Eliminating Bias in Traffic Enforcement

Several strategies have been developed to combat racial and ethnic bias in traf- fic stops. The traditional strategy of law enforcement organizations involves a combination of exhortation and training. Many police chief executives have issued statements that race discrimination is prohibited. Some have adopted the PERF Model Policy as their own department policy. Such statements are an import- ant function of leadership. Departments have also offered specific training on the proper use of race in traffic stops. These steps, while important, are just a first step in controlling officer actions on the street.

Another strategy, favored by civil rights groups, has been to demand that law enforcement agencies collect data on all traffic stops. Several states passed laws requir- ing data collection, and some departments collected data voluntarily. A federal data collection law has been pending in Congress for several years. But as we have discussed (pp. 171), traffic stop data are difficult to interpret in terms of whether a clear pattern of discrimination exists.106

A third strategy involves law enforcement agencies adopting policies and proce- dures governing how officers conduct traffic stops. We have already discussed this approach with respect to controlling the use of deadly force (pp. 156) and the use of excessive force (pp. 161). With respect to traffic stops, this approach requires departments to have specific policies on traffic enforcement and to require offi- cers to document each stop in an official report. Typically, reports include the reason for the stop, the race or ethnicity of the driver and any passengers, and

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175J U S T I C E O N T H E S T R E E T ?

the action taken by the officer (warning, ticket, search, etc.). The next section describes a success story in the use of this approach.

How Formal Policies Can Reduce Bias in Stops and Searches:

The Case of the Customs Bureau

The U.S. Customs Bureau represents a case study in how formal policies can effectively control racial bias. A 2000 report on the Customs Bureau found sig- nificant disparities in stops and searches of passengers entering the United States. African-American women were more likely to be searched than either white women or African-American males, even though they were less likely to be found possess- ing contraband. Customs agents had almost unlimited discretion to choose who to search, and the guidelines for identifying suspicious people were extremely vague.107

In response, the Customs Bureau developed a short and more specific list of indi- cators that could justify a stop and search and a requirement that agents obtain super- visors’ approval for particular kinds of searches. The result was a much lower number of searches and a higher “hit rate” (the percentage of searches that found contraband). These changes reduced the number of unnecessary searches where no contraband was found, most of which involved people of color. In short, the Customs Bureau was “working smarter”: instead of indiscriminate searches that are unproductive and offend many innocent people, searches were better targeted toward possible suspects.

B o x 4.2 Excerpts from the Police Executive Research Forum (PERF) Recommended Policy on Traffic Stops

A. Policing Impartially

1. Investigative detentions, traffic stops, arrests, searches, and property seizures by officers will be based on a standard of reasonable suspicion or probable cause in accordance with the Fourth Amendment of the U.S. Constitution. Officers must be able to articulate specific facts and circumstances that sup- port reasonable suspicion or probable cause for investigative detentions, traffic stops, arrests, nonconsensual searches, and property seizures.

Except as provided below, officers shall not consider race/ethnicity in establishing either reasonable suspicion or probable cause. Similarly, except as provided below, officers shall not consider race/ethnicity in deciding to initiate even those nonconsensual encounters that do not amount to legal detentions or to request consent to search.

Officers may take into account the reported race or ethnicity of a specific suspect or suspects based on trustworthy, locally relevant information that links a person or persons of a specific race/ethnicity to a particular unlawful incident(s). Race/ethnicity can never be used as the sole basis for probable cause or reasonable suspicion.

2. Except as provided above, race/ethnicity shall not be motivating factors in making law enforcement decisions.

SOURCE: Police Executive Research Forum, Racially Biased Policing: A Principled Response (Washington, DC: Author, 2001), pp. 51–53.

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176 C H A P T E R 4

T H E S T O P A N D F R I S K C O N T R O V E R S Y

One of the major police controversies of recent years involved the New York City program of aggressive stops and frisks of people on the street. In the end, a federal District Court found the program an unconstitutional violation of both the Fourth Amendment (illegal searches) and the Fourteenth Amendment (denial of equal pro- tection to people of color).108

Stops of people on the street, sometimes referred to as field interrogations (FIs), is a traditional police practice. The underlying crime-fighting strategy is that stops will both successfully catch criminal offenders and deter people in the area from committing crime. The Supreme Court in Terry v. Ohio held that a “stop” (which is less intrusive than an arrest) is constitutional if the officer has reasonable suspicion that a person is committing or about to commit a crime.109 The offi- cer has to have some specific and articulable reason to justify the suspicion. The Court also held that an officer may “frisk” (which is less intrusive than a search) a stopped person through a pat down of the person for the purpose of determining whether the person has a weapon. The purpose of a frisk is limited to ensuring officer safety and does not extend to a search for evidence (although a weapon or other incriminating evidence might be discovered).

In the New York City Police Department (NYPD) stop and frisk program, the number of stops increased from 97,296 in 2002 to 685,724 in 2011. Over half of those stopped (55.7 percent) were frisked. A strong pattern of racial and ethnic bias existed in the pattern of stops. Young African-American and Hispanic males between the ages 14 and 24 accounted for 41.6 percent of all stops in 2011, even though they represented only 4.7 percent of the city’s population. The frisks were extremely unproductive in terms of both officer safety and crime control. Only 1.9 percent of all frisks resulted in the finding of a weapon.110

P e rc

e n ta

g e

60

50

40

30

20

10

0

9.3

33.2

Percentage of People Stopped

Percentage of City

Population

22.9

52.9

Percentage of People Stopped

Percentage of City

Population

33.7 28.7

Percentage of People Stopped

Percentage of City

Population

F I G U R E 4.1 Persons Stopped by New York City Police versus Percentage of the City Population, by Race and Ethnicity Source: New York Civil Liberties Union, Stop and Frisk 2011: NYCLU Briefing (New York: NYCLU, 2012).

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177J U S T I C E O N T H E S T R E E T ?

Civil rights groups sued the NYPD, and in 2013, a U.S. District Court ruled the NYPD policy to be an unconstitutional violation of the Fourteenth Amend- ment guarantee of equal protection of the law, and the Fourth Amendment pro- tection against unreasonable searches and seizures. The court ordered the NYPD to revise its policy on stops and frisks, including an improved stop and frisk report form, and also to improve its training of officers on the law of stops and frisks.111

In short, the court-ordered reforms followed the policy approach we have dis- cussed with regard to deadly force, excessive force, and traffic stops.

The Problem of Stereotyping and Routine Police Work

A special problem regarding racial and ethnic bias in both traffic stops and stops and frisks involves stereotypes about categories of people. In his classic study of police practices, Jerome Skolnick argued stereotyping is inherent in police work. Officers are trained to be suspicious and look for criminal activity. As a result, they develop “a perceptual shorthand to identify certain kinds of people” as sus- pects, relying on visual “cues”: dress, demeanor, context, gender, and age. In short, they develop a “profile” of suspects. Thus, a young, low-income man in a wealthy neighborhood presents several cues that trigger an officer’s suspicion in a way that a middle-aged woman or even a young woman in the same context does not.112

In their study of traffic stops in the Kansas City metropolitan area, Epp et al. found that in investigatory stops (as opposed to traffic safety stops), the “most important influence” in making stops was not driving behavior but “how they look.” The “cues” included African Americans, men, and younger drivers. The “perceptual shorthand” (or profile), in short, involved a clear racial stereotype.113

There are two major ways police departments can curb the illegitimate use of racial stereotyping. The first is to adopt and enforce the PERF Model Policy on the proper use of race or ethnicity in policing (pp. 173). A second approach is to have all officers in the department trained on unconscious bias (see our discussion on pp. 160). The Fair and Impartial Policing project provides training for both rank and file officers and supervisors on how to recognize unconscious bias and how to curb it.114

V E R B A L D I S R E S P E C T A N D A B U S E

Verbal abuse by police officers is one of the more common criticisms civilians have about the police. Some words, such as racial, ethnic, or gender epithets, are clearly wrong. Other words, or a harsh tone of voice, are often perceived as rude or discourteous. Common vulgarities such as “asshole” or “scumbag” are not racially or ethnically specific, but they are insulting nonetheless.

In testimony to the President’s Task Force on 21st Century Policing, Samuel Walker argued that disrespectful language by police officers inflicts several harms. It is a psychological harm to the individual. It harms communities of color when there is a pattern of abusive language. It often provokes hostility that leads to a physical confrontation and officer use of force. And if allowed to continue, it undermines

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178 C H A P T E R 4

standards of professionalism in the department. The President’s Task Force on 21st Century Policing recommended that police departments should “adopt policies directing officers to speak to individuals with respect.”115

Verbal abuse is especially hard to control. The typical incident occurs on the street, often without any witnesses except other police officers or friends of the civilian, and it leaves no tangible evidence (unlike many uses of force). Conse- quently, most citizen complaints about verbal abuse become “swearing contests” in which the civilian claims verbal abuse and the officer denies it.

Police Officer Attitudes versus Institutional Practices

Are police officers prejudiced? Do prejudicial attitudes explain racial and dispar- ities in stops, uses of force, and arrests? What is the relationship between police officer attitudes and the behavior of police on the street? Or are those disparities explained by departmental policies and practices?

The impact of officer attitudes on use of force or arrests is extremely complex. As Douglas A. Smith, Nanette Graham, and Bonney Adams explain, “Attitudes are one thing and behavior is another.”116 Reiss found that officer attitudes did not reflect behavior. About 75 percent of the officers in his study made racially derogatory remarks in the presence of members of the observation team, yet the observations of police work did not find a clear pattern of race discrimination in arrests or uses of physical force.117

One factor limiting the influence of officer attitudes on their behavior is the bureaucratic nature of the criminal justice system. An arrest is reviewed first by the officer’s sergeant and then by other criminal justice officials: the prosecutor, defense attorney, and judge (and this typically involves more than one judge; one at the preliminary hearing and another at the trial). Sergeants can and do refuse to sign off on an arrest if the evidence is weak or there are other problems with the arrest. Judges can dismiss the case if the evidence is weak, or they can exclude evidence that was obtained in violation of the Fourth Amendment. In short, the other criminal justice officials can serve as a check on some of the most blatant forms of discrimination by individual officers.

Trying to explain racial and ethnic disparities in terms of officer attitudes, however, is looking in the wrong place for an explanation. As we explained, Epp et al. argue that patterns of racial injustice in traffic stops are rooted in police department crime control policies and practices that have the effect of targeting people of color. This represents a form of institutionalized discrimination, which we discussed in Chapter 1 (pp. 29).

P O L I C E C O R R U P T I O N A N D C O M M U N I T I E S O F C O L O R

Police corruption has historically had a special impact on minority communities. Most police corruption involves vice activities, such as drug trafficking, gambling, prostitution, or after-hours night clubs. Historically these activities have been confined to low-income and racial minority neighborhoods where residents lack the political clout to ensure full and fair law enforcement.118

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In the 1990s, the New York City Mollen Commission exposed a pattern of corruption and violence in the poorest African-American and Hispanic neigh- borhoods in which corruption was at the root of abusive and illegal behavior. Officers took bribes for protecting the drug trade, beat up drug dealers, broke into apartments, and stole drugs and money.119

Police corruption harms communities of color in several ways. First, allowing vice activities to flourish in these communities represents an unequal and discrimina- tory pattern of law enforcement. Second, the existence of open drug dealing or pros- titution degrades the quality of neighborhood life, and criminologists argue that this has criminogenic effects. Third, open drug dealing provides an opportunity for young people to become involved in drug use and dealing. Fourth, vice activities encour- age secondary crime—the patrons of prostitutes are robbed; after-hours clubs are the scenes of robbery and assault; and competing drug gangs have shoot-outs with rival gangs. Fifth, community awareness of police corruption damages the reputation of the police. In 2008, 16 percent of African Americans thought the ethical standards of the police were “low” or “very low,” compared with only 8 percent of whites.120

I M P R O V I N G P O L I C E – C O M M U N I T Y R E L AT I O N S

In response to the riots of the 1960s, most big-city police departments established special police–community relations (PCR) programs to resolve racial and ethnic tensions. Most of these programs involved a separate PCR unit staffed by officers who spent most of their time speaking to community groups or in schools.121

Other PCR programs involved neighborhood storefront offices where commu- nity residents could bring their concerns or complaints. Finally, many depart- ments developed “ride-along” programs, which allowed citizens to ride in a patrol car and view policing from an officer’s perspective.

The PCR programs of the 1960s were not effective, however. A Justice Department report concluded that they “tended to be marginal to the operations of the police department,” with little direct impact on patrol and criminal inves- tigations, the most important police operations.122 Public education and ride- along programs generally reached only people who already had favorable attitudes toward the police. By the 1970s, PCR units almost all disappeared.

In recent years, a number of other programs designed to improve relations with communities of color have been developed. Some community policing pro- grams, for example, have involved regular neighborhood meetings between the police and the local residents. Skogan and Hartnett found that in the Chicago community policing effort (known as CAPS), the neighborhood “beat meetings” had a positive impact on public attitudes. Both African Americans and whites who lived in community policing districts were less likely to believe that police use of excessive force was a problem; similarly they were less likely to believe that the police stopped too many people.123

The most important way to improve police–community relations is to reduce officer misconduct, which angers and alienates communities of color. As we have already discussed, the basic approach is to adopt policies that clearly spell out

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180 C H A P T E R 4

FOCUS ON AN ISSUE

Improving Police–Community Relations: Recommendations of the President’s Task Force on 21st Century Policing

The President’s Task Force on 21st Cen-

tury Policing made a number of recom-

mendations designed to build community

trust and confidence in the police. Depart-

ment’s should:

■ “adopt procedural justice as the guid-

ing principle for internal and external

policies and practices to guide their inter-

actions with the citizens they serve” (Rec-

ommendation 1.1);

■ “establish a culture of transparency

and accountability in order to build

public trust and legitimacy” (Recommen-

dation 1.3);

■ “acknowledge the role of policing in

past and present injustice and discrimina-

tion” (Recommendation 1.2);

■ “collaborate with community

members to develop policies and strat-

egies” for policing for communities

“disproportionately affected by crime”

(Recommendation 2.1);

■ establish “some form of civilian over-

sight” of the department (Recommenda-

tion 2.8);

■ officers “should be required to iden-

tify themselves” by name and rank “and

provide that information in writing to

individuals they have stopped” (Recom-

mendation 2.11);

■ police departments should direct offi-

cers “to speak to individuals with respect”

(Action Item 4.4.1);

■ police training programs should

include “content around recognizing and

confronting implicit bias and cultural

responsiveness” (Recommendation 5.9).

These are but a few of the many Task

Force recommendations directly related to

improving police–community relations.124

lawful and appropriate officer actions. To summarize that discussion, sound poli- cies should address the issues we have discussed: use of deadly force, use of phys- ical force, stops and frisks, and offensive language. The accompanying “Focus on an Issue” lists some of the recommendations of the President’s Task Force on 21st Century Policing for improving police–community relations.

C I T I Z E N C O M P L A I N T S A G A I N S T T H E P O L I C E

For decades, civil rights groups have argued that police departments do not seri- ously investigate citizen complaints against officers and do not discipline officers found guilty of misconduct. They have denounced internal police complaint pro- cedures as “white washes” and “cover-ups.”125 In fact, only a small percentage of complaints are successfully sustained in favor of complainants. Sustain rates across the country generally average between 10 and 15 percent of all complaints.126 All racial and ethnic groups express some dissatisfaction with police complaint pro- cedures. A survey in Washington, DC, found that 81.8 percent of Asians, 75.3 per- cent of African Americans, 65.6 percent of Hispanics, and 56.1 percent of whites think that police complaint investigations are biased.127

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Police departments have had a long practice of discouraging people from filing complaints and even threatening potential complainants. The 1991 Chris- topher Commission report found that officers at Los Angeles police stations dis- couraged people from filing complaints and sometimes even threatened them with arrest. Additionally, officers frequently did not complete the official com- plaint form after people had come into a police station to file a complaint, which meant that there was no official complaint and therefore no investigation.128

African Americans are disproportionately represented among people filing com- plaints against the police. In New York City, for example, African Americans made 56.3 percent of all complaints filed with the Civilian Complaint Review Board (CCRB) in 2014, even though they represent only 23 percent of the city’s population. The Hispanic complaint rate (25 percent of all complaints), on the other hand, was slightly lower than the percentage of Hispanics in the city’s population (27 percent).129

Several factors explain the low complaint rate among Hispanics. As we learned in our discussion of “Insecure Communities” in Chapter 1 (pp. 26), many Hispan- ics, even those who are legal residents, are reluctant to contact the police out of fear of triggering an investigation of the immigration status of themselves, family, or friends. Many recent immigrants are not fluent in English, and if a police depart- ment does not provide information and materials in Spanish, they will be hindered in filing a complaint. Many immigrants (including immigrants from all countries) do not always understand the American legal process and incorrectly think that you need a lawyer to file a police complaint.130 Some immigrants, moreover, come from countries where complaining against the police can result in serious retaliation, including death. Finally, as we learned in our discussion of “Insecure Communities” in Chapter 1, many Hispanics worry that filing a complaint will invite a police investigation of the immigration status of themselves, family members, or friends.131

One of the greatest barriers to sustaining citizen complaints has been the police officer “code of silence.” The traditional police subculture has emphasized group solidarity and a refusal to testify against fellow officers.132 The Mollen Commission investigating police corruption in New York City found “the per- vasiveness” of the code of silence “alarming.” The commission asked one officer, “Were you ever afraid that one of your fellow officers might turn you in?” He answered, “Never,” because “cops don’t tell on cops.”133

An alternative to traditional complaint investigation is to mediate complaints. Mediation is a voluntary process in which the complainant and the officer meet face-to-face (usually for about an hour) with a professional mediator supervis- ing the session. Mediation is not designed to determine whether the officer was guilty of misconduct but instead to foster a dialogue between a complainant and an officer and to build mutual understanding.134 The Denver Office of the Inde- pendent Monitor for the police department in 2014 successfully mediated 53 cit- izen complaints, making it the most successful mediation program in the country in terms of mediations per 1,000 officers.135

Mediation has special relevance to issues of race and ethnicity. Vivian Berger, an experienced mediator in New York City, argues that while many complaints are officially about discourtesy or disrespect, “they are really about race.” That is, the complaint is the result of misunderstandings and distrust that are rooted in

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182 C H A P T E R 4

racial or cultural differences. Mediation provides a structured process in which both sides have to listen to each other. In important ways, this process can help bridge the racial divide in American policing.136

Citizen Oversight of the Police

Because of widespread distrust of police internal affairs units, civil rights groups have demanded external or citizen oversight agencies. There are two models of oversight agencies: CCRBs and police auditors or inspectors general.137

Citizen review boards involve an agency independent of the police depart- ment and staffed by people who are not police officers. The assumption is that investigators who are not officers will be more independent and objective in investigating complaints. Despite strong opposition from police unions, civilian review has spread rapidly in recent years. According to the National Association for Citizen Oversight of Law Enforcement (NACOLE), there are now about 200 oversight agencies in the United States, covering almost all of the big cities and many smaller cities.138

The San Francisco Office of Citizen Complaints (OCC) and the New York City CCRB are among the few independent complaint procedures that have original jurisdiction over complaints and do the initial investigations. Most citizen review agencies, however, examine the complaint files that represent the inves- tigations done by the police department’s internal affairs unit. The Kansas City OCC is one example of this approach.139

No matter who does the investigation, citizen complaints are inherently dif- ficult to sustain in favor of the complainant. Typically, there are no independent witnesses and the complaint becomes a “swearing contest” between the com- plainant and the officer. And as we have already discussed, the police officer “code of silence” is a major barrier to the effective investigation of complaints. This is one major factor underlying the low sustain rates for citizen complaints.140

The police auditor or inspector general form of citizen oversight involves an independent agency that has the authority to investigate any and all issues within a police department. The purpose is to identify policies and practices that need correcting and then to issue public reports with recommendations for reform. Police auditors and inspectors general do not investigate individual citizen com- plaints, but they do audit the police department’s citizen complaint process. The Inspector General for the NYPD, which began operations only in 2014, has already issued major reports on the NYPD’s use of force policies and on lawsuits against the department.141

P O L I C E E M P L OY M E N T P R A C T I C E S

“Not Your Father’s Police Department”

As America changes, police departments have also changed their recruitment pat- terns (although not as fast as communities of color would like). As a result, today’s police departments are far more diverse in terms of race, ethnicity, and gender.

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183J U S T I C E O N T H E S T R E E T ?

Law Professor David Sklansky sums up the changes by characterizing today’s police department as “Not Your Father’s Police Department.”142

Discrimination on the basis of race and ethnicity in the employment of offi- cers of color has a long history. During the segregation era (1890s–1960s), south- ern cities did not hire any African-American officers. Even in northern cities, African-American officers were seriously underrepresented. The Kerner Com- mission found that in 1967, African Americans were 23 percent of the population in Oakland, California, but only 2.3 percent of the police officers. And the issue of Hispanic officers was not even discussed in those years.143 In Chapter 1 (pp. 31), we discussed the laws that prohibit employment discrimination on the basis of race or national origins: the 1964 Civil Rights Act; the 1972 Equal Employment Opportunity Act; and the federal regulations governing affirmative action.

The former Boston police commissioner Paul Evans recognized the need for a diverse workforce in terms of practical law enforcement. He stated, “I know that having African American and Hispanic and Vietnamese officers, people of different backgrounds and cultures who can conduct comfortable interviews with crime victims and can infiltrate crime rings that aren’t white—I know the need for that is just common sense.”144

Employment discrimination occurs in three different areas of policing: initial hiring, assignment to shifts and specialized units, and promotion to higher rank. Initial hiring is the most visible and easiest to control. Assignment to specialized units is much less visible to the public, but it has significant impact on an officer’s potential for promotion.

Trends in African-American and Hispanic Employment

Since the 1960s, significant progress has been made in the employment of police officers of color. In 1960, an estimated 3.6 percent of all sworn officers in the United States were African Americans. By 2013, the figure had increased to 12 percent, although that figure had not changed since 2007. Hispanics repre- sented 11.6 percent of all sworn officers 2013, up from 10.3 in 2007. Asian/Native Hawaiian/Pacific Islanders represented 2.4 percent, while Native American/ Alaska Native represented 0.6 percent of all officers.145

More important than national data on police employment is the racial and ethnic composition of local departments. The key issue is whether a department reflects the community it serves. The accreditation standards for law enforcement agencies require that “the agency has minority group and female employees in the sworn law enforcement ranks in approximate proportion to the makeup of the available work force in the law enforcement agency’s service community.”146

Few departments reach the ideal of having their officer workforce match the city population. In San Jose, California, Hispanics are 33 percent of the pop- ulation, but only 23 percent of the police officers. For African Americans, the figures are 3 percent of the population and 4 percent of the police officers. Asian Americans are 32 percent of the population but only 15 percent of the police officers. Non-Hispanic whites are 29 percent of the population and 54 percent of the police officers.147 In New York City in 2014, 34 percent of population

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184 C H A P T E R 4

was white, compared with 52 percent of the police officers; 29 percent of the population was Latino, compared with 26 percent of the officers; 23 percent of the population was African American, but only 16 percent of the police officers; finally 12 percent of the population was Asian, compared with only 6 percent of the officers.148

Employing more officers who can speak Spanish facilitates positive relations with the Hispanic community. On a 911 call, officers need to be able to com- municate effectively with the people involved. Hispanic officers who are fluent in Spanish will accomplish this goal, but a department can also recruit white non-Hispanic officers who speak Spanish and/or offer incentives to officers to learn Spanish. Full fluency in the language is not necessary, as officers can master a level of “street Spanish” related to police work. A study of police and Hispanic civilian interactions in a midwestern city found that although language barriers did not create any major crises (even violent incidents arising from an inability to communicate), they did create delays in the delivery of services and some frustra- tion on the part of officers. When handling a situation in which the civilians did not speak English, officers either found a family member or bystander who could translate or simply “muddled through” with “street Spanish.”149

With just a few exceptions, relatively few Native Americans and Asian Amer- icans are employed as sworn police officers in big-city departments. In tribal law enforcement agencies, Native Americans are about 56 percent of all sworn offi- cers.150 And in cities with large Asian American populations, there are often more Asian American officers. In New York City, for example, Asian Americans were 6 percent of all officers in 2014.151

Discrimination in Assignment

Discrimination also occurs in the assignment of police officers. In the South during the segregation era, African-American officers were not assigned to white neighborhoods and were not permitted to arrest whites.152 Many northern cities also confined minority officers to minority neighborhoods. Reiss found that some police departments assigned their incompetent white officers to racial minority neighborhoods.153 Seniority rules that govern the assignment in most depart- ments today make blatant discrimination difficult. Officers with the most senior- ity, regardless of race, ethnicity, or gender, have first choice for the most desirable assignments. Seniority rules can have an indirect race effect, however.

A particular problem today involves discrimination in assignment to special units, such as criminal investigation, the gang unit or the canine unit. In most departments, assignments to special units are discretionary and are not governed by seniority rules. Special units involve desirable types of police work (especially criminal investigation) and because they are important steps toward promotion to higher rank. The Special Counsel to the Los Angeles County Sheriff Depart- ment identified two categories of desirable positions. “Coveted” positions were those that officers sought because they are interesting, high paying, or conve- nient (in terms of work schedule): the Narcotics Bureau and precinct station detective assignments. “High-profile” positions, however, are those likely to lead

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185J U S T I C E O N T H E S T R E E T ?

to promotion and career advancement. These include operations deputy, the Recruitment Training Bureau, and field training officer positions.154

An investigative study by the New York Times found that African-American male officers were seriously underrepresented in the elite units of the NYPD. The 124-officer mounted patrol unit had only three African Americans, and there were only two in the 159-officer harbor patrol unit. It is well understood in the NYPD that selection for an elite unit depends on having a friend who will sponsor you—a “hook” or a “rabbi” in the slang of the NYPD. With few people in high command and in elite units, African-American officers often find their career paths blocked in those areas.155

Does the Composition of a Police Department Make

a Difference?

Does the racial or ethnic composition of a police department make a difference? The assumption behind having a diverse police workforce is that it will improve police–community relations. But does it?

There has been little research on this subject. One study, however, found positive changes in the attitudes of police officers over 15 years as a result of a consent decree requiring the LAPD to hire both more officers of color and more women. The study surveyed officers in two waves: 1992 and 2007, asking offi- cers whether “in your opinion, closer personal contact between police and the community will”: “improve citizen’s opinions of police officers”; “make people more willing to help police stop crime”; and make officers “more sensitive” to the community. It also asked three questions regarding a possible negative effect (e.g., “give citizens two much control over officers”).156

In the initial 1992 survey, African-American and Hispanic officers were more positive about the effect of police–community contact than were whites. The atti- tudes of all officers became more favorable by the time of the 2007 survey. Partic- ularly significant, the attitudes of white officers rose at a higher rate than they did for African-American and Hispanic officers (which did rise). The authors of the study argue that this “unexpected finding” suggests that the introduction of more African-American and Hispanic officers into a department “served to ‘unfreeze’ and change many of the preexisting, less community-oriented attitudes” held by white officers. In short, diversifying the workforce can help to change internal culture of a police department.

Do Officers of Color Perform Better?

Civil rights activists have traditionally argued that police departments should employ more African-American and Hispanic officers because they will be bet- ter able to relate to communities of color and be less likely to use deadly force or physical force. Is there any truth to this argument? The evidence on police work clearly indicates that race or ethnicity is not a factor in how police officers perform. Fyfe’s research on the use of deadly force found that African- American

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officers were neither more nor less likely to use deadly force. Being assigned to a high-crime precinct was the most important predictor of officers’ use of fire- arm.157 Albert Reiss found that white and African-American officers used exces- sive physical force at about the same rate, while Donald Black, using the same data, found no significant differences in the arrest patterns of white and African-Amer- ican officers.158 It is also worth noting that the performance of male and female officers on these issues does not differ in any significant ways. (The one exception involves officers with repeated instances of brutality or other forms of serious misconduct; in every study, these officers are all male.)159 Finally, the data on cit- izen complaints in both San Jose, California, and New York City indicate that officers of different races and ethnicities receive citizen complaints in almost the same proportion as they exist in their departments.160 In short, race, ethnicity, and gender are not strong factors in police officer performance.

Some community activists have argued that departments should assign more African-American officers to African-American neighborhoods and more His- panic officers to Hispanic neighborhood. The problem with this idea is that it would “ghettoize” officers of color and deny them the variety of assignments and experience that helps lead to promotion. With respect to the Hispanic commu- nity, as we mentioned earlier, departments can recruit Hispanic or non-Hispanic officers who are fluent in Spanish, or offer incentives for officers, regardless of their race or ethnicity, to achieve a level of fluency that will allow them to do police work more effectively.

C O N C L U S I O N

Is there justice on the street? Is American policing free of racial and/or ethnic bias? The evidence we have examined in this chapter indicates that patterns of racial and ethnic disparities do exist, along with other indicators of patterns of injustice. They include:

■ African Americans hold significantly less favorable attitudes toward the police compared with whites, while the attitudes of Hispanics are less favor- able than whites but not to the extent that African-American attitudes are;

■ A three-to-one disparity in African Americans shot and killed by the police, compared with whites;

■ Problematic relations between the police and the Hispanic community, in part because of significant immigrant populations that make many Hispanics reluctant to call the police to report crimes or seek police assistance;

■ A pattern of police using force against young African-American men more often than against whites or Hispanics;

■ Inadequate police protection on Native American reservations, with the result that many Native Americans do not receive protection against crimes of violence;

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■ African-American men are more often the subjects of intrusive investigatory traffic stops than are white men, and with that pattern of stops causing deep resentment against the police and the American society as a whole.

■ The New York City stop and frisk program resulted in blatant racial and ethnic disparities in persons stopped by the police until a federal court declared the program unconstitutional.

We have also found many examples of where sound policies and practices can significantly reduce racial and ethnic disparities.

■ The defense of life police on the use of deadly force has reduced the dispar- ities in the fatal shooting of African Americans by police, particularly in the shooting of unarmed men;

■ A strict policy governing stops and searches reduced racial and ethnic dis- parities by U.S. Customs agents;

■ The Police Executive Research Forum Model Policy on the use of race and ethnicity in police work provides specific guidelines to reduce stops and other police actions based solely on the race or ethnicity of the person;

■ The Fair and Impartial Policing Project provides training for rank and file officers and supervisors on how to identify and control police actions based on unconscious racial or ethnic stereotypes;

■ The policy of de-escalation holds great promise in reducing unnecessary police use of force;

■ The President’s Task Force on 21st Century Policing made many recom- mendations for improving police–community relations.

In the end, many problems exist with respect to relations between the police and the communities of color. At the same time, however, a number of effective policies have been developed to address those problems and improve the quality and fairness of policing. Much more, however, remains to be done.

D I S C U S S I O N Q U E S T I O N S

1. What is meant by a contextual approach to examining policing, race, and ethnicity?

2. How is policing in Native American communities different from policing in the rest of the United States?

3. When does police use of force become “excessive” or “unjustified”? Give a definition of excessive force.

4. Are there any significant differences between how Hispanics and African Americans interact with the police? Explain.

5. Is there racial or ethnic discrimination in arrests? What is the evidence on this question?

6. Discuss how traffic stops can be more or less intrusive, and how the differ- ence affects communities of color.

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7. This book argues that some significant progress has been made in con- trolling police use of deadly force. What is that evidence? Do you find it persuasive?

8. This book also argues that some progress has been made in reducing racial profiling. What evidence supports that view? Are you persuaded? Why or why not?

9. Substantial progress has been made with regard to the employment of peo- ple of color in policing. Does that make a difference in actual police opera- tions on the street? In what ways? Explain.

N O T E S

1. U.S. Department of Justice, Civil Rights Division, Investigation of the Ferguson Police Department (2015). https://www.justice.gov/sites/default/files/opa/press-releases/ attachments/2015/03/04/ferguson_police_department_report.pdf.

2. President’s Task Force Report on 21st Century Policing, Final Report (Washington, DC: Department of Justice, 2015), p. 1. http://www.cops.usdoj.gov/pdf/taskforce/ taskforce_finalreport.pdf.

3. Samuel Walker, Popular Justice: A History of American Criminal Justice, 2nd ed. (New York: Oxford University Press, 1998), pp. 148–49, 193–99.

4. David H. Bayley and Harold Mendelsohn, Minorities and the Police: Confrontation in America (New York: Free Press, 1969), p. 109.

5. Bureau of Justice Statistics. Criminal Victimization, 2014 (Washington, DC: Depart- ment of Justice, 2015). http://www.bjs.gov/content/pub/pdf/cv14.pdf.

6. Ibid.

7. Sandra Lee Browning, Francis T. Cullen, Liqun Cao, Renee Kopache, and Thomas J. Stevenson, “Race and Getting Hassled by the Police: A Research Note,” Police Studies 17, no. 1 (1994), pp. 1–11.

8. David M. Kennedy, Don’t Shoot: One Man, A Street Fellowship, and the End of Violence in Inner-City America (New York: Bloomsbury, 2012).

9. Alfredo Mirandé, Gringo Justice (Notre Dame, IN: University of Notre Dame Press, 1987).

10. Eduardo Obregon Pagan, Murder at the Sleepy Lagoon: Zoot Suits, Race, and Riots in Wartime L.A. (Chapel Hill: University of North Carolina Press, 2003).

11. Cynthia Perez McCluskey, Policing the Latino Community (East Lansing, MI: Julian Samora Research Institute, 1998), p. 3, 38.

12. Ronald Weitzer, “The Puzzling Neglect of Hispanic Americans in Research on Police-Citizen Relations,” Ethnic and Racial Studies 37, no. 11 (2014), pp. 1995–2013.

13. U.S. Bureau of the Census, Facts for Figures: American Indian and Alaska Native Heritage Month, November 2011 (Washington, DC: U. S. Bureau of the Census, 2011). https:// www.census.gov/newsroom/releases/archives/facts_for_features_special_editions/ cb11-ff22.html.

14. Eileen M. Luna, “The Growth and Development of Tribal Police,” Journal of Contemporary Criminal Justice 14, no. 1 (1998), pp. 75–86. Stewart Wakeling, Miriam Jorgensen, Susan Michaelson, and Manley Begay, Policing on American

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Indian Reservations: A Report to the National Institute of Justice (Washington, DC: U.S. Department of Justice, 2001), p. 7.

15. Wakeling et al., Policing on American Indian Reservations.

16. Wakeling et al., Policing on American Indian Reservations. Clarice Fineman, “Police Prob- lems on the Navajo Reservation,” Police Studies 9 (Winter 1986), pp. 194–198. Ronet Bachman, Heather Zaykowski, Rachel Kallmyer, Margarita Poteyeva, and Christina Lanier, Violence against American Indian and Alaska Native Women and the Criminal Justice Response: What Is Known (Washington, DC: Department of Justice, 2008).

17. Pew Research Center, The Rise of Asian Americans (Washington, DC: Pew Research Center, 2013). Pew Research Center, Asian Americans: A Mosaic of Faiths (Washing- ton, DC: Pew Research Center, 2012).

18. Bureau of Justice Statistics, Asian, Native Hawaiian, and Pacific Islander Victims of Crime (Washington, DC: Department of Justice, 2009).

19. Leadership Conference on Civil Rights, Confronting the New Faces of Hate: Hate Crimes in America 2009, Hate Crimes against Arab Americans, Muslims, and Sikhs (Washington, DC: Leadership Conference on Civil Rights Education Fund, 2009). http://www.civilrights.org/publications/hatecrimes/arab-americans.html.

20. Ibid.

21. Pew Research Center, On Views of Race and Inequality, Blacks and Whites Are Worlds Apart (Washington, DC: Pew Research Center, 2016).

22. Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics, Table 2.12 2012. Online edition: http://www.albany.edu/sourcebook/. National Advisory Commis- sion on Civil Disorders, Report (New York: Bantam Books, 1968), p. 256.

23. Charles R. Epp, Steven Maynard-Moody, Donald Haider-Markel, Pulled Over: How Police Stops Define Race and Citizenship (Chicago: University of Chicago Press, 2014).

24. Police Foundation, Metropolitan Police Department, Biased Policing Project, Final Report (Washington, DC: The Police Foundation, 2004), p. 67.

25. Ronald Weitzer, “Racialized Policing: Residents’ Perceptions in Three Neighbor- hoods,” Law and Society Review 34, no. 1 (2000), pp. 129–155. See also Ronald Weitzer and Steven Tuch, Race and Policing in America: Conflict and Reform (New York: Cambridge University Press, 2006).

26. Ronald Weitzer, “Incidents of Police Misconduct and Public Opinion,” Journal of Criminal Justice 30, no. 5 (2002), pp. 397–408. Weitzer and Tuch, Race and Policing in America: Conflict and Reform.

27. Craig Futterman, Chaclyn Hunt, and Jamie Kalven, “They Have All the Power,” Youth/Police Encounters on Chicago’s South Side (Chicago: University of Chicago Law Forum, forthcoming 2016), p. 6. Available at http://papers.ssrn.com/sol3/papers. cfm?abstract_id=2754761.

28. Pew Hispanic Center, Between Two Worlds: How Young Latinos Come of Age in America (Los Angeles: Pew Hispanic Center, 2009), Figure 9.7, p. 86. http://pewhispanic.org/.

29. A. Allen Lind and Tom R. Tyler, The Social Psychology of Procedural Justice (New York: Plenum, 1988).

30. Wesley G. Skogan, “Citizen Satisfaction with Police Encounters,” Police Quarterly 8 (September 2005), pp. 298–321.

31. Bureau of Justice Statistics, Police Behavior during Traffic and Street Stops, 2011 (Washington, DC: Department of Justice, 2015), Table 4.

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32. President’s Task Force on 21st Century Policing, Final Report, Recommendation 1.1, p. 26.

33. William A. Geller and Michael S. Scott, Deadly Force: What We Know (Washington, DC: Police Executive Research Forum, 1992).

34. James J. Fyfe, “Reducing the Use of Deadly Force: The New York Experience,” in Police Use of Deadly Force (Washington, DC: Department of Justice, 1978), p. 29.

35. Federal Bureau of Investigation, Crime in the United States, 2014, Expanded Homi- cide Data, Table 14. https://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2014/ crime-in-the-u.s.-2014/offenses-known-to-law-enforcement/expanded-offense.

36. “Final Tally: Police Shot and Killed 986 People in 2015,” Washington Post, January 6, 2016. Federal Bureau of Investigation, Crime in the United States, 2014, Expanded Homicide Data, Table 14. https://www.fbi.gov/about-us/cjis/ucr/crime-in-the- u.s/2014/crime-in-the-u.s.-2014/tables/expanded-homicide-data/expanded_ homicide_data_table_14_justifiable_homicide_by_weapon_law_enforcement_ 2010-2014.xls.

37. The Guardian, “The Counted.” https://www.theguardian.com/us-news/2015/ dec/31/the-counted-police-killings-2015-young-black-men.

38. See the data on mortality from different causes in the Statistical Abstract published by the U.S. Census Bureau. https://www.census.gov/library/publications/2011/ compendia/statab/131ed.html.

39. Geller and Scott, Deadly Force: What We Know, Figure 30, p. 111. Bureau of Justice Statistics, Policing and Homicide, 1976–98: Justifiable Homicide by Police, Police Officers Murdered by Felons (Washington, DC: U.S. Government Printing Office, 2001).

40. William A. Geller and Kevin J. Karales, Split-Second Decisions (Chicago: Chicago Law Enforcement Study Group, 1981), p. 119.

41. Jerry R. Sparger and David J. Giacopassi, “Memphis Revisited: A Reexamination of Police Shootings after the Garner Decision,” Justice Quarterly 9 (June 1992), pp. 211–225.

42. See the materials on the Fair and Impartial Policing website: http://www.fairimpartialpolicing.com/.

43. The Mapping Police Violence Project website: http://mappingpoliceviolence.org/.

44. Tennessee v. Garner, 471 U.S. 1 (1985).

45. Ibid.

46. James J. Fyfe, “Administrative Interventions on Police Shooting Discretion,” Journal of Criminal Justice 7 (Winter 1979), pp. 309–323.

47. The actual extent of the undercount in previous decades has not been researched. The argument for a greater undercount in past decades is based on the assumption that police departments have become more professional, in particular with regard to data collection, and especially with regard to deadly force record-keeping. On the role of the NYPD deadly force policy as a model for administrative rulemaking to control other critical police actions, see Samuel Walker and Carol Archbold, The New World of Police Accountability, 2nd ed. (Thousand Oaks, CA: Sage, 2014), Ch. 3.

48. Lorie Fridell, quoted in Police Executive Research Forum, Re-Engineering Training on Police Use of Force (Washington, DC: Police Executive Research Forum, 2015), p. 38.

49. Joshua Correll, Bernadette Park, Charles M. Judd, Bernd Wittenbrink, Melody S. Sadler, and Tracie Keesee, “Across the Thin Blue Line: Police Officers and Racial

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Bias in the Decision to Shoot,” Journal of Personality and Social Psychology 92, no. 6 (2007), pp. 1006–1023. The article and other publications on unconscious bias are available on the Fair and Impartial Policing website.

50. Karletta M. White, “The Salience of Skin Tone: Effects on the Exercise of Police Enforcement Authority,” Ethnic and Racial Studies 38, no. 6 (2015), pp. 993–1010.

51 Commission to Investigate Allegations of Police Corruption [Mollen Commission], Commission Report (New York: City of New York, 1994), p. 48.

52. Ronald Weitzer and Steven A. Tuch, “Race and Perceptions of Police Misconduct,” Social Problems 51, no. 4 (2004), pp. 305–325. Weitzer and Tuch, Race and Policing in America: Conflict and Reform.

53. Futterman et al., “They Have All the Power:” Youth/Police Encounterson Chicago’s South Side, p. 10.

54. Kenneth Adams, “Measuring the Prevalence of Police Abuse of Force,” in And Justice for All, William A. Geller and Hans Toch, eds. (Washington, DC: Police Executive Research Forum, 1995), pp. 61–98, 78. Robert E. Worden, “The ‘Causes’ of Police Brutality: The- ory and Evidence on Police Use of Force,” in And Justice for All, Geller and Toch, eds.

55. Christy Lopez, Disorderly (Mis)Conduct: The Problem with ‘Contempt of Cop’ Arrests (Washington, DC: American Constitution Society, 2010).

56. Donald Black, “The Social Organization of Arrest,” in The Manners and Customs of the Police, Donald Black, ed. (New York: Academic Press, 1980), pp. 85–108.

57. Albert J. Reiss, The Police and the Public (New Haven: Yale University Press, 1971), p. 151.

58. Charles R. Epp, Steven Maynard-Moody, and Donald Haider-Markel, Pulled Over: How Police Stops Define Race and Citizenship (Chicago: University of Chicago Press, 2014).

59. Kennedy, Don’t Shoot, p. 139.

60. Bureau of Justice Statistics, Police Use of Nonfatal Force, 2002-11 (Washington, DC: Department of Justice, 2015), Figure 1. http://www.bjs.gov/content/pub/pdf/ punf0211.pdf.

61. Reiss, The Police and the Public, pp. 147-155. Worden, “The ‘Causes’ of Police Brutality: Theory and Evidence on Police Use of Force,” in And Justice For All, William A. Geller and Hans Toch, eds. (Washington, DC: The Police Foundation, 1993), pp. 31-59.

62. New York City, Civilian Complaint Review Board, Status Report January–December 2009, Statistical Appendices (New York: CCRB, 2010), Table 9. http://www.nyc.gov/ html/ccrb/. San Jose Independent Police Auditor, 2004 Year End Report (San Jose, CA: Independent Police Auditor, 2005). http://www.sanjoseca.gov/ipa.

63. David Weisburd, Rosann Greenspan, Edwin E. Hamilton, Kellie A. Bryant, and Hubert Williams, The Abuse of Police Authority: A National Study of Police Officers’ Atti- tudes (Washington, DC: Police Foundation, 2001).

64. U.S. Department of Justice, Civil Rights Division, Investigation of the Cleveland Division of Police (2014), pp. 5, 29. https://www.justice.gov/sites/default/files/opa/ press-releases/attachments/2014/12/04/cleveland_division_of_police_findings_ letter.pdf.

65. Christopher Stone, Todd Fogelsong, and Christine M. Cole, Policing Los Angeles Under a Consent Decree: The Dynamics of Change at the LAPD (Cambridge: Harvard University, 2009). On the role of consent decrees in effecting police reforms, see Walker and Archbold, The New World of Police Accountability, 2nd ed.

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66. Deputy Chief Danielle Outlaw, quoted in Police Executive Research Forum, Re- Engineering Police Training on Use of Force. Data on the Oakland Police Department and the Settlement Agreement that ordered the reforms related to use of force are available on the department’s website: http://www2.oaklandnet.com/ Government/o/OPD/index.htm.

67. Seattle Police Department, Seattle Police Manual, Section 8.000, Use of Force Policy. http://www.seattle.gov/police/compliance/finished_policy/Use_of_Force_ Policy_11_27_2013.pdf.

68. Police Executive Research Forum, An Integrated Approach to De-Escalation and Min- imizing Use of Force (Washington, DC: Police Executive Research Forum, 2012). http://www.policeforum.org/assets/docs/Critical_Issues_Series/an%20inte- grated%20approach%20to%20de-escalation%20and%20minimizing%20use%20 of%20force%202012.pdf.

69. President’s Task Force on 21st Century Policing, Final Report, Action Item 2.2.1, p. 20.

70. Federal Bureau of Investigation, Crime in the United States, 2014, Table 43, Arrests by Race, 2014. https://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2014/ crime-in-the-u.s.-2014/tables/table-43.

71. Black, “The Social Organization of Arrest.”

72. Tammy Rinehart Kochel, David B. Wilson, and Stephen D. Mastrofski, “Effects of Sus- pect Race on Officers’ Arrest Decisions,” Criminology 49, no. 2 (2011), pp. 473–511.

73. Futterman et al., “They Have All the Power:” Youth/Police Encounters on Chicago’s South Side, p. 6.

74. Kimberly Kempf Leonard, “Minority Youths and Juvenile Justice: Disproportionate Minority Contact after Nearly 20 Years of Reform Efforts,” Youth Violence and Juve- nile Justice 5 (January 2007), p. 80.

75. The Sentencing Project, Report of the Sentencing Project to the United Nations Human Rights Committee (Washington, DC: The Sentencing Project, August 2013). http:// sentencingproject.org/doc/publications/rd_ICCPR%20Race%20and%20Justice%20 Shadow%20Report.pdf. See also the earlier estimate by Robert Tillman, “The Size of the Criminal Population: The Prevalence and Incidence of Adult Arrest,” Crimi- nology 25 (August 1987), pp. 561–579.

76. President’s Task Force on 21st Century Policing, Final Report, Recommendation 1.6, p. 16.

77. Black, “The Social Organization of Arrest.”

78. David Kennedy, Don’t Shoot.

79. U.S. Department of Justice, Investigation of the Ferguson Police Department (Washington, DC: Department of Justice, 2015). https://www.justice.gov/sites/default/files/crt/ legacy/2015/03/04/ferguson_findings_3-4-15.pdf.

80. Michelle Alexander, The New Jim Crow: Mass Incarceration in the Era of Colorblindness (New York: The New Press, 2012).

81. American Civil Liberties Union, The War on Marijuana in Black and White (New York: ACLU, 2013).

82. Richard A. Miech, Lloyd D. Johnston, Patrick O’Malley, Jerald Bachman, and John E. Schulenberg, National Survey Results on Drug Use 1975-2014, Vol. 1 (Ann Arbor: Monitoring the Future, 2014), Table 4-6.

83. American Civil Liberties Union, The War on Marijuana in Black and White.

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84. Kempf-Leonard, “Minority Youth and Juvenile Justice.”

85. Bureau of Justice Statistics, Survey of State Criminal History Information Systems, 2008 (Washington, DC: Department of Justice, 2009).

86. Ojmarrh Mitchell and Michael S. Caudy, “Examining Racial Disparities in Drug Arrests,” Justice Quarterly 32 (April 2015), pp. 288–313 (quote on p. 310).

87. David Harris, Profiles in Injustice: Why Racial Profiling Won’t Work (New York: New Press, 2001). ACLU, Driving While Black (New York: ACLU, 1999).

88. Information about the Chicago gang ordinance is available at http://www. gangresearch.net/GangResearch/Policy/law.html.

89. Charles M. Katz, Vincent J. Webb, and David R. Schaefer, “The Validity of Police Intelligence Gang Lists: Examining Differences in Delinquency between Docu- mented Gang Members and Nondocumented Delinquent Youth,” Police Quarterly 3 (December 2000), pp. 413–437.

90. October 2014 Reason-Rupe Poll (October 9, 2014). http://reason.com/poll/2014/10/14/ poll-70-of-americans-oppose-racial-profi. 2004 Poll Data: Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics, Table 2.26, “Respondents Attitudes toward Racial Profiling,” 2004. http://www.albany.edu/sourcebook/pdf/t226.pdf.

91. ACLU, Driving While Black.

92. Albert J. Meehan and Michael J. Ponder, “Race and Place: The Ecology of Racial Profil- ing African American Motorists,” Justice Quarterly 19 (September 2002), pp. 399–430.

93. Epp, Maynard-Moody, and Haider-Markel, Pulled Over: How Police Stops Define Race and Citizenship, p. 71.

94. Floyd et al., v. City of New York (2013). Data and other information about the case, including the court’s decision, are available on the website of the Center for Con- stitutional Rights. www.ccrjustice.org.

95. Lynn Langton and Matthew Durose, Police Behavior during Traffic and Street Stops, 2011 (Washington, DC: Department of Justice, 2013). http://www.bjs.gov/ content/pub/pdf/pbtss11.pdf.

96. Lorie A. Fridell, By the Numbers: A Guide for Analyzing Race Data from Vehicle Stops (Washington, DC: Police Executive Research Forum, 2004).

97. L. D. Johnston, J. G. Bachman, and P. M. O’Malley, Monitoring the Future: Question- naire Responses from the Nation’s High School Seniors, 2009 (Ann Arbor, MI: Institute for Social Research, 2009), Question C27, p. 26.

98. National Highway Traffic Safety Administration Alcohol and Highway Safety, Spe- cial Report on Race/Ethnicity and Impaired Driving (Washington, DC: Department of Transportation, 2010), pp. 15, 16, 29. http://www.nhtsa.gov/About+NHTSA/ Traffic+Techs/current/Racial+And+Ethnic+Differences+In+Drinking+And+ Driving+Attitudes+And+Behaviors.

99. Epp, Maynard-Moody, and Haider-Markel, Pulled Over: How Police Stops Define Race and Citizenship, p. 71

100. Ibid., pp. 7–8.

101. Ibid., pp. 66–67.

102. Ibid., p. 135.

103. Ibid., p. 2.

104. Police Executive Research Forum, Racially Biased Policing (Washington, DC: Police Executive Research Forum, 2001), pp. 51–53.

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105. Skogan, “Citizen Satisfaction with Police Encounters.”

106. Lorie A. Fridell, By the Numbers: A Guide for Analyzing Race Data from Vehicle Stops (Washington, DC: Police Executive Research Forum, 2004).

107. General Accounting Office, U.S. Customs Service: Better Targeting of Airline Passengers for Personal Searches Could Produce Better Results, GAO/GGD-00-38 (March 2000).

108. Floyd et al., v. City of New York.

109. Terry v. Ohio, 392 U.S. 1 (1968).

110. New York Civil Liberties Union, Stop and Frisk 2011. NYCLU Briefing (New York: NYCLU, 2012). www.nyclu.org. Additional details about the case are available at www.ccrjustice.org.

111. Floyd et al., v. City of New York (2013).

112. Jerome Skolnick, Justice without Trial: Law Enforcement in a Democratic Society, 3rd ed. (New York: Macmillan, 1994), pp. 44–47.

113. Epp, Maynard-Moody, and Haider-Markel, Pulled Over: How Police Stops Define Race and Citizenship, p. 64.

114. Fair and Impartial Policing Project website: http://www.fairimpartialpolicing.com/.

115. Samuel Walker, Testimony, President’s Task Force on 21st Century Policing, Janu- ary 6, 2015. President’s Task Force on 21st Century Policing, Final Report, Recom- mendation 4.4.1, p. 45.

116. Douglas A. Smith, Nanette Graham, and Bonney Adams, “Minorities and the Police: Attitudinal and Behavioral Questions,” in Race and Criminal Justice, Michael J. Lynch and E. Britt Patterson, eds. (New York: Harrow & Heston, 1991), p. 31.

117. Reiss, The Police and the Public, p. 147.

118. Herman Goldstein, Police Corruption (Washington, DC: The Police Foundation, 1975).

119. Commission to Investigate Allegations of Police Corruption [Mollen Commission], Commission Report.

120. Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics, online edition, Table 2.21, 2008. http://www.albany.edu/sourcebook/pdf/t2212008.pdf.

121. Fred A. Klyman and Joanna Kruckenberg, “A National Survey of Police–Community Relations Units,” Journal of Police Science and Administration 7 (March 1979), p. 74.

122. U.S. Department of Justice, Improving Police/Community Relations (Washington, DC: Department of Justice, 1973).

123. Wesley G. Skogan and Susan M. Hartnett, Community Policing: Chicago Style (New York: Oxford University Press, 1997), p. 217.

124. President’s Task Force on 21st Century Policing, Final Report. http://www.cops. usdoj.gov/pdf/taskforce/taskforce_finalreport.pdf.

125. Human Rights Watch, Shielded from Justice: Police Brutality and Accountability in the United States (New York: Human Rights Watch, 1998), pp. 63–65.

126. Samuel Walker, Police Accountability: The Role of Citizen Oversight (Belmont: Wadsworth, 2001), pp. 119–145.

127. Police Foundation, Metropolitan Police Department, Biased Policing Project: Final Report (Washington, DC: Police Foundation, 2004).

128. Christopher Commission, Report of the Independent Commission on the Los Angeles Police Department (Los Angeles: Christopher Commission, 1991). The history of

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problems with police citizen complaint procedures is examined in Walker, Police Accountability: The Role of Citizen Oversight, pp. 19-49.

129. New York City Civilian Complaint Review Board, 2014 Annual Report (New York City: CCRB, 2015), Appendix A, CCRB Complaint Data 2014, Table 8. http:// www.nyc.gov/html/ccrb/downloads/pdf/2014-annual-report-stats-appendix.pdf.

130. Cecilia Menjivar and Cynthia L. Bejarano, “Latino Immigrants’ Perceptions of Crime and Police Authorities in the United States: A Case Study from the Phoenix Metropolitan Area,” Ethnic and Racial Studies 27 (January 2004), pp. 120–148.

131. Nik Theodore, Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement (Chicago: University of Illinois at Chicago, 2013). https://www.policylink. org/sites/default/files/INSECURE_COMMUNITIES_REPORT_FINAL.PDF.

132. William A. Westley, Violence and the Police: A Sociological Study of Law, Custom, and Morality (Cambridge, MA: MIT Press, 1970).

133. Commission to Investigate Allegations of Police Corruption [Mollen Commission], Commission Report, p. 53.

134. Samuel Walker, Carol Archbold, and Leigh Herbst, Mediating Citizen Complaints Against Police Officers: A Guide for Police and Community Leaders (Washington, DC: Department of Justice, 2002).

135. Denver Office of the Independent Monitor, 2014 Annual Report (Denver: Office of the Independent Monitor, 2015), pp. 55–56. https://www.denvergov.org/content/ dam/denvergov/Portals/374/documents/2014_Annual_Report%20Final.pdf.

136. Walker, Archbold, and Herbst, Mediating Citizen Complaints against Police Officers: A Guide for Police and Community Leaders.

137. The history of citizen oversight of the police is in Walker, Police Accountability: The Role of Citizen Oversight, Ch. 2, pp. 19-49.

138. The website of the National Association for Citizen Oversight of the Police: www. nacole.org.

139. Walker, Police Accountability: The Role of Citizen Oversight.

140. Walker, Police Accountability: The Role of Citizen Oversight, Ch. 5, pp. 119–145.

141. Police auditors and inspectors general are examined in Walker, Police Accountability. The website of the New York City Inspector General for the police department is: http://www.nyc.gov/html/doi/html/inspector/inspector-general.shtml.

142. David Alan Sklansky, “Not Your Father’s Police Department: Making Sense of the New Demographics of Law Enforcement,” Journal of Criminal Law and Criminology 96 (Spring 2006), pp. 1209–1243.

143. National Advisory Commission on Civil Disorders, Report, p. 321.

144. “From Court Order to Reality: A Diverse Boston Police Force,” New York Times (April 4, 2001), p. 1.

145. Bureau of Justice Statistics, Local Police Departments, 2013: Personnel, Policies, and Prac- tices (Washington, DC: Department of Justice, 2015), Table 5. http://www.bjs.gov/ content/pub/pdf/lpd13ppp.pdf.

146. Commission on Accreditation for Law Enforcement Agencies, Standards for Law Enforcement Agencies, 3rd ed., Standard 31–2 (Fairfax, VA: Author, 1994).

147. San Jose Independent Police Auditor, 2014 Annual Report, Appendix I, p. 116. http://www.sanjoseca.gov/DocumentCenter/View/42029.

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148. New York City Civilian Complaint Review Board, 2014 Annual Report, Appendix A, CCRB Complaint Data 2014, Tables 8, 9. http://www.nyc.gov/html/ccrb/ downloads/pdf/2014-annual-report-rev2layout.pdf.

149. Leigh Herbst and Samuel Walker, “Language Barriers in the Delivery of Police Ser- vices: A Study of Police and Hispanic Interactions in a Midwestern City,” Journal of Criminal Justice 29, no. 4 (2001), pp. 329–340.

150. Bureau of Justice Statistics, Local Police Departments, 2013, Table 5. Wakeling et al., Policing on American Indian Reservations: A Report to the National Institute of Justice.

151. New York City CCRB. http://www.nyc.gov/html/ccrb/downloads/pdf/2014- annual-report-rev2layout.pdf.

152. Gunnar Myrdal, “Police and Other Public Contacts,” in An American Dilemma (New York: Harper & Brothers, 1944). W. Marvin Dulaney, Black Police in America (Bloomington, IN: Indiana University Press, 1996).

153. Reiss, The Police and the Public, p. 167.

154. Merrick J. Bobb Special Counsel, 9th Semiannual Report (Los Angeles: Los Angeles County, 1998), pp. 59–61. http://www.parc.info.

155. “For Black Officers, Diversity Has Its Limits,” New York Times (April 2, 2001), p. 1. “Alone, Undercover, and Black: Hazards of Mistaken Identity,” New York Times (November 22, 1992), p. A1. New York State Task Force on Police-on-Police Shootings, Reducing Inherent Danger: Report of the Task Force on Police-on-Police Shoot- ings (Albany, June 2010).

156. James R. Lasley, James Larson, Chandrika Kelso, and Gregory Chris Brown, “Assess- ing the Long-term Effects of Officer Race on Police Attitudes towards the Com- munity: A Case for Representative Bureaucracy Theory,” Police Practice and Research 12 (December 2011): 474–491.

157. James J. Fyfe, “Who Shoots? A Look at Officer Race and Police Shooting,” Journal of Police Science and Administration 9, no. 4 (1981), pp. 367–382.

158. Donald Black, “The Social Organization of Arrest.” Reiss, The Police and the Public, pp. 147–155.

159. Peter Bloch and Deborah Anderson, Policewomen on Patrol: Final Report (Washington, DC: The Police Foundation, 1974).

160. San Jose Independent Police Auditor, 2014 Year End Report (San Jose, CA: IPA, 2015), Appendix I, Table 1, p. 116. http://www.sanjoseca.gov/DocumentCenter/ View/42029. New York City Civilian Complaint Review Board, 2014 Annual Report, Statistical Appendices, Appendix A, CCRB Complaint Data 2014, Table 9. http://www. nyc.gov/html/ccrb/downloads/pdf/2014-annual-report-rev2layout.pdf.

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5

THE COURTS:

A Quest for Justice during

the Pretrial Process

[I]t is clear to me that if America ever is to eradicate racism, lawyers will have to lead. We must cleanse the justice system,

because until the justice system is truly colorblind, we cannot have any genuine hope for the elimination of bias in the other segments

of American life. PHILIP S. ANDERSON,

PRESIDENT, AMERICAN BAR ASSOCIATION1

L E A R N I N G O B J E C T I V E S

In this chapter and in Chapter 6, we discuss the treatment of racial minori- ties in court. The focus in this chapter is on pretrial decision making. Our goal is to determine whether people of color are more likely than whites to be tried without adequate counsel to represent them or to be denied bail or detained in jail prior to trial. In addition, we review research on prosecutors’ charging and plea bargaining decisions for evidence of differential treatment of racial minorities and whites. We argue that recent reforms adopted vol- untarily by the states or mandated by court decisions have reduced, but not eliminated, racial discrimination in the pretrial process.

After you have read this chapter:

1. You will be able to explain the concept of “double jeopardy” as it applies to racial minorities who appear in court as criminal defendants.

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2. You will be able to discuss the right to counsel and explain how the U.S. Supreme Court has interpreted the right.

3. You will be able to evaluate arguments regarding the quality of legal representation provided to indigent defendants.

4. You will be able to assess whether affirmative action has helped or hurt African-American law students.

5. You will be able to explain how decisions regarding bail and charging are affected by race/ethnicity and how these decisions, in turn, influence sentence severity.

6. You will be able to evaluate arguments regarding selective prosecution of African-American pregnant women who abuse drugs.

A F R I C A N A M E R I C A N S I N C O U R T:

T H E C A S E O F T H E S C O T T S B O R O B OY S

In March 1931, nine African-American teenage boys were accused of raping two white girls on a slow-moving freight train traveling through Alabama. They were arrested and taken to Scottsboro, Alabama, where they were indicted for rape, a capital offense. One week later, the first case was called for trial. When the defen- dant appeared without counsel, the judge hearing the case simply appointed all members of the local bar to represent him and his codefendants. An out-of-state lawyer also volunteered to assist in the defendants’ defense, but the judge ap- pointed no counsel of record.

The nine defendants were tried and convicted, and eight were sentenced to death. They appealed their convictions, arguing that their right to counsel had been denied. In 1932, the U.S. Supreme Court issued its ruling in the case of Powell v. Alabama,2 one of the most famous Supreme Court cases in U.S. history. The Court reversed the defendants’ convictions and ruled that due process of law required the appointment of counsel for young, inexperienced, illiterate, and in- digent defendants in capital cases.

The Supreme Court’s ruling in Powell provided the so-called Scottsboro Boys with only a short reprieve. They were quickly retried, reconvicted, and resen- tenced to death, despite the fact that one of the alleged victims had recanted and questions were raised about the credibility of the other victim’s testimony. Once again, the defendants appealed their convictions, this time contending that their right to a fair trial by an impartial jury had been denied. All of the defendants had been tried by all-white juries. They argued that the jury selection procedures used in Alabama were racially biased. Although African Americans who were registered to vote were eligible for jury service, they were excluded in practice because state officials refused to place their names on the lists from which jurors were chosen. In 1935, the Supreme Court, noting that the exclusion of all African Americans from jury service deprived African-American defendants of their right to the equal protection of the laws guaranteed by the Fourteenth Amendment, again reversed the convictions.3

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The Supreme Court’s decision was harshly criticized in the South. The Charleston News and Courier, for example, stated that racially mixed juries were “out of the question” and asserted that the Court’s decision “can and will be evaded.”4 Southern sentiment also strongly favored yet another round of trials. Thomas Knight, Jr., the attorney who prosecuted the Scottsboro cases the second time, noted that “approximately ninety jurors have been found saying the defen- dants were guilty of the offense with which they are charged and for which the penalty is death.” Knight reported that he had been “retained by the State to pros- ecute the cases and [would] prosecute the same to their conclusion.”5

Less than eight months after the Supreme Court’s decision, a grand jury composed of 13 whites and 1 African American returned new indictments against the 9 defendants. Haywood Patterson, the first defendant to be retried, again faced an all-white jury. Although there were 12 African Americans among the 100 potential jurors, 7 of the 12 asked to be excused and the prosecutor used his peremptory challenges to remove the remaining 5 African Americans. In his closing argument, the prosecutor also implied that an acquittal would force the women of Alabama “to buckle six-shooters about their middles” in order to pro- tect their “sacred secret parts.” He pleaded with the jurors to “get it done quick and protect the fair womanhood of this great State.”6

Patterson was convicted and sentenced to 75 years in prison. The sentence, although harsh, represented “a victory of sorts.”7 As the Birmingham Age-Herald noted, the decision “represents probably the first time in the history of the South that a Negro has been convicted of a charge of rape upon a white woman and has been given less than a death sentence.”8

Three of the remaining eight defendants were tried and convicted in July 1937. One of the three, Clarence Norris, was sentenced to death; the other two received prison sentences of 75 and 99 years. Shortly thereafter, Ozie Powell pled guilty to assaulting an officer after the state agreed to dismiss the rape charge. That same day, in an unexpected and controversial move, the state dropped all charges against the remaining four defendants. In a prepared statement, Attorney General Thomas Lawson asserted that the state was “convinced beyond any question of doubt . . . that the defendants that have been tried are guilty.” However, “after careful consideration of all the testimony, every lawyer connected with the pros- ecution is convinced that the defendants Willie Roberson and Olen Montgom- ery are not guilty.” Regarding the remaining two defendants, who were 12 and 13 years old when the crime occurred, Dawson stated that “the ends of justice would be met at this time by releasing these two juveniles on condition that they leave the State, never to return.”9

The state’s decision to drop charges against four of the nine defendants led editorial writers for newspapers throughout the United States to call for the im- mediate release of the defendants who previously had been convicted. The Rich- mond Times-Dispatch stated that the state’s action “serves as a virtual clincher to the argument that all nine of the Negroes are innocent,” and the New York Times called on the state to “do more complete justice later on.”10

Charles Norris’s death sentence was commuted to life imprisonment in 1938, but the Alabama Pardon and Parole Board repeatedly denied the five defendants’

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requests for parole. One of the defendants finally was granted parole in 1943, and by 1950 all of them had gained their freedom. Collectively, the nine Scottsboro Boys served 104 years in prison for a crime that many believe was “almost cer- tainly, a hoax.”11

T H E S I T U AT I O N T O D AY

The infamous Scottsboro case illustrates overt discrimination directed against African-American criminal defendants. However, those events took place in the 1930s and 1940s, and much has changed since then. Legislative reforms and Su- preme Court decisions protecting the rights of criminal defendants, coupled with changes in attitudes, have made it less likely that criminal justice officials will treat defendants of different races differently. Racial minorities are no longer routinely denied bail and then tried by all-white juries without attorneys to assist them in their defense. They are no longer brought into court in chains and shack- les. They are no longer referred to by prosecutors in demeaning and pejorative terms. They no longer receive “justice” at the hands of white lynch mobs.

Despite these reforms, inequities persist. Racial minorities, and particularly those suspected of crimes against whites, remain the victims of unequal justice. In 1983, for example, Lenell Geter, an African-American man, was charged with the armed robbery of a Kentucky Fried Chicken restaurant in Balch Springs, Texas. Despite the absence of any physical evidence to connect him to the crime and despite the prosecution’s failure to establish his motive for the crime, Geter was convicted by an all-white jury and sentenced to life in prison.

Geter’s conviction was particularly surprising given the fact that he had an ironclad alibi. Nine of his coworkers, all of whom were white, testified that Geter was at work on the day of the crime. His supervisor testified that there was no way Geter could have made the 50-mile trip from work to the site of the crime by 3:20 P.M., the time the robbery occurred. According to one coworker, “Unless old Captain Kirk dematerialized him and beamed him over there, he couldn’t have made it back by then. He was here at work. There’s no question in my mind—none at all.”12

Prosecutors in the county where Geter was tried denied that race played a role in Geter’s conviction. As one of them put it, “To say this is a conviction based on race is as far out in left field as you can get.”13 Geter’s coworkers disagreed; they argued that Geter and his codefendant (who also was African American) would not have been charged or convicted if they had been white.

Events that occurred following the trial suggest that Geter’s coworkers were right. Another man arrested for a series of armed robberies eventually was linked to the robbery of the Kentucky Fried Chicken restaurant. Geter’s conviction and sentence were overturned after the employees who originally identified Geter picked this suspect out of a lineup. Geter served more than a year in prison for a crime he did not commit.

Like Lenell Geter, James Newsome, an African American sentenced to life in prison for the armed robbery and murder of a white man, also had an alibi. At his

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trial for the 1979 murder of Mickey Cohen, the owner of Mickey’s Grocery Store in Chicago, Newsome’s girlfriend and her two sisters testified that he was with them at the time of the murder. The prosecutor trying the case argued that Newsome’s girlfriend, who was a convicted burglar, was not a credible witness. He also introduced the testimony of three eyewitnesses who identified Newsome as Cohen’s killer.14

Despite the fact that there was no physical evidence linking Newsome to the crime, and despite the fact that Newsome’s fingerprints were not found on the items in the store handled by the killer, the jury hearing the case found Newsome guilty. Although Cook County prosecutors had sought the death penalty, the jury recommended life in prison.

Newsome, who steadfastly maintained his innocence, spent the next 15 years appealing his conviction. With the help of Norval Morris, a University of Chi- cago Law School professor, and two noted Chicago defense attorneys, Newsome was able to convince the Cook County Circuit Court to order that the finger- prints obtained from the crime scene be run through the police department’s computerized fingerprint database to see if they matched any of those on file. The tests revealed that the fingerprints matched those of Dennis Emerson, a 45-year- old Illinois death row inmate who, at the time of Cohen’s murder, was out on parole after serving three years for armed robbery.

Two weeks later, Newsome was released from prison. Shortly thereafter, Illinois governor Jim Edgar pardoned Newsome and ordered his criminal re- cord expunged. Following his release, James Newsome, who spent 15 years in prison for a crime he did not commit, said, “I finally felt vindicated. I had de- feated a criminal-justice giant. Fifteen years ago, they told me that I would never walk the streets again in my life. What did I do? I slayed a giant—a criminal jus- tice giant.”15

Like Geter, Newsome contended that race played a role in his arrest and conviction. “In the most [racially] polarized city in the world,” Newsome stated, “racism was a factor. I was a suspect and I was convenient.”16

Race also played a role in the case of Clarence Brandley, an African Ameri- can who in 1981 was sentenced to death for the rape and murder of Cheryl Dee Ferguson, a white student at a high school north of Houston where Brandley worked as a janitor. Brandley and a coworker found the body and were the initial suspects in the case. Brandley’s coworker, who was white, reported that during their interrogation one of the police officers stated, “One of you two is going to hang for this.” Then he turned to Brandley and said, “Since you’re the nigger, you’re elected.”17 The police investigating the case claimed that three hairs found on the victim implicated Brandley. Although the hairs were never forensically tested, the police claimed that they were identical “in all observable characteris- tics” to Brandley’s.

Brandley was indicted by an all-white grand jury and tried before an all- white jury, which hung 11-to-1 in favor of conviction. He was retried by a sec- ond all-white jury after the district attorney trying the case used his peremptory challenges to strike all of the prospective African-American jurors. During his closing argument, the district attorney referred to Brandley as a “necrophiliac”

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and a “depraved sex maniac.” This time, the jurors found Brandley guilty and rec- ommended a death sentence, which the judge imposed.

Brandley spent six years on death row before a Texas district court, citing misconduct on the part of police and prosecutors, threw out his conviction. The judge, who noted that there was strong evidence that the crime was committed by two white men, stated that “the color of Clarence Brandley’s skin was a sub- stantial factor which pervaded all aspects of the State’s capital prosecution against him, and was an impermissible factor which significantly influenced the investiga- tion, trial and post-trial proceedings of [Brandley’s] case.”18

In 2014, Ricky Jackson, an African-American man who had been impris- oned for 39 years for murder, was exonerated after the only witness to the case recanted his testimony. Jackson, who was 18 years old at the time, and two other teenagers were convicted of murdering a money-order collector in Cleveland after a 12-year-old boy testified that he saw them commit the crime. Nearly four decades later, the witness admitted that the police had fed him details about the crime and coached him regarding how to testify; they also threatened to imprison his parents if he failed to cooperate. There were no other witnesses and no evi- dence connecting any of the three teens to the crime. In 2015, the Ohio Court of Claims awarded Jackson $2 million for his wrongful imprisonment.

These four recent cases, of course, do not prove that there is a pattern of sys- tematic discrimination directed against racial minorities in courts throughout the United States. One might argue, in fact, that these four cases are simply excep- tions to the general rule of impartiality. As we explained in Chapter 1, the validity of the discrimination thesis rests not on anecdotal evidence that racial minorities are treated differently than whites but on the results of empirical studies of crim- inal justice decision making.

D E C I S I O N S R E G A R D I N G C O U N S E L A N D B A I L

As we explained in Chapter 3, racial minorities are at a disadvantage in court both because of their race and because they are more likely than whites to be poor. This “double jeopardy” makes it more difficult for minority defendants to obtain competent attorneys or secure release from jail prior to trial. This, in turn, hinders their defense and may increase the odds that they will be convicted and sentenced harshly. Given these consequences, decisions regarding provision of counsel and bail obviously are important.

Racial Minorities and the Right to Counsel

The Sixth Amendment to the U.S. Constitution states, “In all criminal prosecu- tions, the accused shall enjoy the right to have the assistance of counsel for his defense.” Historically, this meant simply that if someone had an attorney, he could bring the attorney along to defend him. The problem, of course, was that this was of no help to the majority of defendants, and particularly minority defendants, who were too poor to hire their own attorneys.

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The U.S. Supreme Court, recognizing that defendants could not obtain fair trials without the assistance of counsel, began to interpret the Sixth Amendment to require the appointment of counsel for indigent defendants. The process be- gan in 1932, when the Court ruled in Powell v. Alabama19 that states must pro- vide attorneys for indigent defendants charged with capital crimes (see the earlier discussion of the Scottsboro case). The Court’s decision in a 1938 case, Johnson v. Zerbst,20 required the appointment of counsel for all indigent defendants in federal criminal cases, but the requirement was not extended to the states until Gideon v. Wainwright21 was decided in 1963. In that 1963 decision, Justice Black’s majority opinion stated:

[R]eason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him . . . . The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.

(See “The Importance of a Lawyer in a Criminal Case” for further evidence of this.)

The Importance of a Lawyer in a Criminal Case

Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, gen- erally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or oth- erwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.

– POWELL V. ALABAMA, 287 U.S., 45, PP. 68–69 (1932).

In subsequent decisions, the Court ruled that “no person may be imprisoned, for any offense, whether classified as petty, misdemeanor, or felony, unless he is represented by counsel,”22 and that the right to counsel is not limited to trial but applies to all “critical stages” in the criminal justice process.23 As a result of these rulings, most defendants must be provided with counsel from arrest and interro- gation through sentencing and the appellate process. As illustrated in Box 5.1, the Supreme Court also has ruled that defendants are entitled to effective assistance of counsel.24

At the time the Gideon decision was handed down, 13 states had no statewide requirement for appointment of counsel except in capital cases.25 Other states re- lied on members of local bar associations to defend indigents, often on a pro bono

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basis. Following Gideon, it became obvious that other procedures would be re- quired if all felony defendants were to be provided attorneys.

States moved quickly to implement the constitutional requirement articu- lated in Gideon, either by establishing public defender systems or by appropriating money for court-appointed attorneys. The number of public defender systems grew rapidly. In 1951, there were only seven public defender organizations in the United States; in 1964, there were 136; by 1973, the total had increased to 573.26

According to a 2010 Bureau of Justice Statistics report, in 2007 there were 957 public defender offices across the nation; they received more than 5.5 million

In the News: The New Orleans Public Defenders’ Office Is Sued

for Refusing New Cases. In January 2016, the American Civil Liberties Union (ACLU) filed a class-action lawsuit against the Orleans Parish (New Orleans) public defenders’ office, and the Louisiana Public Defender Board after the public defenders’ office said that it would no longer take certain felony cases where defendants were facing long prison sentences. This move followed a November 2015 request from the public defenders’ office that the office not be assigned new cases until its resources were increased and its workload reduced. According to Brandon Buskey, a staff attorney with the ACLU’s Criminal Law Reform Project, the lack of legal representation for indigent defendants in New Orleans violates defendants’ Sixth Amendment rights, adding that “so long as you’re on the public defender waiting list in New Orleans, you’re helpless. Your legal defense erodes along with your constitutional rights.”

Derwyn Bunton, chief of the Orleans Parish Public Defenders’ Office, testified at the November hearing that cuts to his budget, and staff attrition had made it impos- sible for his office to perform its work and meet the standards imposed by the U.S. Constitution and the Louisiana Rules of Professional Conduct. Bunton also pointed out that his budget was about half of that of the district attorney’s and that the DA’s Office had more than 80 attorneys and 30 investigators helping prepare cases, com- pared to the 53 attorneys and 8 investigators in his office.

Ellen Yaroshefsky, a legal ethics professor at New York’s Cardozo School of Law, agreed with Bunton’s analysis. Noting that attorneys in the office were handling caseloads that were two to three times heavier than that recommended by national standards, she stated that she was “very troubled by the situation this public defend- ers’ office is in. To call this a ‘justice system’ is really a misnomer . . . I believe that this entire office is operating as a conflict of interest. The lawyers here are compromising some clients in order to represent others. They make a decision to triage, and triage is a conflict of interest.” Yaroshefsky also stated that she agreed with Bunton’s deci- sion to not take any new cases. Otherwise, she said, the courthouse would become nothing more than “a plea mill,” where defendants’ only option is to enter a guilty plea “without even the most basic level of investigation and counsel” by the public defenders’ office.

SOURCE: Ken Daley, “Orleans Public Defenders’ Bombshell: No New Cases for Us, Please.” The Times- Picayune, November 20, 2015. For information about the history and development of the New Orleans Public Defenders’ Office, see Albert Samaha, “Indefensible: The Story of the New Orleans’ Public Defenders.” BuzzFeed, August 13, 2105. http://www.buzzfeed.com/albertsamaha/indefensible-new-orleans-public-defenders-office#. ewdG7xBbR.

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B o x 5.1 The Supreme Court and “Effective” Assistance of Counsel

In 1984, the Supreme Court articulated constitutional standards for determining whether a defendant had ineffective assistance of counsel. The Court ruled, in the case of Strickland v. Washington (466 U.S. 668 [1984], at 687), that to establish inef- fectiveness, a defendant must prove:

■ First, “that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”

■ Second, “that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliance.”

The so-called Strickland test thus consists of both a performance prong and a prej- udice prong. The Court also stated that to establish ineffective performance, a “de- fendant must show that counsel’s representation fell below an objective standard of reasonableness.” To establish prejudice, he or she “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

The Court revisited this issue in 2000, ruling that Terry Williams had been de- nied effective assistance of counsel (Williams v. Taylor 529 U.S. 420 [2000]). Williams was convicted of robbery and murder and sentenced to death after a Virginia jury concluded that he had a high probability of future dangerousness.

At the sentencing hearing, Williams’s lawyer failed to introduce evidence that Williams was borderline mentally retarded and did not advance beyond sixth grade. He also failed to introduce the testimony of prison officials, who described Williams as among the inmates “least likely to act in a violent, dangerous, or provocative way.” Instead Williams’s lawyer spent most of his time explaining that he realized it would be difficult for the jury to find a reason to spare Williams’s life. His comments included the following: “I will admit too that it is very difficult to ask you to show mercy to a man who maybe has not shown much mercy himself . . . . Admittedly, it is very difficult to . . . ask that you give this man mercy when he has shown so little of it himself. But I would ask that you would.”

The Supreme Court ruled that Williams’s right to effective assistance of counsel had been violated. According to the Court, “There was a reasonable probability that the result of the sentencing proceeding would have been different if competent counsel had presented and explained the significance of all the available evidence.”

The rulings discussed above establish that defendants are entitled to effective assistance of counsel at trial. Two recent Supreme Court cases make it clear that the right extends to plea negotiations as well. In one case, Missouri v. Frye (132 S. Ct. 1399, 2012), the defense attorney failed to make the defendant aware of a plea offer from the prosecutor and the defendant subsequently pled guilty not know- ing that the prosecutor had offered to reduce the seriousness of the charge. In the second case, Lafler v. Cooper (132 S. Ct. 1376, 2012), the defense attorney advised the defendant, who was charged with assault with intent to murder, to reject a plea offer that would have resulted in a sentence of 52–85 months in prison because, in his view, the prosecutor would be unable to prove intent to murder given that Lafler had shot the victim below the waist. The defendant went to trial, was convicted, and was sentenced to 185–360 months in prison. In both cases, the Supreme Court ruled 5-4 that the defendants had not been provided effective assistance of counsel. Given that 90–95 percent of all criminal convictions result from guilty pleas, these decisions clearly have consequences for criminal defendants.

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indigent cases, employed more than 15,000 full-time attorneys, and their expen- ditures exceeded $2.3 billion.27 A survey of inmates incarcerated in state and fed- eral prisons in 1997 revealed that about 73 percent of the state inmates and 60 percent of the federal inmates were represented by a public defender or assigned counsel. This survey also revealed that African Americans and Hispanics were more likely than whites to be represented by a public defender or assigned coun- sel. Among state prison inmates, for example, 77 percent of the African Ameri- cans, 73 percent of the Hispanics, and 69 percent of the whites reported that they were represented by a publicly funded attorney.28 (See “In the News: The New Orleans Public Defenders Office Is Sued for Refusing New Cases.”)

Quality of Legal Representation As a result of Supreme Court decisions ex- panding the right to counsel and the development of federal and state policies implementing these decisions, African Americans and other racial minorities are no longer routinely denied legal representation at trial or at any of the other crit- ical stages in the process. Questions have been raised, however, about the quality of legal representation provided to indigent defendants by public defenders. An article in the Harvard Law Review, for example, claimed:

Nearly four decades after Gideon, the states have largely, and often out- rageously, failed to meet the Court’s constitutional command. The wide- spread, lingering deficiencies in the quality of indigent counsel have led some to wonder whether this right, so fundamental to a fair and accurate adversarial criminal process, is unenforceable.29

A 2003 report on Mississippi’s indigent defense system reached a similar con- clusion. The authors of the report, who noted that the system was “among the most poorly funded in the nation,” concluded that “in Mississippi justice is avail- able only to those with the means to pay for it. And sadly, our country’s shameful history of racial discrimination is still readily apparent in the low quality represen- tation provided to the State’s poor, predominately black defendants.”30

There is evidence suggesting that defendants share this view. In fact, one of the most oft-quoted statements about public defenders is the answer given by an unidentified prisoner in a Connecticut jail to the question of whether he had a lawyer when he went to court. “No,” he replied, “I had a public defender.”31

David Neubauer similarly notes that in prison “‘PD’ stands not for ‘public de- fender’ but for ‘prison deliverer.’”32 Some social scientists echo this negative as- sessment, charging that public defenders, as part of the courtroom workgroup, are more concerned with securing guilty pleas as efficiently and as expeditiously as possible than with aggressively defending their clients.33 As Ronald Weitzer34

notes (and as the examples in Box 5.2 confirm), “In many jurisdictions, public defenders and state-appointed attorneys are grossly underpaid, poorly trained, or simply lack the resources and time to prepare for a case—a pattern documented in cases ranging from the most minor to the most consequential, capital crimes.”

Other social scientists disagree. Citing studies showing that criminal de- fendants represented by public defenders do not fare worse than those repre- sented by private attorneys,35 these researchers suggest that critics “have tended to

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207T H E C O U R T S

B o x 5.2 Are Indigent Capital Defendants Represented by Incompetent Attorneys?

In “Judges and the Politics of Death,” Stephen Bright and Patrick Keenan claimed, “Judges often fail to enforce the most fundamental protection of an accused, the Sixth Amendment right to counsel, by assigning an inexperienced or incompetent lawyer to represent the accused.” In support of their assertion, they offered the fol- lowing examples:

■ A capital defendant who was represented by a lawyer who had passed the bar exam only six months earlier, had not taken any classes in criminal law or crimi- nal procedure, and had never tried a jury or a felony trial.

■ An attorney who described his client as “a little old nigger boy” during the penalty phase of the trial.

■ A judge in Harris County, Texas, who responded to a capital defendant’s com- plaints about his attorney sleeping during the trial with the assertion that “the Constitution doesn’t say the lawyer has to be awake.”

■ A Florida attorney who stated during the penalty phase of a capital case, “Judge, I’m at a loss. I really don’t know what to do in this type of proceed- ing. If I’d been through one, I would, but I’ve never handled one except this time.”

■ A study of capital cases in Philadelphia that found that “even officials in charge of the system say they wouldn’t want to be represented in Traffic Court by some of the people appointed to defend poor people accused of murder.”

SOURCE: Stephen Bright and Patrick Keenan 1995, 800.

underestimate the quality of defense provided by the public defender.”36 Paul B. Wice, in fact, concluded that the public defender is able to establish a working re- lationship with prosecutors and judges “in which the exchange of favors, so nec- essary to greasing the squeaky wheel of justice, can directly benefit the indigent defendant.”37 As part of the courtroom workgroup, in other words, public de- fenders are in a better position than private attorneys to negotiate favorable plea bargains and thus to mitigate punishment. A 2008 survey of 666 federal and state judges confirmed these perceptions, at least with respect to public defenders who represent criminal defendants in the federal court system.38 This study found that although both federal and state judges believed that there were significant differ- ences in the quality of legal representation in criminal cases, federal judges did not believe that these differences were due to the type of attorney; in fact, federal judges rated public defenders as comparable to prosecutors and as significantly more competent than court-appointed attorneys or privately retained counsel. In contrast, state court judges gave somewhat higher ratings to private attorneys than to either public defenders or court-appointed counsel.

The results of studies investigating case outcomes for defendants represented by different types of attorneys are inconclusive. For example, a 2000 report by the Bureau of Justice Statistics (BJS) revealed that case outcomes for state and federal defendants represented by public attorneys do not differ dramatically from

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208 C H A P T E R 5

those represented by private counsel.39 There were only very slight differences in the conviction rates of defendants represented by public and private attor- neys but somewhat larger differences in the incarceration rates. At the federal level, 87.6 percent of the defendants represented by public attorneys were sen- tenced to prison, compared with 76.5 percent of the defendants with private attorneys. The authors of the report attributed this to the fact that public coun- sel represented a higher percentage of violent, drug, and public-order offenders, whereas private attorneys represented a higher percentage of white-collar de- fendants. Felony defendants in state courts also faced lower odds of incarceration if they were represented by private attorneys (53.9 percent) rather than public defenders (71.3 percent). In both state and federal court, on the other hand, de- fendants  represented by private attorneys got somewhat longer sentences than those represented by public defenders. At the federal level, the mean sentences were 58 months (public attorneys) and 62 months (private attorneys); at the state level, they were 31.2 months (public attorneys) and 38.3 months (private attorneys).40

A more nuanced and methodologically sophisticated study of the effect of type of counsel on outcomes in murder cases found very different results.41

Anderson and Heaton used data on more than 3,000 defendants charged with murder between 1994 and 2005 in Philadelphia. In this jurisdiction, one in every five indigent murder defendants is randomly assigned representation by a non- profit public defender organization, the Defender Association of Philadelphia; the remaining defendants are assigned to attorneys in private practice who are appointed by a judge and paid by the county. The authors of the study found that although the likelihood of conviction was not affected by the type of attor- ney, there were large and statistically significant differences on a number of out- comes examined. Defendants represented by public defenders were less likely to be convicted of murder and less likely to receive a life sentence; they also received sentences that were significantly shorter than those imposed on defendants repre- sented by assigned attorneys. In Philadelphia, in other words, murder defendants represented by public defenders fared better than those represented by private attorneys.

Interviews with criminal justice officials in Philadelphia revealed that these differences may reflect the fact that appointed counsel receive minimal compen- sation and thus have few if any incentives to mount a vigorous defense, as well as the fact that, compared to public defenders, appointed attorneys operate in relative isolation. As the authors noted, “We believe that these systemic factors cause appointed counsel generally to spend less time with defendants and in- vestigate and prepare cases less thoroughly.”42 The fact that the type of attorney to which the case was assigned had an impact on the outcome of the case obvi- ously is troubling. According to the authors, “Perhaps the most disturbing aspect of our analysis is the fact that we identify a factor—whether or not a defendant is initially assigned to the public defender—that has an important impact on case outcomes but that is completely unrelated to the culpability or conduct of the defendant.”43

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209T H E C O U R T S

What Makes a Good Lawyer? What makes a good lawyer? Is it the training that he/she receives? The ranking of the law school that he/she attended? His/ her years of experience, gender, race, or other demographic characteristics?

A study published in The University of Chicago Law Review attempted to an- swer this question using data on felony cases prosecuted by the public defender’s office in Clark County, Nevada (Las Vegas is the largest city in the county) be- tween 2003 and 2005.44

In this jurisdiction, felony cases are randomly assigned to public defenders; thus, there should be no differences in the characteristics of cases assigned to at- torneys, and differences in case outcomes can therefore be attributed, not to the characteristics of the case but to the background and experience of the attorney to whom the case is assigned.

The authors of the study found that the likelihood of incarceration and the length of the sentence were affected by the attorney’s experience; attorneys who had served longer in the public defender’s office got more favorable outcomes for their clients. Neither outcome was affected by the ranking of the law school that the attorney attended or by the attorney’s gender, and the likelihood of in- carceration did not vary based on the race of the attorney. In contrast, Hispanic public defenders obtained significantly shorter sentences for their clients than ei- ther white or African-American public defenders. These results led the authors to conclude that “drawing a good attorney in the random assignment process can save a defendant several months of incarceration, on average . . . [and] a veteran PD could reduce the likelihood of incarceration by as much as a fourth” (p. 1176).

Race, Type of Counsel, and Case Outcome The data presented thus far do not address the question of racial discrimination in the provision of coun- sel. Although it is true that African-American and Hispanic defendants are more likely than white defendants to be represented by public defenders, it does not necessarily follow from this that racial minorities will be treated more harshly than whites as their cases move through the criminal justice system. As we have noted, studies have not consistently shown that defendants represented by public defenders fare worse than defendants represented by private attorneys.

Most studies have not directly compared the treatment of African- American, Hispanic, and white defendants represented by public defenders and private at- torneys. It is possible that racial minorities represented by public defenders re- ceive more punitive sentences than whites represented by public defenders or that whites who hire their own attorneys receive more lenient sentences than racial minorities who hire their own attorneys. To put it another way, it is possible that hiring an attorney provides more benefits to whites than to racial minorities, and representation by a public defender has more negative consequences for racial minorities than for whites.

Malcolm D. Holmes, Harmon M. Hosch, Howard C. Daudistel, Dolores A. Perez, and Joseph B. Graves found evidence supporting these possibilities in one of the two Texas counties where they explored the interrelationships among race/ethnicity, legal resources, and case outcomes.45 The authors of this study

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210 C H A P T E R 5

found that in Bexar County (San Antonio) both African-American and Hispanic defendants were significantly less likely than white defendants to be represented by a private attorney, even after such things as the seriousness of the crime, the defendant’s prior criminal record, and the defendant’s gender, age, and employ- ment status were taken into account. The authors also found that defendants who retained a private attorney were more likely to be released prior to trial and re- ceived more lenient sentences than those represented by a public defender.46 In this particular jurisdiction, then, African-American and Hispanic defendants were less likely than whites to be represented by a private attorney, and as a result, they received more punitive treatment than whites.

An examination of the sentences imposed on defendants convicted of fel- onies in three large urban jurisdictions in 1993 and 1994 produced somewhat different results. Cassia Spohn and Miriam DeLone47 compared the proportions of white, African-American, and Hispanic defendants who were represented by a private attorney in Chicago, Miami, and Kansas City. As shown in Table 5.1, in all three jurisdictions, whites were substantially more likely than African Amer- icans to have private attorneys. In Chicago, 22.5 percent of white defendants, but only 6.9 percent of African-American defendants, had a private attorney. In Miami, Hispanics also were less likely than whites to be represented by a private attorney.

Although the data presented in Table 5.1 reveal that smaller proportions of racial minorities than whites had access to the services of a private attorney, they do not provide evidence of differential treatment based on either type of attorney or race/ethnicity. In fact, when Spohn and DeLone examined the sentences imposed on racial minorities and whites in each jurisdiction, they found an interesting pattern of results. As shown in Figure 5.1, in Chicago and Kansas City only whites benefited from having a private attorney. Among Af- rican Americans, the incarceration rates for defendants represented by private attorneys were only slightly lower than the rates for defendants represented by public defenders; among Hispanics in Chicago, the rate for defendants with private attorneys was actually somewhat higher than the rate for those with public defenders. In Miami, both whites and African Americans benefited from representation by private counsel, but Hispanics with private attorneys were

T A B L E 5.1 Race/Ethnicity and Type of Attorney in Chicago, Miami, and Kansas City

Percentage Represented by a Private Attorney

Race of Defendant Chicago Miami Kansas City

White 22.5 34.5 37.8

African American 6.9 23.4 24.8

Hispanic 21.2 27.3 NAa

aThere were only 47 Hispanic defendants in Kansas City.

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211T H E C O U R T S

sentenced to prison at a slightly higher rate than Hispanics represented by the public defender.

The incarceration rates displayed in Figure 5.1 do not take into account dif- ferences in the types of cases handled by private attorneys and public defenders. It is certainly possible that the incarceration rates for defendants represented by private attorneys generally are lower than the rates for defendants represented by public defenders, not because private attorneys are more experienced, more competent, and more zealous but because the types of cases they handle are less serious or because the defendants they represent have less serious prior crimi- nal records. If private attorneys, in other words, usually represent first offenders charged with relatively minor crimes and public defenders represent recidivists as well as first offenders and violent offenders as well as nonviolent offenders, we would expect the sentences imposed on defendants with private attorneys to be less severe than those imposed on defendants with public defenders, irrespective of the quality of representation provided by the attorney.

To test this possibility, Spohn and DeLone analyzed the relationship between race/ethnicity, type of attorney, and the likelihood of incarceration, controlling for several indicators of the seriousness of the crime and for the offender’s prior criminal record, age, gender, and employment status. They found that, with one exception, the type of attorney had no effect on the odds of incarceration for any racial/ethnic group in any jurisdiction. The only exception was in Miami, where African Americans represented by private attorneys faced significantly lower odds of incarceration than African Americans represented by public defenders.

These results cast doubt on assertions that racial minorities are disadvantaged by their lack of access to private counsel. At least in these three jurisdictions,

70

60

50

40

30

20

10

0

% I n c a rc

e ra

te d

White African American

Hispanic White African American

Hispanic White African American

Private Attorney Public Defender

CHICAGO MIAMI KANSAS CITY

F I G U R E 5.1 Race/Ethnicity, Type of Attorney, and Incarceration Rates in Chicago, Miami, and Kansas City

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212 C H A P T E R 5

public defenders do not appear to “provide a lower caliber defense than what private attorneys offer.”48

In summary, although it would be premature to conclude on the basis of research conducted to date either that decisions concerning the provision of counsel are racially neutral or that the consequences of these decisions for racial minorities are unimportant, significant changes have occurred since the 1930s. (See the “Focus on an Issue: Racial Minorities and the Legal Profession” box for a discussion of racial minorities and the legal profession.) It is clear that scenes from the infamous Scottsboro case will not be replayed in the twenty-first century. The Supreme Court has consistently affirmed the importance of the right to counsel and has insisted that states provide attorneys to indigent criminal defendants at all critical stages in the criminal justice process. Although some critics have ques- tioned the quality of legal services afforded indigent defendants, particularly in capital cases where the stakes are obviously very high, the findings of a number of methodologically sophisticated studies suggest that “indigent defenders get the job done and done well.”49 In short, it is no longer true that racial minorities “are without a voice”50 in courts throughout the United States.

Racial Minorities and Bail Decision Making

Critics of the traditional money bail system, in which defendants either pay the amount set by the judge or pay a bail bondsman to post bond for them, argue that the system discriminates against poor defendants. They also charge that the system discriminates, either directly or indirectly, against racial minorities. Critics contend that historically African-American and Hispanic defendants were more likely than white defendants to be detained prior to trial, either because the judge refused to set bail or because the judge set bail at an unaffordable level.51 “As a re- sult,” according to one commentator, “the country’s jails are packed to overflow- ing with the nation’s poor—with red, brown, black, and yellow men and women showing up in disproportionate numbers.”52

Bail Reform Concerns about the rights of poor defendants and about the con- sequences of detention prior to trial led to the first bail reform movement, which emerged in the 1960s and emphasized reducing pretrial detention. Those who lobbied for reform argued that the purpose of bail was to ensure the defendant’s appearance in court and that bail therefore should not exceed the amount nec- essary to guarantee that the defendant would show up for all court proceedings. Proponents of this view asserted that whether a defendant was released or de- tained prior to trial should not depend on his or her economic status or race. They also cited research demonstrating that the type and amount of bail imposed on the defendant and the time spent by the defendant in pretrial detention af- fected the likelihood of a guilty plea, the likelihood of conviction at trial, and the severity of the sentence.53

Arguments such as these prompted state and federal reforms designed to re- duce pretrial detention. Encouraged by the results of the Manhattan Bail Project, which found that the majority of defendants released on their own recognizance

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213T H E C O U R T S

FOCUS ON AN ISSUE

Racial Minorities and the Legal Profession

In the early 1930s, one of the defendants

in the Scottsboro case described the court-

room where he was convicted and sen-

tenced to death as “one big smiling white

face.” With the exception of the defendants

themselves, no racial minorities were pres-

ent in the courtroom.

Although the situation obviously has

changed since then, racial minorities still

represent a very small proportion of the

lawyers and judges in the United States.

Among those enrolled in law schools in

2013–2014, only 28.5 percent were Af-

rican American, Hispanic, Asian, or Na-

tive American.54 In fact, a report on the

Columbia Law School’s website noted

that although the number of first-year

law students grew by nearly 3,000 from

1993 to 2008, the proportion of students

who were African American declined by

7.5 percent and who were Hispanic de-

clined by 11.7 percent.55 There is even less

racial diversity among practicing attorneys.

In 2010, 88 percent of all licensed lawyers

were white and only 12 percent were racial

minorities: 4.8 percent were African Amer-

ican, 3.4 percent were Asian, and 3.7 per-

cent were Hispanic.56 A 2015 report by the

Stanford Criminal Justice Center found

that whites were overrepresented and

Hispanics were underrepresented among

prosecutors in California. Although whites

comprised only 38 percent of the popula-

tion in that state, they made up 70 percent

of prosecutors; by contrast, Latinos made

up 39 percent of the California population,

but only 9 percent of prosecutors.57

Racial minorities also comprise a

very small proportion of the judiciary.

A 2004 report by the American Bar

Association revealed that only 10.1 per-

cent of all state court judges were racial

minorities. Of these judges, 5.9 percent

were African American, 2.8 percent were

Hispanic, 1.1 percent were Asian, and only

13 (0.1 percent) were Native American.58

The situation is somewhat more positive

at the federal level, where 12.5 percent of

all district court judges and 13 percent of

all court of appeal judges on the bench in

2014 were African American. Hispanics

comprised 10.1 percent of the district

court bench and 8 percent of the appellate

court bench. There were, however, very

few Asian Americans or Native Americans

on the federal bench.59 Moreover, most of

the racial minorities on the federal bench

were men. Among court of appeal judges,

16.7 percent were non-white men and

only 6.8 percent were nonwhite women;

the figures for district court judges were

similar—15.4 percent were nonwhite

men and 9.8 percent were nonwhite

women.60 And only three nonwhites

have served on the U.S. Supreme Court:

Thurgood Marshall (African American)

was appointed in 1967, Clarence Thomas

(African American) in 1991, and Sonia

Sotomayor (Hispanic) in 2009.

The American Bar Association’s 2000

report on the progress of minorities in the

legal profession concluded that minority

entry into the profession had stalled and

that the obstacles to minority entry into

the profession had grown more formida-

ble. The report noted that the campaign

to end affirmative action in law school

admissions, which had spread rapidly

throughout the United States, threatened

“to stifle minority entry and advancement

in the profession for years to come.”61

According to the American Bar Associa-

tion, “The legal profession—already one

of the least integrated professions in the

(Continued )

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214 C H A P T E R 5

country—threatens to become even less

representative of the citizens and society it

serves.”62

ARE AFRICAN-AMERICAN LAW

STUDENTS HURT OR HELPED BY

AFFIRMATIVE ACTION?

In 1997, Barbara Grutter, a white resident

of Michigan with a 3.8 undergraduate

GPA and a 161 LSAT score, was denied

admission to the University of Michigan

Law School. (See “In the Courts: Grut-

ter v. Bollinger” for a more detailed discus-

sion of this case.) She sued, claiming that

she was rejected because the law school

used race as a “predominant factor” and

gave preference to applicants from certain

minority groups. She argued that doing

so violated the Equal Protection Clause of

the Fourteenth Amendment and Title VI

of the Civil Rights Act of 1964. In 2003,

the U.S. Supreme Court ruled that “the

law school’s narrowly tailored use of

race in admissions decisions to further

a compelling interest in obtaining the

educational benefits that flow from a

diverse student body is not prohibited

by the Equal Protection Clause or Title

VI” (Grutter v. Bollinger, 288 F.3d 732

[2003]).

One year later, Richard Sander, a law

professor at the University of California

Los Angeles, argued in the Stanford Law

Review that affirmative action policies

hurt, not help, African-American law

students.63 Sander contended that the

African-American students who get pref-

erential treatment as a result of affirmative

action enter law school with weaker grades

and lower LSAT scores—the two best

predictors of law school success—than

white students. Noting that 43 percent

of the African-American students who

entered law school in the fall of 1991 ei-

ther did not graduate or did not pass the

bar exam, Sander asserted that affirmative

action sets up African-American students

for failure by placing them in schools

where they cannot compete academically.

He also predicted that “the number of

black lawyers produced by American law

schools each year and subsequently passing

the bar would probably increase if those

schools collectively stopped using racial

preferences.”64

Sander’s methods and conclusions

were called into question by social scientists

and legal scholars. The harshest criticism

came from David L. Chambers, Timothy T.

Clydesdale, William C. Kidder, and Richard

O. Lempert, who argued in the Stanford

Law Review that Sander’s conclusions were

“simple, neat, and wrong.”65 They asserted

that ending affirmative action would

lead not to an increase in the number of

African-American lawyers, as Sander had

predicted, but to a 30–40 percent decline in

the number of African Americans entering

the legal profession.66 Other critics stated

that even if Sander’s findings were correct,

his study failed to take into consideration

the academic benefits of diversity, for which

“there is universal celebration” on college

campuses.67

THE PERCEPTIONS OF AFRICAN-

AMERICAN AND WHITE LAWYERS:

DIVIDED JUSTICE?

A 1998 survey of African-American and

white lawyers commissioned by the ABA

Journal and the National Bar Association

Magazine revealed stark racial differences in

perceptions of the justice system.68 When

asked about the amount of racial bias that

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215T H E C O U R T S

currently exists in the justice system, more

than half of the African-American lawyers,

but only 6.5 percent of the white lawyers,

answered “very much.” In fact, 29.6 per-

cent of the white lawyers stated that they

believed there was “very little” racial bias

in the justice system.

Responses to other questions also

varied by race:

■ How does the amount of racial bias

in the justice system compare with other

segments of society?

African Americans % Whites %

More 22.7 5.7

Same 69.6 40.5

Less 5.9 45.8

■ Have you witnessed an example of

racial bias in the justice system in the past

three years?

African Americans % Whites %

Yes 66.9 15.1

No 31.1 82.4

■ What is your assessment of the ability

of the justice system to eliminate racial bias

in the future?

African Americans % Whites %

Hopeful 59.1 80.7

Pessimistic 38.2 15.1

■ Should police be allowed to create

profiles of likely drug dealers or other

criminals as a way to combat crime?

African Americans % Whites %

Yes 17.8 48.6

No 74.6 36.9

■ Should race be a factor in creating the

profiles?

African Americans % Whites %

Race OK 5.5 19.5

Race Not OK 91.2 67.9

■ Have you seen an attempt to skew

a jury racially because of the race of the

defendant?

African Americans % Whites %

Yes 51.7 22.4

No 45.8 73.6

■ Are minority women lawyers treated

less fairly than white women lawyers in

hiring and promotion?

African Americans % Whites %

Yes 66.5 10.9

No 14.3 60.4

As these results clearly suggest,

African-American lawyers are substan-

tially more likely than white lawyers to

believe that the justice system is racially

biased. As the author of the study noted,

“Though they have made the justice sys-

tem their life’s work, many black lawyers

believe the word ‘justice’ has a white spin

that says ‘just us’.”69

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216 C H A P T E R 5

In the Courts: Grutter v. Bollinger

In 1997, Barbara Grutter, a white resident of Michigan with a 3.8 undergraduate GPA and a 161 LSAT score, was denied admission to the University of Michigan Law School. She filed suit, arguing the law school’s admission policies discriminated against her on the basis of race in violation of the Fourteenth Amendment and Title VI of the Civil Rights Acts of 1974.

The law school’s admission policy, which was designed to achieve a diverse student body, required officials to evaluate the candidate’s undergraduate GPA and LSAT score along with the quality of the undergraduate institution; the difficulty of the courses taken as an undergraduate; and the candidate’s personal statement, letters of recommendation, and essay describing how he or she “would contribute to law school life and diversity.” Although the policy did not define diversity solely in terms of race and ethnicity or restrict the types of diversity that would be given substantial weight in admissions decisions, it did state that the goal was to accept “a mix of students with varying backgrounds and experiences who will respect and learn from each other.”70 The policy stated explicitly that the law school was commit- ted to “racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like African Ameri- cans, Hispanics, and Native Americans, who without this commitment might not be represented in our student body in meaningful numbers.”71

Grutter claimed that she was not admitted to the University of Michigan Law School in large part because the school took the race/ethnicity of the applicant into account and, in doing so, gave African-American and Hispanic applicants a signifi- cantly greater chance of admission than white students with similar credentials. She argued that the school did not have a “compelling interest” to justify the use of race as an admissions factor.

The U.S. Supreme Court did not agree with Grutter’s arguments. The court ruled that “the Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body is not prohibited by the Equal Protection Clause” or Title VI of the Civil Rights Act of 1964.72 The Supreme Court stated that student body diver- sity was, in fact, a compelling state interest “that can justify using race in university admissions.” The court acknowledged that it would be “patently unconstitutional” to enroll a certain number of minority students “simply to assure some specified percentage of a particular group,” but stated that this was not the case with respect to the law school’s admission policy. Rather, “the Law School defines its critical mass concept by reference to the substantial, important, and laudable educational ben- efits that diversity is designed to produce, including cross-racial understanding and the breaking down of racial stereotypes.”73

The Supreme Court also noted that the admissions plan was “narrowly tai- lored,” in that it considered each applicant’s race/ethnicity as only one factor among many. The court reiterated that although “universities cannot establish quotas for members of certain racial or ethnic groups or put them on separate admission tracks,” they can structure their admission policies to give serious con- sideration to all of the ways an applicant might contribute to a diverse educational environment.

Three years after the Supreme Court handed down its decision, Michigan voters enacted the Michigan Civil Rights Initiative (MCRI), which added the following lan- guage to the Michigan Constitution:

The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district

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217T H E C O U R T S

shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the oper- ation of public employment, public education, or public contracting.

In 2008, a federal district court judge ruled that the initiative did not violate the U.S. Constitution.74 Four years later, the U.S. Court of Appeals for the Sixth Circuit overturned MCRI, but in 2014 the U.S. Supreme Court voted 6-2 to uphold the consti- tutionality of the ballot initiative (Schuette v. Coalition to Defend Affirmative Action, 134 S. Ct. 1623, 2014). The plurality opinion, which was authored by Justice Anthony M. Kennedy, held that voters of a state may choose, via a ballot initiative, to pro- hibit the use of race-based preferences in decisions by government bodies, including universities.

The issues raised in the Grutter case have generated additional litigation. In December 2015, the Supreme Court heard oral arguments Fisher v. University of Texas, a case involving a challenge to the use of race in undergraduate admission decisions at the University of Texas. Similar challenges were filed against Harvard University and the University of North Carolina at Chapel Hill in November 2014. In June 2016, the Supreme Court decided 4-3 that the admission process used by the University of Texas did not violate the Constitution’s guarantee of equal pro- tection of the law (Fisher v. University of Texas, 579 U.S. ____ 2016). According to Justice Anthony Kennedy, who wrote the majority opinion, “A university is in large part defined by those intangible qualities which are incapable of objective mea- surement but which make for greatness.” “Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.” Legal experts indicated that the Fisher decision made it unlikely that the Court would strike down the affirmative action policies at Harvard, University of North Carolina, and other universities.

did appear for trial,75 local jurisdictions moved quickly to reduce reliance on money bail and to institute programs modeled after the Manhattan Bail Project. Many states revised their bail laws, and in 1966 Congress passed the Bail Reform Act, which proclaimed release on recognizance the presumptive bail decision in federal cases.

Then, as Samuel Walker noted, “the political winds shifted.”76 The ris- ing crime rate of the 1970s generated a concern for crime control and led to a reassessment of bail policies. Critics challenged the traditional view that the only function of bail was to assure the defendant’s appearance in court. They ar- gued that guaranteeing public safety was also a valid function of bail and that pretrial detention should be used to protect the community from “dangerous” offenders.

These arguments fueled the second bail reform movement, which emerged in the 1970s and emphasized preventive detention. Conservative legislators and policy makers lobbied for reforms allowing judges to consider “public safety” when making decisions concerning the type and amount of bail.77 By 1984, 34 states had enacted legislation giving judges the right to deny bail to defendants deemed dangerous.78 Also in 1984, Congress passed a law authorizing preventive detention of dangerous defendants in federal criminal cases.79

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The Effect of Race on Bail Decision Making Proponents of bail reform argued that whether a defendant was released or detained prior to trial should not depend on his or her economic status or race. They argued that bail decisions should rest either on assessments of the likelihood that the defendant would ap- pear in court or on predictions of the defendant’s dangerousness.

The problem, of course, is that there is no way to guarantee that judges will not take race into account in making these assessments and predictions. As Cora- mae Richey Mann asserted, even the seemingly objective criteria used in making these decisions “may still be discriminatory on the basis of economic status or skin color.”80 If judges stereotype African Americans and Hispanics as less reliable and more prone to violence than whites, they will be more inclined to detain people of color and release whites, irrespective of their more objective assess- ments of risk of flight or dangerousness.

Studies examining the effect of race on bail decisions have yielded contra- dictory findings. Some researchers conclude that judges’ bail decisions are based primarily on the seriousness of the offense and the defendant’s prior criminal record and ties to the community; race has no effect once these factors are taken into consideration.81 Other researchers contend that the defendant’s economic status, not race, determines the likelihood of pretrial release.82 If this is the case, one could argue that bail decision making reflects indirect racial discrimination because African-American and Hispanic defendants are more likely than white defendants to be poor.

A number of studies document direct racial discrimination in bail decisions. A study by George S. Bridges of bail decision making in King County, Washing- ton, for example, examined the effect of race/ethnicity on four bail outcomes: whether the defendant was released on his or her own recognizance; whether the court set monetary bail; the amount of bail required; and whether the defen- dant was held in custody pending trial.83 As shown in Table 5.2, he found that racial minorities were less likely than whites to be released on their own recog- nizance and were more likely than whites to have bail set. Racial minorities also were held in pretrial detention at higher rates than whites. The detention rate was 55 percent for Native Americans, 54 percent for Hispanics, 36 percent for African Americans, and 28 percent for whites. There were, however, no differences in the median amount of bail required.

Bridges noted that although “at face value these differences may seem alarm- ing,”84 they might be the result of legitimate factors that criminal justice officials take into consideration when establishing the conditions of pretrial release: the defendant’s ties to the community, the perceived dangerousness of the defendant, and any previous history of the defendant’s failure to appear at court proceedings. When he controlled for these legally relevant variables and for the defendant’s age and gender, however, he found that the race effects did not disappear. Racial mi- norities and men were less likely than whites and women to be released on their own recognizance and more likely than whites and women to be required to pay bail as a condition of release. For both of these decisions, the prosecutor’s recom- mendation regarding the type and amount of bail was the strongest predictor of outcome. In contrast, race had no effect on the likelihood of pretrial detention

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219T H E C O U R T S

once the bail conditions and the amount of bail set by the judge were taken into account.

Interviews with King County criminal justice officials revealed that most of them believed the racial differences in bail outcomes could be attributed to three factors: racial minorities’ lack of resources and consequent inability to retain a private attorney; the tendency of judges to follow the recommendations of prose- cutors; and cultural differences and language barriers that made it difficult to con- tact the defendant’s references or verify information provided by the defendant. Because racial minorities were more likely than whites to be poor, they were more likely to be represented by public defenders with large caseloads and lim- ited time to prepare for bail hearings. Resource constraints similarly limited the amount of time that judges and pretrial investigators were able to devote to bail decisions, which led to reliance on the recommendations proffered by the pros- ecutor. Although Bridges stressed that his study produced no evidence “that dis- parities are the product of overt, prejudicial acts by court officials,” he nonetheless concluded that “race and ethnicity matter in the disposition of criminal cases.”85

He added that this “is a serious concern for the courts in Washington” because it “implies that, despite the efforts of judges and others dedicated to fairness in the administration of justice, justice is not administered fairly.”86

Other evidence of direct racial discrimination is found in an analysis of pre- trial release outcomes for felony defendants in the nation’s 75 largest counties during the 1990s.87 As shown in Figure 5.2, Stephen Demuth and Darrell Stef- fensmeier found that African Americans and Hispanics were more likely than whites to be detained in jail prior to trial. Among female defendants, the detention rates were 23.5 percent (whites), 28.4 percent (African Americans), and 34.7 per- cent (Hispanics). Among males, the rates were 33.1 percent (whites), 44.8 percent (African Americans), and 50.5 percent (Hispanics). The pretrial detention rate for Hispanic males, in other words, was more than twice the rate for white females.

T A B L E 5.2 Race/Ethnicity and Bail Outcomes in King County, Washington

Whites All Racial Minorities

African Americans Hispanics

Native Americans

Asian Americans

Released on personal recognizance 25% 14% 14% 10% 8% 18%

Monetary bail set 34% 56% 46% 60% 60% 50%

Median bail amount $10,000 $10,000 $10,000 $10,000 $10,000 $15,000

In custody prior to trial 28% 39% 36% 54% 55% 35%

SOURCE: George S. Bridges, A Study on Racial and Ethnic Disparities in Superior Court Bail and Pre-Trial Detention Practices in Washington (Olympia: Washington State Minority and Justice Commission, 1997), Table 1.

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220 C H A P T E R 5

As was the case with the Washington State study, these differences did not disappear when the authors controlled for the seriousness of the charges against the defendant, the number of charges the defendant was facing, whether the de- fendant previously had failed to appear for a court proceeding, and the defen- dant’s prior record and age. Demuth and Steffensmeier found that males were more likely than females and that African Americans and Hispanics were more likely than whites to be detained in jail prior to trial. They also found that white females faced a significantly smaller likelihood of pretrial detention than any of the other groups, particularly Hispanic and African-American males.88

Findings from this study also provided some clues as to the reasons why de- fendants were held in jail prior to trial. For African Americans, the increased like- lihood of detention was because they were almost two times more likely than whites to be held on bail; African Americans, in other words, were less likely than whites to be able to pay bail and secure their release. For Hispanics, however, the increased likelihood of detention reflected not only their inability to pay bail but also the fact that they were more likely than whites to have to pay bail for release and the amount they were required to pay was higher than the amount that similarly situated whites were required to pay.89 The authors also found that both female and male white defendants were more likely than their racial/eth- nic counterparts to be released prior to trial and that this was largely because of their greater ability to make bail. As they noted, “White defendants of both sexes apparently have greater financial capital or resources either in terms of their per- sonal bankroll/resources, their access to family or social networks willing to post bail, or their greater access to bail bondsmen for purposes of making bail.”90

A recent study using data on those arrested for misdemeanors and felonies in New York City provided additional evidence that race and ethnicity influence pretrial detention decisions.91 Kutateladze and his colleagues found that the se- riousness of the charges, the offender’s criminal justice status and criminal his- tory, the offender’s gender, and whether the offender had a private attorney all

60

50

40

30

20

10

0

% H

e ld

i n P

re tr

ia l D

e te

n ti o n

Female Defendants Male Defendants

Whites African Americans Hispanics

23.5 28.4

34.7 33.1

44.8

50.5

F I G U R E 5.2 Race/Ethnicity, Gender, and Pretrial Detention in 75 U.S. Counties SOURCE: Stephen Demuth and Darrell Steffensmeier, “The Impact of Gender and Race-Ethnicity in the Pretrial Release Process,” Social Problems 51 (2004), pp. 222–242.

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221T H E C O U R T S

affected the likelihood that the defendant would be detained prior to trial. When they controlled for these (and other) factors, they found that the pretrial deten- tion rate for African Americans was 10 percent higher than the rate for whites, and the rate for Hispanics was 3 percent higher than the rate for whites; by con- trast, the rate for Asian Americans was 21 percent less than the rate for whites. Among those arrested for misdemeanor person offenses, the rate for African Americans exceeded the rate for white by 20 percent.92

There is also evidence that defendant race interacts with other variables re- lated to bail severity. Margaret Farnworth and Patrick Horan,93 for example, found that the amount of bail imposed on white defendants who retained private attor- neys was less than the amount imposed on African-American defendants who retained private attorneys. Theodore G. Chiricos and William D. Bales similarly found that the likelihood of pretrial detention was greatest for African-American defendants who were unemployed.94

Bail and Case Outcomes Concerns about discrimination in bail decision making focus on two facts: African-American and Hispanic defendants who are presumed to be innocent are jailed prior to trial and those who are detained prior to trial are more likely to be convicted and receive harsher sentences than those who are released pending trial. These concerns focus, in other words, on the pos- sibility that discrimination in bail decision making has “spillover” effects on other case processing decisions.

An analysis of pretrial release of felony defendants by the BJS attests to the validity of these concerns.95 Using data from 1994 to 2004, the BJS compared the conviction rates for released and detained defendants in the 75 largest counties in the United States. They found that 78 percent of those who were detained prior to trial, but only 60 percent of those who were released, were convicted. Felony defendants who were released also were less likely than those who were detained to be convicted of a felony: the rates were 46 percent for those who were released but 69 percent for those who were detained.

Although these data suggest that pretrial release does have important spill- over effects on case outcomes, the higher conviction and imprisonment rates for defendants who were detained pending trial could result from the fact that de- fendants who are held in jail prior to trial tend to be charged with more serious crimes, have more serious prior criminal histories, and have a history of non- appearance at court proceedings. A BJS study of felony defendants processed in state courts in 2006, for example, found that defendants charged with murder had the lowest release rate and that defendants with more serious prior records or a history of nonappearance were more likely to be detained prior to trial.96 Given these findings, it is possible that the relationship between pretrial status and case outcomes would disappear once controls for case seriousness and prior criminal record were taken into consideration.

Data collected for a study of sentencing outcomes in Chicago, Miami, and Kan- sas City during 1993 and 1994 were used to explore this possibility.97 Spohn and DeLone found that the offender’s pretrial status was a strong predictor of the likeli- hood of imprisonment, even after other relevant legal and extralegal variables were

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222 C H A P T E R 5

taken into account. In all three cities, offenders who were released prior to trial faced substantially lower odds of a prison sentence than did offenders who were detained pending trial. Further analysis of sentences imposed by judges in Chicago and Kansas City revealed that pretrial detention had a similar effect on incarceration for each racial/ethnic group and for males and females.98 As shown in Table 5.3, among both males and females, African-American, Hispanic, and white defendants who were detained prior to trial faced substantially greater odds of incarceration than African-American, Hispanic, and white defendants who were released pending trial. In Chicago, the highest incarceration rates were found for African-American (73 percent), Hispanic (72 percent), and white (63 percent) males who were detained prior to trial; the lowest rates were found for white (7 percent), African-American (11 percent), and Hispanic (11 percent) females who were released pending trial.

The results of this study suggest that defendants who were detained prior to trial received more punitive sentences than those who were released and that the highest incarceration rates were for African Americans and Hispanics who were detained prior to trial. In Chicago, this “detention penalty” is compounded by the fact that African Americans were significantly more likely than whites to be detained prior to trial. Because they were detained more often than whites in the first place, African-American defendants were more likely than whites to suffer both the pains of imprisonment prior to trial and the consequences of pretrial detention at sentencing.

A study of pretrial detention and case outcomes in three U.S. district courts found a similar pattern of results.99 Spohn compared pretrial detention rates and sentences for African-American and white offenders who were convicted of drug trafficking offenses in the Southern District of Iowa, the District of Min- nesota, and the District of Nebraska. She found that 67.7 percent of the African- American offenders, but only 43.3 percent of the white offenders, were held in custody until their sentencing hearing. These differences did not disappear when she controlled for offender characteristics, including measures of the offender’s dangerousness and community ties, access to financial resources, the offender’s criminal history, and the seriousness of the crime. Even after these legally rel- evant predictors of pretrial detention were taken into consideration, African Americans faced higher odds of pretrial detention than did whites.100 Spohn also found that the likelihood of pretrial custody was substantially higher for African- American male offenders than for other offenders. The odds of pretrial detention for African-American males were twice those for white males, and the differ- ences between African-American males and either African-American females or white females were even larger. In fact, African-American males were 3.7 times more likely than white females and 3 times more likely than African-American females to be held in custody before trial. There also were large differences be- tween white females and white males, but the difference between white females and African-American females was not statistically significant. Thus, African- American males were treated more harshly than all other offenders, but white females were not treated any differently than African-American females.101

To determine whether the race of the offender had indirect and/or cumula- tive effects on sentence severity through its effect on pretrial detention, Spohn

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223T H E C O U R T S

estimated a model of sentence length, controlling for the offender’s pretrial status and for the offender and case characteristics identified by prior research as pre- dictors of sentences imposed under the federal sentencing guidelines. Her analysis revealed that offenders who were in custody at the time of the sentence hearing received sentences that averaged almost 8 months (b = 7.95) longer than those imposed on offenders who were not detained before the hearing.102

Spohn speculated that the pattern of results she uncovered might reflect judges’ interpretation of the federal bail statute, which allows them to take the of- fender’s dangerousness into consideration when deciding between pretrial release and detention. As she noted:

If, as prior research has shown, judges stereotype black drug traffickers and male drug traffickers as more dangerous and threatening than whites or females engaged in drug trafficking, their interpretation of the legally relevant criteria may lead to higher rates of pretrial detention for black offenders and for male offenders.103

Although the findings are somewhat contradictory, it thus appears that the re- forms instituted since the 1960s have not produced racial equality in bail decision making. It is certainly true that racial minorities are no longer routinely jailed prior to trial because of judicial stereotypes of dangerousness or because they are too poor to obtain their release. Nevertheless, there is evidence that judges

T A B L E 5.3 The Effect of Pretrial Detention on Incarceration Rates for Typical Felony Offenders in Chicago and Kansas City

% Sentenced to Prison

Detained Prior to Trial

Released Prior to Trial

Chicago

African-American male 73 23

Hispanic male 72 22

White male 63 16

African-American female 53 11

Hispanic female 55 11

White female 42 7

Kansas City

African-American male 29 16

White male 24 13

African-American female 13 6

White female 10 5

NOTE: These probabilities were calculated for defendants who were 30 years old, were charged with one count of possession of narcotics with intent, had one prior felony conviction, were not on probation at the time of the current offenses, were represented by a public defender, and pled guilty.

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224 C H A P T E R 5

in some jurisdictions continue to take race into account in deciding on the type and amount of bail. There also is evidence that race interacts with factors such as prior record or employment status to produce higher pretrial detention rates for African-American defendants than for white defendants. Given the consequences of pretrial detention, these findings are an obvious cause for concern.

C H A R G I N G A N D P L E A B A R G A I N I N G D E C I S I O N S

Regrettably, the evidence is clear that prosecutorial discretion is system- atically exercised to the disadvantage of black and Hispanic Americans. Prosecutors are not, by and large, bigoted. But as with police activity, prosecutorial judgment is shaped by a set of self-perpetuating racial assumptions.104

Thus far we have examined criminal justice decisions concerning appoint- ment of counsel and bail for evidence of racial discrimination. We have shown that, despite reforms mandated by the Supreme Court or adopted voluntarily by the states, inequities persist. African Americans and Hispanics who find them- selves in the arms of the law continue to suffer discrimination in these important court processing decisions.

In this section, we examine prosecutors’ charging and plea bargaining de- cisions for evidence of differential treatment of minority and white defendants. We argue that there is compelling evidence of racial disparity in charging and plea bargaining. We further contend that this disparity frequently reflects racial discrimination.

Prosecutors’ Charging Decisions

Prosecutors exercise broad discretion in deciding whether to file formal charges against individuals suspected of crimes and in determining the number and se- riousness of the charges to be filed. According to the Supreme Court, “So long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discre- tion.”105 As Justice Jackson noted in 1940, “The prosecutor has more control over life, liberty, and reputation than any other person in America.”106

The power of the prosecutor is reflected in the fact that in most states, from one-third to one-half of all felony cases are dismissed by the prosecutor prior to a determination of guilt or innocence.107 Prosecutors can reject charges at the initial screening, either because they believe the suspect is innocent or, more typi- cally, because they believe the suspect is guilty but a conviction would be unlikely. Prosecutors also can reject charges if they feel it would not be in the “interest of justice” to continue the case—because the crime is too trivial; because of a per- ception that the suspect has been punished enough; or because the suspect has

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225T H E C O U R T S

agreed to provide information about other, more serious, cases.108 Finally, prose- cutors can reject charges as felonies but prosecute them as misdemeanors.

If a formal charge is filed by the prosecutor, it still can be reduced to a less-se- rious felony or to a misdemeanor during plea bargaining. It also can be dismissed by the court on a recommendation by the prosecutor. This usually happens when the case “falls apart” prior to trial. A witness may refuse to cooperate or may fail to appear at trial, or the judge may rule that the confession or other essential evi- dence is inadmissible. Unlike the prosecutor’s initial decision to reject the charge, the decision to dismiss a charge already filed requires official court action.

The Effect of Race on Charging Decisions Although the prosecutor’s discre- tion is broad, it is not unlimited. The Supreme Court, in fact, has ruled that the decision to prosecute may not be “deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.”109 The prosecutor, in other words, cannot legitimately take the race of the suspect into account in deciding whether to file charges or in deciding on the seriousness of the charge to be filed.

Relatively few studies have examined the effects of race and ethnicity on pros- ecutorial charging decisions, and those few studies conducted reach contradictory conclusions.110 Some researchers found either that race/ethnicity did not affect charging decisions at all or that race/ethnicity played a very minor role in the de- cision of whether to prosecute.111 Two recent studies, one of charging decisions in federal courts and one of charging outcomes in state courts, illustrate this conclu- sion. Lauren Shermer and Brian Johnson examined U.S. attorneys’ decisions to re- duce the severity of the charges that defendants were facing in U.S. district courts.112

They found that males were less likely than females to receive charge reductions but that neither race/ethnicity nor age affected the likelihood of charge reduction. Fur- ther analysis revealed that race, ethnicity, gender, and age did not interact to affect charge reductions in the predicted way; that is, young male African-American and Hispanic offenders were not less likely than older white male offenders to receive a reduction in the charges. Although they were careful to point out that they only examined one aspect of charging in federal courts, Shermer and Johnson concluded that the results of their study “are encouraging in that they support a general lack of systematic bias in the charge reduction decisions of federal prosecutors.”113 Travis Franklin found a similar pattern of results using state court data to examine whether the prosecutor dismissed the case against the defendant (after charges were initially filed).114 Race did not affect the likelihood of dismissal, and black males were no less likely than black females, white males, or white females to have the charges against them dismissed. Both of these recent and methodologically sophisticated studies, then, found no evidence of racial/ethnic bias in prosecutors’ decisions to reduce or dismiss the charges. (For a discussion of a case of reverse discrimination in a prosecutor’s charging decision, see Box 5.3, “In the Media: Mike Nifong and the Duke Lacrosse Case.”)

Several studies concluded that prosecutors’ charging decisions are affected by race. For example, a study that examined the decision to reject or dismiss charges against felony defendants in Los Angeles County revealed a pattern of

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226 C H A P T E R 5

B o x 5.3 In the Media: Mike Nifong and the Duke Lacrosse Case

Gunnar Myrdal, a Swedish social scientist and the author of a book examining the “Negro Problem” in the Unites States in the late 1930s and early 1940s, found substantial discrimination against African Americans in the decision of whether to charge. As Myrdal noted:

State courts receive indictments for physical violence against Negroes in an infinitesimally small proportion of the cases. It is notorious that practically never have white lynching mobs been brought to court in the south, even when the killers are known to all in the community and are mentioned by name in the local press. When the offender is a Negro, indictment is easily obtained, and no such difficulty at the start will meet the prosecution of the case.115

Discrimination of a different type surfaced in a recent, and highly publicized, case involving three members of the Duke University lacrosse team. In April 2006, Durham County (North Carolina) District Attorney Mike Nifong filed first-degree forcible rape, first-degree sexual offense, and kidnapping charges against the play- ers, all of whom were white, after an African-American woman who had been hired as a stripper for a team party claimed that she had been repeatedly raped. The charges were filed in spite of the fact that the complainant’s story changed several times and that DNA tests failed to connect any of the accused to the alleged sexual assault.

In the weeks and months following the filing of charges, District Attorney Ni- fong gave dozens of interviews to local and national media. He stated repeatedly that he was “confident that a rape occurred,”116 and he called the players “a bunch of hooligans” whose “daddies could buy them expensive lawyers.”117 Professors at Duke University were even blunter, emphasizing the race of the victim and the sus- pects and implying that justice would not be served. For example, William Chafe, a professor of history, published an op-ed piece in which he argued that there were similarities between the Duke case and the case involving whites who kidnapped, beat, and murdered an African-American boy named Emmett Till in 1950s in Mississippi:

Sex and race have always interacted in a vicious chemistry of power, privilege and control. Emmett Till was brutalized and lynched in Mississippi in 1954 for allegedly speaking with too easy familiarity to a white woman storekeeper. . . . What has all this to do with America today? Among other things, it helps to put into context what occurred in Durham two weeks ago. The mixture of race and sex that transpired on Buchanan Boulevard is not new.118

The case against the three Duke University students began to unravel during the summer and fall of 2006. In mid-December, it was revealed that Nifong had withheld exculpatory DNA evidence (i.e., evidence that proved none of the three men accused of the assaults was involved) from defense lawyers, and on Decem- ber 22, Nifong dropped the rape charges, but not the sexual offense and kidnapping charges. Six days later the North Carolina Bar Association filed ethics charges against Nifong, alleging that he had engaged in “conduct that involves dishonesty, fraud, deceit or misrepresentation, as well as conduct that is prejudicial to the adminis- tration of justice.”119 In January 2007, Nifong asked to be taken off the case, which was then turned over to the North Carolina Attorney General, Roy Cooper. After conducting his own investigation, Cooper dropped all of the remaining charges on

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227T H E C O U R T S

April 11. Cooper stated that his office “believed these three individuals are innocent of these charges.” He also alleged that the charges resulted from a “tragic rush to accuse and a failure to verify serious allegations” and showed “the enormous conse- quences of overreaching by a prosecutor.”120

Nifong resigned from his position as Durham County District Attorney on June 18. Two days earlier, he had been disbarred after a disciplinary hearing committee of the North Carolina Bar ruled that he had committed numerous violations of the state’s rules of professional conduct. In August, Nifong was held in criminal contempt of court and sentenced to one day in jail for his actions in the case.

As this case illustrates, prosecutors have an ethical obligation to “do justice.” Their charging decisions cannot be motivated by “personal or political advantages or disadvantages which might be involved” or by “a desire to enhance [their conviction records].”121

discrimination in favor of female defendants and against African-American and Hispanic defendants.122 The authors controlled for the defendant’s age and prior criminal record, the seriousness of the charge against the defendant, and whether the defendant used a weapon in committing the crime. As shown in Table 5.4, they found that Hispanic males were most likely to be prosecuted fully, followed by African-American males, white males, and females of all ethnic groups.

The authors of this study speculated that prosecutors took both race and gender into account in deciding whether to file charges in “marginal cases.” They reasoned that strong cases would be prosecuted and weak cases would be dropped, regardless of the race or gender of the suspect. In marginal cases, however,

prosecutors may simply feel less comfortable prosecuting the dominant rather than the subordinate ethnic groups. They might feel the dominant groups are less threatening. Or they might believe they can win convic- tions more often against blacks and Hispanics than against Anglos.123

Similar results surfaced in a study of prosecutors’ charging decisions in King County, Washington.124 When the authors of this study examined the prosecutor’s decision to file felony charges (rather than file misdemeanor charges or decline to prosecute the case), they found that prosecutors were substantially more likely to file felony charges against racial minorities than against whites. These differences were especially pronounced for violent crimes and drug offenses. Moreover, the racial disparities did not disappear when the authors controlled for the seriousness of the crime, the defendant’s prior criminal record, and the defendant’s age and gender. Even taking these factors into account, Native Americans were 1.7 times more likely than whites to be charged with a felony, and African Americans were 1.15 times more likely than whites to face felony charges.125

Robert D. Crutchfield and his coauthors stressed that these racial differ- ences were not “necessarily the result of individuals making biased decisions.”126

Rather, the differences probably reflected race-linked legal, economic, and social factors that prosecutors take into account in deciding whether to charge, as well

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228 C H A P T E R 5

as officials’ focus on drug offenses involving crack cocaine. As we have repeatedly emphasized, however, this type of subtle or indirect discrimination is problematic. It is difficult to disentangle the effects of race/ethnicity, social class, employment history, and family situation. Even if criminal justice officials are justified in taking these social and economic factors into account, doing so will necessarily produce unintended race effects.

Prosecutorial Discretion in the Context of Mandatory

Minimum Sentences and Habitual Offender Laws

An important component of prosecutorial discretion is found in the context of mandatory minimum sentences and habitual offender laws. In many jurisdictions, prosecutors have discretion whether to file charges that trigger mandatory min- imum sentences, three-strikes-and-you’re-out provisions, and habitual offender sentencing requirements. All of these provisions lead to more punitive sentences. If such charges are filed, the judge’s discretion at sentencing is reduced or, in some jurisdictions, eliminated entirely. By determining whether defendants will face charges that trigger these sentence enhancements, prosecutors in essence influ- ence the sentences that judges impose.

There is compelling evidence that prosecutors do exercise their discretion in these types of cases. A study by the U.S. Sentencing Commission, for example, showed that only about half of all federal offenders who were potentially sub- ject to mandatory minimums actually received a mandatory minimum sentence, and there are a number of studies at the state level that reveal that mandatory minimums, sentencing enhancements for use of a firearm, and habitual offender provisions are applied to only a small proportion of eligible defendants.127

T A B L E 5.4 The Effect of Race and Gender on Prosecutors’ Charging Decisions

Adjusted Meansa

Rejected at Screening %

Dismissed by Court %

Fully Prosecuted %

Group

African-American male 46 34 39

African-American female 57 42 30

Hispanic male 46 33 42

Hispanic female 54 43 31

White male 54 33 26

White female 59 42 19

aMeans have been adjusted for the effect of four independent variables: age of the defendant, prior record of the de- fendant, seriousness of the charge, and whether the defendant used a weapon.

SOURCE: Table adapted from Cassia Spohn, John Gruhl, and Susan Welch, “The Impact of the Ethnicity and Gender of Defendants on the Decision to Reject or Dismiss Felony Charges,” Criminology 25 (1987), pp. 175–191.

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There also is evidence that race and ethnicity influence prosecutors’ de- cisions in these situations. Both David Bjerk128 and Jill Farrell129 found that racial minorities were more likely than whites to be sentenced under manda- tory minimum sentences, and two studies130 found that eligible racial minorities were substantially more likely than eligible whites to be sentenced as habitual offenders. A somewhat different pattern of results was found by Jeffery Ulmer and his colleagues, who used data from Pennsylvania (which operates under sentencing guidelines) to examine cases that were eligible to receive a manda- tory minimum sentence.131 The outcome of interest was whether the prosecu- tor filed a motion to apply the mandatory sentence. Their analysis controlled for the severity of the offense, the offender’s prior criminal record, the type of offense, whether the defendant went to trial or pled guilty, and the defen- dant’s race, ethnicity, gender, and age. They found, consistent with the research discussed earlier, that prosecutors applied the mandatory minimums to a small fraction of eligible offenders. They also found that Hispanics, but not African Americans, were more likely than whites to receive mandatory minimums, and that young Hispanic males were singled out for mandatory application, partic- ularly in drug trafficking cases.132 The authors of this study concluded that “le- gally relevant factors, case processing concerns (i.e., rewarding guilty pleas), and social statuses (i.e., gender, ethnicity and age) shape prosecutors’ perceptions of blameworthiness and community protection and thus their decisions to apply mandatories.”133

The Effect of Offender Race and Victim

Race on Charging Decisions

The research discussed thus far suggests that the race/ethnicity of the offender affects prosecutors’ charging decisions. There also is evidence that charging deci- sions vary depending on the race of the offender and the race of the victim. Gary D. LaFree,134 for example, found that African Americans arrested for raping white women were more likely to be charged with felonies than were either African Americans arrested for raping African-American women or whites arrested for raping white women. One study found that defendants arrested for murdering whites in Florida were more likely to be indicted for first-degree murder than those arrested for murdering African Americans.135 Another study of prosecutors’ charging decisions in death penalty cases found that homicide cases involving African-American defendants and white victims were more likely than simi- lar cases involving other offender–victim racial combinations to result in first- degree murder charges.136 The prosecutor in the midwestern jurisdiction where this study was conducted was also more likely to file a notice of aggravating cir- cumstances and to proceed to a capital trial if the defendant was an African Amer- ican who was accused of killing a white.

Research on sexual assault case processing decisions in Detroit reached a different conclusion. Cassia Spohn and Jeffrey Spears137 used data on sexual as- saults bound over for trial in Detroit Recorder’s Court to examine the effect of

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offender race, victim race, and other case characteristics on the decision to dismiss the charges against the defendant (versus the decision to fully prosecute the case). Building on previous research demonstrating that African Americans who murder or rape whites receive more punitive treatment than other victim–offender racial combinations, they hypothesized that African American-on-white sexual assaults would be more likely than either African American-on-African American or white-on-white sexual assaults to result in the dismissal of all charges. They found just the opposite: the likelihood of charge dismissal was significantly greater for cases involving African-American offenders and white victims than for the other two groups of offenders. They also found that African Americans prosecuted for assaulting whites were less likely to be convicted than whites charged with sexu- ally assaulting whites.138

Spohn and Spears concluded that their “unexpected findings” suggest that African American–on–white sexual assaults with weaker evidence are less likely to be screened out during the preliminary stages of the process.139 Police and prosecutors, in other words, may regard sexual assaults involving African-Amer- ican men and white women as inherently more serious than intraracial sexual assaults; consequently, they may be more willing to take a chance with a reluctant victim or a victim whose behavior at the time of the incident was questionable. According to the authors of this study:

The police may be willing to make an arrest and the prosecutor may be willing to charge, despite questions about the procedures used to obtain physical evidence or about the validity of the defendant’s confession. If this is true, then cases involving black offenders and white victims will be more likely than other types of cases to “fall apart” before or during trial.140

A study of charging decisions in California reached a similar conclusion. Joan Petersilia found that white suspects were more likely than African-American or Hispanic suspects to be formally charged.141 Her analysis of the reasons given for charge rejection led her to conclude that the higher dismissal rates for nonwhite suspects reflected the fact that “blacks and Hispanics in California are more likely than whites to be arrested under circumstances that provide insufficient evidence to support criminal charges.”142 Prosecutors were more reluctant to file charges against racial minorities than against whites, in other words, because they viewed the evidence against racial minorities as weaker and the odds of convicting them as lower.

Race, Drugs, and Selective Prosecution The results of Petersilia’s study in Los Angeles and Spohn and Spears’s study in Detroit provide evidence suggestive of a pattern of selective prosecution—that is, cases involving racial minorities, or certain types of racial minorities, are singled out for prosecution, whereas similar cases involving whites are either screened out very early in the process or never enter the system in the first place.

This argument has been made most forcefully with respect to drug of- fenses. In Malign Neglect, for example, Michael Tonry143 argues that “urban black

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Americans have borne the brunt of the War on Drugs.” More specifically, he charges that “the recent blackening of America’s prison population is the prod- uct of malign neglect of the war’s effects on black Americans.”144 Jerome Miller similarly asserts that “from the first shot fired in the drug war African-Americans were targeted, arrested, and imprisoned in wildly disproportionate numbers.”145

There is ample evidence that the war on drugs is being fought primarily in African-American and Hispanic communities. In 2014, for example, racial minorities comprised nearly three-fourths of all offenders prosecuted in fed- eral district courts for drug trafficking: 24.5 percent of these offenders were white, 24.8 percent were African American, and 47.6 percent were Hispanic.146

These figures are inconsistent with national data on use of drugs, which reveal that whites are more likely than either African Americans or Hispanics to re- port having “ever” used a variety of drugs, including cocaine, PCP, LSD, and marijuana.147

Some commentators cite evidence of a different type of selective prosecu- tion in drug cases (see Box 5.4 for the U.S. Attorney General’s memorandum regarding racial neutrality in federal prosecution). Noting that the penalties for use of crack cocaine mandated by the federal sentencing guidelines are substan- tially harsher than the penalties provided under many state statutes, these critics suggest that state prosecutors are more likely to refer crack cases involving racial

B o x 5.4 The U.S. Attorney General and Racial Neutrality in Prosecution

In January 1999, Janet Reno, then attorney general for the United States, issued a memorandum on “Ensuring Racial Neutrality in Prosecution Practices” to all U.S. Attorneys.148 Excerpts from the memo included the following:

■ “Each United States Attorney should examine his or her office’s practices and procedures and take all necessary measures to ensure the use of race-neutral policies in the exercise of prosecutorial discretion within a district. Absent com- pelling, specific law enforcement imperatives there is ordinarily no justification for differing policies and practices within a district with respect to similarly situated defendants. Moreover, any race-neutral policy that has a disparate racial impact should be carefully reviewed to determine whether the disparity is justified by law enforcement necessity and not the product of conscious or unconscious racial bias.”

■ “Care must be taken to ensure that race plays no part in the Government’s decision whether to file a substantial assistance motion or the amount of any recommended reduction.”

■ “As the chief federal law enforcement officer in the district, the United States Attorney should take a leadership role in ensuring that all agencies within the district are aware of issues of racial disparity [O]ur constant vigilance will ensure that there is no perception of racial disparity in the discharge of our duties. The public recognition that our policies are administered in a race-neutral fashion is as important as the reality that we do so administer them.”

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minorities to the federal system for prosecution. Richard Berk and Alec Camp- bell,149 for example, compared the racial makeup of defendants arrested for sale of crack cocaine in Los Angeles to the racial makeup of defendants charged with sale of crack cocaine in state and federal courts. They found that the racial makeup of arrestees was similar to the racial makeup of those charged with violating state statutes. However, African Americans were overrepresented in federal cases; in fact, over a four-year period, no whites were prosecuted for the sale of crack co- caine in federal court.

This issue was addressed by the Supreme Court in 1996. The five defen- dants in the case of U.S. v. Armstrong et al.150 alleged that they were selected for prosecution in federal court (the U.S. District Court for the Central District of California) rather than in state court because they were African American. They further alleged that this decision had serious potential consequences. Christopher Armstrong, for example, faced a prison term of 55 years to life under federal statutes, compared to 3–9 years under California law. Another defendant, Aaron Hampton, faced a maximum term of 14 years under California law but a manda- tory life term under federal law.

Following their indictment for conspiring to possess with intent to distribute more than 50 grams of crack cocaine, the defendants filed a motion for discovery of information held by the U.S. Attorney’s office regarding the race of people prosecuted by that office. In support of their motion, they offered a study show- ing that all of the defendants in the crack cocaine cases closed by the Federal Public Defender’s Office in 1991 were African American.

The U.S. District Court ordered the U.S. Attorney’s office to provide the data requested by the defendants. When federal prosecutors refused to do so, noting that there was no evidence that they had refused to prosecute white or Hispanic crack defendants, U.S. District Judge Consuelo Marshall dismissed the indict- ments. The 9th Circuit U.S. Court of Appeals affirmed Judge Marshall’s dismissal of the indictments. The appellate court judges stated that they began with “the presumption that people of all races commit all types of crimes—not with the premise that any type of crime is the exclusive province of any particular racial or ethnic group.”151 They stated that the defendant’s evidence showing that all 24 crack defendants were African American required some response from federal prosecutors.

The U.S. Supreme Court disagreed. In an 8-to-1 decision that did not settle the issue of whether the U.S. Attorney’s Office engaged in selective prosecution, the Court ruled that federal rules of criminal procedure regarding discovery do not require the government to provide the information requested by the defen- dants. Although prosecutors are obligated to turn over documents that are “mate- rial to the preparation of the . . . defense,” this applies only to documents needed to mount a defense against the government’s “case-in-chief ” (in other words, the crack cocaine charges) and not to documents needed to make a selective prose- cution claim. Further, the Court ruled that “for a defendant to be entitled to dis- covery on a claim that he was singled out for prosecution on the basis of his race, he must make a threshold showing that the Government declined to prosecute similarly situated suspects of other races.”152

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Justice Stevens, the lone dissenter in the case, argued that the evidence of selective prosecution presented by the defendants “was sufficiently disturbing to require some response from the United States Attorney’s Office.” According to Stevens:

If a District Judge has reason to suspect that [the United States Attorney for the Central District of California], or a member of her staff, has sin- gled out particular defendants for prosecution on the basis of their race, it is surely appropriate for the Judge to determine whether there is a factual basis for such a concern.153

Stevens added that the severity of federal penalties imposed for offenses in- volving crack cocaine, coupled with documented racial patterns of enforcement, “give rise to a special concern about the fairness of charging practices for crack offenses.” His concerns are echoed by U.S. District Court Judge Consuelo B. Marshall, who observed, “We do see a lot of these [crack] cases and one does ask why some are in state court and some are being prosecuted in federal court . . . and if it’s not based on race, what’s it based on?”154

Prosecution of the Jena Six In September 2006, an African-American student at Jena (Louisiana) High School defied tradition and sat under a large oak tree in the center of campus that was “reserved” for whites. The next day, three hang- man’s nooses were found dangling from the tree. This led to a series of altercations involving white and African-American students and, eventually, to the beating of a white student, Justin Barker, by six African-American youths who also attended the school. Barker was treated at a local hospital and released. The white students who admitted hanging the nooses were suspended from school for three days.

Although the incident was widely regarded as nothing more than a “schoolyard brawl,”155 the six students, five of whom were juveniles at the time of the inci- dent, were expelled from school and charged, not with assault, but with attempted second-degree murder and conspiracy to commit second-degree murder. All but one of the students—Jesse Ray Beard, who was 14 at the time of the incident— were charged as adults and were facing sentences of up to 100 years in prison.

Rapides Parish District Attorney Reed Walters, who initially justified the mur- der charges by classifying the tennis shoes the African-American students were wearing during the incident as “deadly weapons,” reduced the charges against Mycah Bell, who was 16 when the incident occurred, to aggravated second- degree battery and conspiracy to commit aggravated second-degree battery just be- fore the case was to go to trial. He was convicted of these charges by an all-white jury, but a Louisiana appellate court threw out the conviction, ruling that Bell’s case should have been heard in juvenile court. Bell pled guilty to simple battery in juvenile court and was sentenced to serve 18 months in a juvenile facility. In 2009, the remaining five defendants pleaded no contest to misdemeanor simple battery and were sentenced to seven days unsupervised probation and ordered to pay fines of $500.

Walters’s decisions to charge the Jena Six with felonies in adult court and to not file charges against the students who hung the nooses were widely criticized.

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In September 2007, Walters answered those criticisms in an op-ed piece for the New York Times.156 Although he acknowledged that hanging the nooses was “ab- horrent and stupid,” he nonetheless argued that “it broke no law.” He also con- tended that the attack on Justin Barker was not a “schoolyard fight” but rather was a brutal and unprovoked attack on an individual who had nothing to do with the noose incident. According to Walters:

I can understand the emotions generated by the juxtaposition of the noose incident with the attack on Mr. Barker and the outcomes for the perpetrators of each. In the final analysis, though, I am bound to enforce the laws of Louisiana as they exist today, not as they might in someone’s vision of a perfect world.157

Walters’s explanation did not placate his critics. In 2007, the Harvard Civil Rights-Civil Liberties Law Review devoted an entire issue to the case of the Jena Six, with a focus on the actions of the prosecuting attorney. Andrew E. Taslitz and Carole Steiker, who wrote the lead article for the issue, argued that Walters’s decisions and the racial conflict they sparked “provide important windows into how race operates in the American criminal justice system.”158 According to these authors:

The racialized meaning of modern actions also affects public attitudes toward crime, the content of resulting legislation, the ways in which ju- dicial and prosecutorial discretion are exercised, and the nature of what are likely to be effective solutions to the problems of racial bias and dis- parity. Once again, these meanings may do their work at a subconscious level, yet their influence cannot be denied. All Americans, but especially those with power to change the criminal justice system, have a duty to expose the subconscious and institutional influences at work in their own choices (and in those of other criminal justice system actors) and to correct racism’s pernicious effects.159

Prosecution of Pregnant Women Who Abuse Drugs:

Racial Discrimination?

In 1989, Jennifer Clarise Johnson, a 23-year-old African-American crack addict, became the first woman in the United States to be convicted for exposing a baby to illegal drugs during pregnancy. The Florida court gave Johnson 15–20 years’ probation and required her to enter drug treatment and report subsequent preg- nancies to her probation officer. According to the prosecutor who filed charges against Johnson, “We needed to make sure this woman does not give birth to another cocaine baby.”160

Other prosecutions and convictions in other state courts followed; by 1992, more than 100 women in 24 states had been charged with abusing an unborn child through illegal drug use during pregnancy.

Many of these cases were appealed and, until 1997, all of the appeals resulted in the dismissal of charges. Then in October 1997, the South Carolina Supreme

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Court became the first court in the United States to rule that a viable fetus could be considered a person under child abuse laws and that a pregnant woman who abused drugs during the third trimester of pregnancy therefore could be charged with child abuse or other, more serious, crimes.161 Two months later, Talitha Re- nee Garrick, a 27-year-old African-American woman who admitted that she smoked crack cocaine an hour before she gave birth to a stillborn child, pled guilty to involuntary manslaughter in a South Carolina courtroom.

Do Prosecutors “Target” Pregnant African-American Women? A number of commentators contend that prosecutors’ charging decisions in these types of cases reflect racial discrimination. Humphries and colleagues, for example, as- serted, “The overwhelming majority of prosecutions involve poor women of color.”162 Dorothy Roberts163 similarly argued that “poor Black women are the primary targets of prosecutors, not because they are more likely to be guilty of fetal abuse, but because they are Black and poor.”164

To support her allegations, Roberts cited evidence documenting that most of the women who have been prosecuted have been African American; she noted that the 52 women prosecuted through 1990 included 35 African Americans, 14 whites, 2 Hispanics, and 1 Native American. Ten out of 11 cases in Florida and 17 out of 18 cases in South Carolina were brought against African-American women.165 According to Roberts, these glaring disparities create a presumption of racially selective prosecution.

Randall Kennedy, an African-American professor of law at Harvard Uni- versity and the author of Race, Crime, and the Law, acknowledged that Roberts’s charges of selective prosecution and racial misconduct “are surely plausible.” As he noted, “Given the long and sad history of documented, irrefutable racial discrim- ination in the administration of criminal law . . . no informed observer should be shocked by the suggestion that some prosecutors treat black pregnant women more harshly than identically situated white pregnant women.”166

Kennedy claimed, however, that Roberts’s contention that prosecutors target women “because they are black and poor,”167 although plausible, was not persuasive. He noted that Roberts relied heavily on evidence from a study designed to esti- mate the prevalence of alcohol and drug abuse among pregnant women in Pinellas County, Florida. This study revealed that there were similar rates of substance abuse among African-American and white women but that African-American women were 10 times more likely than white women to be reported to public health authorities (as Florida law required).

Kennedy argued that the Florida study does not provide conclusive evidence of racial bias. He noted, in fact, that the authors of the study themselves suggested that the disparity in reporting rates might reflect either the fact that newborns who have been exposed to cocaine exhibit more severe symptoms at birth or the fact that African-American pregnant women are more likely than white pregnant women to be addicted to cocaine (rather than to alcohol, marijuana, or some other drug). Kennedy asserted that Roberts failed to address these alternative hy- potheses and simply insisted “‘racial prejudice and stereotyping must be a factor’ in the racially disparate pattern of reporting . . .”168

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Kennedy also contended that Roberts’s analysis failed to consider the prob- lem of underprotection of the law. Imagine, he asked, what the reaction would be if the situation were reversed and prosecutors brought child-abuse charges solely against drug-abusing white women. “Would that not rightly prompt suspicion of racially selective devaluation of black babies on the grounds that withholding prosecution deprives black babies of the equal protection of the laws?”169

A more recent study of arrest and forced interventions on pregnant women calls Kennedy’s criticisms of Robert’s study into question.170 Lynn M. Paltrow and Jeanne Flavin collected data on 413 cases in which pregnant women were ar- rested and/or charged with crimes in state and federal jurisdictions of the United States between 1973 and 2005. The authors of the study found that in 84 per- cent of these cases, illicit drug use by the woman was an issue and over half of the women were charged with child abuse or neglect. Paltrow and Flavin also pointed out that nearly three quarters of the women were economically disad- vantaged, as indicated by the fact that they qualified for indigent defense coun- sel and that more than half of the 368 women for whom information on race/ ethnicity was available were racial minorities; in fact, 52 percent of them were African- American women. The racial disparity was even greater in some states. In South Carolina, for example, African Americans made up 30 percent of the state’s population, but 74 percent of the cases in the state were brought against African-American women. An even more glaring disparity was found in Flor- ida, where African Americans comprised 15 percent of the state’s population, but 75 percent of the cases brought against pregnant women. Noting that “rates of drug use and dependency are similar across races,” the authors concluded that “the clear racial disparities identified cannot be explained as the consequences of ‘color-blind’ decisions to exercise state control over pregnant women who use drugs or more specifically those who use cocaine.”171

What do you think? Do prosecutors concerned about drug use/abuse “tar- get” pregnant women who are poor and African American or Hispanic? What would the reaction be (among whites? among racial minorities?) if only white women were prosecuted?

Race and Plea Bargaining Decisions

Although the prosecutor’s decision to file charges or not obviously is a critical de- cision, prosecutors also exercise considerable discretion in the context of plea bar- gaining. They decide whether to offer the defendant concessions—for example, a reduction in the severity or number of charges or a recommendation regarding the sentence the defendant should serve—in exchange for a guilty plea. Some ju- risdictions limit the prosecutor’s ability to plea bargain in certain types of cases or require that plea offers be documented in writing, but in most jurisdictions plea bargaining is an unregulated and largely invisible phenomenon.

There has been relatively little research focusing explicitly on the effect of race on prosecutors’ plea bargaining decisions. The research that has been con- ducted reveals that prosecutors’ plea bargaining decisions are strongly deter- mined by the strength of evidence against the defendant, by the defendant’s prior

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criminal record, and by the seriousness of the offense.172 Prosecutors are more willing to offer concessions to defendants who commit less serious crimes and have less serious prior records. They also are more willing to alter charges when the evidence against the defendant is weak or inconsistent.

A number of studies conclude that white defendants are offered plea bar- gains more frequently and get better deals than racial minorities (for a detailed discussion of this, see “New York City and Prosecution of Marijuana Offenses”). A study of the charging process in New York, for example, found that race did not affect charge reductions if the case was disposed of at the first presentation. Among defendants who did not plead guilty at the first opportunity, however, African Americans received less substantial reductions than whites.173 An analysis of 683,513 criminal cases in California concluded that “whites were more suc- cessful in getting charges reduced or dropped, in avoiding ‘enhancements’ or extra charges, and in getting diversion, probation, or fines instead of incarceration.”174

An analysis of plea bargaining under the federal sentencing guidelines also concluded that whites receive better deals than racial minorities.175 This study, which was conducted by the U.S. Sentencing Commission, examined sentence reductions for offenders who provided “substantial assistance” to the government. According to §5K1.1 of the Guidelines Manual, if an offender assists in the investi- gation and prosecution of another person who has committed a crime, the pros- ecutor can ask the court to reduce the offender’s sentence. Because the guidelines do not specify either the types of cooperation that “count” as substantial assistance or the magnitude of the sentence reduction that is to be given, this is a highly discretionary decision.

The Sentencing Commission estimated the effect of race/ethnicity on both the probability of receiving a substantial assistance departure and the magnitude of the sentence reduction. They controlled for other variables such as the seri- ousness of the offense, use of a weapon, the offender’s prior criminal record, and other factors deemed relevant under the sentencing guidelines. They found that African Americans and Hispanics were less likely than whites to receive a substan- tial assistance departure; among offenders who did receive a departure, whites re- ceived a larger sentence reduction than either African Americans or Hispanics.176

According to the Commission’s report, “The evidence consistently indicated that factors that were associated with either the making of a §5K1.1 motion and/or the magnitude of the departure were not consistent with principles of equity.”177

Similar results were reported by Celesta A. Albonetti,178 who examined the effect of guideline departures on sentence outcomes for drug offenders. She found that guideline departures (most of which reflected prosecutors’ motions to reduce the sentence in return for the offenders’ “substantial assistance”) resulted in larger sentence reductions for white drug offenders than for African- American or His- panic drug offenders. A guideline departure produced a 23 percent reduction in the probability of incarceration for white offenders, compared with a 14 percent reduction for Hispanic offenders and a 13 percent reduction for African-Ameri- can offenders.179 Albonetti concluded that her findings “strongly suggest that the mechanism by which the federal guidelines permit the exercise of discretion op- erates to the disadvantage of minority defendants.”180

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Two studies found that race did not affect plea bargaining decisions in the predicted way. An examination of the guilty plea process in nine counties in Il- linois, Michigan, and Pennsylvania revealed that defendant race had no effect on four measures of charge reduction.181 The authors of this study concluded that “the allocation of charge concessions did not seem to be dictated by blatantly discriminatory criteria or punitive motives.”182 A study of charge reductions in two jurisdictions found that racial minorities received more favorable treatment than whites. In one county, African Americans received more favorable charge reductions than whites; in the other county, Hispanics were treated more favor- ably than whites.183 The authors of this study speculated that these results might reflect devaluation of minority victims. As they noted, “If minority victims are devalued because of racist beliefs, such sentiments could, paradoxically, produce more favorable legal outcomes for minority defendants.” The authors also sug- gested that the results might reflect overcharging of minority defendants by the police; prosecutors may have been forced “to accept pleas to lesser charges from black defendants because of the initial overcharging.”184

New York City and Prosecution of Marijuana Offenses In 2012, the Vera Institute of Justice partnered with Cyrus R. Vance, the newly elected New York district attorney, to study the effect of race and ethnicity on criminal justice outcomes for defendants arrested for misdemeanors and felonies in New York City. In a paper published in 2014 in Justice Quarterly, Kutateladze, Andiloro, and Johnson used data on defendants arrested for misdemeanor marijuana offenses to examine two types of plea offers—a prosecutor’s offer to allow the defen- dant to plead to a lesser charge and a prosecutor’s offer to make a noncustodial sentence recommendation to the judge (i.e., to recommend that the judge not send the defendant to jail or prison).185 They focused on misdemeanor marijuana offenses both because arrests for these types of offenses have been criticized for targeting racial minorities and because processing of minor drug offenses is highly discretionary and relatively straightforward (at least as compared to more serious violent and property crimes).

The goal of this study was to determine if, among those arrested for misde- meanor marijuana offenses, African Americans, Hispanics, and Asian Americans were treated differently during the plea bargaining process than similarly situated whites. When the researchers examined the two outcomes, they found that Af- rican Americans and Hispanics were more likely and Asians were less likely than whites to plead to the original charge. They also found that African Americans were twice as likely as whites to receive a custodial plea offer, Hispanics were somewhat more likely than whites to receive a custodial plea offer, and there were no differences between whites and Asians in the odds of a custodial plea offer.

Because the researchers had access to case files, they were able to collect detailed data on the characteristics of the defendant, the characteristics of the offense, the strength of evidence in the case, and the circumstances of the arrest. When they controlled for these offender and case characteristics, they found that African Americans were still less likely than whites to receive a reduced charge offer and that both African Americans and Hispanics were more likely to whites

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to receive a custodial plea offer. In fact, African Americans were 2.4 times more likely than whites and Hispanics were 1.4 times more likely than whites to re- ceive a custodial plea offer.

The authors of the study concluded that their results offer support for “theo- retical predictions grounded in implicit bias theory . . . which suggests that discre- tionary decisions by prosecutors are affected by subconscious racial schemas” that portray racial minorities as dangerous, violent, and prone to criminality.

In sum, although the evidence concerning the effect of race on prosecutors’ charging and plea bargaining decisions is both scanty and inconsistent, a num- ber of studies have found that African-American and Hispanic suspects are more likely than white suspects to be charged with a crime and prosecuted fully. There also is evidence supporting charges of selective prosecution of racial minorities, especially for drug offenses. The limited evidence concerning the effect of race on plea bargaining is even more contradictory. Given the importance of these initial charging decisions, these findings “call for the kind of scrutiny in the pretrial stages that has been so rightly given to the convicting and sentencing stages.”186

C O N C L U S I O N

The court system that tried and sentenced the Scottsboro Boys in 1931 no longer exists, in the South or elsewhere. Reforms mandated by the U.S. Supreme Court or adopted voluntarily by the states have eliminated much of the blatant racism directed against racial minorities in court. African-American and Hispanic crim- inal defendants are no longer routinely denied bail and then tried by all-white juries without attorneys to assist them in their defense. They are not consistently prosecuted and convicted with less-than-convincing evidence of guilt.

Implementation of these reforms, however, has not produced equality of jus- tice. As shown in the preceding sections of this chapter, there is evidence that defendant race/ethnicity continues to affect decisions regarding bail, charging, and plea bargaining. Some evidence suggests that race has a direct and obvious effect on these pretrial decisions; other evidence suggests that the effect of race is indirect and subtle. It is important to note, however, that discriminatory treatment during the pretrial stage of the criminal justice process can have profound conse- quences for racial minorities at trial and sentencing. If racial minorities are more likely than whites to be represented by incompetent attorneys or detained in jail prior to trial, they may, as a result of these differences, face greater odds of con- viction and harsher sentences. Racially discriminatory charging decisions have similar “spillover” effects at trial. We return to this issue in Chapter 7.

D I S C U S S I O N Q U E S T I O N S

1. Some commentators have raised questions about the quality of legal rep- resentation provided to the poor. They also have suggested that racial minorities, who are more likely than whites to be poor, are particularly

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disadvantaged. Is this necessarily the case? Are racial minorities represented by public defenders or assigned counsel treated more harshly than those represented by private attorneys? If you were an African-American, His- panic, or Native American defendant and could choose whether to be represented by a public defender or a private attorney, which would you choose? Why?

2. Racial minorities comprise a very small proportion of the lawyers and judges in the United States. What accounts for this? What difference, if any, would it make if more of the lawyers representing criminal defendants were racial minorities?

3. Do you agree or disagree with the Supreme Court’s decision (Grutter v. Bollinger) in the case in which the University of Michigan Law School’s ad- mission procedures were challenged? What is the basis for your agreement or disagreement?

4. Assume that racial minorities are more likely than whites to be detained prior to trial. Why is this a matter for concern? What are the consequences of pretrial detention? How could the bail system be reformed to reduce this disparity?

5. Randall Kennedy, the author of Race, Crime, and the Law, argues (p. 10) that it is sometimes difficult to determine “whether, or for whom, a given dispar- ity is harmful.” Regarding the prosecution of pregnant women who abuse drugs, he states that “some critics attack as racist prosecutions of pregnant drug addicts on the grounds that such prosecutions disproportionately bur- den blacks.” But, he asks, “On balance, are black communities hurt by pros- ecutions of pregnant women for using illicit drugs harmful to their unborn babies or helped by intervention which may at least plausibly deter conduct that will put black unborn children at risk?” How would you answer this question?

6. Why did the case of the Jena Six spark so much controversy? Did Reed Walters, the district attorney, overcharge the six African-American students? Should the white students who hung the nooses in the tree have been charged with hate crimes?

7. Assume that there is evidence that prosecutors in a particular jurisdiction offer more favorable plea bargains to racial minorities than to whites—that is, they are more willing to reduce the charges or to recommend a sentence substantially below the maximum permitted by law if the defendant is a ra- cial minority. What would explain this seemingly “anomalous” finding?

8. What conclusions can you draw about the fairness of the plea bargaining process from the recent research conducted by Kutateladze and his col- leagues in New York City?

9. What evidence would the defendants in U.S. v. Armstrong et al., the Supreme Court case in which five black defendants challenged their prosecution for drug offenses in federal rather than state court, need to prove that they had been the victims of unconstitutional selective prosecution? How would they obtain this evidence? Has the Supreme Court placed an unreasonable bur- den on defendants alleging selection prosecution?

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241T H E C O U R T S

N O T E S

1. Philip S. Anderson, “Striving for a Just Society,” ABA Journal (February 1999), p. 66.

2. Powell v. Alabama, 287 U.S. 45 (1932).

3. Norris v. Alabama, 294 U.S. 587 (1935).

4. Dan T. Carter, Scottsboro: A Tragedy of the American South (Baton Rouge: Louisiana State University Press, 1969), p. 326.

5. Ibid., p. 328.

6. Ibid., pp. 344–345.

7. Ibid., p. 347.

8. Birmingham Age-Herald, January 24, 1936 (quoted in Carter, Scottsboro, p. 347).

9. Carter, Scottsboro, pp. 376–377.

10. Ibid., p. 377.

11. Randall Kennedy, Race, Crime, and the Law (New York: Vintage Books, 1997), p. 104.

12. Peter Applebome, “Facts Perplexing in Texas Robbery,” New York Times, Decem- ber 19, 1983, p. 17.

13. Ibid., p. 17.

14. Chicago Tribune, August 9, 1995, Section 5, pp. 1–2.

15. Ibid., p. 2.

16. Ibid.

17. The Justice Project website: http://www.justice.policy.net/cjreform/profiles.

18. Kennedy, Race, Crime, and the Law, p. 127.

19. Powell v. Alabama, 287 U.S. 45 (1932).

20. Johnson v. Zerbst, 304 U.S. 458 (1938).

21. Gideon v. Wainwright, 372 U.S. 335 (1963).

22. Argersinger v. Hamlin, 407 U.S. 25 (1972).

23. A defendant is entitled to counsel at every stage “where substantial rights of the ac- cused may be affected” that require the “guiding hand of counsel” (Mempa v. Rhay, 389 U.S. 128, [1967]). These critical stages include arraignment, preliminary hearing, entry of a plea, trial, sentencing, and the first appeal.

24. Strickland v. Washington, 466 U.S. 668 (1984).

25. Anthony Lewis, Gideon’s Trumpet (New York: Vintage Books, 1964).

26. Lisa J. McIntyre, The Public Defender: The Practice of Law in the Shadows of Repute (Chicago: University of Chicago Press, 1987).

27. Bureau of Justice Statistics. Public Defender Offices, 2007—Statistical Tables (Washing- ton, DC: U.S. Department of Justice, 2010), Table 5.

28. Bureau of Justice Statistics, Defense Counsel in Criminal Cases (Washington, DC: U.S. Department of Justice, 2000), Tables 16 and 19.

29. “Notes: Gideon’s Promise Unfulfilled: The Need for Litigated Reform of Indigent Defense,” Harvard Law Review 113 (2000), pp. 2062–2079.

30. Legal Defense and Educational Fund, National Association for the Advancement of Colored People, Assembly Line Justice: Mississippi’s Indigent Defense Crisis (New York: NAACP), p. 2.

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242 C H A P T E R 5

31. Jonathan D. Casper, “Did You Have a Lawyer When You Went to Court? No, I Had a Public Defender,” Yale Review of Law & Social Action 1 (1971), pp. 4–9.

32. David W. Neubauer, America’s Courts and the Criminal Justice System, 7th ed. (Belmont, CA: Wadsworth, 2002), p. 186.

33. See, for example, Abraham S. Blumberg, “The Practice of Law as a Confidence Game: Organizational Cooptation of a Profession,” Law & Society Review 1 (1967), pp. 15–39; David Sudnow, “Normal Crimes: Sociological Features of the  Penal Code in the Public Defender’s Office,” Social Problems 12 (1965), pp. 255–277.

34. Ronald Weitzer, “Racial Discrimination in the Criminal Justice System: Findings and Problems in the Literature,” Journal of Criminal Justice 24 (1996), p. 313.

35. Jonathan D. Casper, Criminal Courts: The Defendant’s Perspective (Englewood Cliffs, NJ: Prentice-Hall, 1978); Richard D. Hartley, “Type of Counsel and Its Effects on Criminal Court Outcomes in a Large Midwestern Jurisdiction: Do You Get What You Pay For?” Diss. University of Nebraska at Omaha, 2005; Martin A. Levin, Urban Politics and the Criminal Courts (Chicago: University of Chicago Press, 1977); Lisa J. McIntyre, The Public Defender: The Practice of Law in the Shadow of Repute (Chicago: University of Chicago Press, 1987); Dallin H. Oaks and Warren Lehman, “Lawyers for the Poor,” in The Scales of Justice, Abraham S. Blumberg, ed. (Chicago: Aldine, 1970); Lee Silverstein, Defense of the Poor (Chicago: American Bar Foundation, 1965); Gerald R. Wheeler and Carol L. Wheeler, “Reflections on Legal Representation of the Economically Disadvantaged: Beyond Assembly Line Justice,” Crime and Delin- quency 26 (1980), pp. 319–332.

36. Jerome Skolnick, “Social Control in the Adversary System,” Journal of Conflict Resolu- tion 11 (1967), p. 67.

37. Paul B. Wice, Chaos in the Courthouse: The Inner Workings of the Urban Municipal Courts (New York: Praeger, 1985).

38. Richard A. Posner and Albert H. Yoon, “What Judges Think of the Quality of Legal Representation,” Stanford Law Review 63 (2011), pp. 317–350.

39. Bureau of Justice Statistics, Defense Counsel in Criminal Cases (Washington, DC: U.S. Department of Justice, 2000).

40. Ibid.

41. James M. Anderson and Paul Heaton, “How Much Difference Does the Lawyer Make? The Effect of Defense Counsel on Murder Case Outcomes,” The Yale Law Journal 122 (2012), pp. 154–217.

42. Ibid., p. 200.

43. Ibid., p. 206.

44. David S. Abrams and Albert H. Yoon, “The Luck of the Draw: Using Random Case Assignment to Investigate Attorney Ability,” The University of Chicago Law Review 74 (2007), pp. 1145–1177.

45. Malcolm D. Holmes, Harmon M. Hosch, Howard C. Daudistel, Dolores A. Perez, and Joseph B. Graves, “Ethnicity, Legal Resources, and Felony Dispositions in Two Southwestern Jurisdictions,” Justice Quarterly 13 (1996), pp. 11–30.

46. Ibid., p. 24.

47. The findings reported in this chapter are unpublished. For a discussion of the overall conclusions of this study, see Cassia Spohn and Miriam DeLone, “When Does Race

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243T H E C O U R T S

Matter? An Examination of the Conditions under Which Race Affects Sentence Se- verity,” Sociology of Crime, Law, and Deviance 2 (2000), pp. 3–37.

48. Weitzer, “Racial Discrimination in the Criminal Justice System,” p. 313.

49. Roger A. Hanson and Brian J. Ostrom, “Indigent Defenders Get the Job Done and Done Well,” in Criminal Justice: Law and Politics, 6th ed., George Cole, ed. (Belmont, CA: Wadsworth, 1993).

50. Gunnar Myrdal, An American Dilemma: The Negro Problem and Modern Democracy (New York: Harper and Brothers, 1944), p. 547.

51. Ibid., p. 548.

52. Haywood Burns, “Black People and the Tyranny of American Law,” The Annals of the American Academy of Political and Social Sciences 407 (1973), pp. 156–166.

53. Celesta A. Albonetti, “An Integration of Theories to Explain Judicial Discretion,” Social Problems 38 (1991), pp. 247–266; Ronald A. Farrell and Victoria L. Swigert, “Prior Offense Record as a Self-Fulfilling Prophecy,” Law & Society Review 12 (1978), pp. 437–453; Caleb Foote, “Compelling Appearance in Court: Adminis- tration of Bail in Philadelphia,” University of Pennsylvania Law Review 102 (1954), pp. 1031–1079; Joan Petersilia, Racial Disparities in the Criminal Justice System (Santa Monica, CA: Rand Corporation, 1978); Gerald R. Wheeler and Carol L. Wheeler, “Reflections on Legal Representation of the Economically Disadvantaged.”

54. American Bar Association, “Lawyer Demographics.” http://www.americanbar. org/content/dam/aba/administrative/market_research/lawyer-demographics- tables-2014.authcheckdam.pdf.

55. “A Disturbing Trend in Law School Diversity.” http://blogs.law.columbia.edu/salt.

56. Bureau of Labor Statistics, “Employed Persons by Detailed Occupation, Sex, Race, and Hispanic or Latino Ethnicity, Employment and Earnings, Current Population Survey” (2010). http://www.bls.gov/cps/cpsa2010.pdf.

57. Bies, Katherine J., Isaiah M. Deport, Darryl G. Long, Megan S. McKoy, Debbie A. Mukamal, and David Alan Sklansky, Stuck in the ‘70s: The Demographics of California Prosecutors (Stanford, CA: Stanford Criminal Justice Center, 2015).

58. American Bar Association, “National Database on Judicial Diversity in State Courts.” http://www.abanet.org/judind/diversity/national.html.

59. Barry J. McMillion, U.S. Circuit and District Court Judges: Profile of Select Characteristics (Washington, DC: Congressional Research Service, 2014), Figure 5 and Figure 10.

60. Ibid., Figure 6 and Figure 11.

61. American Bar Association, Commission on Racial and Ethnic Diversity in the Profession, Miles to Go 2000: Progress of Minorities in the Legal Profession (Chicago: American Bar Association, 2000), p. 28.

62. Ibid., p. 29.

63. Richard H. Sander, “A Systematic Analysis of Affirmative Action in American Law Schools,” Stanford Law Review 57 (2004), pp. 367–585.

64. Ibid., p. 474.

65. David L. Chambers, Timothy T. Clydesdale, William C. Kidder, and Richard O. Lempert, “The Real Impact of Eliminating Affirmative Action in American Law Schools: An Empirical Critique of Richard Sander’s Study,” Stanford Law Review 57 (2005), pp. 1855–1898.

66. Ibid., p. 1857.

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244 C H A P T E R 5

67. John Hechinger, “Critics Assail Study of Race, Law Students,” Wall Street Journal, November 5, 2004. http://www.wsj.com/articles/SB109960753547665313.

68. American Bar Association, “Race and the Law: Special Report,” February (1999), pp. 42–70.

69. Terry Carter, “Divided Justice,” ABA Journal, February (1999), pp. 42–45.

70. The University of Michigan Law School, Report and Recommendations of the Admis- sions Committee.

71. Ibid.

72. Grutter v. Bollinger, 288 F.3d 732 (2003).

73. Ibid.

74. Case No. 06-15024. U.S. District Court, Eastern District of Michigan.

75. Wayne Thomas, Bail Reform in America (Berkeley, CA: University of California Press, 1976).

76. Samuel Walker, Taming the System: The Control of Discretion in Criminal Justice, 1950– 1990 (New York: Oxford University Press, 1993).

77. J. Austin, B. Krisberg, and P. Litsky, “The Effectiveness of Supervised Pretrial Re- lease,” Crime and Delinquency 31 (1985), pp. 519–537; John S. Goldkamp, “Danger and Detention: A Second Generation of Bail Reform,” The Journal of Criminal Law and Criminology 76 (1985), pp. 1–74; Walker, Taming the System.

78. Goldkamp, “Danger and Detention.”

79. This law was upheld by the U.S. Supreme Court in United States v. Salerno, 481 U.S. 739 (1987).

80. Coramae Richey Mann, Unequal Justice: A Question of Color (Bloomington, IN: Indi- ana University Press, 1993), p. 168.

81. R. Stryker, Ilene Nagel, and John Hagan, “Methodology Issues in Court Research: Pretrial Release Decisions for Federal Defendants,” Sociological Methods and Research 11 (1983), pp. 460–500; Charles M. Katz and Cassia Spohn, “The Effect of Race and Gender on Bail Outcomes: A Test of an Interactive Model,” American Journal of Crim- inal Justice 19 (1995), pp. 161–184.

82. S. H. Clarke and G. G. Koch, “The Influence of Income and Other Factors on Whether Criminal Defendants Go To Prison,” Law & Society Review 11 (1976), pp. 57–92.

83. George S. Bridges, A Study on Racial and Ethnic Disparities in Superior Court Bail and Pre-Trial Detention Practices in Washington (Olympia, WA: Washington State Minority and Justice Commission, 1997).

84. Ibid., p. 54.

85. Ibid., p. 98.

86. Ibid.

87. Stephen Demuth and Darrell Steffensmeier, “The Impact of Gender and Race-Ethnicity in the Pretrial Release Process,” Social Problems 51 (2004), pp. 222–242.

88. Ibid., Tables 2 and 4.

89. Ibid., p. 233.

90. Ibid., p. 238.

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245T H E C O U R T S

91. Besiki Kutateladze, Whitney Tymas, and Mary Crowley, Race and Prosecution in Man- hattan (New York: Vera Institute of Justice, 2014).

92. Ibid., p. 5.

93. Margaret Farnworth and Patrick Horan, “Separate Justice: An Analysis of Race Dif- ferences in Court Processes,” Social Science Research 9 (1980), pp. 381–399.

94. Theodore G. Chiricos and William D. Bales, “Unemployment and Punishment: An Empirical Assessment,” Criminology 29 (1991), pp. 701–724.

95. Bureau of Justice Statistics, Pretrial Release of Felony Defendants, 1990–2004 (Wash- ington, DC: U.S. Department of Justice, 2007), Table 5.

96. Bureau of Justice Statistics, Felony Defendants in Large Urban Counties, 2006 (Wash- ington, DC: U.S. Department of Justice, 2010), Tables 5 and 8.

97. Spohn and DeLone, “When Does Race Matter?” Table 2.

98. Spohn and DeLone, unpublished data.

99. Cassia Spohn, “Race, Sex and Pretrial Detention in Federal Court: Indirect Ef- fects and Cumulative Disadvantage,” University of Kansas Law Review 57 (2009), pp. 879–902.

100. Ibid., p. 889.

101. Ibid., pp. 895–897.

102. Ibid., p. 893.

103. Ibid., pp. 898–899.

104. Leadership Conference on Civil Rights, Justice on Trial: Racial Disparities in the American Criminal Justice System (Washington, DC: Leadership Conference on Civil Rights, 2000).

105. Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978).

106. Kenneth Culp Davis, Discretionary Justice (Baton Rouge: Louisiana State University Press, 1969), p. 190.

107. Barbara Boland (INSLAW Inc.), The Prosecution of Felony Arrests (Washington, DC: Bureau of Justice Statistics, 1983); Kathleen B. Brosi, A Cross-City Comparison of Fel- ony Case Processing (Washington, DC: Institute for Law and Social Research, 1979); Vera Institute of Justice, Felony Arrests: Their Prosecution and Disposition in New York City’s Courts (New York: Longman, 1981).

108. Charles E. Silberman, Criminal Violence, Criminal Justice (New York: Random House, 1978), p. 271.

109. Bordenkircher v. Hayes, supra, 434 U.S. 357, at 364 (1978).

110. For a review of this research, see Marvin Free, “Race and Presentencing Decisions in the United States: A Summary and Critique of the Research,” Criminal Justice Review 27 (2002), pp. 203–232. Free reviewed 24 studies of prosecutorial charging decisions; his review revealed that 15 of them found that race (and, in some cases, ethnicity) did not affect charging outcomes.

111. Celesta A. Albonetti, “Criminality, Prosecutorial Screening, and Uncertainty: Toward a Theory of Discretionary Decision Making in Felony Case Processing,” Criminology 24 (1986), pp. 623–644; Dawn Beichner and Cassia Spohn, “Prosecutorial Charging Decisions in Sexual Assault Cases: Examining the Impact of a Specialized Prosecution Unit,” Criminal Justice Policy Review 16 (2005), pp. 461–498; Travis W. Franklin, “The Intersection of Defendants’ Race, Gender, and Age in Prosecutorial Decision Making,”

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246 C H A P T E R 5

Journal of Criminal Justice 38 (2010), pp. 185–192; Martha A. Myers, The Effects of Victim Characteristics in the Prosecution, Conviction, and Sentencing of Criminal Defendants, unpub- lished Ph.D. dissertation (Bloomington, IN: Indiana University, 1977); Laureen O’Neil Schermer and Brian D. Johnson, “Criminal Prosecutions: Examining Prosecutorial Discretion and Charge Reductions in U.S. Federal District Courts,” Justice Quarterly 27 (2010), pp. 394–430; Cassia Spohn and David Holleran, “Prosecuting Sexual Assault: A Comparison of Charging Decisions in Sexual Assault Cases Involving Strangers, Ac- quaintances, and Intimate Partners,” Justice Quarterly 18 (2001), pp. 651–688.

112. Schermer and Johnson, “Criminal Prosecutions.”

113. Ibid., p. 422.

114. Franklin, “The Intersection of Defendant’s Race, Gender, and Age in Prosecutorial Decision Making.”

115. Myrdal, An American Dilemma, pp. 552–553.

116. “Duke Suspends Lacrosse Team from Play amid Rape Allegations,” USA Today, March 28, 2006.

117. “Duke Rape Suspects Speak Out,” 60 Minutes, October 15, 2006.

118. William Chafe, “Race and Sex,” Durham Chronicle, March 31, 2006, at A7.

119. “Duke DA Answers Critics: Denies Unethical Conduct, Wants Some Charges Dropped,” ABC News Online (http://abcnews.go.com), February 28, 2007.

120. A. Beard, “Prosecutors Drop Charges in Duke Case,” Associated Press, April 11, 2007.

121. American Bar Association, Standards for Criminal Justice: The Prosecution Function. Standard 3-3.9(d). http://www.americanbar.org/publications/criminal_justice_ section_archive/crimjust_standards_pfunc_toc.html.

122. Cassia Spohn, John Gruhl, and Susan Welch, “The Impact of the Ethnicity and Gender of Defendants on the Decision To Reject or Dismiss Felony Charges,” Criminology 25 (1987), pp. 175–191.

123. Ibid., p. 186.

124. Robert D. Crutchfield, Joseph G. Weis, Rodney L. Engen, and Randy R. Gainey, Racial and Ethnic Disparities in the Prosecution of Felony Cases in King County (Olym- pia, WA: Washington State Minority and Justice Commission, 1995).

125. Ibid., p. 32.

126. Ibid., p. 58.

127. David Bjerk, “Making the Crime Fit the Penalty: The Role of Prosecutorial Dis- cretion under Mandatory Minimum Sentencing,” Journal of Law and Economics 48 (2005), pp. 591–625; Timothy S. Bynum, “Prosecutorial Discretion and the Implementation of a Legislative Mandate,” in Implementing Criminal Justice Policies, Merry Morash, ed. (Beverly Hills, CA: Sage, 1982), pp. 47–59; Charles Crawford, “Gender, Race, and Habitual Offender Sentencing in Florida,” Criminology 38 (2000), pp. 263–280; Charles Crawford, Ted Chiricos, and Gary Kleck, “Race, Racial Threat and Sentencing of Habitual Offenders,” Criminology 36 (1998), pp. 481–513; Jill Farrell, “Mandatory Minimum Firearm Penalties: A Source of Sentencing Disparity,” Justice Research and Policy 5 (2003), pp. 95–115; Paul Hofer, “Federal Sentencing for Violent and Drug Trafficking Crimes Involving Firearms: Recent Changes and Prospects for Improvement,” American Criminal Law Review 37 (2000), pp. 41–73; Paula Kautt and Miriam DeLone, “Sentencing Outcomes under Competing but Coexisting Sentencing Interventions: Untying the Gordian Knot,”

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247T H E C O U R T S

Criminal Justice Review 31 (2006), pp. 105–131; Colin Loftin, Milton Heumann, and David McDowall, “Mandatory Sentencing and Firearms Violence: Evaluating an Alternative to Gun Control,” Law & Society Review 17 (1983), pp. 287–318; Jeffery T. Ulmer, Megan C. Kurlychek, and John H. Kramer, “Prosecutorial Discretion and the Imposition of Mandatory Minimum Sentences,” Journal of Research in Crime and Delinquency 44 (2007), pp. 427–458.

128. Bjerk, “Making the Crime Fit the Penalty.”

129. Farrell, “Mandatory Minimum Firearm Penalties.”

130. Crawford, “Gender, Race, and Habitual Offender Sentencing in Florida”; Crawford et al., “Race, Racial Threat and Sentencing of Habitual Offenders.”

131. Ulmer et al., “Prosecutorial Discretion and the Imposition of Mandatory Minimum Sentences.”

132. Ibid., Tables 2 and 3.

133. Ibid., p. 452.

134. Gary D. LaFree, “The Effect of Sexual Stratification by Race on Official Reactions to Rape,” American Sociological Review 45 (1980), pp. 842–854.

135. Michael L. Radelet, “Racial Characteristics and the Imposition of the Death Pen- alty,” American Sociological Review 46 (1981), pp. 918–927.

136. Jon Sorensen and Donald H. Wallace, “Prosecutorial Discretion in Seeking Death: An Analysis of Racial Disparity in the Pretrial Stages of Case Processing in a Mid- western County,” Justice Quarterly 16 (1999), pp. 559–578.

137. Cassia Spohn and Jeffrey Spears, “The Effect of Offender and Victim Character- istics on Sexual Assault Case Processing Decisions,” Justice Quarterly 13 (1996), pp. 649–679.

138. Ibid., pp. 661–662.

139. Ibid., p. 673.

140. Ibid., p. 674.

141. Joan Petersilia, Racial Disparities in the Criminal Justice System (Santa Monica, CA: Rand, 1983).

142. Ibid., p. 26.

143. Michael Tonry, Malign Neglect: Race, Crime, and Punishment in America (New York: Oxford University Press, 1995), p. 105.

144. Ibid., p. 115.

145. Jerome Miller, Search and Destroy: African-American Males in the Criminal Justice Sys- tem (Cambridge: Cambridge University Press, 1996), p. 80.

146. U.S. Sentencing Commission, 2014 Sourcebook of Federal Sentencing Statistics (Washington, DC: United States Sentencing Commission, 2015), Table 4.

147. U.S. Department of Health and Human Services, Substance Abuse and Mental Health Services Administration, National Household Survey on Drug Abuse: Population Estimates 1994 (Rockville, MD: U.S. Department of Health and Human Services, 1995).

148. https://www.justice.gov/ag/memo-ensuring-racial-neutrality-prosecution-process.

149. Richard Berk and Alec Campbell, “Preliminary Data on Race and Crack Charging Practices in Los Angeles,” Federal Sentencing Reporter 6 (1993), pp. 36–38.

150. U.S. v. Armstrong et al., 517 U.S. 456 (1996).

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248 C H A P T E R 5

151. 48 F.3d 1508 (9th Cir. 1995).

152. U.S. v. Armstrong et al., 517 U.S. 456 (1996).

153. Ibid., (Stevens, J., dissenting).

154. Leadership Conference on Civil Rights, Justice on Trial, p. 14.

155. Andrew E. Taslitz and Carol Steiker, “Introduction to the Symposium: The Jena Six, the Prosecutorial Conscience, and the Dead Hand of History,” Harvard Civil Rights–Civil Liberties Law Review 44 (2009), pp. 275–296.

156. Reed Walters, “Op-Ed, Justice in Jena,” New York Times, September 26, 2007, at A27.

157. Ibid.

158. Taslitz and Steiker, “Introduction to the Symposium,” p. 295.

159. Ibid.

160. Drew Humphries, John Dawson, Valerie Cronin, Phyllis Keating, Chris Wisniewski, and Jennine Eichfeld, “Mothers and Children, Drugs and Crack: Reactions to Maternal Drug Dependency,” in The Criminal Justice System and Women, 2nd ed., Barbara Raffel Price and Natalie J. Sokoloff, eds. (New York: McGraw-Hill, 1995), p. 169.

161. Whitner v. State of South Carolina (1996).

162. Ibid., p. 173.

163. Dorothy Roberts, “Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right of Privacy,” Harvard Law Review 104 (1991), pp. 1419–1454.

164. Ibid., p. 1432.

165. Ibid., p. 1421, n. 6.

166. Kennedy, Race, Crime, and the Law, p. 354.

167. Ibid., p. 359.

168. Ibid., p. 360.

169. Ibid., p. 363.

170. Lynn M. Paltrow and Jeanne Flavin “Arrest of and Forced Interventions on Pregnant Women in the United States, 1973-2005: Implications for Women’s Le- gal Status and Public Health,” Journal of Health Politics, Policy and Law 38 (2013), pp. 300–343.

171. Ibid., p. 333.

172. Lynn M. Mather, Plea Bargaining or Trial? (Lexington, MA: Heath, 1979).

173. Ilene Nagel Bernstein, Edward Kick, Jan T. Leung, and Barbara Schultz, “Charge Reduction: An Intermediary State in the Process of Labelling Criminal Defen- dants,” Social Forces 56 (1977), pp. 362–384.

174. Weitzer, “Racial Discrimination in the Criminal Justice System,” p. 313.

175. Linda Drazga Maxfield and John H. Kramer, Substantial Assistance: An Empirical Yard- stick Gauging Equity in Current Federal Policy and Practice (Washington, DC: United States Sentencing Commission, 1998).

176. Ibid., pp. 14–19.

177. Ibid., p. 21.

178. Celesta A. Albonetti, “Sentencing under the Federal Sentencing Guidelines: Effects of Defendant Characteristics, Guilty Pleas, and Departures on Sentence Outcomes for Drug Offenses, 1991–92,” Law & Society Review 31 (1997), pp. 789–822.

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249T H E C O U R T S

179. Ibid., p. 813.

180. Ibid., p. 818.

181. Peter F. Nardulli, James Eisenstein, and Roy B. Flemming, The Tenor of Justice: Crimi- nal Courts and the Guilty Plea Process (Chicago: University of Chicago Press, 1988).

182. Ibid., p. 238.

183. Malcolm D. Holmes, Howard C. Daudistel, and Ronald A. Farrell, “Determinants of Charge Reductions and Final Dispositions in Cases of Burglary and Robbery,” Journal of Research in Crime and Delinquency 24 (1987), pp. 233–254.

184. Ibid., pp. 248–249.

185. Besiki Luka Kutateladze, Nancy R. Andiloro, and Brian D. Johnson, “Opening Pan- dora’s Box: How Does Defendant Race Influence Plea Bargaining?” Justice Quar- terly, published online May 2014. DOI:10.1080/07418825.2014.915340.

186. Spohn, Gruhl, and Welch, “The Impact of the Ethnicity and Gender of Defendants on the Decision To Reject or Dismiss Felony Charges,” p. 189.

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251

6

JUSTICE ON THE BENCH?

Trial and Adjudication in

Criminal Court

In our courts, when it’s a white man’s word against a black man’s, the white man always wins. They’re ugly but those are the facts

of life. The one place where a man ought to get a square deal is a courtroom, be he any color of the rainbow, but people have a way

of carrying their resentments right into a jury box. —HARPER LEE, TO KILL A MOCKINGBIRD1

L E A R N I N G O B J E C T I V E S

In this chapter, we focus on trial and adjudication in criminal court. We begin with an examination of race and the jury selection process. We focus on both the procedures used to select the jury pool and the process of selecting the jurors for a particular case. We also discuss the role that race plays in exonerations in rape cases and the issue of “playing the race card” in a criminal trial. We end the chapter by summarizing the scholarly debate surrounding the issue of racially based jury nullification.

After you have read this chapter:

1. You should be able to discuss the role of the jury and explain how the U.S. Supreme Court has interpreted the requirement that jurors be chosen from a random cross-section of the population.

2. You should be able to explain how race and ethnicity continue to be taken into consideration during the jury selection process.

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3. You should be able to evaluate competing arguments regarding the peremp- tory challenge and whether it should be eliminated.

4. You should be able to explain the concept of jury nullification and assess competing arguments regarding the legitimacy of race-based nullification.

5. You should be able to clarify why Randall Kennedy asserts that playing the race card in a criminal trial is “virtually always morally and legally wrong.”

R A C E / E T H N I C I T Y A N D T H E C R I M I N A L T R I A L

In 1997, Orange County (California) Superior Court Judge Everett Dickey reversed Geronimo Pratt’s 1972 conviction for first-degree murder, assault with intent to commit murder, and robbery.2 Pratt, a decorated Vietnam War veteran and a leader in the Black Panther Party, was accused of killing Caroline Olsen and shooting her ex-husband Kenneth Olsen on the Lincoln Park tennis court in Santa Monica. Pratt, who claimed he had been in Oakland on Panther business at the time of the crime, was convicted based in large part on the testimony of another member of the Black Panther Party, Julius Butler. It was later revealed that Butler had been a paid police informant and that police and prosecutors in Los Angeles conspired to keep this information from the jury hearing Pratt’s case.

Over the next 25 years, Pratt’s lawyers filed a series of appeals, arguing that Pratt’s conviction “was based on false testimony knowingly presented by the pros- ecution.”3 Their requests for a rehearing were repeatedly denied by California courts, and the Los Angeles District Attorney’s Office refused to reopen the case. Then, in May 1997, Judge Dickey granted Pratt’s petition for a writ of habeas corpus and reversed his conviction. Citing errors by the district attorney who tried the case, Judge Dickey stated, “The evidence which was withheld about Julius Butler and his activities could have put the whole case in a different light, and failure to timely disclose it undermines confidence in the verdict.”4

Pratt—who spent 25 years in prison, including 8 years in solitary confinement— was released on June 10, 1997. In April 2000, Pratt’s lawsuit for false imprisonment and violation of his civil rights was settled out of court: the City of Los Ange- les agreed to pay Pratt $2.75 million, and the federal government agreed to pay him $1.75 million. Pratt’s attorney, Johnnie Cochran, Jr., described the settlement as “unprecedented” and praised Pratt for “the relentless pursuit of justice.” Cochran also stated that the settlement puts “to rest a matter that has dragged on for more than three decades.”5

Trial and Adjudication in the Twenty-First Century

We began the previous chapter with a discussion of the Scottsboro case, a case involving nine young African-American males who were convicted of raping two white girls in the early 1930s. We noted that the defendants were tried by all- white juries and that the Supreme Court overturned their convictions because of the systematic exclusion of African Americans from the jury pool.

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However, the Scottsboro Boys were tried in the 1930s, and much has changed since then. Race relations have improved, and decisions handed down by the Supreme Court have made it increasingly difficult for court systems to exclude African Americans from jury service. Nevertheless, “racial prejudice still some- times seems to sit as a ‘thirteenth juror.’ ”6 As the Geronimo Pratt case reveals, the court system is not racially neutral. All-white juries continue to convict African-American defendants on less-than-convincing evidence. All-white juries continue to acquit whites who victimize African Americans despite persuasive evidence of guilt. And police and law enforcement officials sometimes bend the law in their zeal to obtain a conviction. Consider the following cases:

1991: Four white Los Angeles police officers were charged in the beat- ing of Rodney King, an African-American man stopped for a traffic vio- lation. A videotape of the incident, which showed the officers hitting King with their batons and kicking him in the head as he lay on the ground, was introduced as evidence at the trial. Los Angeles exploded in riots after a jury composed of 10 whites, 1 Asian American, and 1 His- panic American acquitted the officers on all charges. A poll conducted in the aftermath of the jury verdict revealed that 45 percent of African Americans but only 12 percent of whites attributed the not-guilty ver- dicts to racism and lack of African-American participation on the juries rather than to errors by the prosecutor or inadequate evidence of the officers’ guilt.7

2005: Walter Rideau, a 62-year-old African American whom Life maga- zine once called “the most rehabilitated prisoner in America,” walked out of a Calcasieu (Louisiana) Parish jail a free man after a jury that included four African Americans found him guilty of manslaughter rather than murder. Rideau, who had previously been sentenced to death three times by all-white, all-male juries, spent 44 years in prison for the 1961 murder of a white female bank teller, a crime he did not deny. Each of his con- victions and death sentences were overturned by federal courts. His first conviction was overturned by the U.S. Supreme Court, which referred to his trial as “kangaroo court proceedings.” A federal appellate court overturned his second conviction and death sentence because the prose- cutor removed potential jurors who said they would be hesitant, but not completely unwilling, to sentence Rideau to death. In 2000, a federal appellate court overturned his third conviction because of racial discrim- ination in the selection of the grand jury. Following this decision, the state of Louisiana decided to retry Rideau a fourth time, despite the fact that many of the prosecution witnesses were dead or otherwise unable to testify. The Calcasieu Parish district attorney (with the approval of the judge in the case) had the testimony of the state’s witnesses in the ear- lier trial read to the new jury. The jury found him guilty of manslaugh- ter, which under Louisiana law carried a maximum penalty of 21 years in prison. Theodore M. Shaw, president of the NAACP Legal Defense and Educational Fund, which represented Rideau in the most recent

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case, stated, “This was not a case about innocence. It was about fair- ness and redemption—fairness, because even the guilty are entitled to a trial untainted by racial discrimination and misconduct, and redemption, because in a real sense the teenager who committed the tragic crime died while incarcerated for 44 years and was reborn as the man who paid the price and struggled for redemption.”8

2010: Johannes Mehserle, a white for mer Bay Area Rapid Transit (BART) police officer, was convicted of involuntary manslaughter for killing Oscar Grant, a 22-year-old African American who was unarmed and lying face down on an outdoor train platform in Oakland (Cali- fornia) on New Year’s Day of 2009. Mehserle, who was charged with second-degree murder, maintained that he shot Grant by mistake when he pulled his gun, rather than his Taser, from its holster. The jury’s ver- dict meant that the jury did not believe that Mehserle intended to shoot Grant but instead believed that his behavior was so negligent as to constitute a crime. After the jury’s verdict was revealed, the U.S. Department of Justice’s Civil Rights Division announced that it was launching an investigation into whether Mehserle violated Grant’s civil rights. In a letter to U.S. Attorney General Eric Holder urging him to open the investigation, U.S. Representative Barbara Lee wrote, “While I understand this is a state criminal matter, certain issues surrounding this case seem to invite further examination by the Civil Rights Divi- sion of the Department of Justice. Given the ongoing tensions between African-American communities, communities of color and law enforce- ment, care must be taken to ensure that civil rights statutes are properly enforced and positive relationships between these communities and law enforcement are forged.”9

2014–2015: In three high-profile cases, grand juries refused to indict white police officers in the deaths of African-American suspects. In November 2014, the St. Louis County (Missouri) grand jury refused to indict a white police officer who fatally shot an unarmed 18-year-old African-American man, Michael Brown, in Ferguson, Missouri. Brown’s killing and the grand jury’s decision not to indict the officer sparked days of violent protests. In November 2015, a white police officer in Mem- phis, Tennessee, was cleared by a grand jury in the shooting death of a 19-year-old African-American man, Darrius Stewart, in spite of the fact that the district attorney recommended that the officer be indicted for voluntary manslaughter. In December 2015, a grand jury in Cuyahoga County (Ohio) refused to indict two white Cleveland police officers for killing Tamir Rice, a 12-year-old African-American boy who was play- ing with a toy gun. The prosecutor who presented the case to the grand jury reported that he did not recommend that the grand jury bring charges because he concluded that the officers reasonably believed that Tamir had a real weapon and was about to pull it from his waistband when he was shot.

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S E L E C T I O N O F T H E J U RY P O O L

Three facts about jury discrimination are largely undisputed. First, the all-white jury has been a staple of the American criminal justice system for most of our history. Second, the Supreme Court has long condemned discrimination in jury selection. And third, race discrimination in jury selection remains a pervasive feature of our justice system to this day. The interesting question is how all of these facts can be true at the same time.

—DAVID COLE, NO EQUAL JUSTICE10

The jury plays a critically important role in the criminal justice system. Indeed, “the jury is the heart of the criminal justice system.”11 Although it is true that most cases are settled by plea and not by trial, many of the cases that do go to trial involve serious crimes in which defendants are facing long prison terms or even the death penalty. In these serious—and highly publicized—cases, the jury serves as the conscience of the community and, in the words of the U.S. Supreme Court, as “an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.”12 As the Court has repeat- edly emphasized, the jury also serves as “the criminal defendant’s fundamental ‘protection of life and liberty against race or color prejudice.’ ”13

Racial Discrimination in Selection of the Jury Pool

The process of selecting a jury for a criminal case involves two stages: the selec- tion of the jury pool—that is, the pool of eligible individuals from whom the jurors for a particular case will be chosen—and the selection of the jurors who will actually decide the case. The jury pool is selected from eligible members of the community, who are selected at random, usually from voting records, auto- mobile registrations, or other lists of community residents. Prospective jurors for criminal cases on the court’s docket are then randomly selected from the jury pool. These potential jurors are examined by the judge and/or the attorneys for the prosecution and the defense to determine whether they have any bias, prej- udice, or interests that would prevent them from deciding the case in a fair and impartial way. Those who are biased or who have a conflict of interest can be challenged for cause. These challenges, which must be approved by the judge, are unlimited. Attorneys for each side also can remove potential jurors through the use of peremptory challenges, which are limited in number and which do not require the attorney challenging the juror to provide the reason for the challenge. We begin our discussion of race and the jury selection process by focusing on the selection of the jury pool.

The Fourteenth Amendment to the U.S. Constitution, which went into effect in 1868, provides that no state shall “deny to any person within its juris- diction the equal protection of the laws.” Enacted in the wake of the Civil War, the Fourteenth Amendment was designed to protect the rights of the newly freed slaves. As Congressman Stevens, one of the amendment’s sponsors, stated,

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“Whatever law punishes a white man for a crime shall punish the black man pre- cisely in the same way and to the same degree. Whatever law protects the white man shall afford ‘equal’ protection to the black man.”14

The interpretation of the equal protection clause—who was protected and what types of actions violated the equal protection mandate—was left to the U.S. Supreme Court. One of the first cases in which the Court was asked to apply the Equal Protection Clause was an 1880 case involving jury selection. At issue was the murder conviction of a black man, Taylor Strauder, by an all-white jury. In Strauder v. West Virginia,15 the Court ruled that a West Virginia statute limiting jury service to white males violated the Equal Protection Clause of the Fourteenth Amendment and therefore was unconstitutional. The Court concluded that the statute, which prohibited African Americans and other nonwhites—no matter how well qualified—from serving on juries, inflicted two distinct harms. The first was a harm that affected the entire African-American population. According to the Court:

The very fact that colored people are singled out and expressly denied by a statute all right to participate in the administration of the law, as jurors, because of their color . . . is practically a brand upon them affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others.16

The Court stated that the West Virginia statute inflicted a second harm that primarily hurt African-American defendants, who were denied even the chance to have people of their own race on their juries. “How can it be maintained,” the Justices asked, “that compelling a man to submit to trial for his life by a jury drawn from a panel from which the State has expressly excluded every man of his race, because of his color alone, however well qualified in other respects, is not a denial to him of equal legal protection?”17 The Court added that this was precisely the type of discrimination the Equal Protection Clause was designed to prevent.

After Strauder v. West Virginia, it was clear that states could not pass laws excluding African Americans from jury service. This ruling, however, did not pre- vent states, and particularly southern states, from developing techniques designed to preserve the all-white jury. In Delaware, for example, local jurisdictions used lists of taxpayers to select “sober and judicious” persons for jury service. Under this system, African-American taxpayers were eligible for jury service but were seldom, if ever, selected for the jury pool. The state explained this result by noting that few of the African Americans in Delaware were intelligent, experienced, or moral enough to serve as jurors. As the chief justice of the Delaware Supreme Court concluded, “That none but white men were selected is in nowise remark- able in view of the fact—too notorious to be ignored—that the great body of black men residing in this State are utterly unqualified by want of intelligence, experience, or moral integrity to sit on juries.”18

The U.S. Supreme Court refused to accept this explanation. In Neal v. Delaware, decided two years after Strauder, the court ruled that the practice had

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systematically excluded African Americans from jury service and was therefore a case of purposeful—and unconstitutional—racial discrimination.19 Justice Harlan, writing for the Court, stated that it was implausible “that such uniform exclusion of [Negroes] from juries, during a period of many years, was solely because . . . the black race in Delaware were utterly disqualified, by want of intelligence, expe- rience, or moral integrity.”20

These early court decisions did not eliminate racial discrimination in jury selection, particularly in the South. Gunnar Myrdal’s analysis of the “Negro prob- lem” in the United States in the late 1930s and early 1940s concluded that the typical jury in the South was composed entirely of whites.21 He noted that some courts had taken steps “to have Negroes on the jury list and call them in occa- sionally for service.”22 He added, however, that many southern courts, and par- ticularly those in rural areas, had either ignored the constitutional requirement or developed techniques “to fulfill legal requirements without using Negro jurors.”23

As a result, as Seymour Wishman noted, “For our first hundred years, blacks were explicitly denied the right to be jurors, which meant that if a black defendant was not lynched on the spot, an all-white jury would later decide what to do with him.”24

Since the mid-1930s, the Supreme Court has made it increasingly difficult for court systems to exclude African Americans from the jury pool. It consistently has struck down the techniques used to circumvent the requirement of racial neutrality in the selection of the jury pool. The Court, for example, ruled that it was unconstitutional for a Georgia county to put the names of white potential jurors on white cards, the names of African-American potential jurors on yellow cards, and then “randomly” draw cards to determine who would be summoned.25

Similarly, the Court struck down the “random” selection of jurors from tax books in which the names of white taxpayers were in one section and the names of African-American taxpayers were in another.26 As the justices stated in Avery v. Georgia, “The State may not draw up its jury lists pursuant to neutral procedures but then resort to discrimination at other stages in the selection process.”27

The states’ response to the Supreme Court’s increasingly vigilant oversight of the jury selection process was not always positive.28 The response in some south- ern jurisdictions “was a new round of tokenism aimed at maintaining as much of the white supremacist status quo as possible while avoiding judicial interven- tion.”29 These jurisdictions, in other words, included a token number of racial minorities in the jury pool in an attempt to head off charges of racial discrim- ination. The Supreme Court addressed this issue as late as 1988.30 The Court reversed the conviction of Tony Amadeo, who was sentenced to death for murder in Putnam County, Georgia, after it was revealed that the Putnam County district attorney asked the jury commissioner to limit the number of African Americans and women on the master lists from which potential jurors were chosen.

The Exclusion of Mexican Americans from Jury Service

The cases discussed thus far focus on racial discrimination in the selection of the jury pool. The issue of whether Hispanics—or, in the case of Texas, Mexican

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Americans—were similarly protected by the Equal Protection Clause of the Fourteenth Amendment proved more contentious and was not settled until 1954, a full 74 years after the Court ruled in Strauder that states could not ban African Americans from jury service by statute.

In a series of cases challenging the exclusion of Mexican Americans from jury service, Texas appellate courts consistently ruled against those challenging the system.31 In early cases, the Texas courts ruled that the lack of Mexican American jurors did not reflect purposeful discrimination but, rather, a lack of qualified can- didates. For example, in Lugo v. Texas,32 which was decided in 1939, the Court of Criminal Appeals heard testimony from the sheriff of San Patricio County that only two Mexican Americans had been summoned for jury duty (and neither of them served) in his 15 years as sheriff. However, the court ruled that this did not constitute evidence of intentional discrimination, noting that the sheriff also testified that “most of the Mexican population of this county are unable to speak intelligently in English and are unable to read and write the English language.”

In later cases, the appellate courts in Texas shifted gears, arguing that there was no discrimination against the “Mexican race” because, first, the Equal Protection Clause recognized only two races or “classes” of people—whites and blacks—and, second, Mexican Americans were part of the white race and therefore were not discriminated against when juries were made up entirely of whites. As the court stated in Hernandez v. State, “Mexican people . . . are not a separate race but are white people of Spanish descent. In contemplation of the Fourteenth Amend- ment, Mexicans are therefore members of and within the classification of the white race, as distinguished from the members of the Negro race.”33

The Texas courts insisted that Mexican Americans were not a racial group, but a nationality group, and, as such, the Equal Protection Clause did not apply to them. As Clare Sheridan has pointed out, “The irony of absorbing Mexican Americans into the category ‘white’ was that it denied them equal protection as a group.”34

The U.S. Supreme Court weighed in on these issues in 1954. The case involved Pete Hernandez, who was indicted for murder by a grand jury in Jackson County, Texas; he was convicted and sentenced to life imprisonment. Hernandez’s lawyers challenged the composition of both the grand jury that indicted him and the petit jury that was selected for his trial, arguing that the selection process, which systematically excluded persons of Mexican descent from jury service, violated the Fourteenth Amendment. There was evidence that no Mexican Americans had been on a jury in Jackson County for at least a quarter century, despite the fact that there were Mexican Americans who were qualified to serve.

Lawyers for the state of Texas argued that Mexican Americans were “whites of Spanish descent” and that Hernandez therefore had an impartial jury, com- posed of members of his own race (in other words, whites). The Texas Court of Criminal Appeals agreed, concluding that Mexican Americans were a national- ity, not a race, and that the Equal Protection Clause was not designed to ensure equal rights to those of different nationalities. The court stated that Hernandez was seeking “special privileges” that other whites did not have. According to the

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court’s ruling, “It is apparent, therefore, that appellant seeks to have this court recognize and classify Mexicans as a special class within the white race and to recognize that special class as entitled to special privileges in the organization of grand and petit juries in this state.”35

The U.S. Supreme Court disagreed with the Texas Court of Criminal Appeals’ analysis. Writing for the majority, Chief Justice Earl Warren said, “The State of Texas would have us hold that there are only two classes—white and Negro—within the contemplation of the Fourteenth Amendment. The decisions of this Court do not support that view.”36 According to the Court’s decision:

Throughout our history differences in race and color have defined easily identifiable groups which have at times required the aid of the courts in securing equal treatment under the laws. But community prejudices are not static, and from time to time other differences from the commu- nity norm may define other groups which need the same protection. Whether such a group exists within a community is a question of fact. When the existence of a distinct class is demonstrated, and it is further shown that the laws, as written or as applied, single out that class for different treatment not based on some reasonable classification, the guar- antees of the Constitution have been violated. The Fourteenth Amend- ment is not directed solely against discrimination due to a “two-class theory”—that is, based upon differences between “white” and Negro.37

The Supreme Court overturned Hernandez’s conviction and, in doing so, stated that the fact that there were no Mexican Americans on juries for over 25 years could not be due to chance. As the majority stated, “It taxes our credulity to say that mere chance resulted in there being no members of this class among the over six thousand jurors called in the past 25 years. The result bespeaks discrimination, whether or not it was a conscious decision on the part of any individual jury commissioner.”38

Techniques for Increasing Racial Diversity of the Jury Pool

Although the Supreme Court decisions discussed in the previous two sections have made it more difficult for states to discriminate overtly on the basis of race or ethnicity, the procedures used to select the jury pool are not racially neutral. Many states obtain the names of potential jurors from lists of registered voters, automobile registrations, or property tax rolls. The problem with this seemingly objective method is that in some jurisdictions racial minorities are less likely than whites to register to vote or to own automobiles or taxable property. As a result, racial minorities are less likely than whites to receive a jury summons. Further compounding the problem is the fact that “for a number of reasons, from skepti- cism and alienation to the inability to take time off from their jobs, minorities and the poor are also less likely to respond to those summonses they receive.”39 The result is a jury pool that overrepresents white middle- and upper-class persons and underrepresents racial minorities and those who are poor. (See Box 6.1 for the requirements for serving on a jury in Massachusetts.)

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B o x 6.1 Excerpts from Massachusetts Jury Selection Statute

Juror Service

Juror service in the participating counties shall be a duty which every person who qualifies under this chapter shall perform when selected. All persons selected for juror service on grand and trial juries shall be selected at random from the popula- tion of the judicial district in which they reside. All persons shall have equal opportu- nity to be considered for juror service. All persons shall serve as jurors when selected and summoned for that purpose except as hereinafter provided. No person shall be exempted or excluded from serving as a grand or trial juror because of race, color, religion, sex, national origin, economic status, or occupation. Physically handicapped persons shall serve except where the court finds such service is not feasible. This court shall strictly enforce the provisions of this section.

Disqualification from Juror Service

As of the date of receipt of the juror summons, any citizen of the United States, who is a resident of the judicial district or who lives within the judicial district more than fifty per cent of the time, whether or not he is registered to vote in any state or federal election, shall be qualified to serve as a grand or trial juror in such judicial district unless one of the following grounds for disqualification applies:

1. Such person is under the age of eighteen years.

2. Such person is seventy years of age or older and indicates on the juror confir- mation form an election not to perform juror service.

3. Such person is not able to speak and understand the English language.

4. Such person is incapable by reason of a physical or mental disability of render- ing satisfactory juror service.

5. Such person is solely responsible for the daily care of a permanently dis- abled person living in the same household and the performance of juror service would cause a substantial risk of injury to the health of the disabled person.

6. Such person is outside the judicial district and does not intend to return to the judicial district at any time during the following year.

7. Such person has been convicted of a felony within the past seven years or is defendant in pending felony cases or is in the custody of a correctional institution.

8. Such person has served as a grand or trial juror in any state or federal court within the previous three calendar years or the person is currently scheduled to perform such service.

SOURCE: 234A M.6.L.A. § et seq.

State and federal jurisdictions have experimented with a number of tech- niques for increasing the racial diversity of the jury pool. When officials in Hen- nepin County (St. Paul), Minnesota, which is 9 percent nonwhite, discovered that most grand juries were all white, they instituted a number of reforms designed to make jury service less burdensome. They doubled the pay for serving, provided

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funding to pay jurors’ day care expenses, and included a round-trip bus pass with each jury summons.40 As a result of these measures, the number of racial minori- ties selected for grand juries increased.

A more controversial approach involves “race-conscious jury selection”41 or “jurymandering.”42 (See Box 6.2 for an argument in favor of jurymandering.) Some jurisdictions, for example, send a disproportionate number of summonses to geographic areas with large populations of racial minorities. Others attempt to select a more representative jury pool by subtracting the names of white prospec- tive jurors until the proportion of racial minorities in the pool matches the pro- portion in the population. A more direct effort to ensure racial diversity involves setting aside a certain number of seats for racial minorities. Although no jurisdic- tion has applied this approach to the selection of trial jurors, judges in Hennepin County are required to select two minority grand jurors for every grand jury.43

A somewhat different approach was tried in a U.S. district court. In 2005, a federal district court judge in Boston ordered court administrators to send a new summons to another person in the same zip code if a summons was returned as undeliverable.44 Judge Nancy Gertner took this step in an attempt to increase the pool of African-American jurors available for a federal death penalty case involv- ing two African-American men. Massachusetts pioneered the use of resident lists rather than lists of registered voters in an attempt to increase the racial diversity of the jury pool. However, defense attorneys in the case argued that resident lists are more likely to be inaccurate in areas with the highest percentage of Afri- can Americans, resulting in a large number of summonses returned as undeliver- able. According to Patricia Garin, one of the defense attorneys, Gertner’s remedy, although unlikely to make juries truly representative of the community, was “a step in the right direction” and would increase the chances that people of color would serve on juries.45

Opinions regarding these techniques are divided. Randall Kennedy argued that “officials should reject proposals for race-dependent jury refor ms.”46

Although he acknowledged that these proposals are well intentioned, Kennedy

B o x 6.2 The Advantages of “Jurymandering”

In advocating for race-conscious jury selection, Hiroshi Furukai and Darryl Davies state: . . . jury studies show that a number of legal and non-legal factors operate

together to cause the under-representation of racial minorities on the jury. Relying on current color-blind jury selection procedures—in effect leaving the racial compo- sition of the jury to chance—almost always leads to racially disproportionate repre- sentation. One way to guarantee a mixed jury is through a race-conscious selection policy, or its equivalent, the ‘jurymandering’ method. Jurymandering is the use of an affirmative mechanism, such as a racial quota, to engineer mixed juries that may not occur under current jury selection procedures.

SOURCE: Hiroshi Furukai and Darryl Davies, “Affirmative Action in Jury Selection,” Virginia Journal of Social Policy & the Law 4 (1996), p. 653.

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maintained that they would have unintended consequences (e.g., jurors selected because of their race might believe they are expected to act as representatives of their race during deliberations) and would be difficult to administer (e.g., offi- cials would be required to determine the race of potential jurors and defendants, which would inevitably result in controversies over racial identification). Kennedy also suggested that the more direct techniques may be unconstitutional. As he noted, “Over the past decade, the U.S. Supreme Court has become increasingly hostile to race-dependent public policies, even when they have been defended as efforts to include historically oppressed racial minorities in networks of economic opportunity and self-government.”47

Although the Supreme Court has not yet addressed this issue, in 1998 the U.S. Court of Appeals for the Sixth Circuit ruled that subtracting whites from jury panels so that all panels matched the racial makeup of the community vio- lated the equal protection rights of white jurors.48 Four years later, the U.S. Court of Appeals for the Second Circuit handed down a similar ruling. This case involved the prosecution of an African American charged with the death of an Orthodox Jewish student. The judge in the case believed that it was important to seat a jury that was racially and religiously diverse. When one of the empan- eled jurors was excused as a result of illness, the judge removed a second white juror from the panel and filled the two slots with an African-American and a Jewish juror, neither of whom was next in line on the list of alternate jurors. In United States v. Nelson,49 the court recognized the motivations that led to the judge’s decision, noting that they were “undoubtedly meant to be tolerant and inclusive rather than bigoted and exclusionary,” but nonetheless ruled that “that fact cannot justify the district court’s race-conscious actions. The significance of a jury in our polity as a body chosen apart from racial and religious manipula- tions is too great to permit categorization by race or religion even from the best of intentions.”50

Those who disagree with these court rulings contend that race-conscious plans that create representative jury pools should be allowed because they reduce the likelihood that people of color will be tried by all-white juries. Albert Alschuler, an outspoken advocate of racial quotas for juries, asserted that “few statements are more likely to evoke disturbing images of American criminal jus- tice than this one: ‘the defendant was tried by an all-white jury.’ ”51 He and other critics of jury selection procedures contend that lack of participation by racial minorities on juries that convict the African Americans and Hispanics who fill court dockets in many jurisdictions leads to questions regarding the legitimacy of their verdicts. (See Box 6.3 for anecdotal evidence of racial bias during jury deliberations.) Advocates of race-conscious plans also argue that the inclusion of greater numbers of racial minorities will counteract the cynicism and dis- trust that minorities feel toward their government. As David Cole, a professor at Georgetown University Law Center, wrote, “If the criminal justice system is to be accepted by the black community, the black community must be represented on juries. The long history of excluding blacks from juries is one important rea- son why blacks as a class are more skeptical than whites about the fairness of the criminal justice system.”52

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T H E P E R E M P T O RY C H A L L E N G E :

R A C I A L P R O F I L I N G I N T H E C O U R T R O O M ?

The Supreme Court consistently has ruled that the jury should be drawn from a representative cross-section of the community and that race is not a valid qualifi- cation for jury service. These requirements, however, apply only to the selection of the jury pool. They do not apply to the selection of individual jurors for a partic- ular case. In fact, the Court has repeatedly stated that a defendant is not entitled to a jury “composed in whole or in part of persons of his own race.”53 Thus, pros- ecutors and defense attorneys can use their peremptory challenges—“challenges without cause, without explanation, and without judicial scrutiny”54—as they see fit (for evidence of this, see Box 6.4). They can use their peremptory challenges in a racially discriminatory manner.

It is clear that lawyers do take the race of the juror into consideration during the jury selection process. Prosecutors assume that racial minorities will side with minority defendants, and defense attorneys assume that racial minorities will be more inclined than whites to convict white defendants. As a result of these assumptions, both prosecutors and defense attorneys have used their peremptory

B o x 6.3 Racial Bias and Jury Selection: A Juror’s Perspective

In an article on “Unconscious Bias and the Impartial Jury” that appeared in the Con- necticut Law Review, Janet Bond Arterton, a U.S. District Court judge for the District of Connecticut, discussed a note that she received from a juror at the conclusion of a case involving an all-white jury and three African-American plaintiffs. The juror wrote:

I would like to convey to you, in confidence, a few thoughts about my expe- rience. I recall walking into the Jury Assembly room last Thursday, and being stunned by the singular ‘whiteness’ of the crowd. Out of almost 120 people reporting, one—yes, one—was a person of color. While it is my feeling that con- cern for quotas along racial lines can sometimes be excessive these days, no one could argue that the juries formed that day were a fair representation of our society. Couple that with the fact that the case involved three principals who are African-American, and the selection process seems all the more problematic.

Personally, I have no qualms with our decision in the case. We were able to size up the credibility of witnesses and their testimony without a great deal of soul-searching or in-depth deliberation. I believe this was fortunate, considering the makeup and predisposition of the jury. During deliberations, matter-of-fact expressions of bigotry and broad-brush platitudes about ‘those people’ rolled off the tongues of a vocal majority as naturally and unabashedly as if they were dis- cussing the weather. . . . Had just one African-American been sitting in that room, the content of the discussion would have been quite different. And had the case been more balanced—one that hinged on fine distinction or subtle nuances—a more diverse jury might have made a material difference in the outcome.

SOURCE: Honorable Janet Bond Arterton, “Unconscious Bias and the Impartial Jury,” Connecticut Law Review 40 (2008), pp. 1023–1033.

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264 C H A P T E R 6

challenges to strike racial minorities from the jury pool. Kennedy, in fact, char- acterized the peremptory challenge as “a creature of unbridled discretion that, in the hands of white prosecutors and white defendants, has often been used to sustain racial subordination in the courthouse.”55

Dramatic evidence of this surfaced during an electoral campaign in Phila- delphia. In April 1997, Lynne Abraham, Philadelphia’s district attorney, released a 1986 videotape made by Jack McMahon, a former assistant district attorney, and her electoral opponent. In the hour-long training video, McMahon advised fel- low prosecutors that “young black women are very bad for juries” and that “blacks from the low-income areas are less likely to convict.” He also stated, “There’s a resentment for law enforcement. There’s a resentment for authority. And as a result, you don’t want those people on your jury”56 (emphasis added). A Philadel- phia defense attorney characterized the videotape as “an abuse of the office,” not- ing, “It was unconstitutional then, and it’s unconstitutional now. You don’t teach young attorneys to exclude poor people, or black people or Hispanic people.”57

These comments notwithstanding, there is compelling evidence that prose- cutors do use their peremptory challenges to strike racial minorities from the jury

B o x 6.4 Selecting a Jury: Stereotypes and Prejudice

A 1973 Texas prosecutor’s manual for jury selection provided the following advice:

■ You are not looking for a fair juror, but rather a strong, biased, and some- times hypocritical individual who believes that defendants are different from them in kind, rather than degree. You are not looking for any member of a minority group which may subject him to oppression—they almost always empathize with the accused. You are not looking for free thinkers or flower children.

■ Observation is worthwhile. . . . Look for physical afflictions. These people usually sympathize with the accused.

■ I don’t like women jurors because I can’t trust them. They do, however, make the best jurors in cases involving crimes against children.

■ Extremely overweight people, especially women and young men, indicates a lack of self-discipline and often times instability. I like the lean and hungry look.

■ If the veniremen have not lived in the county long, ask where they were born and reared. People from small towns and rural areas generally make good State’s jurors. People from the east or west coasts often make bad jurors.

■ Intellectuals such as teachers, etc. generally are too liberal and contemplative to make good State’s jurors.

■ Ask veniremen their religious preference. Jewish veniremen generally make poor State’s jurors. Jews have a history of oppression and generally empathize with the accused. Lutherans and Church of Christ veniremen usually make good State’s jurors.

SOURCE: Albert W. Alschuler, “The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the Review of Jury Verdicts,” University of Chicago Law Review 56 (1989), p. 153. [Online].

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265J U S T I C E O N T H E B E N C H ?

pool. As a result, African-American and Hispanic defendants are frequently tried by all-white juries. In 1964, for example, Robert Swain, a 19-year-old African American, was sentenced to death by an all-white jury for raping a white woman in Alabama. The prosecutor had used his peremptory challenges to strike all six African Americans on the jury panel. In 1990, the State used all of its peremptory challenges to eliminate African Americans from the jury that would try Marion Barry, the African-American mayor of Washington, DC, on drug charges.

The Supreme Court and the Peremptory Challenge:

From Swain to Batson and Beyond

The Supreme Court initially was reluctant to restrict the prosecutor’s right to use peremptory challenges to excuse jurors on the basis of race. In fact, in 1965 the Court ruled in Swain v. Alabama that the prosecutor’s use of peremptory chal- lenges to strike all six African Americans in the jury pool did not violate the Equal Protection Clause of the Constitution.58 The Court reasoned:

The presumption in any particular case must be that the prosecutor is using the State’s challenges to obtain a fair and impartial jury. . . . The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes.59

The Court went on to observe that the Constitution did place some limits on the use of the peremptory challenge. The Justices stated that a defendant could establish a prima facie case (i.e., a case in which the evidence appears to support the claim being made) of purposeful racial discrimination by showing that the elimination of African Americans from a particular jury was part of a pattern of discrimination in that jurisdiction.

The problem, of course, was that the defendants in Swain, and in the cases that followed, could not meet this stringent test. As Seymour Wishman observed, “A defense lawyer almost never has the statistics to prove a pattern of discrimination, and the state under the Swain decision is not required to keep them.”60 The ruling, therefore, provided no protection to the individual African-American or Hispanic defendant deprived of a jury of his or her peers by the prosecutor’s use of racially discriminatory strikes. As Supreme Court Justice William Brennan later wrote:

With the hindsight that two decades affords, it is apparent to me that Swain’s reasoning was misconceived. . . . Swain holds that the state may presume in exercising peremptory challenges that only white jurors will be sufficiently impartial to try a Negro defendant fairly. . . . Implicit in such a presumption is profound disrespect for the ability of individual Negro jurors to judge impartially. It is the race of the juror, and nothing more, that gives rise to the doubt in the mind of the prosecutor.61

Despite harsh criticism from legal scholars and civil libertarians, who argued that Swain imposed a “crushing burden  .  .  .  on defendants alleging racially

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266 C H A P T E R 6

discriminatory jury selection,”62 the decision stood for 21 years. It was not until 1986 that the Court, in Batson v. Kentucky, rejected Swain’s systematic exclusion requirement and ruled “that a defendant may establish a prima facie case of purpose- ful discrimination in selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial.”63 The jus- tices added that once the defendant makes a prima facie case of racial discrimination, the burden shifts to the state to provide a racially neutral explanation for excluding African-American jurors. (See Box 6.5 for a discussion of the use of the peremptory challenge to exclude African-American jurors in cases involving white defendants.)

Interpreting and Applying the Batson Standard Although Batson seemed to offer hope that the goal of a representative jury was attainable, an examination of cases decided since 1986 suggests otherwise. State and federal appellate courts have ruled, for example, that leaving one or two African Americans on the jury

B o x 6.5 White Defendants and the Exclusion of Black Jurors

The Supreme Court has interpreted the Equal Protection Clause to prohibit prose- cutors from using their peremptory challenges in a racially discriminatory manner— that is, to forbid prosecutors from striking African Americans or Hispanics from the pool of potential jurors in cases involving African-American and Hispanic defen- dants. But what about cases involving white defendants? Are prosecutors prohibited from using their challenges to strike racial minorities when the defendant is white?

The Supreme Court has ruled that white defendants can challenge the exclusion of racial minorities from the jury. In 1991, for example, the Court ruled that “a crim- inal defendant may object to the race-based exclusion of jurors effected through peremptory challenges regardless of whether the defendant and the excluded juror share the same race” (Powers v. Ohio, 499 U.S. 400 [1991]). This case involved a white criminal defendant on trial for homicide who objected to the prosecutor’s use of peremptory challenges to remove African Americans from the jury. In 1998, the Court handed down a similar decision regarding the grand jury, ruling that whites who are indicted by grand juries from which African Americans have been excluded can challenge the constitutionality of the indictment (Campbell v. Louisiana, 523 U.S. 392 [1998]).

In both of these cases, the Court stated that a white defendant has the right to assert a violation of equal protection on behalf of excluded African-American jurors. According to the Court, the discriminatory use of peremptory challenges by the prosecution “casts doubt upon the integrity of the judicial process and places the fairness of the criminal proceeding in doubt.” And, although an individual juror does not have the right to sit on any particular jury, “he or she does possess the right not to be excluded from one on account of race.” As the Court stated, “Both the excluded juror and the criminal defendant have a common interest in eliminating racial discrimination from the courtroom.” Because it is unlikely that the excluded juror will challenge the discriminatory use of the peremptory challenge, the defen- dant can assert this right on his or her behalf (Powers v. Ohio, 499 U.S. 400 [1991]).

What do you think? Should a white defendant be allowed to challenge the prosecutor’s use of peremptory challenges to exclude African Americans and other racial minorities from his or her jury?

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267J U S T I C E O N T H E B E N C H ?

precludes any inference of purposeful racial discrimination on the part of the prosecutor,64 and that striking only one or two jurors of the defendant’s race does not constitute a “pattern” of strikes.65

Trial and appellate courts have also been willing to accept virtually any explanation offered by the prosecutor to rebut the defendant’s allegation of pur- poseful discrimination.66 As Kennedy67 noted, “Judges tend to give the benefit of the doubt to the prosecutor.” Kennedy cited as an example State v. Jackson, a case in which the prosecutor used her peremptory challenges to strike four African Americans in the jury pool. According to Kennedy:

The prosecutor said that she struck one black prospective juror because she was unemployed and had previously served as a student counselor at a university, a position that bothered the prosecution because it was “too liberal a background.” The prosecution said that it struck another black prospective juror because she, too, was unemployed, and, through her demeanor, had displayed hostility or indifference. By contrast, two whites who were unemployed were seated without objection by the prosecution.68

Although Kennedy acknowledged that “one should give due deference to the trial judge who was in a position to see directly the indescribable subtleties,” he stated that he “still has difficulty believing that, had these prospective jurors been white, the prosecutor would have struck them just the same.” Echoing these concerns, Brian J. Serr and Mark Maney conclude, “The cost of forfeiting truly peremptory challenges has yielded little corresponding benefit, as a myriad of ‘acceptable’ explanations and excuses cloud any hope of detecting racially based motivations.”69 (For a more detailed discussion of the peremptory challenge, see “Focus on an Issue: Should We Eliminate the Peremptory Challenge?”)

The validity of their concerns is illustrated by a 1995 Supreme Court case, Purkett v. Elem.70 Jimmy Elem, an African American on trial for robbery in Mis- souri, objected to the prosecutor’s use of peremptory challenges to strike two African-American men from the jury panel. The prosecutor provided the follow- ing racially neutral explanation for these strikes:

I struck [juror] number twenty-two because of his long hair. He had long curly hair. He had the longest hair of anybody on the panel by far. He appeared to me to not be a good juror for that fact, the fact that he had long hair hanging down shoulder length, curly, unkempt hair. Also, he had a mustache and a goatee type beard. And juror number twenty-four also has a mustache and goatee type beard. Those are the only two peo- ple on the jury . . . with the mustache and goatee type beard . . . . And I don’t like the way they looked, with the way the hair is cut, both of them. And the mustaches and the beards look suspicious to me.71

The U.S. Court of Appeals for the Eighth Circuit ruled that the prosecutor’s reasons for striking the jurors were not legitimate race-neutral reasons because they were not plausibly related to “the person’s ability to perform his or her duties as a juror.” Thus, the trial court had erred in finding no intentional discrimination.

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268 C H A P T E R 6

The Supreme Court reversed the Circuit Court’s decision, ruling that Batson v. Kentucky required only “that the prosecution provide a race-neutral justification for the exclusion, not that the prosecution show that the justification is plausible.” Noting that neither beards nor long, unkempt hair is a characteristic peculiar to any race, the Court stated that the explanation offered by the prosecutor, although it may have been “silly or superstitious,” was race-neutral. The trial court, in other words, was required to evaluate the genuineness of the prosecutor’s explanation, not its reasonableness. As the Court noted, “At this step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.”

The two dissenting judges—Justice Stevens and Justice Breyer—were out- raged. They argued that the Court in this case actually overruled a portion of the opinion in Batson v. Kentucky. They stated that, the majority’s conclusions notwithstanding, Batson clearly required that the explanation offered by the pros- ecutor must be “related to the particular case to be tried.” According to Justice Stevens:

In my opinion, it is disrespectful to the conscientious judges on the Court of Appeals who faithfully applied an unambiguous standard articulated in one of our opinions to say that they appear “to have seized on our admonition in Batson . . . that the reason must be ‘related to the partic- ular case to be tried.’ ” Of course, they “seized on” that point because we told them to. The Court of Appeals was following Batson’s clear mandate. To criticize those judges for doing their jobs is singularly inappropriate.72

Justice Stevens went on to say, “Today, without argument, the Court replaces the Batson standard with the surprising announcement that any neutral explana- tion, no matter how ‘implausible or fantastic,’ even if it is ‘silly or superstitious,’ is sufficient to rebut a prima facie case of discrimination.”

Critics of Batson and its progeny maintain that until the courts articulate and apply a more meaningful standard or eliminate peremptory challenges altogether (see “In the Courts: Miller-El v. Dretke, Snyder v. Louisiana, and Foster v. Chatman”), “peremptory strikes will be color-blind in theory only.”73

FOCUS ON AN ISSUE

Should We Eliminate the Peremptory Challenge?

In theory, the peremptory challenge is

used to achieve a fair and impartial jury.

The assumption is that each side will “size

up” potential jurors and use its challenges

to eliminate those who might be biased,

based on the prosecutor’s or defense attor-

ney’s hunches or initial impressions. Thus,

a prosecutor may routinely strike “liberal”

college professors, whereas a defense attor-

ney may excuse “prosecution-oriented”

business executives. The result of this

process, at least in principle, is a jury that

will decide the case based on the evidence

alone.

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269J U S T I C E O N T H E B E N C H ?

The reality is that both sides use

their peremptory challenges to “stack

the deck” (Levine 1992, 51). The pros-

ecutor attempts to pick a jury that will

be predisposed to convict, whereas

the defense attorney attempts to select

jurors who will be inclined to acquit.

In other words, rather than choosing

open-minded jurors who will withhold

judgment until they have heard all of the

evidence, each attorney attempts to pack

the jury with sympathizers. According

to one attorney, “Most successful lawyers

develop their own criteria for their choices

of jurors. Law professors, experienced

lawyers, and a number of technical books

suggest general rules to help select favor-

able jurors” [emphasis added] (Wishman

1986, 105).

DO PROSECUTORS USE PEREMPTORY

CHALLENGES IN A RACIALLY

DISCRIMINATORY MANNER?

The controversy over the use of the

peremptory challenge has centered on

the prosecution’s use of its challenges to

eliminate African Americans from juries

trying African-American defendants. It

centers on what Justice Marshall called

“the shameful practice of racial discrim-

ination in the selection of juries” (Batson

v. Kentucky, 479 U.S. 79 [1986]). Critics

charge that the process reduces minority

participation in the criminal justice system

and makes it difficult, if not impossible, for

racial minorities to obtain a “jury of their

peers.” They assert that peremptory chal-

lenges “can transform even a representative

venire into a white, middle-class jury,”

thereby rendering “meaningless the pro-

tections provided to the venire selection

process by Strauder and its progeny” (Serr

& Maney 1988, 7–8).

There is substantial evidence that

prosecutors exercise peremptory chal-

lenges in a racially discriminatory manner.

A study of challenges issued in Calcasieu

Parish, Louisiana, from 1976 to 1981, for

example, found that prosecutors excused

African-American jurors at a dispropor-

tionately high rate (Turner, Lovell, Young,

& Denny 1986, 61–69). Although the

authors also found that defense attorneys

tended to use their challenges to excuse

whites, they concluded that “because

black prospective jurors are a minority in

many jurisdictions, the exclusion of most

black prospective jurors by prosecution

can be accomplished more easily than the

similar exclusion of Caucasian prospec-

tive jurors by defense” (Hayden, Senna, &

Siegel 1978; Turner et al. 1986, 68).

African-American defendants chal-

lenging their convictions by all-white

juries also have produced evidence of racial

bias. One defendant, for example, showed

that Missouri prosecutors challenged

81 percent of the African- American jurors

available for trial in 15 cases with African-

American defendants (United States v.

Carter, 528 F. 2d 844, 848 [CA 8 1975]).

Another defendant presented evidence

indicating that in 53 Louisiana cases

involving African-American defendants,

federal prosecutors used more than two-

thirds of their challenges against African

Americans, who comprised less than

one-fourth of the jury pool (United States

v. McDaniels, 379 F. Supp. 1,243 [ED La.

1974]). A third defendant showed that

South Carolina prosecutors challenged

82 percent of the African-American

jurors available for 13 trials involving

African-American defendants (McKinney

v. Walker, 394 F. Supp. 1015, 1017–1018

[SC 1974]). Evidence such as this sup-

ports Justice Marshall’s contention (in a

(Continued )

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270 C H A P T E R 6

concurring opinion in Batson v. Kentucky)

that “misuse of the peremptory challenge

to exclude black jurors has become both

common and flagrant” (Batson v. Kentucky,

106 Sct. 1712, 1726 [1986] [Marshall, J.,

concurring]).

ARE ALL-WHITE JURIES INCLINED

TO CONVICT AFRICAN-AMERICAN

DEFENDANTS?

Those who question the prosecutor’s use

of peremptory challenges to eliminate

African Americans from the jury pool

argue that African-American defendants

tried by all-white juries are dispropor-

tionately convicted. They assert that

white jurors take the race of the defen-

dant and the race of the victim into

account in deciding whether to convict

the defendant.

Researchers have examined jury

verdicts in actual trials and in mock jury

studies for evidence of racial bias. Harry

Kalven and Hans Zeisel (1966), for exam-

ple, asked the presiding judge in more than

1,000 cases if he or she agreed with the

jury’s verdict. Judges who disagreed with

the verdict were asked to explain the jury’s

behavior. Judges disagreed with the jury’s

decision to convict the defendant in 22

cases; in 4 of these cases they attributed

the jury’s conviction to prejudice against

African-American defendants involved in

interracial sexual assault. Kalven and Zei-

sel also found that juries were more likely

than judges to acquit African-American

defendants who victimized other African

Americans.

Sheri Johnson (1985) argued, “Mock

jury studies provide the strongest evi-

dence that racial bias frequently affects

the determination of guilt.” She reviewed

nine mock jury studies in which the race

of the defendant was varied while other

factors were held constant. According to

Johnson, white “jurors” in all of the studies

were more likely to convict minority-race

defendants than they were to convict

white defendants (1,626).

One mock jury study found evidence

of racial bias directed at both the defendant

and the victim (Klein & Creech 1982, 21).

In this study, white college students read

two transcripts of four crimes in which the

race of the male defendant and the race of

the female victim were varied; they then

were asked to indicate which defendant

was more likely to be guilty. For the crime

of rape, the probability that the defendant

was guilty ranged from 70 percent for

crimes with black offenders and white vic-

tims to 68 percent for crimes with white

offenders and white victims, 52 percent

for crimes with black offenders and black

victims, and 33 percent for crimes with

white offenders and black victims (Klein &

Creech 1982, 24).

SHOULD THE PEREMPTORY

CHALLENGE BE ELIMINATED?

Defenders of the peremptory challenge,

although admitting that there is inherent

tension between peremptory challenges

and the quest for a representative jury,

argue that the availability of peremptories

ensures an impartial jury. Defenders of

the process further argue that requiring

attorneys to provide reasons for exercising

peremptory challenges would make selec-

tion of an impartial jury more difficult.

Those who advocate elimination of the

peremptory challenge assert that prose-

cutors and defense attorneys can use the

challenge for cause to eliminate biased or

prejudiced jurors. They argue that because

prosecutors exercise their peremptory

challenges in a racially discriminatory

manner, African-American defendants are

often tried by all-white juries predisposed

toward conviction.

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271J U S T I C E O N T H E B E N C H ?

In a concurring opinion in the Batson

case, Justice Marshall called on the Court

to ban the use of peremptory challenges

by the prosecutor and to allow states to

ban their use by the defense (Batson v.

Kentucky, 106 Sct. 1712, 1726 [1986]

[Marshall, J., concurring]). Marshall argued

that the remedy fashioned by the Court

in Batson was inadequate to eliminate

racial discrimination in the use of the

peremptory challenge. He noted that an

African- American defendant could not

attack the prosecutor’s discriminatory use

of peremptory challenges at all unless the

abuse was “so flagrant as to establish a

prima facie case,” and that prosecutors, when

challenged, “can easily assert facially neu-

tral reasons for striking a juror” (Batson v.

Kentucky, at 1727).

Other commentators, who acknowl-

edge that the solution proposed in Bat-

son is far from ideal and that reform is

needed, propose more modest reforms.

Arguing that the chances for abolition of

the peremptory challenge are slim, they

suggest that a more feasible alternative

would be to limit the number of chal-

lenges available to each side. As one legal

scholar noted, “Giving each side fewer

challenges will make it more difficult to

eliminate whole groups of people from

juries” (note, Batson v. Kentucky 1988, 298).

Another argued that courts must “enforce

the prohibition against racially discrimina-

tory peremptory strikes more consistently

and forcefully than they have done thus

far” (Kennedy 1997, 230). Another, more

radical, suggestion is to allow each side to

designate one or two prospective jurors

who cannot be challenged peremptorily

(see, e.g., Ramirez 1998, 161).

Those who lobby for reform of the

peremptory challenge maintain that the

system would be fairer without them. As

Morris B. Hoffman (2000) put it, “Imag-

ine a jury selection process that sends the

message to all 50 prospective jurors in the

courtroom that this is a rational process.

That we have rules for deciding who is

fair and not fair, just as we have rules for

deciding who prevails in the end and who

does not.”

In the Courts: Miller-El v. Dretke, Snyder v. Louisiana, and Foster v. Chatman

Miller-El v. Dretke (537 US 322 [2005])

In 1986, Thomas Joe Miller-El was convicted and sentenced to death by a Dallas County (Texas) jury composed of 11 whites and 1 African American. The jury found Miller-El, an African American, guilty of killing a hotel employee and severely wounding another employee during the course of a robbery. During jury selection, Miller-El challenged the prosecutor’s use of peremptory strikes against 10 of the 11 African Americans eligible to serve on the jury. He claimed that the strikes were based on race, citing as proof both the prosecutor’s questioning of potential jurors in his trial and the fact that the Dallas County district attorney had a history of exclud- ing African Americans from criminal juries. The Texas courts that heard his appeal ruled against him, stating that there was no evidence that the jurors were struck because of their race and that the race-neutral reasons given by the prosecutor were “completely credible and sufficient” (Miller-El v. State, 748 S. W. 2d 459 [1988]).

(Continued )

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272 C H A P T E R 6

Following a round of appeals in the federal courts, all of which agreed with the state courts’ conclusions, Miller-El’s case reached the U.S. Supreme Court. In June 2005, the Supreme Court reversed Miller-El’s conviction, ruling 6–3 that there was strong evidence of racial prejudice during jury selection and that the state court’s conclusions were therefore “unreasonable as well as erroneous” (Miller-El v. Dretke, 537 US 322, 336 [2005]). Justice David H. Souter, writing for the majority, said, “The prosecutors’ chosen race-neutral reasons for the strikes do not hold up and are so far at odds with the evidence that pretext is the fair conclusion, indicating the very dis- crimination the explanations were meant to deny.” To support their conclusion, the justices cited the following evidence:

■ Out of 20 African American members of the 108-person jury panel for Miller-El’s trial, only 1 served. Nine of the 20 were excused for cause; of the remaining 11 African Americans, 10 were peremptorily struck by the prosecution. As the Court noted, “Happenstance is unlikely to produce this disparity.”

■ The “racially neutral” reasons given by the prosecution to explain the strikes of African Americans applied just as well to whites who were not struck and, in some cases, mischaracterized the testimony of African Americans regarding such things as their willingness to impose the death penalty. In fact, the Court stated that one of the African Americans who was struck expressed strong support of the death penalty and, therefore, should have been “an ideal juror in the eyes of a prosecutor seeking a death sentence.” The fact that he was struck, and that whites who expressed weaker support for the death penalty were not, “sup- ports a conclusion that race was significant in determining who was challenged and who was not.” According to Justice Souter, “it blinks reality” to deny that some of the African America jurors were struck because of their race.

■ Prosecutors repeatedly used their right to reshuffle the cards bearing potential jurors’ names to reseat the African Americans at the back of the panel, where they were less likely to be questioned during the voir dire (and more likely to be dismissed without being questioned). The prosecution did not offer a racially neutral reason for shuffling the jury. Justice Souter wrote, “At least two of the jury shuffles conducted by the state make no sense except as efforts to delay consideration of black jury panelists.”

■ The questions posed to African American and white jurors during voir dire were different. Before asking potential jurors about their attitudes toward the death penalty, for example, prosecutors gave them a description of the death penalty. Ninety-four percent of the white jurors heard a bland description (“We anticipate that we will be able to present to a jury the quantity and type of evidence nec- essary to convict him of capital murder”), whereas more than half of the African American jurors heard a graphic description that described the method of execu- tion in detail (“at some point Mr. Thomas Joe Miller-El—the man sitting right down there—will be taken . . . to the death house and placed on a gurney and injected with a lethal substance until he is dead). The Court concluded that the graphic script was used “to make a case for excluding black panel members opposed to or ambivalent about the death penalty.” Race, according to the Court, “was the major consideration when the prosecution chose to follow the graphic script.”

The Supreme Court concluded that the evidence proffered by Miller-El, which clearly documented that prosecutors were selecting and rejecting potential jurors because of race, “is too powerful to conclude anything but discrimination.”

Less than one month after the Supreme Court handed down its decision, Dallas County District Attorney Bill Hill announced that the state would retry Miller-El and would seek the death penalty. Instead, in March 2008, Thomas Joe Miller-El pled

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273J U S T I C E O N T H E B E N C H ?

(Continued )

guilty to murder and aggravated robbery; he was sentenced to life in prison on the murder charge and to 20 years on the aggravated robbery charge. In exchange for the district attorney’s agreement to not seek the death penalty, Miller-El waived his right to appeal his sentence.

Snyder v. Louisiana (552 U.S. 472 [2008])

Like Thomas Joe Miller-El, Allen Snyder, an African American, was convicted of first- degree murder and sentenced to death by an all-white jury. In this case, 36 prospective jurors survived the first stages of the jury selection process. Five of the 36 were African American and the prosecutor used 5 of his 12 peremptory challenges to eliminate them from the jury panel. On appeal, the Louisiana Supreme Court affirmed Snyder’s conviction, and Snyder then filed for a writ of certiorari with the U.S. Supreme Court. While his petition was pending before the Court, Miller-El v. Dretke was decided.

In Snyder v. Louisiana, the Supreme Court reiterated that “the Constitution for- bids striking even a single prospective juror for a discriminatory purpose.” The Court concluded that the prosecutor’s decision to strike one juror, Jeffrey Brooks, had been racially motivated. The justices noted that when the defense attorney objected to the strike of Mr. Brooks, a college senior, the prosecutor offered two “race-neutral” reasons for the strike:

I thought about it last night. Number 1, the main reason is that he looked very nervous to me throughout the questioning. Number 2, he’s one of the fellows that came up at the beginning [of voir dire] and said he was going to miss class. He’s a student teacher. My main concern is for that reason, that being that he might, to go home quickly, come back with guilty of a lesser verdict so there wouldn’t be a penalty phase. Those are my two reasons.

In ruling that the prosecutor’s rationale did not meet the requirements of Batson, the Supreme Court focused on the second reason proffered. The Court stated that the scenario outlined by the prosecutor was “highly speculative,” noting that if Mr. Brooks had wanted to ensure a quick resolution of the case, he would not neces- sarily have rejected a first-degree murder charge. Rather, if the majority of jurors had initially voted to convict Snyder of first-degree murder, “Mr. Brooks’ purported incli- nation might have led him to agree in order to speed the deliberations.” The Court also noted that the prosecutor did not excuse a white juror who was self-employed and who stated that serving on the jury would be a personal and financial hardship. According to the justices, “If the prosecution had been sincerely concerned that Mr. Brooks would favor a lesser verdict than first-degree murder in order to shorten the trial, it is hard to see why the prosecution would not have had at least as much concern regarding Mr. Laws.” The Supreme Court concluded that “the prosecution’s pretextual explanation gives rise to an inference of discriminatory intent.”

Foster v. Chatman, No. 14-8349 (2015)

In November 2015, the Supreme Court heard oral arguments in the case of Foster v. Chatman. Timothy Tyrone Foster, an 18-year-old African American, was charged in 1986 with killing an elderly white woman in Rome, Georgia. At Foster’s trial, pros- ecutors used four of their nine peremptory challenges to remove all four African American prospective jurors and Foster was tried and convicted by an all-white jury. At the sentencing hearing, the lead prosecutor in the case urged the jurors to sentence Foster to death in order “to deter other people out there in the projects from doing the same thing again.” Foster was sentenced to death. At trial and on appeal, Geor- gia’s courts denied Foster’s claims of racial discrimination in the jury selection process.

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274 C H A P T E R 6

R A C E A N D J U RY S E L E C T I O N I N T H E

T W E N T Y- F I R S T C E N T U RY

In August 2010, the Equal Justice Initiative, a nonprofit legal organization head- quartered in Montgomery, Alabama, released a report entitled, Illegal Racial Dis- crimination in Jury Selection: A Continuing Legacy.74 The report, which detailed the results of an investigation of jury selection procedures in eight southern states (Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, South Carolina, and Tennessee), was highly critical of the role that race continued to play in the jury selection process in the twenty-first century. In fact, Bryan A. Stevenson, executive director of the Initiative, began the executive summary of the report by noting:

Today in America, there is perhaps no arena of public life or govern- mental administration where racial discrimination is more widespread, apparent, and seemingly tolerated than in the selection of juries. Nearly 135 years after Congress enacted the 1875 Civil Rights Act to eliminate racially discriminatory jury selection, the practice continues, especially in serious criminal and capital cases.75

The authors of the report were particularly critical of the prosecutor’s use of the peremptory challenge, which they argued led to dramatic underrepresenta- tion of racial minorities on juries in criminal cases. In support of this, they pre- sented the following statistics:

■ From 2005 to 2009, prosecutors in Houston County, Alabama, used their peremptory challenges to remove 80 percent of the African Americans qualified for jury service in cases in which the death penalty was eventually

An unusual aspect of this case is that Foster was able to use the state’s open records law to obtain the prosecution’s notes from jury selection. On the list of potential jurors for the case, the names of African Americans (blacks) were marked with a “B” and highlighted in green. There also was a “strike list” on which the African Americans were listed as “definite NOs” and notes indicating that the prose- cution team compared the African Americans against one another in the event that it had to accept one of them. Foster contended that these notes, coupled with the convoluted reasons that prosecutors gave for striking the four African Americans and the fact that many of the reasons they gave applied to white (unstruck) jurors as well, provided evidence in support of his argument that race played a role in the jury selection process. In his petition for a writ of certiorari, Foster stated:

The evidence of racial motive by the prosecution in this racially charged capital case in extensive and undeniable. The prosecutor struck all four black citizens who were in the venire from which the jury was selected. The exclusion of these citizens was not the product of ‘happenstance,’ but the result of the prosecution’s identification of them as black and its determination to keep them off the jury.

As these three cases—one of which was still pending as this book went to press—reveal, the issue of racial discrimination in the use of the peremptory chal- lenge has not been laid to rest.

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275J U S T I C E O N T H E B E N C H ?

imposed. Although the county is 27 percent African American, half of the juries in these cases were all-white and the remainder had only one African-American juror.76

■ Prosecutors in the Chattahoochee (Georgia) Judicial Circuit used 83 percent of their peremptory challenges to strike African-American potential jurors.77

■ The “racially neutral” reasons that prosecutors give for striking African Americans from the jury often reflect stereotypes about African Americans’ demeanor, appearance, and behavior. For example, in a South Carolina case the prosecutor stated that he struck an African American because he “shucked and jived” as he walked, and a Louisiana court allowed the prosecutor to strike an African-American juror because he “looked like a drug dealer.”78

■ Racially tainted jury selection procedures led to the reversal of convictions in 80 cases in Alabama, 33 convictions in Florida, 12 convictions in Loui- siana, and 10 convictions in Mississippi and Arkansas.79 In fact, as recently as 2008, the U.S. Supreme Court reversed a criminal conviction in a death penalty case in Louisiana because the prosecutor used the peremptory chal- lenge to eliminate all five of the potential African-American jurors.80

■ Although more than 100 criminal defendants in Tennessee have challenged their convictions based on prosecutors’ use of race in exercising peremptory challenges, appellate courts in that state have never reversed a conviction because of racial discrimination in jury selection, due in large part to the fact that courts there “tend to accept at face value prosecutors’ explanations for striking jurors of color.”81

■ Most district attorneys in the United States—and in the eight southern states examined for the report—are white. When the report was written, there were no African-American district attorneys in Arkansas, Florida, or Tennessee.82

Noting that racially discriminatory jury selection procedures violate the con- stitutional rights of African-American potential jurors and call into question “the credibility, reliability, and integrity of the criminal justice system,”83 the authors of the report called for “coordinated efforts to eliminate illegal exclusion and discrim- ination in jury selection.”84 More specifically, they recommended, among other things, (1) more consistent enforcement of antidiscrimination laws designed to pre- clude racially biased jury selection; (2) that the Batson rule banning racially discrim- inatory use of peremptory challenges be applied retroactively to death row inmates or other offenders facing long prison sentences whose claims have not been reviewed because they were tried prior to 1986; (3) prosecutors who engage in racially biased jury selection should be held accountable and should not be able to participate in the retrial of any person whose conviction was overturned as a result of discrimination in jury selection; and (4) jurisdictions should enact or strengthen policies designed to ensure that racial minorities are fairly represented in the jury pool.85 As the executive director of the Initiative concluded, the problem of illegal bias in jury selection “has persisted for far too long, and respect for the law cannot be achieved until it is eliminated and equal justice for all becomes a reality.”86 (See Box 6.6, which discusses the threat of an all-white jury to coerce a confession.)

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276 C H A P T E R 6

B o x 6.6 Using the Threat of an All-White Jury to Coerce a Confession

Daniel Jackson, a murder suspect, was being interrogated by two Peoria, Illinois, police detectives in March 2010. When Jackson refused to confess to the killing, one of the detectives told him that he needed to confess and to plead guilty because he—a young African-American male—could not get a fair trial in Peoria. Jackson eventually did confess and was sentenced to 65 years in prison.

In a concurring opinion in an Illinois Appellate Court ruling overturning Jack- son’s conviction, Judge Mary McDade emphasized that Detective McDaniel told Jack- son that by not confessing he was “shooting dice with his life.” According to Judge McDade, Detective McDaniel said the following to Daniel Jackson:

Okay, if you haven’t paid any attention, young man, to the media–and the media does a lot of things. Every time you open up the newspaper, what do you see? [Jackson is silent.] You don’t open up newspapers? [No.] Okay, do you look at the news? I’m talkin’ about violence. Every time I turn on the news I know what I see. When you turn on the TV what do you see? Every time they’re talking about a shooting in Peoria, who’re they talking about? Every time you hear about brawls at the club, who they talkin’ about? Young, African American males, okay? So now we got the media drumming up that we just buck-assed wild and acting a fool, right? The judges have seen and they heard it–they heard it all, okay. So now you’ll come in front of one and they’ll hear it and they’ll ask if you want to plead innocent or guilty and you’ll say ‘not guilty.’ So they’ll say okay, you choose. Jury trial? Bench trial? Now, this is what you need to be concerned about. Those same people who open up the paper every day or look at the news see how wild black folks are. What do you think is going to happen to you when you walk in front of them? How do you think they’re going to view you? Are they gonna view you for the government thing that your parents gave you or are they gonna start workin’ off of what? Mere stereotypes of what the hell’s going on down in the south end? And what are the stereotypes nowadays of young black men between the ages of 13 and 24? What they think we’re doing? C’mon, it’s a honest question. What do they think we’re doing? Want me to answer for you? Robbing, stealing, shooting, killing, making babies, ain’t taking care of babies, they ain’t working, they ain’t going to school, they got idle time on their hands; and they get tired of that shit.

So now you think, okay, that you’re gonna get a jury of your peers. And I love that word, a jury of your peers, because when you look over you ain’t gonna see not one person that look like you, act like you. They’re not gonna understand how the hype is hanging out on the corner acting like a damn fool because they are law-abiding citizens, because they pay taxes. They gonna pick up the phone and call the police and let us do our job. They ain’t gonna go over there and handle it day after day after day running their mouth and all that other stuff. They gonna call the police. You understand where I’m going with this, right? [Jackson says ‘I understand.’] So now, we got stereotypes, we got a jury of not your peers that’s gonna judge you, and we got you not telling. You’re gonna have all these people telling, no matter what their backgrounds. They could be drug addicts, they could be your friends getting up there testify- ing about how you were there and how you *** how my partner plays it–the dude got wild, you pulled out a weapon, you took care of the business. How is it gonna sit for you? I can’t tell you what to do; we can only present what you’re lookin at, okay? And we hope that at some point, you become a man and all you have is your word. Explain your actions. Don’t worry about anybody

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277J U S T I C E O N T H E B E N C H ?

In summary, there is incontrovertible evidence that the reforms implemented since the Scottsboro Boys were tried, convicted, and sentenced to death by all- white juries have reduced racial discrimination in the jury selection process. Deci- sions handed down by the Supreme Court have made it difficult, if not impossible, for courts to make “no pretense of putting Negroes on jury lists, much less calling or using them in trials.”87 However, as the Equal Justice Initiative report and the other evidence presented in this chapter make clear, the jury selection process remains racially biased. There is compelling evidence that prosecutors continue to use the peremptory challenge to exclude African-American and Hispanic jurors from cases with African-American and Hispanic defendants and that appellate courts continue to rule that their “racially neutral” explanations adequately meet the standards articulated in Batson. Supreme Court decisions notwithstanding, the peremptory challenge remains an obstacle to impartiality.

In the next section, we turn our attention to the issue of wrongful convic- tions, noting that race and mistaken eyewitness identification combine to produce an especially high rate of exonerations of African Americans accused of rape. This is followed by a discussion of “playing the race card in a criminal trial.”

E X O N E R AT I N G T H E I N N O C E N T: R A P E , R A C E , A N D

M I S TA K E N E Y E W I T N E S S I D E N T I F I C AT I O N

During the past three decades, the issue of wrongful convictions has appeared on the top of the national political agenda. Highly publicized exonerations of individuals convicted of murder, sexual assault, and other serious crimes have led to questions about the accuracy and fairness of the procedures used to inves- tigate and adjudicate criminal cases. These concerns are based in part on the fact that a large number of the exonerees, many of whom were facing sentences

else’s actions around you. Explain your actions and how you felt at the time the threat was presented to you. Notice how I said that; how the threat was pre- sented to you and how you handled it. (Emphases added.)

According to Judge McDade, “The bone-chilling subtext in McDaniel’s virtual monolog is that the police could pick up any young African-American male and he could be convicted, even if he does not confess, because the judges and jurors will be driven by media-hyped stereotypes and either will not hear or will not be open to any defense he would put on. It is hard to imagine anything more blatantly coercive than telling a suspect, whether it is true or false, that he needs to confess to killing the vic- tim, claim self-defense and minimize his damages because, even if he is innocent, our system of justice will not work for him because he is young and black and male.”

Postscript: In January 2015, Peoria County prosecutors dropped the case against Jackson, stating that the fact that the Appellate Court suppressed his statement and other evidence meant that they did not have enough evidence to proceed.

SOURCE: People v. Jackson, 2014 IL App (3d) 120239.

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278 C H A P T E R 6

of death or life in prison, were freed as a result of DNA tests that either were unavailable or were deemed unnecessary when their cases were being investi- gated and tried; this, in turn, has led some critics to suggest that the documented cases of wrongful conviction are only “the tip of the iceberg.”88 Concerns about false convictions also are based on research showing not only that a dispropor- tionate number of those exonerated have been racial minorities but also that the disparity is particularly stark in cases of interracial sexual assault.89 Together, these concerns have raised questions about the legitimacy and integrity of the criminal justice process (see Box 6.7 for additional evidence of the overrepre- sentation of racial minorities among those who have been exonerated as a result of DNA evidence).

A recent analysis of 340 exonerations in the United States from 1989 to 2003 revealed that DNA exonerations were especially prevalent in rape cases.90

These cases also were characterized by eyewitness misidentification. In fact, in 107 of the 121 exonerations for rape, the defendant was the victim of eyewitness misidentification, and in 105 of these cases the defendant was eventually cleared by DNA evidence. About half (102 of 205) of the exonerations in murder cases also involved eyewitness misidentification, but only 39 of the 205 defendants were cleared as a result of DNA evidence.91

Rape, Race, and Misidentification

Although the percentages of African Americans, Hispanics, and whites who were exonerated for all crimes were similar to the percentages of each group incar- cerated in state prisons, this was not the case for rape. In 2002, 58 percent of all people incarcerated for rape were white, 29 percent were African American, and 13 percent were Hispanic. Among defendants who were convicted of rape but later exonerated, the percentages were reversed: 64 percent were African Amer- ican, 28 percent were white, and 7 percent were Hispanic. African Americans, in

B o x 6.7 Exonerating the Innocent: The Role of DNA

In 1989, a Cook County (Chicago) circuit judge vacated Gary Dotson’s conviction for rape and dismissed the charges against him. Dotson thus became the first prisoner in the United States to be exonerated by DNA identification technology. As the technology improved and became more widely available, the number of DNA exon- erations increased, from 1 or 2 a year in the early 1990s, to about 6 per year in the mid-1990s, to an average of 20 per year from 2000 to 2009. By January 2016, there had been 337 post-conviction DNA exonerations—206 (61.1 percent) of the exoner- ees were African American, 103 (30.6 percent) were white, and 25 (7.4 percent) were Hispanic.

SOURCE: The Innocence Project. http://www.innocenceproject.org/free-innocent/improve-the-law/fact-sheets/ dna-exonerations-nationwide.

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other words, comprised only 29 percent of all persons incarcerated for rape but 64 percent of all defendants exonerated for rape.92

The authors of this study suggested that the key to the explanation for the overrepresentation of African Americans among defendants falsely convicted for rape “is probably the race of the victim.”93 As they pointed out, the race of the victim was known in 52 of the 69 exonerations of African Americans for rape. In 78 percent of these cases, the victim was white. As they noted, “Inter-racial rape is uncommon, and rapes of white women by black men in particular account for well under 10 percent of all rapes. But among rape exonerations for which we know the race of both parties, almost exactly half (39/80) involve a black man who was falsely convicted of raping a white woman.”94

The authors, who admitted that there were many possible explanations for this finding, stated that the “most obvious explanation for this racial disparity is probably also the most powerful: the perils of cross-racial identification.”95 Almost all of the exonerations in the interracial rape cases included in their study were based at least in part on eyewitness misidentification.

There is substantial evidence that cross-racial eyewitness identifications, and particularly eyewitness identifications of African Americans by whites, are unreli- able.96 What seems to happen, then, is that a white rape victim mistakenly iden- tifies an African American as the perpetrator of the crime, the defendant is found guilty at trial based at least in part on the eyewitness identification, and the defen- dant is exonerated when DNA evidence reveals that he was not the man who committed the crime.

P L AY I N G T H E “ R A C E C A R D ” I N A C R I M I N A L T R I A L

In 1994 O. J. Simpson, an African-American actor and former All-American football star, was accused of murdering his ex-wife, Nicole Brown Simpson, and Ronald Goldman, a friend of hers. On October 4, 1995, a jury composed of eight African-American women, two white women, one Hispanic man, and one African-American man acquitted Simpson of all charges. Many commentators attributed Simpson’s acquittal at least in part to the fact that his attorney, Johnnie L. Cochran, Jr., had “played the race card” during the trial. In fact, another of Simpson’s attorneys, Robert Shapiro, charged that Cochran not only played the race card but he also “dealt it from the bottom of the deck.”97

Cochran was criticized for attempting to show that Mark Fuhrman, a Los Angeles police officer who found the bloody glove that linked Simpson to the crime, was a racist who planted the evidence in an attempt to frame Simpson. He also was harshly criticized for suggesting during his closing argument that the jurors would be justified in nullifying the law by acquitting Simpson. Cochran encouraged the jurors to take Fuhrman’s racist beliefs into account during their deliberations. He urged them to “send a message” to society that “we are not going to take that anymore.”98

Although appeals to racial sentiment—that is, “playing the race card”—are not unusual in U.S. courts, they are rarely used by defense attorneys representing

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280 C H A P T E R 6

African Americans accused of victimizing whites. Much more typical are prosecu- torial appeals to bias. Consider the following historical examples:

■ An Alabama prosecutor, who declared in 1916, “Unless you hang this Negro, our white people living out in the country won’t be safe.”99

■ A prosecutor in North Carolina, who dismissed as implausible the claim of three African-American men that the white woman they were accused of raping had consented to sex with them. The prosecutor stated that “the aver- age white woman abhors anything of this type in nature that had to do with a black man.”100

■ A prosecutor in a rape case involving an African-American man and a white woman who asked the jurors, “Gentlemen, do you believe that she would have had intercourse with this black brute?”101

■ A prosecutor in a case involving the alleged kidnapping of a white man by two African-American men, who said in his closing argument that “not one white witness has been produced” to rebut the victim’s testimony [emphasis added].102

■ A prosecutor who stated, during the penalty phase of a capital case involving Walter J. Blair, an African-American man charged with murdering a white woman, “Can you imagine [the victim’s] state of mind when she woke up at 6 o’clock that morning, staring into the muzzle of a gun held by this black man?”103

All of these appeals to racial sentiment, with the exception of the last, resulted in reversal of the defendants’ convictions. A federal court of appeals, for exam- ple, ruled in 1978 that the North Carolina prosecutor’s contention that a white woman would never consent to sex with an African-American man was a “blatant appeal to racial prejudice.” The court added that when such an appeal involves an issue as “sensitive as consent to sexual intercourse in a prosecution for rape . . . the prejudice engendered is so great that automatic reversal is required.”104

A federal court of appeals, however, refused to reverse Walter Blair’s con- viction and death sentence. Its refusal was based on the fact that Blair’s attorney failed to object at trial to the prosecutor’s statement. The sole dissenter in the case suggested that the court should have considered whether the defense attorney’s failure to object meant that Blair had been denied effective assistance of counsel. He also vehemently condemned the prosecutor’s statement, which he asserted “played upon white fear of crime and the tendency of white people to associate crime with blacks.”105

According to Harvard law professor Randall Kennedy, playing the race card in a criminal trial is “virtually always morally and legally wrong.” He asserted that doing so encourages juries to base their verdicts on irrelevant considerations and loos- ens the requirement that the state prove the case beyond a reasonable doubt. As he noted, “Racial appeals are not only a distraction but a menace that can distort inter- pretations of evidence or even seduce jurors into believing that they should vote in a certain way irrespective of the evidence.”106 (Further evidence of this is presented in Box 6.8, which discusses the role that racial and cultural stereotypes played in recent

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281J U S T I C E O N T H E B E N C H ?

cases involving defendants and victims of Hmong descent.) As the case discussed in the “Focus on an Issue: The Lynching of an Innocent Man and Defiance of the U.S. Supreme Court” makes clear, appeals to racial bias also can seduce individuals into believing that they have a right to take matters into their own hands.107

B o x 6.8 Racial and Cultural Stereotypes in the Courtroom

A basic tenet of criminal law is that individuals are entitled to equal treatment at trial and that juries should not be asked to convict someone because of that person’s race, color, creed, or national origin. As the U.S. Court of Appeals for the Second Circuit ruled in 1973, use of racial stereotyping “negates the defendant’s right to be tried on the evidence in the case and not on extraneous issues . . . [and] helps further embed the already too deep impressions in public consciousness that there are two standards for justice in the United States. One for Whites and the other for Blacks” (United States exrel. Haynes v. McKendrick, 481 F.2d 152 [2d. Cir. 1973]).

In an article published in the Hamline Law Review, William E. Martin and Peter N. Thompson illustrate the use of racial stereotyping in cases of sexual assault tried in Minnesota courts that involved victims and defendants of Hmong descent. In three different cases, prosecutors were allowed to introduce testimony regarding cultural stereotypes to discredit the defendants’ consent defenses (i.e., the defen- dants in these cases asserted that the victim had consented to the sexual acts). In one case, for example, the prosecutor introduced expert testimony to establish that cultural values would preclude Hmong women from consenting to have sex with a person other than her spouse. At trial this prosecutor argued that the jurors should consider the expert witnesses’ testimony that in the Hmong culture,

. . . it is not proper for a women to initiate sex, even with her husband. It is not proper for a woman to touch a man. It is not proper for a woman to kiss a man, and especially in public. There are cultural taboos you heard, even about being alone with a man not of your own class. Ask yourself if the woman you saw here is the kind of vixen that this defendant describes. The kind of vixen she would have to be [to be] so outside her own culture in behavior.

The defendant appealed his conviction, arguing that the use of cultural ste- reotypes was improper; his attorney compared the state’s contention that a Hmong woman would not initiate sex to the oft-made but discredited argument that a white woman would never consent to sex with an African-American man because of cultural norms.

The Minnesota Court of Appeals upheld the defendant’s conviction, noting that the prosecutor attempted to differentiate the victim and the defendant “by their social status and educational level not by social or cultural factors.” However, as Mar- tin and Thompson pointed out, even if the argument was an appeal to class bias or social status bias, it was nonetheless improper. Federal courts have ruled that appeals to class prejudice, like appeals to racial bias, will not be allowed in the courtroom.

The authors of this article criticize the decisions of the Minnesota court, arguing that “the fundamental values of our trial system require that persons be tried for the acts they commit, not for the supposed cultural characteristics that determine who they are.”

SOURCE: William E. Martin and Peter N. Thompson, “Judicial Tolerance of Racial Bias in the Minnesota Justice, System,” Hamline Law Review 25 (2001–2002), pp. 236–270, 253–259.

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282 C H A P T E R 6

FOCUS ON AN ISSUE

The Lynching of an Innocent Man and Defiance of the U.S. Supreme Court

On January 23, 1906, Nevada Taylor, a

21-year-old white woman who worked as

a bookkeeper for a shop in Chattanooga,

Tennessee, was sexually assaulted after

she got off the trolley near the home she

shared with her father and her brothers

and sisters (Curriden & Phillips 1999).

Taylor did not see her attacker and ini-

tially could describe him only as about her

height and dressed in a black outfit and

a hat. When asked by Hamilton County

Sheriff Joseph Shipp if her attacker was “a

white man or a Negro,” she first said that

she did not know, that she had not gotten

a good look at him. She then changed her

mind, stating that she believed the man was

black (Curriden & Phillips 1999, 31).

The next day, the Chattanooga News

reported the attack in a story with the

headline “Brutal Crime of Negro Fiend.”

According to the News, “The fiendish

and unspeakable crime committed in St.

Elmo last night by a Negro brute, the

victim being a modest, pretty, industrious

and popular girl, is a sample of the crimes

which heat southern blood to the boiling

point and prompt law abiding men to take

the law into their own hands and mete out

swift and horrible punishment” (Curriden

& Phillips 1999, 33).

There were no clues as to the identity

of the suspect, other than a leather strap

found at the scene of the crime. A reward

of $375—more money than many people

in Chattanooga earned in a year—was

offered for information leading to the

arrest of Taylor’s attacker. Two days later,

a man by the name of Will Hixson called

Sheriff Shipp, asked if the reward was still

available, and stated that he had seen a

black man near the trolley station on the

evening in question. He told Sheriff Shipp

that he thought he could identify the man,

and later that afternoon he fingered Ed

Johnson.

Ed Johnson denied the allegations,

stating that he had been at work at the

Last Chance Saloon that afternoon and

evening. He gave the sheriff the names

of witnesses, most of whom were black,

who could vouch for him. Despite the

fact that there was no evidence, other than

Hixson’s identification, linking him to the

crime and that he had an alibi, Johnson

was arrested and charged with the rape of

Nevada Taylor.

As news of Johnson’s arrest spread,

a mob began to gather at the jail. Within

hours, more than 1,500 people had con-

gregated, and many of them were urging

the jailers to turn Johnson over to them.

When informed by Hamilton County

Criminal Court Judge Sam D. McReyn-

olds that Johnson was no longer in Chat-

tanooga, that he had been transported

to Knoxville for safekeeping until trial,

the crowd dispersed. As Curriden and

Phillips (1999, 50) noted, the leaders of

the mob “had put Sheriff Shipp and Judge

McReynolds on notice: convict and pun-

ish this Negro quickly or they would be

back.”

Seventeen days after the attack on

Nevada Taylor, a jury of 12 white men

found Ed Johnson, who had steadfastly

insisted that he was innocent, guilty of

rape. The trial was replete with references

to the fact that Johnson was black and

his victim was white. The prosecutor, for

example, asked Taylor to point out “the

Negro brute” who assaulted her. Taylor

pointed to Ed Johnson, who was the only

black person in the courtroom. The pros-

ecutor trying the case concluded his final

argument by stating that the jurors should

“send that black brute to the gallows and

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283J U S T I C E O N T H E B E N C H ?

prove to the world that in Chattanooga

and Hamilton County the law of the

country does not countenance such terri-

ble crimes, has not ceased to mete out the

proper punishment for such horrible out-

rages” (Curriden & Phillips 1999, 118).

The judge in the case also allowed

the people in the audience—and the

jurors—to express their opinions about the

case and about Ed Johnson. When Johnson

testified, the pro-prosecution spectators

booed and heckled him. The audience

cheered when prosecutors made a point

and hissed and jeered when the defense

objected. At one point in the trial, one of

the jurors leaped to his feet, pointed at

Johnson, and yelled, “If I could get at him,

I’d tear his heart out right now” (Curriden

& Phillips 1999, Chap. 5).

Judge McReynolds sentenced Ed

Johnson to die and scheduled his execu-

tion for March 13, 1906. When Johnson’s

attorneys announced that they did not

intend to appeal his conviction, two prom-

inent local African-American attorneys

stepped in and filed a motion for a new

trial. Noah Parden and Styles Hutchins

believed that the evidence did not sup-

port a conviction and that there had been

numerous violations of Johnson’s consti-

tutional rights. After their motion for a

new trial was denied, they appealed to the

Tennessee Supreme Court, which ruled

that there had been “no serious errors” in

the case.

Parden and Hutchins then appealed

to the U.S. District Court, arguing that

Johnson had not received a fair trial. Dis-

trict Court Judge C. D. Clark ruled that

although “there was great haste in this

trial” and “counsel were to an extent ter-

rorized on account of the fear of a mob,”

the district court had no authority to

intervene. The problem, according to Judge

Clark, was that the right to a fair trial

guaranteed by the Sixth Amendment did

not apply to state-court cases. Nonetheless,

Judge Clark did issue a stay of execution

to allow Johnson’s lawyers to appeal to the

U.S. Supreme Court (Curriden & Phillips

1999, 168).

In a precedent-setting decision, the

Supreme Court decided to intervene in

the case. On March 18, 1906, Supreme

Court Justice John M. Harlan sent a tele-

gram to Judge Clark announcing that the

court would hear Johnson’s appeal. The

Court also sent a telegram to Sheriff Shipp

and Judge McReynolds informing them

that Johnson’s execution was to be stayed

pending the outcome of his appeal.

The citizens of Chattanooga were

outraged that “people in Washington, DC”

were interfering in the case and telling

them how to run their court system. The

Chattanooga News issued what amounted

to a call to arms, predicting that mob

violence would result if “by legal techni-

cality the case is prolonged and the cul-

prit finally escapes” (Curriden & Phillips

1999, 197).

On March 19, the newspaper’s pre-

diction of violence came true. A mob

gathered at the jail and, led by 25 deter-

mined men, bashed in the doors of the jail,

grabbed Johnson from his cell, and dragged

him through town to the bridge that

spanned the Tennessee River. The lead-

ers of the mob urged Johnson to confess.

Instead, he repeated his claim of innocence,

stating, “I am going to tell the truth. I am

not guilty.” His words enraged the crowd,

and as they prepared to hang him from the

bridge, Ed Johnson uttered his last words,

“God bless you all. I am innocent” (Cur-

riden & Phillips 1999, 210–214).

Although the citizens of Chattanooga

blamed the lynching of Ed Johnson on the

(Continued )

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284 C H A P T E R 6

interference of the federal courts, the jus-

tices of the Supreme Court, and especially

Justices Harlan and Holmes, were outraged

that their order staying the execution had

been ignored. President Theodore Roos-

evelt also condemned the lynching, which

he called “contemptuous of the court” and

“an affront to the highest tribunal in the

land that cannot go by without proper

action being taken.” As Justice Harlan told

the Washington Post, “The mandate of the

Supreme Court has for the first time in the

history of the country been openly defied

by a community” (Curriden & Phillips

1999, 222).

The events that transpired next

shocked the citizens of Chattanooga. In

May 1906, the U.S. Department of Justice

charged Sheriff Shipp, his deputies, and

the ringleaders of the lynch mob with

contempt of court. In December of that

year, the Supreme Court announced that

it had jurisdiction in the case and that

the justices, sitting as a trial court, would

determine the fate of the defendants.

According to Curriden and Phillips (1999,

284), the Supreme Court was sending a

message “that its authority was supreme”

and that defiance of its orders “would not

and could not be tolerated.”

Although charges were eventually

dropped against 17 of the 26 defendants

and 3 of the remaining 9 were found not

guilty, the Supreme Court found Sheriff

Shipp, one of his deputies, and four mem-

bers of the lynch mob guilty of contempt

of court. Shipp and two members of the

mob were sentenced to 90 days in prison;

the others received sentences of 60 days.

Noah Parden, the lawyer who filed the

appeal with the Supreme Court, told the

Atlanta Independent that the Court’s actions

sent an important message. “We are at a

time,” he said, “when many of our people

have abandoned the respect for the rule of

law due to the racial hatred deep in their

hearts and souls, and nothing less than our

civilized society is at stake” (Curriden &

Phillips 1999, 336).

Ninety-four years later, Hamilton

County Criminal Court Judge Doug

Meyer overturned Johnson’s conviction.

“It really is hard for us in the White com-

munity to imagine how badly Blacks were

treated at that time,” said Judge Meyer.

“Something I don’t believe the White

community really understands is that,

especially at that time, the object was to

bring in a Black body, not necessarily the

person who had committed the crime.

And I think that’s what happened in this

case. There was a rush to find somebody to

convict and blame.”108 The attorney who

filed the petition to overturn Johnson’s

conviction was Leroy Phillips, one of the

coauthors of Contempt of Court.

R A C E - C O N S C I O U S J U RY N U L L I F I C AT I O N :

B L A C K P O W E R I N T H E C O U R T R O O M ?

In a provocative essay published in the Yale Law Journal shortly after O. J. Simpson’s acquittal, Paul Butler, an African-American professor of law at George Washing- ton University Law School, argued for “racially based jury nullification”109— that is, he urged African-American jurors to refuse to convict African-American defendants accused of nonviolent crimes, regardless of the strength of the evi- dence mounted against them. According to Butler, “It is the moral responsibility of black jurors to emancipate some guilty black outlaws.”110

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285J U S T I C E O N T H E B E N C H ?

Jury nullification, which has its roots in English common law, occurs when a juror believes that the evidence presented at trial establishes the defendant’s guilt but nonetheless votes to acquit. The juror’s decision may be motivated either by a belief that the law under which the defendant is being prosecuted is unfair or by an objection to the application of the law to a particular defendant. In the first instance, a juror might refuse to convict a defendant tried in federal court for possession of more than 50 grams of crack cocaine, based on his/her belief that the draconian penalties mandated by the law are unfair. In the second instance, a juror might vote to acquit a father charged with child endangerment after his 2-year-old daughter, who was not restrained in a child safety seat, was thrown from the car and killed when he lost control of his car on an icy road. In this case, the juror does not believe that the law itself is unfair, but, rather, that the defendant has suffered enough and that nothing will be gained by additional punishment.

Jurors clearly have the power to nullify the law and to vote their conscience. If a jury votes unanimously to acquit, the double jeopardy clause of the Fifth Amendment prohibits reversal of the jury’s decision. The jury’s decision to acquit, even in the face of overwhelming evidence of guilt, is final and cannot be reversed by the trial judge or by an appellate court. In most jurisdictions, however, jurors do not have to be told that they have the right to nullify the law.111

Butler’s position on jury nullification is that the “black community is bet- ter off when some nonviolent lawbreakers remain in the community rather than go to prison.”112 Arguing that there are far too many African-American men in prison, Butler suggested that there should be “a presumption in favor of nullifica- tion”113 in cases involving African-American defendants charged with nonviolent, victimless crimes like possession of drugs. Butler claimed that enforcement of these laws has a disparate effect on the African-American community and does not “advance the interest of black people.”114 He also suggested that white racism, which “creates and sustains the criminal breeding ground which produces the black criminal,”115 is the underlying cause of much of the crime committed by African Americans. He thus urged African-American jurors to “nullify without hesitation in these cases.”116

Butler did not argue for nullification in all types of cases. In fact, he asserted that defendants charged with violent crimes such as murder, rape, and armed robbery should be convicted if there is proof beyond a reasonable doubt of guilt. He contended that nullification is not morally justifiable in these types of cases because “people who are violent should be separated from the community, for the sake of the nonviolent.”117 Violent African-American offenders, in other words, should be convicted and incarcerated to protect potential innocent victims. But- ler was willing to “write off ” these offenders based on his belief that the “black community cannot afford the risks of leaving this person in its midst.”118

The more difficult cases, according to Butler, involve defendants charged with nonviolent property offenses or with more serious drug-trafficking offenses. He discussed two hypothetical cases, one involving a ghetto drug dealer and the other involving a thief who burglarizes the home of a rich family. His answer to the question “Is nullification morally justifiable here?” is “It depends.”119 Although he admitted that “encouraging people to engage in self-destructive behavior is evil”

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286 C H A P T E R 6

and that therefore most drug dealers should be convicted, he argued that a juror’s decision in this type of case might rest on the particular facts in the case. Similarly, although he is troubled by the case of the burglar who steals from a rich family because the behavior is “so clearly wrong,” he argued that the facts in the case— for example, a person who steals to support a drug habit—might justify a vote to acquit. Nullification, in other words, may be a morally justifiable option in both types of cases.

Randall Kennedy’s Critique

Randall Kennedy120 raised a number of objections to Butler’s proposal, which he characterized as “profoundly misleading as a guide to action.”121 Although he acknowledged that Butler’s assertion that there is racial injustice in the adminis- tration of the criminal law is correct, Kennedy nonetheless objected to Butler’s portrayal of the criminal justice system as a “one-dimensional system that is totally at odds with what black Americans need and want, a system that unequivocally represents and unrelentingly imposes ‘the white man’s law.’ ”122 Kennedy faulted Butler for his failure to acknowledge either the legal reforms implemented as a result of struggles against racism or the significant presence of African-American officials in policymaking positions and the criminal justice system. The problems inherent in the criminal justice system, according to Kennedy, “require judicious attention, not a campaign of defiant sabotage.”123

Kennedy objected to the fact that Butler expressed more sympathy for nonvi- olent African-American offenders than for “the law-abiding people compelled by circumstances to live in close proximity to the criminals for whom he is willing to urge subversion of the legal system.”124 He asserted that law-abiding African Americans “desire more rather than less prosecution and punishment for all types of criminals,”125 and suggested that, in any case, jury nullification “is an exceed- ingly poor means for advancing the goal of a racially fair administration of crim- inal law.”126 He claimed that a highly publicized campaign of jury nullification carried on by African Americans will not produce the social reforms that Butler demands. Moreover, such a campaign might backfire. Kennedy suggested that it might lead to increased support for proposals to eliminate the requirement that the jury be unanimous in order to convict, restrictions on the right of African Americans to serve on juries, or widespread use of jury nullification by white jurors in cases involving white-on-black crime.

According to Kennedy, the most compelling reason to oppose Butler’s call for racially based jury nullification is that it is based on “an ultimately destructive sentiment of racial kinship that prompts individuals of a given race to care more about ‘their own’ than people of another race.”127 He objected to the implica- tion that it is proper for African-American jurors to be more concerned about the fate of African-American defendants than white defendants, more disturbed about the plight of African-American communities than white communities, and more interested in protecting the lives and property of African American than white citizens. “Along that road,” according to Kennedy, “lies moral and political disaster.” Implementation of Butler’s proposal, Kennedy insisted, would not only

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287J U S T I C E O N T H E B E N C H ?

increase but also legitimize “the tendency of people to privilege in racial terms ‘their own.’ ”128

C O N C L U S I O N

In Chapter 5, we concluded that the reforms implemented during the past few decades have substantially reduced racial discrimination during the pretrial stages of the criminal justice process. Our examination of the jury selection process suggests that a similar conclusion is warranted. Reforms adopted voluntarily by the states or mandated by appellate courts have made it increasingly unlikely that African-American and Hispanic defendants will routinely be tried by all-white juries.

An important caveat, however, concerns the use of racially motivated peremp- tory challenges. As the recent report by the Equal Justice Initiative demonstrates, the peremptory challenge stands in the way of a racially neutral jury selection process. Supreme Court decisions notwithstanding, prosecutors still manage to use the peremptory challenge to eliminate African Americans and Hispanics from juries trying African-American and Hispanic defendants. More troubling, prosecutors’ “racially neutral” explanations for strikes alleged to be racially moti- vated, with few exceptions, continue to be accepted at face value. Coupled with anecdotal evidence that prosecutors are not reluctant to “play the race card” in a criminal trial, these findings regarding jury selection suggest that the process of adjudication, like the pretrial process, is not free of racial bias.

Based on the research reviewed in this chapter and the previous one, we conclude that contemporary court processing decisions are not characterized by systematic discrimination against racial minorities. This may have been true at the time that the Scottsboro Boys and Ed Johnson were tried, but it is no longer true. As we have shown, the U.S. Supreme Court has consistently affirmed the importance of protecting the rights of criminal defendants and has insisted that the race and ethnicity of the defendant not be taken into consideration in making case processing decisions. Coupled with reforms adopted voluntarily by the states, these decisions make systematic racial discrimination unlikely.

We are not suggesting, however, that these reforms have produced an equi- table, or color-blind, system of justice. We are not suggesting that contemporary court-processing decisions reflect pure justice. Researchers have demonstrated that court-processing decisions in some jurisdictions reflect racial discrimination, whereas decisions in other jurisdictions are racially neutral. Researchers also have shown that African Americans and Hispanics who commit certain types of crimes are treated more harshly than whites and that being unemployed, having a prior criminal record, or being detained prior to trial may have a more negative effect on court outcomes for people of color than for whites.

These findings lead us to conclude that discrimination against African Amer- icans and other racial minorities is not universal but is confined to certain types of cases, certain types of settings, and certain types of defendants. We conclude that the court system of today is characterized by contextual discrimination.

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288 C H A P T E R 6

D I S C U S S I O N Q U E S T I O N S

1. The Supreme Court has repeatedly asserted that a defendant is not enti- tled to a jury “composed in whole or in part of persons of his own race.” Although these rulings establish that states are not obligated to use racially mixed juries, they do not prohibit states from doing so. In fact, a number of policy makers and legal scholars have proposed reforms that use racial cri- teria to promote racial diversity on American juries. Some have suggested that the names of majority race jurors be removed from the jury list (thus ensuring a larger proportion of racial minorities); others have suggested that a certain number of seats on each jury be set aside for racial minorities. How would you justify these reforms to a state legislature? How would an oppo- nent of these reforms respond? Overall, are these good ideas or bad ideas?

2. Evidence suggesting the prosecutors use their peremptory challenges to preserve all-white juries in cases involving African-American or Hispanic defendants has led some commentators to call for the elimination of the peremptory challenge. What do you think is the strongest argument in favor of eliminating the peremptory challenge? In favor of retaining it?

3. Given that the Supreme Court is unlikely to rule that the peremptory chal- lenge violates the right to a fair trial and is therefore unconstitutional, are there any remedies or reforms that could be implemented?

4. Should a white defendant be allowed to challenge the prosecutor’s use of peremptory challenges to exclude African Americans and other racial minorities from his or her jury? Why or why not?

5. Why do you think the U.S. Supreme Court decided to intervene in the Ed Johnson case (see “Focus on an Issue: The Lynching of an Innocent Man”)?

6. In this chapter, we present a number of examples of lawyers who “played the race card” in a criminal trial. Almost all of them involved prosecutors who appealed to the potential racist sentiments of white jurors. But what about defense attorneys representing African-American defendants who attempt to appeal to the potential racist sentiments of African-American jurors? Does this represent misconduct? How should the judge respond?

7. Why does Paul Butler advocate “racially based jury nullification”? Why does Randall Kennedy disagree with him?

N O T E S

1. Harper Lee, To Kill a Mockingbird (New York: Warner Books, 1960), p. 220.

2. For an excellent discussion of this case, see Jack Olsen, Last Man Standing: The Tragedy and Triumph of Geronimo Pratt (New York: Doubleday, 2000).

3. Ibid., p. 367.

4. Ibid., p. 465.

5. Jeremy Engel, “Federal Judge Approves $4.5 Million Settlement in Pratt Case,” Metropolitan News-Enterprise, Capitol News Service, May 1, 2000.

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289J U S T I C E O N T H E B E N C H ?

6. James P. Levine, Juries and Politics (Pacific Grove, CA: Brooks/Cole Publishing, 1992).

7. Hiroshi Fukurai and Darryl Davies, “Affirmative Action in Jury Selection: Racially Representative Juries, Racial Quotas, and Affirmative Juries of the Hennepin Model and the Jury de Medietate Linguae,” Virginia Journal of Social Policy & the Law 4 (1996), pp. 645–682.

8. NAACP Legal Defense and Educational Fund, “Justice Prevails in Louisiana: Rideau Is Free,” January 15, 2005. http://www.naacpldf.org.

9. Josh Richman, “Lee Calls for Federal Inquiry of Mehserle Trial,” Oakland Tribune, July 17, 2010.

10. David Cole, No Equal Justice: Race and Class in the American Criminal Justice System (New York: The New Press, 1999), p. 103.

11. Ibid., p. 101.

12. Duncan v. Louisiana, 391 U.S. 145 (1968).

13. McCleskey v. Kemp, 481 U.S. 279 (1987) (quoting Strauder v. West Virginia, 100 U.S. 303 [1880]).

14. Alpheus Thomas Mason and William M. Beaney, American Constitutional Law (Englewood Cliffs, NJ: Prentice-Hall, 1972), p. 379.

15. Strauder v. West Virginia, 100 U.S. 303 (1880).

16. Ibid., pp. 307–308.

17. Ibid., p. 309.

18. Neal v. Delaware, 103 U.S. 370, 394 (1881), at 393–394 (1881).

19. Ibid.

20. Ibid., p. 397.

21. Gunnar Myrdal, An American Dilemma: The Negro Problem and Modern Democracy (New York: Harper, 1944), p. 549.

22. Ibid.

23. Ibid.

24. Seymour Wishman, Anatomy of a Jury: The System on Trial (New York: Times Books, 1986), p. 54.

25. Avery v. Georgia, 345 U.S. 559 (1953).

26. Whitus v. Georgia, 385 U.S. 545 (1967).

27. Avery v. Georgia, 345 U.S. 559 (1953), at 562.

28. Randall Kennedy, Race, Crime, and the Law (New York: Vintage, 1997), p. 179.

29. Ibid.

30. Amadeo v. Zant, 486 U.S. 214 (1988).

31. For a thorough discussion of these cases, see Ian F. Haney Lopez, “Race, Ethnicity, Erasure: The Salience of Race to LatCrit Theory,” University of California Law Review 85 (1997), pp. 1166–1170.

32. Lugo v. Texas, 124 S.W. 2d 344 (1939).

33. Hernandez v. Texas, 251 W.W. 2d 531, at 535.

34. Clare Sheridan, “‘Another White Race’: Mexican Americans and the Paradox of Whiteness in Jury Selection,” Law and History Review 21 (2003), pp. 109–144, 121.

35. Hernandez v. Texas, 251 W.W. 2d 531, at 535.

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290 C H A P T E R 6

36. Hernandez v. Texas, 347 U.S. 475 (1954), at 477.

37. Ibid., at 478.

38. Ibid., at 482.

39. Cole, No Equal Justice, pp. 104–105. For an empirical investigation of the effect of the racial composition of the neighborhood on the likelihood that racial minori- ties would appear when summoned, see Ralph B. Taylor, Jerry H. Ratcliffe, Lillian Dote, and Brian A. Lawton, “Roles of Neighborhood Race and Status in the Middle Stages of Juror Selection,” Journal of Criminal Justice 35 (2007), pp. 391–403.

40. Michael Higgins, “Few Are Chosen,” ABA Journal (1999), pp. 50–51.

41. Fukurai and Davies, “Affirmative Action in Jury Selection,” p. 653.

42. Kennedy, Race, Crime, and the Law, p. 239.

43. Albert W. Alschuler, “Racial Quotas and the Jury,” Duke Law Journal 44 (1995), p. 44.

44. Denise Lavoie, “Judge Rules on Racial Makeup of Juries,” Newsday.Com, October 2, 2005.

45. Ibid.

46. Kennedy, Race, Crime, and the Law, p. 253.

47. Ibid., p. 255.

48. U.S. v. Ovalle, 136 F.3d 1,092 (6th Cir. 1998).

49. United States v. Nelson, 277 F.3d 164, 169–172 (2d Cir. 2002).

50. Ibid., at pp. 207–208.

51. Alschuler, “Racial Quotas and the Jury,” p. 704.

52. Cole, No Equal Justice, p. 126.

53. Strauder v. West Virginia, 100 U.S. 303 (1880), at 305; Batson v. Kentucky, 476 U.S. 79 (1986), at 85.

54. Swain v. Alabama, 380 U.S. 202, 212 (1965).

55. Kennedy, Race, Crime, and the Law, p. 214.

56. “Former Prosecutor Accused of Bias in Election Year,” New York Times (March 31, 1997).

57. Ibid.

58. Swain v. Alabama, 380 U.S. 202 (1965).

59. Ibid., at 222.

60. Wishman, Anatomy of a Jury, p. 115.

61. Justice Brennan dissenting from denial of certiorari in Thompson v. United States, 105 S. Ct. at 445.

62. Brian J. Serr and Mark Maney, “Racism, Peremptory Challenges, and the Demo- cratic Jury: The Jurisprudence of a Delicate Balance,” Journal of Criminal Law and Criminology 79 (1988), p. 13.

63. Batson v. Kentucky, 476 U.S. 79 (1986), at 96.

64. United States v. Montgomery, 819 F.2d at 851. The Eleventh Circuit, however, rejected this line of reasoning in Fleming v. Kemp [794 F.2d 1478 (11th Cir. 1986)] and United States v. David [803 F.2d 1567 (11th Cir. 1986)].

65. United States v. Vaccaro, 816 F.2d 443, 457 (9th Cir. 1987); Fields v. People, 732 P.2d 1145, 1158 n.20 (Colo. 1987).

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291J U S T I C E O N T H E B E N C H ?

66. Serr and Maney, “Racism, Peremptory Challenges, and the Democratic Jury,” pp. 43–47.

67. Kennedy, Race, Crime, and the Law, p. 211.

68. Ibid., p. 213.

69. Serr and Maney, “Racism, Peremptory Challenges, and the Democratic Jury,” p. 63.

70. Purkett v. Elem, 115 S.Ct. 1769 (1995).

71. Ibid.

72. Ibid. (Stevens, J., dissenting).

73. Cole, No Equal Justice, p. 124.

74. Equal Justice Initiative, Illegal Racial Discrimination in Jury Selection: A Continuing Legacy (Montgomery, AL: Equal Justice Institute, 2010).

75. Ibid., p. 4.

76. Ibid., p. 14.

77. Ibid.

78. Ibid., p. 18.

79. Ibid., p. 19.

80. Snyder v. Louisiana, 552 U.S. 472 (2008).

81. Equal Justice Initiative, Illegal Racial Discrimination in Jury Selection, p. 22.

82. Ibid., p. 42

83. Ibid., p. 38

84. Ibid., p. 44.

85. Ibid., pp. 43–50.

86. Ibid., p. 4.

87. Myrdal, An American Dilemma, pp. 547–548.

88. Samuel R. Gross, Kristen Jacoby, Daniel J. Matheson, Nicholas Montgomery, and Sujata Patil, “Exonerations in the United States 1989 through 2003,” Journal of Criminal Law & Criminology 95 (2005), pp. 523–553, 531.

89. Ibid.

90. Ibid., p. 529.

91. Ibid.

92. Ibid., p. 547.

93. Ibid.

94. Ibid., p. 548.

95. Ibid.

96. See, for example, Christian A. Meissner and John C. Brigham, “Thirty Years of Inves- tigating the Own-Race Bias in Memory for Faces: A Meta-Analytic Review,” Psy- chology, Public Policy, and Law 7 (2001), pp. 3–35; John R. Rutledge, “They All Look Alike: The Inaccuracy of Cross-Racial Identifications,” American Journal of Criminal Law 28 (2001), pp. 207–228.

97. “Shapiro Lashes out at Cochran over ‘Race Card,”’ USA Today, October 4, 1995.

98. Kennedy, Race, Crime, and the Law, pp. 286–290.

99. Moulton v. State, 199 Ala. 411 (1917).

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292 C H A P T E R 6

100. Miller v. North Carolina, 583 F.2d 701 (CA 4 1978).

101. State v. Washington, 67 So. 930 (La. Sup. Ct., 1915).

102. Withers v. United States, 602 F.2d 124 (CA 6 1976).

103. Blair v. Armontrout, 916 F.2d 1310 (CA 8 1990).

104. Miller v. North Carolina, 583 F.2d 701 (CA 4 1978), 708.

105. Blair v. Armontrout, 916 F.2d 1310 (CA 8 1990), 1,351.

106. Kennedy, Race, Crime, and the Law, pp. 256–257.

107. For an excellent and detailed account of this case, see Mark Curriden and Leroy Phillips, Jr., Contempt of Court: The Turn-of-the-Century Lynching that Launched a Hundred Years of Federalism (New York: Faber and Faber, 1999).

108. “Black Man Lynched by Mob after Getting Stay of Execution in Rape Case 94 Years Ago Is Cleared,” Jet Magazine, March 20, 2000. http://www.jetmag.com.

109. Paul Butler, “Racially Based Jury Nullification: Black Power in the Criminal Justice System,” Yale Law Journal 105 (1995), pp. 677–725.

110. Ibid., p. 679.

111. See, for example, United States v. Dougherty, 473 F.2d 1,113 (D.C.Cir., 1972).

112. Butler, “Racially Based Jury Nullification,” p. 679.

113. Ibid., p. 715.

114. Ibid., p. 714.

115. Ibid., p. 694.

116. Ibid., p. 719.

117. Ibid., p. 716.

118. Ibid., p. 719.

119. Ibid., p. 719.

120. Kennedy, Race, Crime, and the Law, pp. 295–310.

121. Ibid., p. 299.

122. Ibid., p. 299.

123. Ibid., p. 301.

124. Ibid., p. 305.

125. Ibid., pp. 305–306.

126. Ibid., p. 301.

127. Ibid., p. 310.

128. Ibid., p. 310.

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293

7

RACE AND SENTENCING:

In Search of Fairness

and Justice

We must confront another reality. Nationwide, more than 40 percent of the prison population consists of African

American inmates. About 10 percent of African American men in their mid-to-late 20s are behind bars. In some cities, more than 50 percent of young African American men are

under the supervision of the criminal justice system . . . Our resources are misspent, our punishments too severe,

our sentences too long. —JUSTICE ANTHONY KENNEDY, SPEAKING AT THE

AMERICAN BAR ASSOCIATION, AUGUST 2003

L E A R N I N G O B J E C T I V E S

In this chapter, we address the issue of racial disparity in sentencing. Our purpose is not simply to add another voice to the debate over the existence of racial discrimination in the sentencing process. Although we do attempt to determine whether racial minorities are sentenced more harshly than whites, we believe that this is a theoretically unsophisticated and incomplete approach to a complex phenomenon. It is overly simplistic to assume that racial minorities will receive harsher sentences than whites regardless of the nature of the crime, the seriousness of the offense, the culpability of the offender, or the characteristics of the victim. The more interesting questions are “When does race matter?” and “Why does race matter?” It is these ques- tions that we attempt to answer.

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After you have read this chapter:

1. You should be able to explain why racial disparity in sentencing does not necessarily signal the presence of racial discrimination in sentencing and to discuss the five explanations for racial disparities in sentencing.

2. You should be able to clarify why crime seriousness and prior criminal record are not necessarily racially neutral factors.

3. You should be able to discuss and evaluate the conclusions of recent reviews of research investigating the effects of race/ethnicity on sentencing and to explain how research in this area has evolved over time.

4. You should be able to answer the question “When does race (and ethnicity) matter in sentencing?”

5. You should be able to explain why some researchers argue that race/ ethnicity, age, and sex are a “volatile combination” in the context of sentencing decisions.

6. You should be able to discuss differences in research findings regarding sentences imposed on whites and those imposed on African Americans, Hispanics, Asian Americans, and Native Americans.

7. You should be able to explain how the race of the victim affects sentencing decisions.

8. You should be able to discuss the focal concerns perspective and explain how judges’ focal concerns may lead to unwarranted disparities in sentencing.

9. You should be able to explain the difference between direct and indirect race effects and you should be able to discuss the consequences of cumulative disadvantage.

10. You should be able to evaluate competing arguments regarding similarities and differences in the sentencing decisions of African-American and white judges.

11. You should be able to discuss the crack–powder cocaine disparity, explain its relationship to racial/ethnic disparities in sentencing, and explain how it was recently modified by Congress.

R A C E A N D S E N T E N C I N G : I S T H E U N I T E D S TAT E S

M O V I N G F O R WA R D O R B A C K WA R D ?

In 2004, the United States celebrated the fiftieth anniversary of Brown v. Board of Education, the landmark Supreme Court case that ordered desegregation of public schools. Also in 2004, the Sentencing Project issued a report entitled “Schools and Prisons: Fifty Years after Brown v. Board of Education.”1 The report noted that, whereas many institutions in society had become more diverse and more responsive to the needs of people of color in the wake of the Brown decision,

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the American criminal justice system had taken “a giant step backward.”2 To illustrate this, the report pointed out that in 2004 there were nine times as many African Americans in prison or jail as on the day the Brown decision was handed down—the number increased from 98,000 to 884,500. The report also noted that 1 of every 3 African-American males and 1 of every 18 African-American females born today could expect to be imprisoned at some point in his or her lifetime.3 The authors of the report concluded that “such an outcome should be shocking to all Americans.”4

Other statistics confir m that racial minor ities—and especially young African-American and Hispanic men—are substantially more likely than whites to be serving time in prison. In 2014, for example, African Americans comprised about 13 percent of the U.S. population but 35.8 percent of all state and federal prison inmates. Hispanics were 17 percent of the U.S. population but 21.6 per- cent of prison inmates. By contrast, non-Hispanic whites made up 63 percent of the total population but only 33.6 percent of the state and prison population. Among inmates who were 18 or 19 years old, black males were 10 times more likely than white males to be imprisoned.5

Explanations for the disproportionate number of African-American and Hispanic males under the control of the criminal justice system are complex. As discussed in more detail in Chapter 9, a number of studies have concluded that most—but not all—of the racial disparity in incarceration rates can be at- tributed to racial differences in offending patterns and prior criminal records. African-American and Hispanic males, in other words, face greater odds of in- carceration than white males primarily because they commit more serious crimes and have more serious prior criminal records. As the National Research Council’s Panel on Sentencing Research concluded in 1983, “Factors other than racial dis- crimination in the sentencing process account for most of the disproportionate representation of black males in U.S. prisons.”6 Although there is recent evidence that the proportion of the racial disparity in incarceration unexplained by racial differences in arrest rates is increasing, most scholars would contend that this con- clusion is still valid today.7

Not all of the racial disparity, however, can be explained away in this fashion. Critics contend that at least some of the over incarceration of racial minorities is the result of racially discriminatory sentencing policies and practices. As one commentator noted, “A conclusion that black overrepresentation among prison- ers is not primarily the result of racial bias does not mean that there is no racism in the system.”8 The National Academy of Sciences Panel similarly concluded that evidence of racial discrimination in sentencing may be found in some jurisdic- tions or for certain types of crimes.

Underlying this controversy are questions concerning discretion in sentencing. To be fair, a sentencing scheme must allow the judge or jury discretion to shape sentences to fit individuals and their crimes. The judge or jury must be free to con- sider all relevant aggravating and mitigating circumstances. To be consistent, on the other hand, a sentencing scheme requires the even-handed application of objective standards. The judge or jury must take only relevant considerations into account and must be precluded from determining sentence severity based on prejudice or whim.

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Critics of the sentencing process argue that judges, juries, and other members of the courtroom workgroup sometimes exercise their discretion inappropriately. Although they acknowledge that some degree of sentence disparity is to be ex- pected in a system that attempts to individualize punishment, these critics suggest that there is unwarranted disparity in the sentences imposed on similarly situated offenders convicted of similar crimes. More to the point, they assert that judges impose harsher sentences on African-American, Hispanic, and Native American offenders than on white (or Asian American) offenders.

Other scholars contend that judges’ sentencing decisions are not racially bi- ased. They argue that disparity in sentencing is the result of legitimate differences among individual cases and that racial disparities disappear once these differences are taken into consideration. These scholars argue, in other words, that judges’ sentencing decisions are both fair and consistent.

R A C I A L D I S PA R I T Y I N S E N T E N C I N G

There are two types of clear and convincing evidence of racial disparity in sen- tencing. The first is evidence derived from national statistics on prison admissions and prison populations. These statistics, which we discuss in detail in Chapter 9, reveal that the incarceration rates for African Americans and Hispanics are much higher than the rate for whites. In June 2009, for example, 4,749 of every 100,000 African-American men, 1,822 of every 100,000 Hispanic men, and 708 of every 100,000 white men were incarcerated in a state or federal prison or local jail. Stated another way, the incarceration rate for African-American men was 6.5 times greater than the rate for white men; the incarceration rate for Hispanic men was 2.6 times greater than the rate for white men. The incarceration rates for women, although much lower than the rates for men, revealed a similar pattern: 333 of every 100,000 for African Americans, 142 of every 100,000 for Hispanics, and 91 of every 100,000 for whites. Among males between the ages of 25 and 29, the disparities were even larger: 10,501 of every 100,000 African Americans, 3,954 of every 100,000 Hispanics, and 1,569 of every 100,000 whites were incarcerated.9

The second type of evidence comes from studies of judges’ sentenc- ing decisions. These studies, which are the focus of this chapter, reveal that African-American and Hispanic defendants are more likely than whites to be sentenced to prison; those who are sentenced to prison receive longer terms than whites. Consider the following statistics:

■ Black and Hispanic offenders sentenced under the federal sentencing guidelines in the U.S. District Courts from 1997 to 2000 received harsher sentences than white offenders. The incarceration rate was 93 percent for Hispanics, 85 percent for African Americans, and 74 percent for whites; by contrast, the incarceration rate for Asian Americans (71 percent) was lower than the rate for all other groups, including whites. Among those sentenced to prison, African Americans received the longest sentences, Asian Americans received the shortest sentences, and Hispanics and whites fell in the middle.10

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■ Among offenders convicted of drug offenses in federal district courts in 1997 and 1998, the mean sentence length was 82 months for African Amer- icans and 52 months for whites. For offenses with mandatory minimum sentences, the mean sentences were 136 months (African Americans) and 82 months (whites).11

■ Fifty-eight percent of the African-American offenders convicted of violent crimes in state courts in 2006 were sentenced to prison, compared with 52 percent of the white offenders. The figures for offenders convicted of drug offenses were 43 percent for African Americans and 31 percent for whites. The mean maximum sentence imposed on offenders sentenced to prison for violent offenses was 108 months for African Americans and 99 months for whites.12

■ A study of sentences imposed on offenders convicted of misdemeanors and felonies in New York City during 2010 and 2011 revealed that African Americans were more likely than other offenders to receive a sentence of incarceration. The rates were 32 percent for African Americans, 25 percent for Hispanics, 21 percent for whites, and 9 percent for Asians.13

Five Explanations for Racial Disparities in Sentencing

These statistics provide compelling evidence of racial disparity in sentencing. They indicate that the sentences imposed on African-American and Hispanic offend- ers are different from—that is, harsher than—the sentences imposed on white offenders. These statistics, however, do not tell us why this occurs. They do not tell us whether the racial disparities in sentencing reflect racial discrimination and, if so, whether that discrimination is institutional or contextual. We suggest that there are at least five possible explanations for racial disparity in sentencing, only four of which reflect racial discrimination. Box 7.1 summarizes these explanations.

First, the differences in sentence severity could result from the fact that African Americans and Hispanics commit more serious crimes and have more serious prior criminal records than whites. Studies of sentencing decisions consistently demon- strate the importance of these two “legally relevant” factors (but see Box 7.2 for an alternative interpretation of the legal relevance of crime seriousness and prior record). Offenders who are convicted of more serious offenses, who use a weapon to commit the crime, or who seriously injure the victim receive harsher sentences, as do offenders who have serious, more recent, or multiple prior felony convic- tions. The more severe sentences imposed on African Americans and Hispanics, then, might reflect the influence of these legally prescribed factors, rather than the effect of racial prejudice or unconscious bias on the part of judges.

Second, the differences could result from economic discrimination. As ex- plained in Chapter 5, poor defendants are not as likely as middle- or upper-class defendants to have a private attorney or to be released prior to trial. They also are more likely to be unemployed. All of these factors may be related to sentence severity. Defendants represented by private attorneys or released prior to trial may receive more lenient sentences than those represented by public defenders or

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held in custody prior to trial. Defendants who are unemployed may be sentenced more harshly than those who are employed. Because African-American and His- panic defendants are more likely than white defendants to be poor, economic discrimination amounts to indirect racial discrimination.

Third, the differences might result from the application of facially neutral laws and policies that have racially disparate effects. For example, many jurisdic- tions prescribe harsher sentences for offenses involving crack cocaine than for offenses involving powder cocaine. These laws, which are based on assertions that crack cocaine is a more dangerous drug than powder cocaine, are racially neutral laws; the harsher sentences are imposed on all offenders convicted of offenses involving crack cocaine, regardless of the offender’s race. However, the fact that African Americans are more likely than whites to be charged with and convicted of crack cocaine offenses means that they receive longer sentences than similarly situated white offenders charged with possessing, manufacturing, or delivering powder cocaine. Sentencing guidelines, habitual offender statutes, and three- strikes-and-you’re-out laws, all of which prescribe harsher penalties for offenders with more serious prior criminal histories, similarly could produce racially dispa- rate results. If, in other words, African Americans and Hispanics are more likely than whites to have accumulated prior criminal histories that make them eligible for harsher sentences under sentencing guidelines or for sentence enhancements, the application of these policies, which are racially neutral on their face, might result in systematically more punitive sentences for racial minorities. As discussed in Chapter 1, this would be evidence of institutional discrimination.

Fourth, the differences could result from overt racial discrimination or un- conscious racial bias on the part of judges, prosecutors, and other participants in

B o x 7.1 Five Explanations for Racial Disparities in Sentencing

African Americans and Hispanics are sentenced more harshly than whites for the following reasons:

1. They commit more serious crimes and have more serious prior criminal records than whites.

Conclusion: Racial disparity but not racial discrimination

2. They are more likely than whites to be poor; being poor is associated with a greater likelihood of pretrial detention and unemployment, both of which may lead to harsher sentences.

Conclusion: Indirect (i.e., economic) discrimination

3. They are more likely to be subject to facially neutral laws and policies that pre- scribe more severe sentences or sentence enhancements:

Conclusion: Institutional discrimination

4. Judges are biased or have prejudices against racial minorities.

Conclusion: Racial discrimination

5. The disparities occur in some contexts but not in others.

Conclusion: Subtle (i.e., contextual) racial discrimination

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the sentencing process. Judges might take the race or ethnicity of the offender into account in determining the appropriate sentence, and prosecutors might consider the offender’s race or ethnicity in deciding whether to plea bargain and in making sentence recommendations to the judge. If so, this implies that judges and prose- cutors who are confronted with similarly situated African-American, Hispanic, and white offenders treat racial minorities more harshly than whites. It also implies that these criminal justice officials, the majority of whom are white, may stereotype African-American and Hispanic offenders as more violent, more dangerous, and less amenable to rehabilitation than white offenders. Alternatively, the differential treatment of racial minorities could result from more implicit—or unconscious— racial bias that leads criminal justice officials to treat racial minorities differently than whites (for a more detailed discussion of this possibility, see Box 7.5).

Fifth, the sentencing disparities could reflect both equal treatment and dis- crimination, depending on the nature of the crime, the racial composition of the victim–offender dyad, the type of jurisdiction, the age and gender of the offender, and so on. It is possible, in other words, that racial minorities who commit certain

B o x 7.2 Are Crime Seriousness and Prior Criminal Record “Legally Relevant” Variables?

Most policy makers and researchers assume that the seriousness of the conviction charge and the offender’s prior criminal record are legally relevant to the sentencing decision. They assume that judges who base sentence severity primarily on crime seriousness and prior record are making legitimate, and racially neutral, sentencing decisions. But are they?

Some scholars argue that crime seriousness and prior criminal record are “race- linked” variables. If, for example, sentencing schemes consistently mandate the harshest punishments for the offenses for which racial minorities are most likely to be arrested (such as robbery and drug offenses involving crack cocaine), the imposi- tion of punishment is not necessarily racially neutral.

Similarly, if prosecutors routinely file more serious charges against racial minori- ties than against whites who engage in the same type of criminal conduct, or offer less attractive plea bargains to racial minorities than to whites, the more serious conviction charges for racial minorities will reflect these racially biased charging and plea bargaining decisions. An African-American defendant who is convicted of a more serious crime than a white defendant, in other words, may not necessarily have engaged in more serious criminal conduct than his or her white counterpart.

Prior criminal record also may be race-linked. If police target certain types of crimes (e.g., selling illegal drugs) or patrol certain types of neighborhoods (e.g., inner-city neighborhoods with large African-American or Hispanic populations) more aggressively, racial minorities will be more likely than whites to “accumulate” a criminal history that then can be used to increase the punishment for the current of- fense. Racially biased charging and convicting decisions would have a similar effect.

If crime seriousness and prior criminal record are, in fact, race-linked in the ways outlined here, it is misleading to conclude that sentences based on these two vari- ables are racially neutral. Similarly, it is misleading to conclude that the absence of “a race effect” once these two variables are taken into account signals the absence of racial discrimination in sentencing.

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types of crimes (such as forgery) are treated no differently than whites who com- mit these crimes, whereas those who commit other types of crimes (such as sex- ual assault) are sentenced more harshly than their white counterparts. Similarly, it is possible that racial discrimination in the sentencing of offenders convicted of sexual assault is confined to the South or to the cases involving black offenders and white victims. It is possible, in other words, that the type of discrimination found in the sentencing process is contextual discrimination.

E M P I R I C A L R E S E A R C H O N R A C E A N D S E N T E N C I N G

Researchers have conducted dozens of studies to determine which of the five explanations for racial disparity in sentencing is more correct and to untangle the complex relationship between race and sentence severity. In fact, as Marjorie Zatz has noted, this issue “may well have been the major research inquiry for studies of sentencing in the 1970s and early 1980s.”14 The studies that have been conducted vary enormously in theoretical and methodological sophistication. They range from simple bivariate comparisons of incarceration rates for whites and racial minorities, to methodologically more rigorous multivariate analyses designed to identify direct race effects, to more sophisticated designs incorporating tests for indirect race effects, for cumulative disadvantage, and for interaction between race and other predictors of sentence severity. The findings generated by these studies and the conclusions drawn by their authors also vary.

Reviews of Recent Research

Studies conducted from the 1930s through the 1960s generally concluded that racial disparities in sentencing reflected overt racial discrimination. For example, the author of one of the earliest sentencing studies, which was published in 1935, claimed that “equality before the law is a social fiction.”15 Reviews of these early studies,16 however, found that most of them were methodologically flawed. They usually used simple bivariate statistical techniques, and they failed to control ade- quately for crime seriousness and prior criminal record.

The conclusions of these early reviews, coupled with the findings of its own review of sentencing research,17 led the National Research Council’s Panel on Sentencing Research to state in 1983 that the sentencing process was not char- acterized by “a widespread systematic pattern of discrimination.” Rather, “some pockets of discrimination are found for particular judges, particular crime types, and in particular settings.”18 Zatz, who reviewed the results of four waves of race and sentencing research conducted from the 1930s through the early 1980s, reached a somewhat different conclusion.19 Although she acknowledged that “it would be misleading to suggest that race/ethnicity is the major determinant of sanctioning,” Zatz nonetheless asserted that “race/ethnicity is a determinant of sanctioning, and a potent one at that.”20

The three most recent reviews of research on race and sentencing confirm Zatz’s assertion. Theodore G. Chiricos and Charles Crawford reviewed 38 studies

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published between 1979 and 1991 that included a test for the direct effect of race on sentencing decisions in noncapital cases.21 Unlike previous reviews, they distinguished results involving the decision to incarcerate or not from those in- volving the length of sentence decision. Chiricos and Crawford also considered whether the effect of race varied depending on structural or contextual condi- tions. They asked whether the impact of race would be stronger “in southern jurisdictions, in places where there is a higher percentage of Blacks in the pop- ulation or a higher concentration of Blacks in urban areas, and in places with a higher rate of unemployment.”22 Noting that two-thirds of the studies that they examined had been published subsequent to the earlier reviews (which generally concluded that race did not play a prominent role in sentencing decisions), Chir- icos and Crawford stated that their assessment “provides a fresh look at an issue that some may have considered all but closed.”23

The authors’ assessment of the findings of these 38 studies revealed “signif- icant evidence of a direct impact of race on imprisonment.”24 This effect, which persisted even after the effects of crime seriousness and prior criminal record were controlled, was found only for the decision to incarcerate or not; it was not found for the decision on the length of sentence. The authors also identified a number of structural contexts that conditioned the race–imprisonment relation- ship. African-American offenders faced significantly greater odds of incarceration than white offenders in the South, in places where African Americans comprised a larger percentage of the population and in places where the unemployment rate was high.

Cassia Spohn’s25 review of noncapital sentencing research that used data from the 1980s and 1990s also highlighted the importance of attempting to identify “the structural and contextual conditions that are most likely to result in racial discrimination.”26 Spohn reviewed 40 studies examining the relationship between race, ethnicity, and sentencing. This included 32 studies of sentencing decisions at the state level and 8 studies at the federal level. Consistent with the conclusions of Chiricos and Crawford, Spohn reported that many of these studies found a direct race effect. At both the state and federal levels, there was evidence that African Americans and Hispanics were more likely than whites to be sentenced to prison; at the federal level, there was also evidence that African Americans received lon- ger sentences than whites.27

Noting that “[e]vidence concerning direct racial effects . . . provides few clues to the circumstances under which race matters,”28 Spohn also evalu- ated the 40 studies included in her review for evidence of indirect or contex- tual discrimination. Although she acknowledged that some of the evidence was contradictory—for example, some studies revealed that racial disparities were confined to offenders with less serious prior criminal records, whereas oth- ers reported such disparities only among offenders with more serious criminal histories—Spohn nonetheless concluded that the studies revealed four “themes” or “patterns” of contextual effects. Box 7.3 summarizes these themes.

The first theme or pattern revealed was that the combination of race/ethnic- ity and other legally irrelevant offender characteristics produces greater sentence disparity than race/ethnicity alone. That is, the studies demonstrated that certain

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types of racial minorities—males, the young, the unemployed, the less educated— are singled out for harsher treatment. Some studies found that each of these of- fender characteristics, including race/ethnicity, had a direct effect on sentence outcomes but that the combination of race/ethnicity and one or more of the other characteristics was a more powerful predictor of sentence severity than any characteristic individually. Other studies found that race/ethnicity had an effect only if the offender was male, young, and/or unemployed.29

The second pattern of indirect/interaction effects was that a number of process-related factors conditioned the effect of race/ethnicity on sentence se- verity.30 Some of the studies revealed, for example, that pleading guilty, hiring a private attorney, or providing evidence or testimony in other cases resulted in greater sentence discounts for white offenders than for African-American or Hispanic offenders. Other studies showed that racial minorities paid a higher penalty—in terms of harsher sentences—for being detained prior to trial or for having a serious prior criminal record. As Spohn noted, these results demonstrate that race and ethnicity influence sentence outcomes through their relationships with earlier decisions and suggest that these process-related determinants of sen- tence outcomes do not operate in the same way for racial minorities and whites.

B o x 7.3 Race, Ethnicity, and Sentencing Decisions: Contextual Effects

Spohn’s review of recent studies analyzing the effect of race and ethnicity on state and federal sentencing decisions identified four themes, or patterns, of contextual effects. These studies revealed the following:

1. Racial minorities are sentenced more harshly than whites if they are young and male,

are unemployed,

are male and unemployed,

are young, male, and unemployed,

have lower incomes, or

have less education.

2. Racial minorities are sentenced more harshly than whites if they are detained in jail prior to trial,

are represented by a public defender rather than a private attorney,

are convicted at trial rather than by plea,

have more serious prior criminal records.

3. Racial minorities who victimize whites are sentenced more harshly than other race-of-offender/race-of-victim combinations.

4. Racial minorities are sentenced more harshly than whites if they are

convicted of less serious crimes or

convicted of drug offenses or more serious drug offenses.

SOURCE: Cassia Spohn, “Thirty Years of Sentencing Reform: The Quest for a Racially Neutral Sentencing Process,” in Criminal Justice 2000: Policies, Process, and Decisions of the Criminal Justice System (Washington, DC: U.S. Department of Justice, 2000).

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The third theme or pattern concerned an interaction between the race of the offender and victim. Consistent with research on the death penalty (which is discussed in Chapter 8), two studies found that African Americans who sexu- ally assaulted whites were sentenced more harshly than either African Americans who sexually assaulted other African Americans or whites who sexually assaulted whites. Thus, “punishment is contingent on the race of the victim as well as the race of the offender.”31

The final pattern of indirect/interaction effects, which Spohn admitted was “less obvious” than the other three,32 was that the effect of race/ethnicity was conditioned by the nature of the crime. Some studies found that racial discrimi- nation was confined to less serious—and thus more discretionary—crimes. Other studies revealed that racial discrimination was most pronounced for drug offenses or, alternatively, that harsher sentencing of racial minorities was found only for the most serious drug offenses.33

The most recent review of research on race and sentencing is Ojmarrh Mitchell’s meta-analysis of published and unpublished studies that included con- trols for offense seriousness and prior criminal record.34 Mitchell’s quantitative analysis focused on the direction and size of the effect (the “effect size”) of race on sentencing. His analysis revealed that 76 percent of the effect sizes from the nonfederal studies and 73 percent of the effect sizes from the federal studies indi- cated that African Americans were sentenced more harshly than whites, especially for drug offenses and for imprisonment decisions. The effect sizes were smaller in studies that used more precise controls for offense seriousness and criminal history; they were larger in jurisdictions that did not utilize structured sentenc- ing guidelines. Moreover, the analysis revealed that the amount of unwarranted disparity in sentencing had not changed appreciably since the 1970s. Mitchell concluded that his findings “undermine the so-called ‘no discrimination thesis,’” given that “independent of other measured factors, on average African Americans were sentenced more harshly than whites.”35

The fact that a majority of the studies reviewed by Chiricos and Crawford, Spohn, and Mitchell found that African Americans (and Hispanics) were more likely than whites to be sentenced to prison, even after taking crime serious- ness and prior criminal record into account, suggests that racial discrimination in sentencing is not a thing of the past. Although the contemporary sentencing process may not be characterized by “a widespread systematic pattern of discrim- ination,”36 it is not racially neutral.

W H E N D O E S R A C E / E T H N I C I T Y M AT T E R ?

Research conducted during the past two decades clearly demonstrates that race/ ethnicity interacts with or is conditioned by (1) other legally irrelevant offender characteristics such as sex and employment status, (2) process-related factors such as pretrial detention, (3) the race of the victim, and (4) the nature and serious- ness of the crime. A comprehensive review of these studies is beyond the scope of this book. Instead, we summarize the findings of a few key studies. We begin

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by summarizing the results of a study that found both direct and indirect racial/ ethnic effects. This is followed by a discussion of studies that focus explicitly on sentence outcomes for Hispanic Americans, illegal immigrants, Asian Americans, and Native Americans. Next we review the findings of a series of studies that explore the intersections among race, ethnicity, sex, age, employment status, and sentence severity. We also review studies that examine differential treatment of interracial and intraracial crime. We then discuss the findings of studies examining the effect of race on sentencing for different types of offenses and the findings of a number of studies that focus explicitly on the relationship between race and sentence severity for drug offenders. We end this section with a discussion of studies that attempt to identify the degree to which racial minorities are subject to cumulative disadvantage. Our purpose is to illustrate the subtle and complex ways in which race influences the sentencing process.

Race/Ethnicity and Sentencing: Direct and Indirect Effects

A number of methodologically sound studies have concluded that African- American and Hispanic offenders are sentenced more harshly than whites. Cassia Spohn and Miriam DeLone, for example, compared the sentences imposed on African-American, Hispanic, and white offenders convicted of felonies in Chi- cago, Kansas City, and Miami in 1993 and 1994.37 They controlled for the legal and extralegal variables that affect judges’ sentencing decisions: the offender’s age, sex, and prior criminal record; whether the offender was on probation at the time of the current offense; the seriousness of the conviction charge; the number of conviction charges; the type of attorney representing the offender; whether the offender was detained or released prior to trial; and whether the offender pled guilty or went to trial.

Spohn and DeLone found evidence of racial discrimination in the deci- sion to incarcerate or not in two of the three jurisdictions. Although race had no effect on the likelihood of incarceration in Kansas City, both African Amer- icans and Hispanics were more likely than whites to be sentenced to prison in Chicago, and Hispanics (but not African Americans) were more likely than whites to be incarcerated in Miami. The data presented in Figure 7.1 illustrate these results more clearly. The authors used the results of their multivariate anal- yses to calculate the estimated probability of imprisonment for a “typical” white, African-American, and Hispanic offender who was convicted of burglary in each of the three cities.38

These estimated probabilities confirm that offender race had no effect on the likelihood of incarceration in Kansas City; 55 percent of the whites and 54 per- cent of the African Americans convicted of burglary were sentenced to prison. In Chicago, however, there was about a 4 percentage-point difference between white offenders and African-American offenders and between white offenders and Hispanic offenders. In Miami, the difference between white offenders and Hispanic offenders was somewhat larger; even after the other legal and extralegal variables were taken into consideration, 34 percent of the Hispanics, but only 26 percent of the whites, received a prison sentence.

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Consistent with the explanations presented in Box 7.1, Spohn and DeLone also found evidence of economic discrimination. When they analyzed the likeli- hood of pretrial detention, controlling for crime seriousness, the offender’s prior criminal record, and other factors associated with the type and amount of bail required by the judge, they found that African Americans and Hispanics faced significantly higher odds of pretrial detention than whites in Chicago and Mi- ami and that African Americans were more likely than whites to be detained in Kansas City. They also found that pretrial detention was a strong predictor of the likelihood of incarceration following conviction in all three cities. Thus, Af- rican-American and Hispanic defendants were more likely than whites to be de- tained prior to trial, and those who were detained were substantially more likely than those who were released to be incarcerated.

This study, then, demonstrated that race/ethnicity affected the likelihood of incarceration differently in these three cities. In Chicago, race/ethnicity had both a direct effect on incarceration (African Americans and Hispanics were more likely than whites to be sentenced to prison) and an indirect effect on incarcer- ation through pretrial detention (African Americans and Hispanics were more likely than whites to be detained prior to trial and pretrial detention increased the odds of a prison sentence). In Miami, on the other hand, ethnicity, but not race, had a direct effect on the likelihood of a prison sentence (Hispanics were more likely than whites to be sentenced to prison), but both race and ethnicity had an indirect effect on incarceration through pretrial detention. And in Kansas City, race did not have a direct effect on incarceration but did influence the likelihood of a prison sentence through its effect on pretrial detention. The pattern of results found for Chicago is illustrated in Box 7.4.

The authors of this study were careful to point out that the race effects they uncovered, although statistically significant, were “rather modest”39 and that the seriousness of the offense and the offender’s prior criminal record were the pri- mary determinants of sentence outcomes. They noted, however, the fact that offender race/ethnicity had both direct and indirect effects, coupled with the fact

100

80

60

40

20

0

P e rc

e n ta

g e (

% )

Chicago Miami

87 91 92

26 30 34

55 54

Kansas City

Whites African Americans Hispanics

F I G U R E 7.1 Estimated Probabilities of Incarceration for Offenders Convicted of Burglary

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306 C H A P T E R 7

that female offenders and those who were released prior to trial received substan- tially more lenient sentences than male offenders and those who were detained before trial, suggests that “judges’ sentencing decisions are not guided exclusively by factors of explicit legal relevance.”40 They concluded that judges’ sentencing decisions reflect “stereotypes of dangerousness and culpability that rest, either ex- plicitly or implicitly, on considerations of race, gender, pretrial status, and willing- ness to plead guilty.”41

Are Hispanics Sentenced More Harshly Than

All Other Offenders?

A study of sentencing decisions in the state of Pennsylvania, where judges use sentencing guidelines, compared the relative harshness of sentences imposed on Hispanic and African-American offenders. Arguing that “Hispanic defendants may seem even more culturally dissimilar and be even more disadvantaged” than African Americans, Darrell Steffensmeier and Stephen Demuth hypothesized that Hispanic offenders would be sentenced more harshly than either white offenders or African-American offenders.42 They based this hypothesis on a number of fac- tors, including the perceived threat posed by growing numbers of Hispanic immi- grants; stereotypes that link Hispanics with drug trafficking and that characterize them as “lazy, irresponsible, low in intelligence, and dangerously criminal”; and the relative powerlessness of Hispanic Americans in the political arena.43 As the authors noted, “We expect that the specific social and historical context involving Hispanic Americans exacerbates perceptions of their cultural dissimilarity and the ‘threat’ they pose in ways that will contribute to their harsher treatment in crim- inal courts.”44

When they looked at the raw data, Steffensmeier and Demuth found that Hispanics were sentenced to prison more often than either African Americans or whites. The incarceration rates for nondrug offenses were 46.2 percent (whites), 62.9 percent (African Americans), and 66.8 percent (Hispanics). The differences were even larger for drug offenses: 52.3 percent (whites), 69.9 percent (African Americans), and 87.4 percent (Hispanics).45 These differences diminished, but did not disappear, when the authors controlled for the seriousness of the offense, the offender’s criminal history, the mode of conviction, and the offender’s age.

African

Americans

and

Hispanics

Greater

Likelihood

of Pretrial

Detention

Greater

Likelihood of

Incarceration

B o x 7.4 Chicago: Direct and Indirect Effects of Race/Ethnicity

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In nondrug cases, African Americans were 6 percent more likely and Hispanics were 18 percent more likely than whites to be incarcerated. In drug cases, there was a 7 percentage-point difference in the probabilities of incarceration for Afri- can Americans and whites and a 26 percentage-point difference in the probabili- ties for Hispanics and whites.46 For both types of crimes, then, African Americans faced higher odds of incarceration than whites, and Hispanics faced higher odds of incarceration than both whites and African Americans.

Steffensmeier and Demuth stated that their findings were consistent with hypotheses “drawn from the writings on prejudice and intergroup hostility sug- gesting that the specific social and historical context facing Hispanic Americans will exacerbate perceptions of their cultural dissimilarity and the ‘threat’ they pose.”47 They illustrated this with comments made by a judge in a county with a rapidly growing Hispanic population:

We shouldn’t kid ourselves. I have always prided myself for not being prejudiced but it is hard not to be affected by what is taking place. The whole area has changed with the influx of Hispanics and especially Puerto Ricans. You’d hardly recognize the downtown from what it was a few years ago. There’s more dope, more crime, more people on welfare, more problems in school.48

This judge’s comments suggest that “unconscious racism”49 may infect the sentencing process. Concerns about the changes in the racial/ethnic makeup of a community, coupled with stereotypes linking race and ethnicity to drug use and drug-related crime and violence, may interact to produce harsher treatment of racial minorities by criminal justice officials who have always “prided themselves for not being prejudiced.” As David F. Greenberg notes, individuals who have ambivalent attitudes about race “may engage in automatic invidious stereotyping and may act on the basis of these stereotypes.”50 (See Box 7.5 for a discussion of a study investigating unconscious racial bias among judges.)

Are Illegal Immigrants Sentenced Differently Than U.S. Citizens?

Do stereotypes of illegal immigrants as dangerous and crime-prone influence the sentences imposed on them? Anecdotal evidence suggests that they do. Consider the comments of a federal district judge, who justified a sentence at the top of the guideline range by stating on the record:

You are not a citizen of this country. This country was good enough to allow you to come in here to confer on you . . . a number of the benefits of this society, form of government, and its opportunities and you repay that kindness by committing a crime like this. We have got enough crim- inals in the United States without importing any.51

There also is empirical evidence that an offender’s citizenship status influ- ences sentence outcomes. For example, there are a number of studies52 of federal sentencing that included the offender’s citizenship status as a control variable in models of the sentence length and other sentencing decisions. These studies

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demonstrated that offenders who were not citizens of the United States received harsher sentences than U.S. citizens did.

The first study to systematically investigate the effect of citizenship status on federal sentencing outcomes was conducted by Scott Wolfe and his colleagues at Arizona State University.53 They used data on offenders adjudicated in federal

B o x 7.5 Judges and Unconscious Racial Bias: Can Judges Control the “Bigot in the Brain”?

The first study to explicitly test for unconscious racial bias in judges was published in 2008–2009 in the Notre Dame Law Review (Rachlinski, Johnson, Wistrich, and Guthrie 2008–2009). The authors of the study pointed out that there is evidence suggesting that explicit, or overt, racial bias has declined markedly over time. Noting that racial disparities in punishment have persisted even as explicit bias has declined, the au- thors suggested that one possible explanation might be implicit, or unconscious ra- cial bias, which they defined as “stereotypical associations so subtle that people who hold them might not even be aware of them” (Rachlinski et al., 2008–2009, 1196).

Rachlinski and his colleagues recruited 128 judges from three different juris- dictions to participate in a study designed to answer two questions: Do judges hold implicit racial biases and, if so, do those biases produce racially biased decisions? To answer the first question, they used the Implicit Association Test (IAT), which is a test developed by psychologists to measure whether participants associate good or bad stereotypes with white or black faces. They found that judges, like most other individuals, “harbor implicit racial biases” (Rachlinski et al., 2008–2009, 1208). Seventy-four of the 85 white judges and 14 of the 43 African-American judges demonstrated a “white preference,” but the white judges expressed significantly stronger white preferences than did the African-American judges. The remainder of the African-American judges either expressed no preference at all or expressed a black preference.

To answer the second question about the effect of implicit bias on behavior, the authors asked the judges to read three hypothetical cases and to indicate what they believed to be the most appropriate disposition in each case. What they found was that when the race of the defendant was clearly identified (as it was in only one of the hypothetical cases), the white judges treated white defendants and African-American defendants the same. In fact, the higher the judge’s white prefer- ence score on the IAT, the more favorably the judge treated the African-American defendant.

According to the authors, the findings of their study “demonstrate that the white judges were attempting to compensate for unconscious racial biases in their decision making. These judges were, we believe, highly motivated to avoid making biased judgments” (Rachlinski et al., 1223). The authors noted that most of the judges reported that they knew that the study was designed to assess racial bias— that is, they were aware of the potential for biased decision making and had “the cognitive skills necessary to avoid its influence” (1225).

Rachlinski and his colleagues were careful to point out that they were not concluding that judges would be able “to avoid bias on a continual basis in their own courtrooms” (1225). They noted that judges may not have the time or the information necessary to avoid unconscious bias. As they put it, judges who have implicit biases but who, “due to time pressure or other distractions, do not actively engage in an effort to control the ‘bigot in the brain’” are apt to make racially biased decisions (1225).

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district courts in 2006 to explore the sentences imposed on U.S. citizens, illegal aliens, and resident-legal aliens. When they examined the descriptive data, they found that the incarceration rate was higher for illegal aliens (99 percent) and resident-legal aliens (89 percent) than for citizens (85 percent). By contrast, con- trast, the mean sentence imposed on U.S. citizens was longer than the average sentence imposed on the two groups of noncitizens: it was 74.36 months for citizens, 52.65 months for resident-legal aliens, and only 34.79 months for illegal aliens. They also found that illegal aliens were substantially more likely than U.S. citizens to be Hispanic, to not have a high school degree, to be charged with an immigration offense, and to be held in custody prior to trial.54

The authors then controlled for the offender’s offense seriousness score, prior record score, and other offender and case characteristics that have been shown to affect sentencing outcomes in federal courts. They found that both catego- ries of noncitizens were significantly more likely than citizens to be sentenced to prison, but that there were no differences in the prison sentences imposed on resident-legal aliens and citizens. Moreover, the sentences imposed on illegal aliens were 5 percent shorter than those imposed on U.S. citizens. They also found that the offender’s ethnicity affected the length of the sentence for both U.S.  citizens and illegal aliens; however, the effect of ethnicity was negative for U.S. citi- zens (Hispanic citizens received shorter prison sentences than white citizens), but positive for illegal aliens (Hispanic illegal aliens received longer prison sentences than white illegal aliens).55

To explain their finding that illegal aliens had higher odds of incarceration than U.S. citizens but received shorter prison sentences than citizens, the au- thors suggested that it may reflect the fact that illegal aliens are likely to face deportation once they have served their prison sentences. Federal judges, in other words, imprison illegal aliens to ensure their appearance at removal proceedings but impose shorter sentences to expedite their deportation. According to the au- thors, there is “an incentive for judges to impose a sentence at the low end of the guideline range (or even to depart downward) in these types of cases, as doing so reduces the cost of imprisoning illegal aliens who eventually will be subject to removal proceedings.”

The authors concluded that their findings provide evidence that judges believe that noncitizens, and particularly illegal aliens, are more dangerous and blameworthy than U.S. citizens. This was reflected in the fact that conviction for immigration offenses, a drug offense, or a violent offense had a more pronounced effect on the likelihood of incarceration for illegal aliens than for citizens. The authors speculated that federal judges may take into account “that illegal alien offenders who are convicted of such offenses have brought violence, drug traf- ficking and further immigration problems into a country already fraught with crime.”

The results of this study, then, demonstrate the power of popular perceptions that increasing numbers of immigrants are associated with increases in crime rates. The existence of a substantial body of evidence challenging these perceptions notwithstanding, the stereotype of the crime-prone immigrant appears to affect federal judges’ sentencing decisions.

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Are Asian Americans Sentenced More Leniently Than

All Other Offenders?

Noting that sentencing scholars have devoted “conspicuously little attention” to the sentences imposed on Asian Americans, Brian Johnson and Stephanie Betsinger compared outcomes for African Americans, Hispanics, Asian Americans, and whites who were convicted in federal district courts from 1997 to 2000.56

They argued that it was important to include Asian Americans in studies of sen- tencing disparity given their popular image as “the model minority.” According to the authors, the negative image of Asian Americans that was predominant in the period prior to World War II was altered during the post-war period. As they noted, “Whatever the reasons for the historic transformation, by the mid-1960s, the popular press had begun to highlight the success stories of Asian Americans, identifying them as the ‘model minority’”—a group characterized by positive traits such as a strong work ethic, high levels of educational achievement, and social and economic success.57

Johnson and Betsinger began their analysis by examining sentence outcomes for each of the four groups: Asian Americans, whites, African Americans, and Hispanics. They found that Hispanics had the highest incarceration rate (93 per- cent), followed by African Americans (85 percent), whites (74 percent), and Asian Americans (71 percent). They found a similar pattern when they examined the length of the sentence: Hispanics received the longest sentences and Asians re- ceived the shortest sentences. Although this suggests leniency in the sentencing of Asian Americans, the authors pointed out that the Asian offenders differed in important ways from offenders in the other three groups—Asians had less serious criminal histories, were less likely to be detained prior to sentencing, were less likely to be convicted of drug offenses and more likely to be convicted of fraud offenses, and were more likely to be college graduates.58

The racial/ethnic differences in sentence severity did not disappear when Johnson and Betsinger controlled for these variables and for other legally relevant factors. Even after taking these factors into account, Asian offenders were signifi- cantly less likely to be incarcerated; they were 35 percent less likely than whites to be sentenced to prison, 37 percent less likely than African Americans to be sentenced to prison, and 80 percent less likely than Hispanics to be sentenced to prison. Even larger differences were found when the authors compared the likeli- hoods of incarceration for young males in each of the four groups. Compared to young Asian males, the odds of incarceration were 18 percent greater for young white males, 42 percent higher for young African-American males, and 106 per- cent greater for young Hispanic males. The differences were also larger when the authors examined drug offenses separately; there were no significant differences in the odds of incarceration for Asian and white offenders convicted of drug of- fenses, but African Americans and Hispanics were more than twice as likely as Asians to be incarcerated for drug offenses.59

The findings of this study, which was the first study to comprehensively com- pare sentence outcomes for Asian Americans with those for other racial/ethnic groups, confirm that race and ethnicity matter, even in a jurisdiction with rigid

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sentencing guidelines. They also provide support for the notion that Hispanic Americans receive harsher sentences than other racial groups and provide a first look at the more lenient treatment of Asian Americans. As the authors of the study stated, their results suggest that “federal punishments are race graded in important ways.”60 Noting that Asian Americans, as an aggregate group, can be regarded as an American success story on a variety of dimensions, Johnson and Betsinger concluded that

It may be, then, that economic equality is a precursor to social justice— that is, striving to improve the relative socioeconomic standing of other racial and ethnic minority groups may have important ripple effects that translate into more favorable societal stereotypes and greater equality of punishment within the American justice system itself.61

Native Americans and Sentencing Disparity:

Disparity in State and Federal Courts

Although there is a growing body of sentencing research that includes Hispanic Americans, most studies investigating the effect of race on sentence outcomes focus exclusively on African Americans and whites. As we have seen, there are very few studies that include other racial minorities, such as Asian Americans or Native Americans.

There are reasons to expect harsher sentences for Native Americans than for whites, since negative stereotypes of members of this group are common. For example, Iris Marion Young62 asserted that “Native Americans are viewed in terms of narrow ethnocentric stereotypes (e.g., drunken savage),” and Carol Chiago Lujan63 contended that the stereotype of the “drunken Indian” makes Native Americans more vulnerable to arrest for alcohol-related offenses and that stereotypical perceptions of reservation life as unstable and conducive to crime may lead to longer sentences for Native Americans. Similarly, Keith Wilmot and Miriam DeLone noted that forces such as colonialism “have lead to distinct public perceptions about the crime-proneness and threatening nature of Native Amer- icans,”64 and that these perceptions may affect the sentencing decisions of judges confronted with Native American offenders.

The few studies that do examine sentence outcomes for Native Americans have produced mixed results. Some studies found that Native Americans and whites are sentenced similarly once crime seriousness, prior record, and other legally relevant variables are taken into account.65 Other studies concluded that Native Americans adjudicated in federal66 and state67 courts are sentenced more harshly than similarly situated whites or that Native Americans serve significantly more of their prison sentence before parole or release than whites do.68

One study used data on offenders incarcerated in Arizona state correctional facilities in 1990 to compare sentence lengths for Native Americans and whites.69

Alvarez and Bachman found that whites received longer sentences than Native Americans for homicide, but Native Americans received longer sentences than whites for burglary and robbery.

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Alvarez and Bachman speculated that these findings may reflect the fact that homicide tends to be intraracial, whereas burglary and robbery are more likely to be interracial. Whites may have received longer sentences for homicide, in other words, because their victims were also likely to be white, whereas the victims of Native Americans usually were other Native Americans. As the authors note, “Because the lives of American Indian victims may not be especially valued by U.S. society and the justice system, these American Indian defendants may receive more lenient sentences for their crime.” Similarly, Native Americans convicted of burglary or robbery may have received harsher sentences than whites convicted of these crimes because their victims were more likely to be “higher-status Cauca- sians.”70 Alvarez and Bachman concluded that their study demonstrates “the need for more crime-specific analyses to investigate discriminatory practices in pro- cessing and sentencing minority group members, especially American Indians.”71

The most methodologically sophisticated study of Native American sentenc- ing disparities is Wilmot and DeLone’s72 study of sentences imposed on white, Native American, African American, Hispanic, and Asian offenders. This study was conducted using data from Minnesota, which has operated under presumptive sentencing guidelines since 1980. Using data on offenders convicted in 2001, the authors of this study found that Native American offenders were treated more harshly than white offenders on five of the six sentencing outcomes examined. For example, the pronounced prison sentence (i.e., the prison sentence that the offender would serve if he/she were sentenced to prison) was longer for Native Americans (and African Americans) than for whites, and Native Americans were 10 percent more likely than whites to receive an executed prison sentence (i.e., to be sentenced to prison rather than to jail or probation).73 These differences were found even after the seriousness of the offense, the offender’s prior record, the type of crime, and other legally relevant factors were taken into consideration.

Wilmot and DeLone ended their paper with a call for the development of a theoretical perspective on criminal justice decision making (including sen- tencing) that takes into account the unique aspects of Native American cultural and historical experiences. Noting that such perspectives already exist for Afri- can Americans and Hispanics, the authors concluded that “Such theories allow for the formation of racially and ethnically specific hypotheses that highlight the contextual circumstances under which no differences between racial groups is expected, as well as the situations in which racial and ethnic groups will be ex- pected to experience discrimination in ways that are similar and dissimilar across different racial and ethnic groups.”74

Race/Ethnicity, Gender, Age, and Employment:

A Volatile Combination?

In an article exploring the “convergence of race, ethnicity, gender, and class on court decision making,” Zatz urged researchers to consider the ways in which offender (and victim) characteristics jointly affect case outcomes.75 As she noted, “Race, gender, and class are the central axes undergirding our social structure. They intersect in dynamic, fluid, and multifaceted ways.”76

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The findings of a series of studies conducted by Darrell Steffensmeier and his colleagues at Pennsylvania State University illustrate these “intersections.” Research published by this team of researchers during the early 1990s concluded that race,77 gender,78 and age79 each played a role in the sentencing process in Pennsylvania. However, it is interesting to note, especially in light of its later re- search findings,80 that the team’s initial study of the effect of race on sentencing concluded that race contributed “very little” to our understanding of judges’ sen- tencing decisions.81 Although the incarceration (jail or prison) rate for African Americans was 8 percentage points higher than the rate for whites, there was only a 2 percentage-point difference in the rates at which African Americans and whites were sentenced to prison. Race also played “a very small role in decisions about sentence length.”82 The average sentence for African-American defendants was only 21 days longer than the average sentence for white defendants. These findings led Kramer and Steffensmeier to conclude that “if defendants’ race af- fects judges’ decisions in sentencing . . . it does so very weakly or intermittently, if at all.”83

This conclusion is called into question by Steffensmeier, Ulmer, and Kram- er’s more recent research,84 which explores the ways in which race, gender, and age interact to influence sentence severity. They found that each of the three legally irrelevant offender characteristics had a significant direct effect on both the likelihood of incarceration and the length of the sentence: African Ameri- cans were sentenced more harshly than whites, younger offenders were sentenced more harshly than older offenders, and males were sentenced more harshly than females. More importantly, they found that the three factors interacted to produce substantially harsher sentences for one particular category of offenders—young, African-American males—than for any other age–race–gender combination. According to the authors, their results illustrate the “high cost of being black, young, and male.”85

Although the research conducted by Steffensmeier and his colleagues pro- vides important insights into the judicial decision-making process, their findings also suggest the possibility that factors other than race, gender, and age may in- teract to affect sentence severity. If, as the authors suggest, judges impose harsher sentences on offenders perceived to be more deviant, more dangerous, and more likely to recidivate, and if these perceptions rest, either explicitly or implicitly, on “stereotypes associated with membership in various social categories,”86 then of- fenders with constellations of characteristics other than “young, black, and male” may also be singled out for harsher treatment.

The validity of this assertion is confirmed by the results of a replication and extension of the Pennsylvania study. Cassia Spohn and David Holleran examined the sentences imposed on offenders convicted of felonies in Chicago, Miami, and Kansas City.87 Their study included Hispanics and African Americans and tested for interactions between race, ethnicity, gender, age, and employment status. They found that none of the four offender characteristics had a significant effect on the length of the sentence in any of the three jurisdictions but that each of the characteristics had a significant effect on the decision to incarcerate or not in at least one of the jurisdictions. As shown in Part A of Table 7.1, in Chicago,

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African-American offenders were 12.1 percent more likely than white offenders to be sentenced to prison; Hispanics were 15.3 percent more likely than whites to be incarcerated. In Miami, the difference in the probabilities of incarceration for Hispanic offenders and white offenders was 10.3 percent. Male offenders were more than 20 percent more likely than female offenders to be sentenced to prison in Chicago and Kansas City, and unemployed offenders faced significantly higher odds of incarceration than employed offenders (+9.3 percent) in Kansas City. In all three jurisdictions, offenders aged 21–29 were about 10 percent more likely than offenders aged 17–20 to be sentenced to prison.88 Race, ethnicity, gender, age, and employment status, then, each had a direct effect on the decision to in- carcerate or not.

Like Steffensmeier and his colleagues, Spohn and Holleran found that var- ious combinations of race/ethnicity, gender, age, and employment status were better predictors of incarceration than any variable alone. As shown in Part B of Table 7.1, young African-American and Hispanic males were consistently more likely than middle-aged white males to be sentenced to prison. These offenders, however, were not the only ones singled out for harsher treatment. In Chicago, young African-American and Hispanic males and middle-aged African- American males faced higher odds of incarceration than middle-aged white males. In Miami, young African-American and Hispanic males and older Hispanic males were in- carcerated more often than middle-aged white males. In Kansas City, both young African-American males and young white males faced higher odds of incarcera- tion than middle-aged whites. These results led Spohn and Holleran to conclude that “in Chicago and Miami the combination of race/ethnicity and age is a more powerful predictor of sentence severity than either variable individually, while in Kansas City age matters more than race.”89

Other, more recent, research confirms these findings.90 One study, for exam- ple, analyzed the effects of race/ethnicity and sex on sentences imposed on drug offenders in three U.S. District Courts.91 This study found that African-American and Hispanic females received more lenient sentences than their male counter- parts, but there were no differences in the sentences imposed on white females and males. Further analysis revealed that black male drug offenders received lon- ger sentences than all other offenders, with the exception of Hispanic males. A second study92 of federal sentencing decisions explored the independent and joint effects of race/ethnicity, gender, and age, finding that young (ages 18–20) His- panic and African-American males received significantly harsher sentences than young white males. This study also found that young Hispanic females received sentences that were more similar to those imposed on male defendants than on female defendants, but that African-American females were treated similar to or more leniently than white females.

The findings of the studies discussed above confirm Richard Quinney’s asser- tion, which he made 35 years ago, that “judicial decisions are not made uniformly. Decisions are made according to a host of extra-legal factors, including the age of the offender, his race, and social class.”93 Their findings confirm that dangerous or problematic populations are defined “by a mix of economic and racial . . . refer- ences.”94 African-American and Hispanic offenders who are also male, young, and

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T A B L E 7.1 Do Young, Unemployed African-American and Hispanic Males Pay a Punishment Penalty?

Differences in the Probabilities of Incarceration: The Effect of Race, Ethnicity, Gender, Age, and Employment Status

A. Probability Differences Chicago Miami Kansas City

African Americans versus whites 112.1% not significant not significant

Hispanics versus whites 115.3% 110.3% (not applicable)

Males versus females 122.8% not significant 121.1%

Unemployed versus employed not significant (not applicable) 19.3%

Age 21–29 versus age 17–20 110.0% 19.5% 110.8%

Differences in the Probabilities of Incarceration: Male Offenders Only

B. Probability Differences between Whites aged 30–39 and Chicago Miami Kansas City

African Americans, 17–29 118.4% 114.7% 112.7%

Hispanics, 17–29 125.1% 118.2% (not applicable)

Whites, 17–29 not significant not significant 114.4%

African Americans, 30–39 123.3% not significant not significant

Hispanics, 30–39 not significant 118.5% (not applicable)

C. Probability Differences between Employed Whites and

Unemployed African Americans 116.9% (not applicable) 113.0%

Unemployed Hispanics 123.5% (not applicable) (not applicable)

Unemployed Whites not significant (not applicable) not significant

Employed African Americans not significant (not applicable) not significant

Employed Hispanics not significant (not applicable) (not applicable)

SOURCE: Cassia Spohn and David Holleran, “The Imprisonment Penalty Paid by Young, Unemployed Black and Hispanic Male Offenders,” Criminology 38 (2000), Tables 3, 5, 6.

unemployed may pay a higher punishment penalty than white offenders or other types of African-American and Hispanic offenders.

Why Do Young, Unemployed Racial Minorities Pay a Punishment Penalty?

The question, of course, is why young, unemployed racial minorities are punished more severely than other types of offenders—why “today’s prevailing criminal predator has become a euphemism for young, black males.”95

A number of scholars suggest that certain categories of offenders are regarded as more dangerous and more problematic than others and thus more in need of formal social control. Steven Spitzer, for example, used the term “social dyna- mite”96 to characterize that segment of the deviant population that is viewed as particularly threatening and dangerous; he asserted that social dynamite “tends

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to be more youthful, alienated and politically volatile” and contended that those who fall into this category are more likely than other offenders to be formally processed through the criminal justice system.97 Building on this point, Steven Box and Chris Hale argued that unemployed offenders who are also young, male, and members of a racial minority will be perceived as particularly threatening to the social order and thus will be singled out for harsher treatment.98 Judges, in other words, regard these types of “threatening” offenders as likely candidates for imprisonment “in the belief that such a response will deter and incapacitate and thus defuse this threat.”99

Steffensmeier and his colleagues advanced a similar explanation for their finding “that young black men (as opposed to black men as a whole) are the de- fendant subgroup most at risk to receive the harshest penalty.”100 They interpreted their results using the “focal concerns” perspective on sentencing. According to this perspective, judges’ sentencing decisions reflect their assessment of the blame- worthiness or culpability of the offender; their desire to protect the community by incapacitating dangerous offenders or deterring potential offenders; and their concerns about the practical consequences, or social costs, of sentencing deci- sions. Because judges rarely have enough information to accurately determine an offender’s culpability or dangerousness, they develop a “perceptual shorthand” based on stereotypes and attributions that are themselves linked to offender char- acteristics such as race, gender, and age (see Box 7.6 for a discussion of the ways in which a prior criminal record affect perceptions of offenders by potential em- ployers). Thus, according to these researchers,

Younger offenders and male defendants appear to be seen as more of a threat to the community or not as reformable, and so also are black offenders, particularly those who also are young and male. Likewise, con- cerns such as “ability to do time” and the costs of incarceration appear linked to race-, gender-, and age-based perceptions and stereotypes.101

The conclusions proffered by Spohn and Holleran, who noted that their re- sults are consistent with the focal concerns perspective on sentencing, are very sim- ilar. They suggested that judges, who generally have limited time in which to make decisions and have incomplete information about offenders, “may resort to stereo- types of deviance and dangerousness that rest on considerations of race, ethnicity, gender, age, and unemployment.”102 Young, unemployed African-American and Hispanic males, in other words, are viewed as more dangerous, more threatening, and less amenable to rehabilitation; as a result, they are sentenced more harshly.

Differential Treatment of Interracial

and Intraracial Sexual Assault

There is compelling historical evidence that interracial and intraracial crimes were treated differently. Gunnar Myrdal’s examination of the southern court sys- tem in the 1930s, for example, revealed that African Americans who victimized whites received the harshest punishment, whereas African Americans who vic- timized other African Americans were often “acquitted or given a ridiculously

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B o x 7.6 The Mark of a Criminal Record

It is clear that racial disparities in the treatment of defendants at various stages of the criminal justice system have spillover effects and collateral consequences. As noted earlier in this chapter, if African Americans and Hispanics are more likely than whites to be arrested, prosecuted, convicted, and sentenced to prison, they will ac- cumulate more serious prior criminal histories than whites. As a result, they may be treated differently than whites in areas outside the criminal justice system—for ex- ample, they may find it more difficult to locate suitable housing or find appropriate employment.

The effect of having a criminal record was examined in an innovative study by Devah Pager. Her work on “The Mark of a Criminal Record” used the so-called “audit strategy.” In this design, which was used first to study the effects of race and ethnicity on job prospects, the backgrounds and resumes of job applicants from different racial/ethnic groups are carefully constructed to be identical. The matched pairs (who differ only by race or ethnicity) present themselves to potential employ- ers, and differences in outcomes are then assumed to be due to differences in race or ethnicity. This work enjoys a long tradition in applied economics, where research consistently documents that African Americans do worse than matched white job applicants and Hispanics fare worse than matched white applicants.

Pager used the audit strategy to independently assess the impact of a criminal record by matching prospective job applicants on race and varying the presence or absence of a criminal background. In a carefully controlled experiment conducted in Milwaukee, Wisconsin, Pager had matched pairs of African American and white job seekers send their resumes to prospective employers. These pairs had identical resumes with regard to age, length of time in the job market, prior type of job, and education. However, one member of each race-matched pair indicated that he had been to prison.

Use of this strategy allowed Pager to test for differences within and between racial groups. Using callbacks from employers as the dependent variable, she found significant differences within race for the impact of a prison sentence. African- American job applicants without a criminal record were nearly three times as likely to get a callback as were African-American job applicants with a criminal record (14 percent versus 5 percent). The effects of a criminal record were not quite as stark for whites, as applicants without a criminal record were twice as likely to get a call- back (34 percent versus 17 percent). However, the between race results remain the major finding from Pager’s research, as white applicants with a criminal record were more likely to receive job callbacks than were African-American applicants who did not have a criminal record.

These findings reinforce the effect of criminal stigma for job seeking, an effect that varies with race but is often trumped by race.

SOURCE: Devah Pager, “The Mark of a Criminal Record,” American Journal of Sociology 108 (2003), pp. 937–975; Devah Pager, Marked: Race, Crime, and Finding Work in an Era of Mass Incarceration (Chicago: University of Chicago Press, 2009).

mild sentence . . .”103 Myrdal also noted that “it is quite common for a white criminal to be set free if his crime was against a Negro.”104

These patterns are particularly pronounced for the crime of sexual assault. As Susan Brownmiller has noted, “No single event ticks off America’s political schizophrenia with greater certainty than the case of a black man accused of rap- ing a white woman.”105 Evidence of this can be found in pre–Civil War statutes

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B o x 7.7 Pre–Civil War Statutes on Sexual Assault: Explicit Discrimination against African-American Men Convicted of Raping White Women

Virginia Code of 1819

The penalty for the rape or attempted rape of a white woman by a slave, Afri- can American, or mulatto was death; if the offender was white, the penalty was 10–21 years.

Georgia Penal Code of 1816

The death penalty was prescribed for rape or attempted rape of a white woman by slaves or free persons of color. A term of not more than 20 years was the penalty for rape of a white woman by a white man. A white man convicted of raping an African-American woman could be fined or imprisoned at the court’s discretion.

Pennsylvania Code of 1700

The penalty for the rape of a white woman by an African-American man was death; the penalty for attempted rape was castration. The penalty for a white man was 1–7 years in prison.

Kansas Compilation of 1855

An African-American man convicted of raping a white woman was to be castrated at his own expense. The maximum penalty for a white man convicted of raping a white woman was 5 years in prison.106

that prescribed different penalties for African-American and white men convicted of sexual assault. As illustrated in Box 7.7, these early laws also differentiated be- tween the rape of a white woman and the rape of an African-American woman.

Differential treatment of interracial and intraracial sexual assaults continued even after passage of the Fourteenth Amendment, which outlawed explicit statu- tory racial discrimination. In the first half of the twentieth century, African-Amer- ican men accused of, or even suspected of, sexually assaulting white women often faced white lynch mobs bent on vengeance. As Jennifer Wriggins noted, “The thought of this particular crime aroused in many white people an extremely high level of mania and panic.”107 In a 1907 Louisiana case, the defense attorney stated:

Gentlemen of the jury, this man, a nigger, is charged with breaking into the house of a white man in the nighttime and assaulting his wife, with the intent to rape her. Now, don’t you know that, if this nigger had com- mitted such a crime, he never would have been brought here and tried; that he would have been lynched, and if I were there I would help pull on the rope.108

African-American men who escaped the mob’s wrath were almost certain to be convicted, and those who were convicted were guaranteed a harsh sentence. Many, in fact, were sentenced to death; 405 of the 453 men executed for rape in

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the United States from 1930 to 1972 were African Americans.109 According to Brownmiller, “Heavier sentences imposed on blacks for raping white women is an incontestable historic fact.”110 As we show, it is not simply a historic fact. Re- search conducted during the past three decades illustrates that African-American men convicted of raping white women continue to be singled out for harsher treatment.

Offender–Victim Race and Sentences for Sexual Assault

Researchers analyzing the impact of race on sentencing for sexual assault (and other crimes with victims) have argued that focusing only on the race of the defendant and ignoring the race of the victim will produce misleading con- clusions about the overall effect of race on sentencing. They contend that researchers may incorrectly conclude that race does not affect sentence severity if only the race of the defendant is taken into consideration. Table 7.2 presents a hypothetical example to illustrate how this might occur. Assume that 460 of 1,000  African-American men (46 percent) and 440 of 1,000 white men (44 per- cent) convicted of sexual assault in a particular jurisdiction were sentenced to prison. A researcher who focused only on the race of the offender would there- fore conclude that the incarceration rates for the two groups were nearly identical.

Assume now that the 1,000 cases involving African-American men included 800 cases with African-American victims and 200 cases with white victims and that 320 of the 800 cases with African-American victims and 140 of the 200 cases with white victims resulted in a prison sentence. As shown in Table 7.2,

T A B L E 7.2 Incarceration of Offenders Convicted of Sexual Assault: A Hypothetical Example of the Effect of Offender– Victim Race

Example: 2,000 men convicted of sexual assault. Analysis reveals that incarceration rate for African Americans is very similar to the rate for whites.

1,000 convicted African-American offenders 460 incarcerated 5 46% incarceration rate

1,000 convicted white offenders 440 incarcerated 5 44% incarceration rate

Problem: Similarities are masking differences based on the race of the victim.

1,000 African-American Offenders 460 incarcerated (46%)

800 cases with African-American victims 320 incarcerated (40%)

200 cases with white victims 140 incarcerated (70%)

1,000 White Offenders 440 incarcerated (44%)

300 cases with African-American victims 90 incarcerated (30%)

700 cases with white victims 350 incarcerated (50%)

Thus, the incarceration rate varies from 30% (for whites who assaulted African Americans) to 70% (for African Americans who assaulted whites).

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although the overall incarceration rate for African-American offenders is 46 per- cent, the rate for crimes involving African-American men and white women is 70 percent, whereas the rate for crimes involving African-American men and African-American women is only 40 percent. A similar pattern—an incarceration rate of 50 percent for cases with white victims but only 30 percent for cases with African-American victims—is found for sexual assaults involving white offenders. The similar incarceration rates for African-American and white offenders in this hypothetical example mask large differences based on the race of the victim.

The findings of empirical research suggest that this scenario is not simply hypothetical. Gary D. LaFree, for example, examined the impact of offender– victim race on the disposition of sexual assault cases in Indianapolis.111 He found that African-American men who assaulted white women were more likely than other offenders to be sentenced to prison. They also received longer prison sen- tences than any other offenders. LaFree concluded that his results highlighted the importance of examining the racial composition of the offender–victim pair. Because the law was applied most harshly to African Americans charged with raping white women but least harshly to African Americans charged with rap- ing  African-American women, simply examining the overall disposition of cases with African-American defendants would have produced misleading results.

Anthony Walsh112 reached a similar conclusion. When he examined the sen- tences imposed on offenders convicted of sexual assault in a metropolitan Ohio county, he found that neither the offender’s race nor the victim’s race influenced the length of the sentence. In addition, the incarceration rate for white defen- dants was higher than the rate for African-American defendants. Further analysis, however, revealed that African Americans convicted of assaulting whites received more severe sentences than those convicted of assaulting members of their own race. This was true for those who assaulted acquaintances and for those who as- saulted strangers. As Walsh noted, “The leniency extended to blacks who sexually assault blacks provides a rather strong indication of disregard for minority victims of sexual assault.”113

Somewhat different results were reported by Cassia Spohn and Jeffrey Spears,114 who analyzed a sample of sexual assaults bound over for trial in Detroit Recorder’s Court. Unlike previous research, which controlled only for offender– victim race and other offender and case characteristics, the authors of this study also controlled for a number of victim characteristics in addition to race. They controlled for the age of the victim, the relationship between the victim and the offender, evidence of risk-taking behavior on the part of the victim, and the victim’s behavior at the time of the incident. They compared the incarceration rates and the maximum sentences imposed on three combinations of offender– victim race: African American–African American, African American–white, and white–white.

In contrast to the results reported by LaFree and Walsh, Spohn and Spears found that the race of the offender–victim pair did not affect the likelihood of incarceration. The prison sentences imposed on African Americans who assaulted whites, however, were significantly longer than the sentences imposed on whites who assaulted whites or African Americans who assaulted African Americans.

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The average sentence for African American-on-white crimes was more than four years longer than the average sentence for white-on-white crimes and more than three years longer than the average sentence for African American-on-African American crimes. These results, according to the authors, reflected discrimination based on the offender’s race and the victim’s race.115

To explain the fact that offender–victim race affected the length of sentence but had no effect on the decision of whether to incarcerate, the authors suggested that judges confronted with offenders convicted of sexual assault may have rela- tively little discretion in deciding whether to incarcerate. As they noted, “Because sexual assault is a serious crime . . . the ‘normal penalty’ may be incarceration. Judges may have more latitude, and thus more opportunities to consider extralegal factors such as offender/victim race, in deciding on the length of the sentence.”116

Spohn and Spears also tested a number of hypotheses about the interrelation- ships among offender race, victim race, and the relationship between the victim and the offender. Noting that previous research has suggested that crimes between intimates are perceived as less serious than crimes between strangers, they hypoth- esized that sexual assaults involving strangers would be treated more harshly than assaults involving intimates or acquaintances regardless of the offender’s race or the victim’s race. Contrary to their hypothesis, they found that the offender–vic- tim relationship came into play only when both the offender and the victim were African American. African Americans convicted of assaulting African-American strangers received harsher sentences than African Americans convicted of assault- ing African-American intimates or acquaintances; they were more likely to be incarcerated, and those who were incarcerated received longer sentences.117

The data presented in Figure 7.2 illustrate these differences. The authors used the results of their multivariate analysis of sentence length to calculate adjusted

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s 210 198

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African American/ White/Stranger

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African American/ African American/ Stranger

White/White/ Nonstranger

F I G U R E 7.2 Offender’s Race, Victim’s Race, Relationship, and Length of Sentence SOURCE: Cassia Spohn and Jeffrey Spears, “The Effect of Offender and Victim Characteristics on Sexual Assault Case Processing Decisions,” Justice Quarterly 3 (1996), copyright © The Academy of Criminal Justice Sciences (Taylor & Francis Ltd, http://www.tandf.co.uk/journals) on behalf of The Academy of Criminal Justice Sciences.

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322 C H A P T E R 7

sentence means for each of the six combinations of offender race, victim race, and the relationship between the victim and the offender. These adjusted rates take all of the other independent variables into account. They show that three types of offenders received substantially longer sentences than the other three types. The harshest sentences were imposed on African Americans who victimized whites (strangers or non-strangers) and on African Americans who victimized Afri- can-American strangers. More lenient sentences were imposed on African Ameri- cans who assaulted African-American non-strangers and on whites who assaulted whites (strangers or non-strangers).

As the authors noted, these results suggest that judges consider the offender’s race, but not the relationship between the victim and the offender, in determining the appropriate sentence for offenders convicted of assaulting whites. Regardless of the relationship between the victim and the offender, African Americans who victimized whites received longer sentences than whites who victimized whites. However, judges do consider the relationship between the victim and offender in determining the appropriate sentence for African Americans convicted of sex- ually assaulting other African Americans. Judges apparently believe that African Americans who sexually assault African Americans who are strangers to them deserve harsher punishment than those who sexually assault African-American friends, relatives, or acquaintances.

Considered together, the results of these studies demonstrate that in sexual assault cases criminal punishment is contingent on the race of the victim as well as on the race of the offender. The harshest penalties are imposed on African Ameri- cans who victimize whites and the most lenient penalties are imposed on African Americans who victimize other African Americans. (See Box 7.8 for information on different groups’ perceptions of the severity of sanctions.)

B o x 7.8 Perceptions of the Severity of Sanctions: Do African Americans Evaluate Prison Differently than Whites?

Studies of sentencing decisions assume that prison is a harsher punishment than pro- bation, a county jail sentence, or other alternatives to incarceration. But is this nec- essarily this case? Is it possible that some people would rather serve time in prison than be subjected to electronic monitoring, ordered to perform community service, or placed on intensive supervision probation? More to the point, is it possible that African Americans would evaluate the severity of these sanctions differently than whites?

To answer these questions, Peter Wood and David May asked 113 probationers to rate the severity of prison and a number of alternatives to incarceration.118 Respondents were given descriptions of 10 alternative sanctions and then were asked to indicate how many months of the alternative they would be willing to do to avoid serving a sentence of 4, 8, or 12 months of imprisonment in a medium- security facility. The authors used these responses to calculate the percentage of respondents who would choose each prison term rather than any duration of the alternative sanction. They found that African Americans were much more likely than

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The Effect of Race on Sentencing for Various Types of Crimes

The studies summarized thus far highlight the importance of testing for interac- tion between offender race/ethnicity and other factors, such as the age, gender, and employment status of the offender, the race of the victim, and the relationship between the victim and the offender. The importance of testing for interactions between offender race and other predictors of sentencing is also demonstrated by the results of studies examining the effect of race on sentence severity for various types of crimes. Some researchers, building on Harry Kalven and Hans Zeisel’s “liberation hypothesis,”122 assert that African Americans will be sentenced more harshly than whites only in less serious cases.

The liberation hypothesis, which Kalven and Zeisel developed to explain jury decision making, suggests that jurors deviate from their fact-finding mission in cases in which the evidence against the defendant is weak or contradictory. Jurors’ doubts about the evidence, in other words, liberate them from the constraints

whites to choose prison rather than an alternative; this was true for each of the al- ternative sentences. For example,

■ 22.2 percent of African Americans, but only 13.2 percent of whites, said that they would rather serve 4 months in prison than any time on electronic monitoring; 17 percent of African Americans, but only 11.5 percent of whites, said that they would rather serve a year in prison than any time on electronic monitoring.

■ Six times as many African Americans as whites said that they would rather spend time in prison than be placed on intensive supervision probation (ISP). For example, 26.8 percent of African Americans said that they would rather serve a year in prison than any time on ISP; for whites, the figure was only 3.8 percent.

■ The percentage of African Americans who said they would rather spend 8 months in prison than any time in county jail was 24.1 percent, compared to 13.5 percent of whites.119

Wood and May also asked the respondents about their reasons for wanting to avoid alternative sanctions. Like their evaluations of the sanctions themselves, these varied depending on the race of the respondent. Twice as many African Americans as whites reported that a “very important reason” for avoiding alternative sanctions was that the officials in charge of these programs were too hard on participants— they wanted to catch them and send them back to prison. Similarly, 38.9 percent of African Americans, but only 18.9 percent of whites, said that abuse by officials over- seeing the programs was a very important reason for avoiding them. African Amer- icans also were more likely than whites to believe that serving time in prison is less of a hassle and that the program rules for alternative sanctions were too hard to fol- low. Because African Americans believe that the risk of revocation is high, they are “less willing to gamble on alternatives and more likely to choose prison instead.”120

According to the authors of this study, their findings raise questions about the deterrent value of imprisonment for African Americans. Although they admitted that they did not know whether African Americans’ preference for prison over alter- native sanctions was due to a belief that doing time in prison was easier or that the risk of revocation made alternatives too risky, the authors did conclude that “a brief prison term may be more of a deterrent for whites than for blacks.”121

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324 C H A P T E R 7

imposed by the law and free them to consider their own sentiments or values. When Kalven and Zeisel examined jurors’ verdicts in rape cases, they found that jurors’ beliefs about the victim’s behavior at the time of the attack (e.g., whether the victim was intoxicated or under the influence of drugs, whether the victim was walking alone late at night or in a bar by herself) were much more likely to influence their verdicts if the victim was raped by an unarmed acquaintance than if the victim was raped by a stranger armed with a gun or a knife.

Applied to the sentencing process, the liberation hypothesis suggests that in more serious cases the appropriate sentence is strongly determined by the seri- ousness of the crime and by the defendant’s prior criminal record. In these types of cases, judges have relatively little discretion and thus few opportunities to con- sider legally irrelevant factors such as race. In less serious cases, on the other hand, the appropriate sentence is not clearly indicated by the features of the crime or the defendant’s criminal record, which may leave judges more disposed to bring extralegal factors to bear on the sentencing decision.

Consider, for example, a case of sexual assault in which the offender, who has a prior conviction for armed robbery, raped a stranger at gunpoint. This case clearly calls for a severe sentence; all defendants who fall into this category, re- gardless of their race or their victim’s race, will be sentenced to prison for close to the maximum term.

The appropriate sentence for a first-time offender who assaults an acquain- tance with a weapon other than a gun, however, is not necessarily obvious. Some defendants who fall into this category will be incarcerated, but others will not. This opens the door for judges to consider the race of the defendant or the race of the victim in determining the appropriate sentence.

The Liberation Hypothesis and Offenders

Convicted of Violent Felonies

Cassia Spohn and Jerry Cederblom used data on defendants convicted of violent felonies in Detroit to test the hypothesis that racial discrimination in sentencing is confined to less serious criminal cases.123 Although they acknowledged that all of the cases included in their data file are by definition “serious cases,” they argued that some are more serious than others: murder, rape, and robbery are more seri- ous than assault; crimes in which the defendant used a gun are more serious than those in which the defendant did not use a gun; and crimes in which the defendant had a prior felony conviction are more serious than those in which the defendant did not have prior convictions.

As shown in Table 7.3, which summarizes the results of their analysis of the likelihood of incarceration (controlling for other variables linked to sentence se- verity), the authors found convincing support for their hypothesis. With only one exception, race had a significant effect on the decision to incarcerate only in less serious cases (but see Box 7.9 for evidence of racial stereotyping in homi- cide cases). African Americans convicted of assault were incarcerated at a higher rate than whites convicted of assault; there were no racial differences for the three more serious offenses. Similarly, race affected the likelihood of incarceration for

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defendants with no violent felony convictions, but not for those with a prior conviction; for defendants who victimized acquaintances, but not for those who victimized strangers; and for defendants who did not use a gun to commit the crime, but not for those who did use a gun.

Spohn and Cederblom concluded that their results provided support for Kalven and Zeisel’s liberation hypothesis, at least with respect to the decision to incarcerate. They also concluded that their findings offered important insights into judges’ sentencing decisions. According to the authors,

When the crime is serious and the evidence strong, judges’ sentenc- ing decisions are determined primarily by factors of explicit legal relevance—the seriousness of the conviction charge, the number of conviction charges, the nature of the defendant’s prior criminal record, and so on. Sentencing decisions in less serious cases, however, reflect the influence of extralegal as well as legal factors.124

T A B L E 7.3 The Effect of Race on the Likelihood of Incarceration for Various Types of Cases in Detroit

Effect of Race on Incarceration: Statistically Significant?

Most serious conviction charge

Murder No

Robbery No

Rape No

Other sex offenses No

Assault Yes

Prior criminal record

Violent felony conviction No

No violent felony conviction Yes

Relationship between offender and victim

Strangers No

Acquaintances Yes

Use of a weapon

Offender used a gun No

Offender did not use a gun Yes

Injury to victim

Offender injured victim Yes

Offender did not injure victim Yes

SOURCE: Adapted from Cassia Spohn and Jerry Cederblom, “Race and Disparities in Sentencing: A Test of the Liberation Hypothesis,” Justice Quarterly 8 (1991), pp. 305–327.

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B o x 7.9 Racial Stereotyping in Homicide Cases

The assumption that offender race will not affect sentence outcomes in the most serious felonies because of limited judicial discretion in these cases is called into question by the results of a study examining sentences imposed on male homicide offenders sentenced to a term of years (rather than a life or death sentence) in Phil- adelphia.125 Because either life without parole or death were the only sentence op- tions allowed in cases of first- or second-degree murder and because judges adhered closely to these guidelines, the study focused on offenders convicted of third-degree murder, voluntary manslaughter, involuntary manslaughter, and homicide by vehicle.

Kathleen Auerhahn suggested that the offender’s race and ethnicity would not have a direct effect on the length of the sentence. Rather, she hypothesized that harsher treatment would be reserved for African-American and Hispanic defendants who more closely matched stereotypes of dangerousness and threat—that is, those who were also young and held in custody prior to trial. Her results were consistent with this hypothesis; the race/ethnicity of the offender did not have a direct effect on the sentence length, but the combination of being young, African American or Hispanic, and detained prior to trial did lead to longer sentences. In other words, all three characteristics were needed to trigger more punitive sentences.

Auerhahn concluded that her findings provided

convincing evidence that sentencing judges make attributions about offenders based on their conformity to a criminal stereotype, and sentence them more harshly because of it . . . conformity to the stereotype may trigger attributions about the defendant’s character, disposition, or blameworthiness, as well as assumptions about the potential for future criminality in that stereotypes may be seen as the embodiment of stable characteristics on the part of decision makers.126

Racial Discrimination in the Sentencing

of Misdemeanor Offenders?

Most of the research on sentencing examines the sentences imposed on offend- ers convicted of felonies. There is relatively little research testing for racial dis- crimination in the sentencing of individuals convicted of misdemeanor offenses. Because the lower courts where misdemeanor cases are handled usually have huge caseloads and informal, nonadversarial procedures for delivering what is often referred to as “assembly-line justice,” one might predict that the likelihood of racially disparate decisions would be even greater in these courts than in the more formal felony courts.

Research by Michael J. Leiber and Anita N. Blowers addressed this issue.127

They used data from an urban jurisdiction in a southeastern state to test for racial differences in a series of outcomes in misdemeanor cases. One of the dependent variables they examined was whether the case was assigned “priority status.” This case-screening decision, which was made based on the defendant’s prior criminal record or the facts in the case, identified cases that warranted priority prosecution. Two other dependent variables were whether the defendant was convicted and whether the defendant was sentenced to jail or prison.

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When they examined the case prioritization variable, they found that cases involving assaults, cases in which the victim was a stranger to the offender, and cases involving offenders with prior criminal histories were more likely to be prioritized. They also found that cases involving African Americans were signifi- cantly more likely than those involving whites to be prioritized. Regarding the conviction and incarceration variables, they found that more serious cases had greater odds of conviction and incarceration and that the race of the offender did not affect either of these decisions. However, both decisions were affected by the status of the case; cases labeled as priority status cases were more likely to result in convictions and sentences to jail or prison.128 The effect of race on these decisions, in other words, was indirect rather than direct. Cases involving African Americans were more likely to be prioritized and, as a result, were more likely than cases involving whites to result in conviction and incarceration. In these mis- demeanor cases, then, African Americans were treated more harshly than whites when the case was characterized as serious rather than nonserious.

The results of these studies demonstrate that the criteria used by judges to de- termine the appropriate sentence will vary depending on the nature of the crime and the defendant’s prior criminal record. More to the point, they demonstrate that the effect of race on sentence severity will vary. Judges impose harsher sentences on African Americans than on whites under some circumstances and for some types of crime; they impose similar sentences under other circumstances and for other types of crime. The fact that race does not affect sentence severity for all cases, in other words, does not mean that judges do not discriminate in any cases.

Sentencing and the War on Drugs

The task of assessing the effect of race on sentencing is complicated by the war on drugs, which critics contend has been fought primarily in minority communi- ties. Michael Tonry, for example, argued that “urban black Americans have borne the brunt of the War on Drugs.”129 More specifically, he charged that “the recent black- ening of America’s prison population is the product of malign neglect of the war’s effects on black Americans.”130 Miller similarly asserted that, “The racial discrimina- tion endemic to the drug war wound its way through every stage of the processing— arrest, jailing, conviction, and sentencing.”131 Marc Mauer’s criticism is even more pointed. He asserted that “. . . the drug war has exacerbated racial disparities in incar- ceration while failing to have any sustained impact on the drug problem.”132

Assertions such as these suggest that racial minorities will receive more pu- nitive sentences than whites for drug offenses. This expectation is based in part on theoretical discussion of the “moral panic” surrounding drug use and the war on drugs.133 Moral panic theorists argue that society is characterized by a variety of common-sense perceptions about crime and drugs that result in community intolerance for such behaviors and increased pressure for punitive action.134 Many theorists argue that this moral panic can become ingrained in the judicial ideol- ogy of sentencing judges, resulting in more severe sentences for those—that is, African Americans and Hispanics—believed to be responsible for drug use, drug distribution, and drug-related crime.135

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328 C H A P T E R 7

Racial Disparities in Sentences Imposed for Drug Offenses

As demonstrated in earlier chapters and summarized in what follows, there is ample evidence that the war on drugs has been fought primarily in minority communities (see also Box 7.10, Drug-Free School Zones). In 2000 Human

B o x 7.10 Drug-Free School Zones: A Racially Neutral Policy?

Dematric Young was 20 years old when he was convicted of selling a small amount of cocaine to an undercover narcotics agent in North Lubbock, Texas. Young sold the drugs from his room in the Sunset Motel, a rundown place in a largely Hispanic neighborhood that, unknown to him, was located within 1,000 feet of Cavazos Junior High School. The normal sentence for Young’s crime under Texas law would have been about 10 years. Because Young sold the drugs in a “drug-free school zone,” he was sentenced to serve 38 years in prison.136

The Texas law under which Young was sentenced was modeled after the Fed- eral Drug-Free School Zones Act (21 U.S.C. § 860 [1984]), which was enacted “to reduce the presence of drugs in the schools by threatening those who distributed drugs near schools with heavy penalties.” The law, which doubles the maximum sentences for drug offenses that occur within the protected zones, is applicable to offenders who are convicted of distributing, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within 1,000 feet of, the real property comprising a public or private elementary, vocational, or secondary school; a public or private college, junior college, or university; a playground; or housing facility owned by a public housing authority; or within 100 feet of a public or private youth center, swimming pool, or video arcade facility.

Laws similar to this have been enacted in most states. Although they are de- signed to prevent the sale of drugs to children by moving drug dealing away from schools, critics contend that the statutes are irrational in that they assume that all drug sales near a school involve children or are more dangerous to children than drug sales that occur farther away from schools. Critics also argue that the laws transform entire urban areas—indeed, entire cities—into school zones and that this is most likely to occur in the inner-city neighborhoods populated by poor African Americans and Hispanics. A study of New Bedford, Massachusetts, for example, found that “most of the urban core falls within the enhanced-penalty area” and that more than three-fourths of all drug-dealing cases within the city limits occurred within school zones. This study also found that the drug dealers who were arrested within the school zones were not selling drugs to children and that most of them were arrested when school was not in session.137

A report by the Justice Policy Institute reached similar conclusions about the impact of the drug-free school zone law in New Jersey.138 Noting that the New Jer- sey law used a broad definition of “schools” that included day care centers and vo- cational training centers, the report concluded that “in New Jersey’s poorest urban centers, minority offenders find themselves blanketed in drug free school zones.” The report also noted that “a more suburban county, with fewer African American and Hispanic residents and a less dense distribution of ‘schools’ might experience less enforcement of school-zone laws, placing fewer Whites at risk of arrest and imprisonment.”

As these reports suggest, drug-free school zone statutes, which are racially neu- tral on their face, may have racially discriminatory effects.

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329R A C E A N D S E N T E N C I N G

Rights Watch, a New York–based watchdog organization, issued a report titled Punishment and Prejudice.139 The report analyzed nationwide prison admission sta- tistics and presented the results of the first state-by-state analysis of the impact of drug offenses on prison admissions for African Americans and whites. The authors of the report alleged that the war on drugs, which is “ostensibly color blind,” has been waged “disproportionately against black Americans.” As they noted, “The sta- tistics we have compiled present a unique—and devastating— picture of the price black Americans have paid in each state for the national effort to curtail the use and sale of illicit drugs.” In support of this conclusion, the report noted that:

■ African Americans constituted 62.6 percent of all drug offenders admitted to state prisons in 1996; in certain states, the disparity was much worse—in Maryland and Illinois, for example, African Americans comprised 90 percent of all persons admitted to state prisons for drug offenses.

■ Nationwide, the rate of drug admissions to state prison for African- American men was 13 times greater than the rate for white men; in 10 states, the rates for African-American men were 26–57 times greater than those for white men.

■ Drug offenders accounted for 38 percent of all African-American prison admissions but only 24 percent of all white prison admissions; in New Hampshire, drug offenders accounted for 61 percent of all African-American prison admissions.

■ The disproportionate rates at which African Americans are sentenced to prison for drug offenses “originate in racially disproportionate rates of ar- rest.” From 1979 to 1998, the percentage of drug users who were African American did not vary appreciably; however, among those arrested for drug offenses, the percentage of African Americans increased significantly. In 1979, African Americans comprised 10.8 percent of all drug users and 21.8 per- cent of all drug arrests; in 1998, African Americans comprised 16.9 percent of all drug users and 37.3 percent of all drug arrests.

The authors of the report stated that their purpose was “to bring renewed attention to extreme racial disparities in one area of the criminal justice system— the incarceration of drug law offenders.” They also asserted that, although the high rates of incarceration for all drug offenders were a cause for concern, “the grossly disparate rates at which blacks and whites are sent to prison for drug of- fenses raise a clear warning flag concerning the fairness and equity of drug law enforcement across the country, and underscore the need for reforms that would minimize these disparities without sacrificing legitimate drug control objectives.”

Critics of the report’s conclusions, which they branded “inflammatory,” argued that the statistics presented did not constitute evidence of racial discrimi- nation. “There will be inevitably, inherently, disparities of all sorts in the enforce- ment of any kind of law,” said Todd Graziano, a senior fellow in legal studies at the Heritage Foundation. Critics noted that because the illegal drug trade flourishes in inner-city, minority neighborhoods, the statistics presented in the report could simply indicate that African Americans commit more drug crimes than whites.

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330 C H A P T E R 7

There are now a number of studies that focus on racial disparities in sen- tences imposed on drug offenders. In this section, we summarize the results of three studies comparing the sentences imposed on African-American, Hispanic, and white drug offenders. All of these studies used data on offenders sentenced since the initiation of the war on drugs. The first two studies140 used data on of- fenders sentenced in state court; the third141 analyzed data on offenders sentenced under the Federal Sentencing Guidelines.

Sentencing of Drug Offenders in State Courts

Steffensmeier and Demuth’s study of sentence outcomes in Pennsylvania focused on the differential treatment of white, black, and Hispanic drug offenders.142

Arguing that “the specific social and historical context involving Hispanic Amer- icans exacerbates perceptions of their cultural dissimilarity and the ‘threat’ they pose,” the authors of this study hypothesized that Hispanic drug offenders would be singled out for the harshest treatment.143 They found evidence in support of their hypothesis when they examined the raw data: the incarceration rate for Hispan- ics (87.4 percent) was substantially higher than the rates for African Americans (69.9 percent) or whites (52.3 percent), and Hispanics received somewhat longer sentences than African Americans or whites.144

These differences did not disappear when the authors controlled for the of- fender’s age and for a number of case characteristics (offense type and severity, criminal history, number of convictions, whether the conviction was by plea or trial). Hispanics were 26 percentage points and African Americans were 7 per- centage points more likely than whites to be incarcerated; Hispanics also received sentences that averaged 8 months longer than the sentences imposed on whites.145

These findings led the authors to conclude that Hispanic defendants in Penn- sylvania faced “real and meaningful” disadvantages at sentencing. They also con- cluded that the results of their study raise questions “about the equal application of law and the wherewithal of the sentencing guidelines in reducing sentencing disparities of any kind, including race and ethnicity.”146

Research conducted in Washington State also examined the effect of race on sentencing decisions in drug cases. Sara Steen, Rodney L. Engen, and Randy R.  Gainey interviewed criminal justice officials about their perceptions of typical drug cases and drug offenders and the factors they used to differenti- ate among drug cases.147 They found that decision makers used three offender characteristics—gender, prior record, and whether the offender was using or deal- ing drugs—to construct a stereotype of a dangerous drug offender. Males with prior felony convictions who were convicted of drug-delivery offenses involv- ing cocaine, heroin, or methamphetamine were perceived as more dangerous and threatening than other types of drug offenders.

As shown in Table 7.4, Steen and her colleagues also found that African Americans were more likely than whites to have the characteristics of the stereo- typical dangerous drug offender. African Americans were more likely than whites to be male, to be drug dealers rather than drug users, and to have prior felony convictions. African Americans also were more likely than whites to have all of

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331R A C E A N D S E N T E N C I N G

the characteristics of a dangerous drug offender; 16 percent of the African Amer- icans, but only 6 percent of the whites, were male offenders with prior felony convictions who were convicted of drug dealing. According to the authors, “this disproportionality, along with cultural stereotypes, makes decision makers more inclined to expect this ‘worst case’ behavior from black offenders (especially black males) than from white offenders.”148 As a result, whites who match the stereo- type of a dangerous drug offender will be seen as atypical, and their behavior will be subjected to more judicial scrutiny; African Americans who match the stereotype, however, will be perceived as typical and their cases will be handled in a routine fashion.

The results of the authors’ analysis of the decision whether to incarcerate revealed that African Americans were substantially more likely than whites to be incarcerated and that offenders whose characteristics matched those of the dan- gerous drug offenders had higher odds of incarceration than offenders whose characteristics were at odds with the stereotype. Males were 56 percent more likely than females to be incarcerated, and the odds of incarceration were 23 times greater for dealers than for non-dealers and 8 times greater for offenders with prior felony convictions than for those without prior felonies. When the authors partitioned the data by the race of the offender, they found that although being a drug dealer had a significant effect on the likelihood of incarceration for both white offenders and African-American offenders, it had a significantly larger effect for whites than for African Americans. Being a dealer increased the odds of incar- ceration 27 times for white offenders, compared to 9 times for African-American offenders.149 Further analysis revealed that fitting the stereotype of a dangerous

T A B L E 7.4 Race and the Stereotype of a Dangerous Drug Offender: Percentage of Whites and African Americans Having Characteristics Stereotypical of a Dangerous Drug Offender

Whites (%)

African Americans

(%)

Offender is male 74 82

Offender is a drug dealer 14 27

Offender has at least one prior felony conviction 48 68

Offender Groups

Offender is a male dealer with prior felony convictions 6 16

Offender is a male dealer without prior felony convictions 5 6

Offender is a male non-dealer with prior felony convictions 32 41

Offender is a male non-dealer with no prior felony convictions 31 18

Offender is a female dealer 3 4

Offender is a female non-dealer with prior felony convictions 9 8

Offender is a female non-dealer without prior felony convictions 14 6

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332 C H A P T E R 7

drug offender (i.e., a male dealer with prior felony convictions) also affected the likelihood of incarceration for white offenders more than for African-American offenders.150

The authors interpreted their finding that matching the stereotype of a dan- gerous drug offender had a more pronounced effect on the severity of the sen- tence for whites than for African Americans as reflecting “greater leniency in the sentencing of less-threatening white offenders, compared to blacks, as opposed to greater punitiveness in the sentencing of the most threatening white offend- ers.”151 All offenders—whites as well as African Americans—who matched the stereotype of a dangerous offender were sentenced to jail or prison. Probation was not an option for these dangerous offenders. Among less serious offenders, however, judges sent whites to jail or prison less often than African Americans. The authors concluded that their results suggested that “decision makers are more likely to define low-level black offenders as a threat to public safety, and therefore deserving of incarceration, than similarly situated white offenders.”152 (For addi- tional discussion of dangerous drugs and dangerous drug offenders, see “Focus on an Issue: Penalties for Crack and Powder Cocaine.”)

FOCUS ON AN ISSUE

Penalties for Crack and Powder Cocaine

Federal sentencing guidelines for drug

offenses differentiate between crack and

powder cocaine. In fact, until very re-

cently, the guidelines treated crack cocaine

as being 100 times worse than powder co-

caine. Until 2010, possession of 500 grams

of powder cocaine, but only 5 grams of

crack, triggered a mandatory minimum

sentence of five years. Critics charged that

this policy, although racially neutral on its

face, discriminated against African-Amer-

ican drug users and sellers, who prefer

crack cocaine to powder cocaine. More

than 90 percent of the offenders sen-

tenced for crack offenses in federal courts

are African American. Those who defend

the policy, however, suggested that it is

not racially motivated; rather, as Randall

Kennedy, an African-American professor

at Harvard Law School, contended, the

policy is a sensible response “to the de-

sires of law-abiding people—including

the great mass of black communities—for

protection against criminals preying on

them.”153

Concerns about the racial impli-

cations of the crack–powder disparity

led some federal judges to attempt to

circumvent the mandatory minimum sen-

tences for offenders convicted of offenses

involving crack cocaine. For example, in

1993, Judge Lyle Strom, the chief judge

of the United States District Court in

Nebraska, sentenced four African-Amer-

ican crack dealers to significantly shorter

prison terms than called for under the

guidelines. In explanation, Strom wrote,

“Members of the African American race

are being treated unfairly in receiving sub-

stantially longer sentences than Caucasian

males who traditionally deal in powder

cocaine.”154

Strom’s decision was overturned by

the Eighth Circuit Court of Appeals in

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333R A C E A N D S E N T E N C I N G

1994. The three-judge panel ruled that

even if the guidelines are unfair to Af-

rican Americans, that is not enough to

justify a more lenient sentence than called

for under the guidelines. Other federal

appellate courts have upheld the 100-

to-1 rule, holding that the rule does not

violate the equal protection clause of the

Fourteenth Amendment (see, e.g., U.S. v.

Thomas, 900 F.2d 37 [4th Cir. 1990];

U.S. v. Frazier, 981 F.2d 92 [3rd Cir. 1992];

and U.S. v. Latimore, 974 F2d 971 [8th Cir.

1992]).

In 1996, the U.S. Supreme Court

ruled 8-1 that African Americans who

allege that they have been singled out for

prosecution under the crack cocaine rule

must first show that whites in similar cir-

cumstances were not prosecuted.155 The

case was brought by five African-American

defendants from Los Angeles, who claimed

that prosecutors were systematically steer-

ing crack cocaine cases involving African

Americans to federal court, where the

100-to-1 rule applied, but steering cases

involving whites to state court, where

lesser penalties applied. The Court stated

that a defendant who claimed he or she

was a victim of selective prosecution “must

demonstrate that the federal prosecutorial

policy had a discriminatory effect and

that it was motivated by a discriminatory

purpose.”

The United States Sentencing Com-

mission repeatedly recommended that the

penalties for crack and powder cocaine

offenses be equalized. In 1995, the Com-

mission recommended that the 100-to-1

ratio be changed to a 1-to-1 ratio. Both

Congress and former President Clinton

rejected this amendment. In May 2002, the

Commission “unanimously and firmly” re-

iterated its earlier position that “the various

congressional objectives can be achieved

more effectively by decreasing substantially

the 100-to-1 drug quantity ratio.”156 The

Commission recommended increasing the

quantity levels that trigger the mandatory

minimum penalties for crack cocaine. They

recommended that the 5-year mandatory

minimum threshold be increased to at least

25 grams and that the 10-year manda-

tory minimum threshold be increased to

at least 250 grams. The Commission also

recommended that Congress repeals the

mandatory minimum sentence for simple

possession of crack cocaine.

The Commission’s 2002 report also

noted that the majority (85 percent in

2000) of offenders subject to the harsh

penalties for drug offenses involving crack

cocaine were African American. Although

the commissioners acknowledged that this

did not necessarily prove that “the current

penalty structure promotes unwarranted

disparity based on race,” they cautioned

that “even the perception of racial disparity

[is] problematic because it fosters disrespect

for and lack of confidence in the criminal

justice system.”157

In 2010, Congress finally acted to

reduce the crack/powder cocaine dispar-

ity. Under the Fair Sentencing Act, which

President Obama signed into law in Au-

gust of 2010, the amount of crack cocaine

necessary to trigger a 5-year mandatory

minimum sentence was increased from

5 grams to 28 grams; the amount necessary

to trigger a 10-year sentence was increased

from 50 grams to 280 grams. Because the

amounts of powder cocaine that led to a

5-year (500 grams) or a 10-year (1,000

grams) sentence did not change, the dis-

parity under the 2010 law is 18-to-1

rather than 100-to-1. (For a discussion of

another type of race-linked sentencing

statute, see “In the Courts: The Consti-

tutionality of Hate-Crime Sentencing

(Continued )

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334 C H A P T E R 7

Enhancements—Wisconsin v. Mitchell (508

U.S. 47 [1993]).”)

Marc Mauer, who is the Executive

Director of The Sentencing Project, has

suggested that one way to avoid the en-

actment of facially neutral but racially

disparate policies such as the crack/powder

cocaine sentencing disparity is to require

“racial impact statements” whenever new

sentencing legislation is proposed.158 Argu-

ing that it would be better to assess the ra-

cial dimensions of proposed policy changes

before new legislation is enacted, Mauer

called for the adoption of a policy requir-

ing policy makers to evaluate the potential

racial effects of laws prior to their adop-

tion. As he noted, “the adoption of racial

impact statements offers a means by which

policymakers can avoid some of the mis-

takes of the past and develop crime policy

that is both constructive and fair.”159

THE RETROACTIVITY DEBATE

The Fair Sentencing Act did not apply

retroactively to those who were sentenced

under the old law, with its 100-to-1 ratio.

In 2012, the U.S. Supreme Court modified

this somewhat, ruling that the Act’s “new,

lower mandatory minimums apply to the

post-Act sentencing of pre-Act offenders”

(Dorsey v. United States, 132 S. Ct. 2321

[2012]). The act applied, in other words, to

offenders who committed crimes before

the act went into effect but who were

sentenced after that date. This ruling, of

course, was of no help to the thousands

of federal inmates—most of whom were

African American—who committed their

crimes before the act took effect in August

of 2010 and who were still serving sen-

tences that would not have been imposed

under the new law.

In May 2013, the Court of Appeals

for the Sixth Circuit ruled in U.S. v.

Blewett that the provisions of the Fair Sen-

tencing Act must be applied retroactively;

this opened the way for thousands of

federal offenders sentenced for crack

cocaine offenses prior to 2010 to petition

for shorter prison sentences. Writing for

the majority, Judge Gilbert Merritt stated

that “the federal judicial perpetuation of

the racially discriminatory mandatory min-

imum crack sentences for those defendants

sentenced under the old crack sentencing

law, as the government advocates, would

violate of the Equal Protection Clause.”

This decision, however, was overturned in

December 2013 by the full Sixth Circuit

bench by a vote of 10-7. Other appeals

courts have similarly ruled against retro-

activity for the Fair Sentencing Act; the

consistency of these decisions means that

it is unlikely that the U.S. Supreme Court

will intervene.

Although the Fair Sentencing Act

has substantially reduced the statutory

disparity between crack and powder co-

caine sentences, there remains a disparity

between the two drug forms despite their

similar chemical and pharmacological

structures. Coupled with the fact that the

courts have ruled that the act need not

be applied retroactively to the thousands

of federal inmates serving sentences that

would not be imposed under the new law,

this suggests that more needs to be done

to address disproportionate drug sentenc-

ing practices.

The findings of this state-level study provide clues regarding the contexts in which race and ethnicity matter in sentencing drug offenders. They suggest that decision makers’ beliefs about the dangerousness of and degree of threat posed by white and African-American offenders are intertwined with their assumptions about

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335R A C E A N D S E N T E N C I N G

crime and criminality. As Steen and her colleagues noted, “stereotypes about both crimes and criminals affect the way cases are perceived and decisions are made.”160

Sentencing of Drug Offenders in Federal Courts

Cassia Spohn and Lisa Sample build on Steen and her colleagues’ study of the dangerous drug offender in state court using data on drug offenders convicted in three U.S. District Courts.161 They extended the study conducted by Steen and her colleagues by (1) using data on federal, rather than state, drug offenders; (2) including Hispanics as well as African Americans in the analyses; (3) using a definition of the dangerous drug offender that reflects the nature of the drug caseload in the federal court system; and (4) examining whether the effects of stereotypes of dangerousness varied by the type of drug.

Because there were only 23 drug offenders in their data file who were con- victed of an offense other than drug trafficking, Spohn and Sample could not differentiate between offenders convicted of drug delivery and those convicted of simple possession. Instead, they defined the dangerous drug offender in federal court as a male offender with a prior conviction for drug trafficking, who used a weapon during the current crime. They hypothesized that offenders who per- fectly matched the stereotype—that is, males with prior trafficking convictions who used a weapon—would receive longer sentences than all other offenders. They also predicted that the effect of matching the stereotype of a dangerous drug offender would not vary by race/ethnicity and that the effect of being a dangerous drug offender would vary by the type of drug involved in the case and by the race/ethnicity of the offender. They hypothesized that the effect of being a dangerous drug offender would be confined to crack cocaine cases for African-American offenders and to methamphetamine cases for white and His- panic offenders.

As shown in Table 7.5, Spohn and Sample found that African-American of- fenders were more likely than either white offenders or Hispanic offenders to have the characteristics of a dangerous drug offender; they also found that white offenders were more likely than Hispanic offenders to match the characteristics of a dangerous drug offender. Forty-four percent of the African Americans but only 23 percent of the whites and 12 percent of the Hispanics had a prior drug traf- ficking conviction, and 25 percent of the African Americans but only 21 percent of the whites and 12 percent of the Hispanics used a weapon during the commis- sion of the crime. Consistent with these findings, African Americans were over- represented in the most serious category of the offender groups. Fourteen percent of the African-American offenders, but only 5 percent of the white offenders and 2 percent of the Hispanic offenders, were male offenders with prior drug traffick- ing convictions who used weapons in the current offense.

Although Spohn and Sample found partial support for their hypothesis that offenders who perfectly matched the stereotype of a dangerous drug offender would be sentenced most harshly, their results were inconsistent with their hy- pothesis that the effect of matching this stereotype would not vary by race/ethnic- ity. They found that there were no significant differences in the sentences imposed

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336 C H A P T E R 7

on the most dangerous offenders and the five categories of less- dangerous of- fenders for whites or Hispanics. That is, matching the stereotype of the dangerous drug offender did not result in harsher sentences for whites or Hispanics. There were, on the other hand, significant differences in the prison sentences imposed on the most dangerous African-American offenders and offenders in all five cate- gories of less-dangerous African-American offenders. Partitioning the data by the type of drug further clarified these relationships. Matching the stereotype of the dangerous drug offender had no effect on sentence severity for white or Hispanic offenders either in methamphetamine cases or in cases involving other types of drugs. In contrast, fitting the dangerousness stereotype significantly affected the length of the prison sentence for African-American offenders convicted of offenses involving crack cocaine, but had no effect on the sentence length for African-American offenders convicted of offenses involving other types of drugs. At least in these three U.S. District Courts, images of dangerousness and threat affected the length of the prison sentence only for African-American offenders who were convicted of trafficking in crack cocaine.

The authors of this study concluded that their finding of within-race differ- ences in sentencing only for African Americans convicted of trafficking in crack cocaine suggests that judges’ attributions of dangerousness and threat reflect a complex interplay among offender characteristics, crime seriousness, and the type of drug. They speculated that the linkage between African Americans and crack cocaine may create a more vivid and powerful metaphor of dangerousness in the minds of judges. If, in other words, judges regard crack as a particularly harmful

T A B L E 7.5 Race, Ethnicity, and Characteristics of the Dangerous Drug Offender

Whites (N = 705)

African Americans (N = 443)

Hispanics (N = 544)

% N % N % N

Offender Characteristics

Male 0.77 545 0.86 380 0.90 492

Prior Drug Trafficking Conviction 0.23 164 0.44 194 0.12 66

Used a Weapon During Offense 0.21 148 0.25 109 0.12 67

Offender Groups

Male Prior Conviction Weapon 0.05 39 0.14 0 0.02 10

Male Prior Conviction No Weapon 0.14 97 0.27 4 0.10 53

Male No Prior Conviction Weapon 0.13 89 0.10 43 0.10 54

Male No Prior Conviction No Weapon 0.45 320 0.36 159 0.69 375

Female Prior Conviction or Weapon 0.06 43 0.04 18 0.01 6

Female No Prior Conviction No Weapon 0.17 117 0.10 43 0.08 46

SOURCE: Cassia Spohn and Lisa Sample, “The Dangerous Drug Offender in Federal Court: Stereotyping Blacks and Crack Cocaine,” Crime and Delinquency (July 8, 2008), Table 1. Reprinted by permission of SAGE Publications.

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337R A C E A N D S E N T E N C I N G

drug and believe that the typical crack offender is an African American, they may believe that it is appropriate to impose especially punitive sentences on offenders who accumulate more of the characteristics of a dangerous offender.

Spohn and Sample noted that although the results of their study conflicted with the substantive findings from Washington State, they were nonetheless con- sistent with Steen and her colleagues’ conclusion that “the meaning of race . . . will vary depending on other offender and offense characteristics, and that differ- ences in treatment within race may therefore be as large as differences between races.”162

Racial Minorities and Cumulative Disadvantage

Although recent research on the relationship between race/ethnicity and sen- tencing has evolved both theoretically and methodologically, several comment- ers have recently argued that even these more sophisticated studies leave a num- ber of questions unanswered.163 Of particular importance is that the typical race and sentencing study, which relies on what Eric Baumer refers to as “the modal approach” involving regression-based analysis of the final sentencing outcome, cannot identify the mechanisms that lead to racially disparate sentencing. Stated differently, even these more theoretically and methodologically sophisticated studies were unable to explain why racial minorities are sentenced more harshly than whites, whether disparate treatment is found only at sentencing or accumu- lates as cases moved through the court process, or whether the disparities reflected decisions made by prosecutors as well as judges. These criticisms of research on racial justice are not new. Forty years ago, John Hagan (1974, p. 379) called for studies that better captured “transit through the criminal justice system” especially as it operates “cumulatively to the disadvantage of minority group defendants.”164

Four decades later, Baumer reiterated this concern, arguing that “it would be highly beneficial if the next generation of scholars delved deeper into the various ways that ‘race’” matters “across multiple stages of the criminal justice process.”165

(See “Recent Research: The Effect of Skin Tone on Punishment,” for another explanation for why race might matter.”)

Researchers are just beginning to address these issues. As they have done so, the focus has begun to shift from the final sentencing outcome to the life course of a criminal case and the ways in which disparities accumulate as the case progresses through the criminal process. Arguing that a key limitation of ex- tant sentencing research is its failure to consider the conditioning effects of the many consequential case-processing decisions that precede the final punishment decision, these scholars point out that focusing on a single decision-making stage (i.e., sentencing) may mask disparities originating at other discretionary points in the system. Although select work demonstrates that early charging decisions or intermediate bail and pretrial detention decisions can affect final sentencing outcomes, there are only four studies that address the issue of cumulative disparity in the prosecution and sentencing of criminal defendants.166 Each of these studies used different statistical techniques and each of them reached somewhat different conclusions. One study used data on men charged with felony drug offenses to

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338 C H A P T E R 7

examine decisions regarding bail, pretrial detention, felony adjudication, and sen- tencing.167 The results of the analysis revealed that African Americans and Latinos were treated more severely than whites at several of these decision points and, more importantly, that racial/ethnic disparities in these earlier decisions increased disparities in sentencing outcomes. By contrast, John Sutton used data on male defendants sampled in 2000 to estimate the direct and indirect effects of race and ethnicity on pretrial detention, guilty pleas, and sentence severity.168 He found that African Americans and Latinos were substantially more likely than whites to be detained prior to trial; that pretrial detention had differential effects on the likelihood of a guilty plea for whites, African Americans, and Latinos; and that both pretrial detention and guilty pleas affected sentence outcomes, but the patterns of results were somewhat different for each of the three racial groups. Sutton used the results of his analysis to calculate conditional probabilities of sentence outcomes for defendants who were detained or released and who pled guilty or went to trial. He found that “once prior events are fully taken into ac- count, Latinos and blacks experience about the same rather large cumulative dis- advantage,” but that the mechanisms that produced this cumulative disadvantage varied for defendants in the two racial groups.169 Sutton concluded with a call for future research on cumulative disadvantage that “plumb[s] the murky depths of the prosecutor’s office.”170

Besiki Kutateladze and his colleagues answered this call for additional research designed to identify cumulative disadvantage in the prosecution and sentencing of criminal defendants. Using data on a large sample of white, African-American, Latino, and Asian defendants charged with misdemeanors and felonies in New

Recent Research: The Effect of Skin Tone on Punishment

A recent study by a research team at Villanova University investigated the role that skin tone has on punishment. Jill Viglione, Lance Hannon, and Robert DeFina used data on African-American females incarcerated in North Carolina from 1995 to 2009 to test whether females with light skin tone (as indicated by a correctional officer’s assessment of whether the offender had light or non-light skin at the time of admis- sion to the prison) received shorter sentences and served less time than those with darker complexions.

The results of their analysis, which controlled for the offender’s criminal history and for the seriousness of the crime(s) for which the offender was incarcerated, revealed that African-American females with light complexions received sentences that were about 12 percent shorter than those imposed on African Americans with darker complexions; having light skin also reduced the actual time served in prison by 11 percent.

The authors of the study concluded that their results add to “a growing body of research that underscores the complexity of racism in our society . . . Among blacks, characteristics associated with whiteness appear to have a significant impact on im- portant life outcomes, such as the amount of time one spends in prison” (p. 257).

SOURCE: Jill Viglione, Lance Hannon, and Robert DeFina, “The Impact of Light Skin Tone on Prison Time for Black Female Offenders,” The Social Science Journal 48 (2011), pp. 250–258.

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York City, the researchers investigated racial and ethnic disparity across multiple prosecutorial and judicial decisions.171 Their analysis revealed strong evidence of disparity in pretrial detention, plea offers, and use of incarceration: for each of these outcomes, African Americans and Latinos were treated more harshly and Asians were treated more leniently than whites. Moreover, pretrial detention had a large and statistically significant effect on subsequent outcomes. They also found that African Americans, and to a lesser extent Latinos, were more likely than whites to suffer from cumulative disadvantage; for both felonies and misde- meanors, the most disadvantaged combination of outcomes (pretrial detention, case not dismissed, custodial plea offer [misdemeanors only], and incarceration) was most likely for blacks and Latinos and least likely for Asians. Noting that re- search on the justice system traditionally has been divided into studies of policing, courts, or corrections, the authors of this study concluded that “it may be time to begin examining the broader nexus among different domains of the system—for the pursuit of racial justice ultimately will require thoughtful examination of the many diverse and interrelated discretionary components of the entirety of the formal criminal punishment process.”172

Summary: Research on Race and Sentencing

Research examining the relationship between race and sentencing has evolved both theoretically and methodologically over the past five decades. Of partic- ular importance is the fact that the questions asked have changed dramat- ically. Most researchers now acknowledge that it is overly simplistic to ask whether race matters at sentencing. We know that it does. The more interest- ing questions—and those whose answers will help us understand the mecha- nisms underlying the harsher punishment imposed on African Americans and Hispanics—revolve around the contexts in which or the circumstances under which race and ethnicity influence sentencing and the ways in which dis- parities accumulate over the life course of a criminal case. As this new era of race and sentencing research continues to unfold, more definitive answers to questions regarding racial disparity and racial discrimination in punishment should be forthcoming.

Does It Make a Difference? A Comparison of the Sentencing

Decisions of African-American, Hispanic, and White Judges

Historically, most state and federal judges have been white males. Although the nation’s first African-American judge was appointed in 1852, by the mid-1950s there were only a handful of African Americans presiding over state or federal courts. During the 1960s and 1970s, civil rights leaders lobbied for increased representation of African Americans at all levels of government, including the courts. By 1990, there were nearly 500 African-American judges on the bench nationwide.

Those who champion the appointment of racial minorities argue that African- American and Hispanic judges could make a difference. They contend that

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increasing the number of racial minorities on state and federal courts will al- ter the character of justice and the outcomes of the criminal justice system. Because the life histories and experiences of African Americans and Hispanics differ dramatically from those of whites, the beliefs and attitudes they bring to the bench also will differ. Justice A. Leon Higginbotham Jr., an African Ameri- can who retired from the U.S. Court of Appeals for the Third Circuit in 1993, wrote, “The advantage of pluralism is that it brings a multitude of different ex- periences to the judicial process.”173 More to the point, he stated that “someone who has been a victim of racial injustice has greater sensitivity of the court’s making sure that racism is not perpetrated, even inadvertently.”174 Judge George Crockett’s assessment of the role of the African-American judge was even more pointed: “I think a black judge . . . has got to be a reformist—he cannot be a member of the club. The whole purpose of selecting him is that the people are dissatisfied with the status quo and they want him to shake it up, and his role is to shake it up.”175

Assuming that African-American judges agree with Judge Crockett’s as- sertion that their role is to “shake it up,” how would this affect their behavior on the bench? One possibility is that African American (and Hispanic) judges might attempt to stop—or at least slow—the flow of young African-American (and Hispanic) men into state and federal prisons. If African-American judges view the disproportionately high number of young African-American males incarcerated in state and federal prisons as a symptom of racial discrimination, they might be more willing than white judges to experiment with alterna- tives to incarceration for offenders convicted of non-violent drug and property crimes. Susan Welch and her colleagues make an analogous argument. Noting that African-American judges tend to view themselves as liberal rather than conservative, they speculate that African-American judges might be “more sympathetic to criminal defendants than whites judges are, since liberal views are associated with support for the underdog and the poor, which defendants disproportionately are.”176 Other scholars similarly suggest that increasing the number of African-American judges would reduce racism in the criminal jus- tice system and produce more equitable treatment of African-American and white defendants.177

Statements made by Afr ican-Amer ican judges suggest that they might bring a unique perspective to the courts. Michael David Smith’s178 survey of African-American judges throughout the United States revealed that these judges believed that their presence on the bench reduced racial discr imi- nation and promoted equality of justice. A Philadelphia judge, for instance, stated that the mere presence of African-American judges “has done more than anything I know to reduce police brutality and to reduce illegal arrests and things of that sort.”179 Moreover, nearly half of the respondents stated that African-American judges should exercise their powers to protect the rights of African-American defendants. One Michigan judge remarked that Afri- can-American judges should state that “everybody’s going to get equal jus- tice,” by saying that, “you’re going to give blacks something that they haven’t been getting in the past.”180

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Decision Making by African-American

and White Federal Judges

As more African Americans have been appointed or elected to state and federal trial courts, it has become possible to compare their decisions with those of white judges. Two studies examined the consequences of the affirmative action policies of President Carter, who appointed a record number of African Americans to the federal courts. (Carter appointed 258 judges to the federal district courts and courts of appeals; 37, or 14 percent, were African Americans. In contrast, African Americans accounted for only 6 of the 71 [7.2 percent] persons appointed to the U.S. District Courts by President George W. Bush and only 10 of the 132 [6.8 percent] persons appointed to the U.S. District Courts by President George H. W. Bush. Fifty-three [17.4 percent] of President Clinton’s 229 appointees were African American and 18 [5.9 percent] were Hispanic.)181

Thomas G. Walker and Deborah J. Barrow182 compared decisions handed down by the African-American and white district court judges appointed by President Carter. The question they asked was, “Did it make a difference that President Carter appointed unprecedented numbers of women and minorities to the bench as opposed to filling vacancies with traditional white, male can- didates?”183 The authors found no differences in criminal cases or in four other types of cases. In criminal cases, African-American judges ruled in favor of the defense 50 percent of the time; white judges ruled in favor of the defense 48 per- cent of the time. These similarities led the authors to conclude that black judges do not view themselves as advocates for the disadvantaged or see themselves as especially sympathetic to the policy goals of minorities.

Jon Gottschall184 examined decisions in the U.S. Courts of Appeals in 1979 and 1981. He compared the decisions of African-American and white judges in terms of “attitudinal liberalism,” which he defined as “a relative tendency to vote in favor of the legal claims of the criminally accused and prisoners in criminal and prisoner’s rights cases and in favor of the legal claims of women and racial minorities in sex and race discrimination cases.”185

In contrast to Walker and Barrow, Gottschall found that the judge’s race had a “dramatic impact” on voting in cases involving the rights of criminal defendants and prisoners. African-American male judges voted to support the legal claims of defendants and prisoners 79 percent of the time, as compared to only 53 percent for white male judges. African-American judges, however, did not vote more lib- erally than white judges in race or sex discrimination cases. Gottschall concluded, “Affirmative action for blacks does appear to influence voting on the courts of appeals in cases involving the rights of the accused and prisoners, where black voting is markedly more liberal than is that of whites.”186

A more recent study187 of the decisions of judges appointed to the U.S. Courts of Appeals found that judges who were both members of a racial minority group and female decided cases differently than other judges. Arguing that “female members of a racial minority occupy a unique place within society,”188 Todd Col- lins and Laura Moyer hypothesized that female minority judges would support more liberal (i.e., more pro-defendant) outcomes in cases involving the rights of

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criminal defendants. Consistent with their hypothesis, they found that minority female judges voted in favor of the defendant in 33.9 percent of the cases; the comparable figures for white males, white females, and minority males were 20 percent, 23 percent, and 24.7 percent, respectively. Further analysis revealed that these differences persisted even after the authors added other judge characteristics and characteristics of the circuit to the model. The authors concluded that the re- sults of their analysis suggest that “minority women may have a distinctive identity that differs significantly from Caucasian women and minority males.”189

An Alternative Approach: Racial Representation of the Bench Because the United States Sentencing Commission does not provide data on the iden- tity of the judge who imposed the sentence on an offender adjudicated in one of the U.S. District Courts, researchers have been unable to compare the sen- tencing decisions of white, African-American, and Hispanic judges on the fed- eral bench. Two studies used an alternative approach to this issue.190 Rather than examining the race of the sentencing judge, these studies compared sen- tences for offenders of different races/ethnicities who were sentenced in juris- dictions with different proportions of white, African-American, and Hispanic court workers, including judges. The purpose of these studies, in other words, was to determine “whether racially representative courts yield more racially eq- uitable case outcomes.”191

Both of the studies using this approach produced similar, although not iden- tical, results. Farrell and her colleagues found that defendants were less likely to be sentenced to prison in jurisdictions with greater representation of African-Amer- ican judges and prosecutors but were more likely to be sentenced to prison in districts with greater numbers of African-American public defenders and pro- bation officers. They also found that although African-American offenders were more likely than white offenders to be sentenced to prison, the disparity was reduced when African-American offenders were sentenced in districts with in- creased representation of African-American prosecutors (in contrast, the dispar- ity in incarceration rates did not decline as the percentage of judges who were African American increased).192 These findings led the authors to conclude that “greater representation of workers of color in the justice system can contribute to more equitable treatment of racial groups. Specifically, equity would be improved with greater representation of blacks among prosecutors.”193

Max Schanzenbach’s194 approach differed somewhat from the approach Far- rell and her colleagues used. Whereas the latter researchers included variables measuring the percentages of judges, prosecutors, public defenders, and probation officers who were African American, Schanzenbach focused only on the effects of the percentages of judges who were African American and Hispanic. When he examined sentences imposed on offenders convicted of more serious crimes, he found that as the proportion of the bench that was Hispanic increased, the proba- bility of incarceration decreased for African-American and Hispanic offenders; he also found that representation of African Americans on the bench had no effect on the likelihood of incarceration for African-American offenders but did result in a lower likelihood for Hispanic offenders. For nonserious crimes, on the other

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hand, the percentage of African-American judges did reduce the odds of incar- ceration for African-American offenders. These results led Schanzenbach to con- clude that, at least for serious crimes, appointing more African-American judges to the bench would not reduce racial disparities in sentencing.

Decision Making by African-American

and White State Court Judges

Research comparing the sentencing decisions of African-American and white state court judges also has yielded mixed results. Most researchers have found few differences and have concluded that the race of the judge is not a strong predictor of sentence severity.195 Two early studies, for example, found few dif- ferences in the sentencing behavior of African-American and white judges. Engle196 analyzed Philadelphia judges’ sentencing decisions. He found that although the judge’s race had a statistically significant effect, nine other vari- ables were stronger predictors of sentence outcomes. He concluded that the race of the judge exerted “a very minor influence” overall.197 Thomas M. Uhl- man’s198 study of convicting and sentencing decisions in “Metro City” reached a similar conclusion. African-American judges imposed somewhat harsher sentences than white judges, but the differences were relatively small. And both African-American and white judges imposed harsher sentences on Afri- can-American defendants than on white defendants. Moreover, there was more “behavioral diversity” among the African-American judges than between Afri- can-American and white judges. Some of the African-American judges imposed substantially harsher sentences than the average sentence imposed by all judges, whereas other African-American judges imposed significantly more lenient sentences. These findings led Uhlman to conclude that “Black and white judges differ little in determining both guilt and the punishment a defendant ‘deserves’ for committing a crime in Metro City.”199

A later study of sentencing decisions in “Metro City” reached a differ- ent conclusion. Susan Welch, Michael Combs, and John Gruhl200 found that African-American judges were more likely than white judges to send white defendants to prison. Further analysis led them to conclude that this difference reflected African-American judges’ tendency to incarcerate African-American and white defendants at about the same rate and white judges’ tendency to incar- cerate African-American defendants more often than white defendants. They also found, however, that African-American judges, but not white judges, favored de- fendants of their own race when determining the length of the prison sentence.

These results led them to conclude that “black judges provide more than symbolic representation.”201 According to these authors, “To the extent that they equalize the criminal justice system’s treatment of black and white defendants, as they seem to for the crucial decision to incarcerate or not, [black judges] thwart discrimination against black defendants. In fact, the quality of justice received by both black and white defendants may be improved.”202

A study of sentencing decisions by African-American and white judges on the Cook County (Chicago) Circuit Court reached a similar conclusion.203

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Spears found that African-American judges sentenced white, African-American, and Hispanic offenders to prison at about the same rate, whereas white judges sentenced both African-American and Hispanic offenders to prison at a signifi- cantly higher rate than white offenders. In fact, compared to white offenders sen- tenced by white judges, African-American offenders sentenced by white judges had a 13 percent greater probability of imprisonment; for Hispanic offenders sen- tenced by white judges, the difference was 15 percent. Like the “Metro City” study, then, this study found that white judges sentenced racial minorities more harshly than whites and concluded that having African-American judges on the bench “does provide more equitable justice.”204

Spohn’s205 analysis of the sentences imposed on offenders convicted of vio- lent felonies in Detroit Recorder’s Court produced strikingly different results and led to very different conclusions. Like Engle and Uhlman, Spohn uncovered few meaningful differences between African-American and white judges. She found that African-American judges were somewhat more likely than white judges to sentence offenders to prison, but that judicial race had no effect on the length of sentence. Like Engle, she concluded that “the effect of judicial race, even where significant, was clearly overshadowed by the effect of the other independent vari- ables.”206 Spohn also tested for interaction between the race of the judge, the race of the offender, and the race of the victim—that is, she attempted to determine, first, if African-American and white judges treated African-American and white offenders differently and, second, if African-American and white judges imposed different sentences on African-American offenders who victimized other African Americans, African-American offenders who victimized whites, white offenders who victim- ized other whites, and white offenders who victimized African Americans.

Spohn’s research highlighted the similarities in the sentences imposed by African-American and white judges. African-American judges sentenced 72.9 percent of African-American offenders to prison, whereas white judges in- carcerated 74.2 percent, a difference of less than 2 percentage points. The ad- justed figures for white offenders were 65.3 percent (African-American judges) and 66.5 percent (white judges), again a difference of less than 2 percentage points. More important, these data reveal that both African-American and white judges sentenced African-American defendants more harshly than white defen- dants. For both African-American and white judges, the adjusted incarceration rates for African-American offenders were 7 percentage points higher than that for white offenders. Moreover, African-American judges sentenced offenders to prison at about the same rate as white judges, regardless of the racial makeup of the offender–victim pair.

These findings led Spohn to conclude that there was “remarkable simi- larity”207 in the sentencing decisions of African-American and white judges. They also led her to question the assumption that discr imination against African- American defendants reflects prejudicial or racist attitudes on the part of white criminal justice officials. As she noted, “Contrary to expectations, both black and white judges in Detroit imposed harsher sentences on black offend- ers. Harsher sentencing of black offenders, in other words, cannot be attributed solely to discrimination by white judges.”208 Spohn suggested that her findings

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contradicted the widely held assumption that African Americans do not discrim- inate against other African Americans and conventional wisdom about the role of African-American judges. She concluded “that we should be considerably less sanguine in predicting that discrimination against black defendants will decline as the proportion of black judges increases.”209

To explain her unexpected finding that both African-American and white judges sentenced African-American defendants more harshly than white defen- dants, Spohn suggested that African-American and white judges might perceive African-American offenders as more threatening and more dangerous than white offenders. Alternatively, she speculated that at least some of the discriminatory treatment of African-American offenders might be the result of concern for the welfare of African-American victims. African-American judges, in other words, “might see themselves not as representatives of black defendants but as advocates for black victims. This, coupled with the fact that black judges might see them- selves as potential victims of black-on-black crime, could help explain the harsher sentences imposed on black offenders by black judges.”210

Spohn acknowledged that because we do not know with any degree of cer- tainty what goes through a judge’s mind during the sentencing process, these explanations were highly speculative. As she put it, “We cannot know precisely how the race of the offender is factored into the sentencing equation. Although the data reveal that both black and white judges sentence black offenders more harshly than white offenders, the data do not tell us why this occurs.”211

Decision Making by Hispanic and White Judges Although most research ex- amining the effect of judicial characteristics on sentencing has focused on the race of the sentencing judge, there is one study that compares the sentencing decisions of white and Hispanic judges in two southwestern jurisdictions.212 Malcolm D. Holmes and his colleagues found that Hispanic judges sentenced white and His- panic offenders similarly, whereas white judges sentenced Hispanics more harshly than whites. In fact, the sentences imposed on Hispanic offenders by Hispanic and white judges were very similar to the sentences imposed by Hispanic judges on white offenders. What was different, according to these researchers, was that white judges sentenced white offenders more leniently. Thus, “Anglo judges are not so much discriminating against Hispanic defendants as they are favoring members of their ethnic groups.”213

Reasons for Similarities in Decision Making

Although there is some evidence that African-American and Hispanic judges sentence racial minorities and whites similarly and that white judges give prefer- ential treatment to white offenders, the bulk of the evidence suggests that judi- cial race/ethnicity makes very little difference. The fact that African-American, Hispanic, and white judges decide cases similarly is not particularly surprising. Although this conclusion challenges widely held presumptions about the role of African-American and Hispanic criminal justice officials, it is not at odds with the results of other studies comparing African-American and white decision makers.

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As noted in Chapter 4, studies have documented similarities in the behavior of African-American and white police officers.

Similarities in judicial decision making can be attributed in part to the judi- cial recruitment process, which produces a more or less homogeneous judiciary. Most judges recruited to state courts are middle or upper class and were born and attended law school in the state in which they serve. Even African-American and white judges apparently share similar background characteristics. Studies indicate that “both the black and white benches appear to have been carefully chosen from the establishment center of the legal profession.”214 The judicial recruitment process may screen out candidates with unconventional views.

These similarities are reinforced by the judicial socialization process, which produces a subculture of justice and encourages judges to adhere to prevailing norms, practices, and precedents. They also are reinforced by the courtroom work group—judges, prosecutors, and defense attorneys who work together day after day to process cases as efficiently as possible. Even unconventional or mav- erick judges may be forced to conform. As one African-American jurist noted, “No matter how ‘liberal’ black judges may believe themselves to be, the law re- mains essentially a conservative doctrine, and those who practice it conform.”215

In the Courts: The Constitutionality of Hate-Crime Sentencing Enhancements— Wisconsin v. Mitchell (508 U.S. 47 [1993])

In 1989, Todd Mitchell, a 19-year-old African American, and a group of his friends accosted Gregory Reddick, a 14-year-old white boy, beat him severely, and stole his tennis shoes. Mitchell and his friends had just watched the movie Mississippi Burning, which depicts Ku Klux Klan terrorism against African Americans in the South during the 1960s. They were standing outside an apartment complex in Kenosha, Wisconsin discussing the movie, when Reddick walked by. Mitchell asked his friends, “Do you feel hyped up to move on some white people?” He then pointed to Reddick and said, “There goes a white boy. . . Go get him!” The beating put Reddick in a coma for four days and he suffered permanent brain damage.

Mitchell was convicted of aggravated battery, an offense that ordinarily carries a maximum sentence of two years in prison. The jury, however, found that Mitchell had intentionally selected his victim because of the boy’s race, in violation of Wiscon- sin’s hate-crime statute. That law, which increased the maximum sentence for Mitch- ell’s crime to seven years, enhances the maximum penalty for an offense whenever the defendant “intentionally selected the person against whom the crime . . . is com- mitted . . . because of the race, religion, color, disability, sexual orientation, national origin, or ancestry of that person.”216 The judge sentenced Mitchell to four years in prison for the aggravated battery.

Mitchell challenged his conviction and sentence, arguing that the hate-crime statute infringed on his First Amendment right to freedom of speech. The Wiscon- sin Supreme Court agreed, holding that the statute “violates the First Amendment directly by punishing what the legislature has deemed to be offensive thought.” The court rejected the state’s claim that the statute punished only conduct (i.e., the intentional selection of a victim on the basis of race) and stated that “the Wisconsin legislature cannot criminalize bigoted thought with which it disagrees.”

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C O N C L U S I O N

Despite dozens of studies investigating the relationship between defendant race and sentence severity, a definitive answer to the question, “Are racial minorities sentenced more harshly than whites?” remains elusive. Although a number of studies have uncovered evidence of racial discrimination in sentencing, others have found that there are no significant racial differences.

The failure of research to produce uniform findings of racial discrimination in sentencing has led to conflicting conclusions. Some researchers assert that racial discrimination in sentencing has declined over time and contend that the pre- dictive power of race, once relevant legal factors are taken into account, is quite low. Other researchers claim that discrimination has not declined or disappeared but simply has become more subtle and difficult to detect. These researchers ar- gue that discrimination against racial minorities is not universal but is confined to certain types of cases, certain types of settings, and certain types of defendants.

We assert that the latter explanation is more convincing. We suggest that al- though the sentencing process in most jurisdictions today is not characterized by overt or systematic racism, racial discrimination in sentencing has not been eliminated. We argue that sentencing decisions in the 1990s reflect contextual dis- crimination. Judges in some jurisdictions continue to impose harsher sentences on racial minorities who murder or rape whites and more lenient sentences on racial minorities who victimize members of their own racial/ethnic group. Judges in some jurisdictions continue to impose racially biased sentences in less serious cases; in these “borderline cases” racial minorities get prison, whereas whites get probation. Judges, in other words, continue to take race into account, either ex- plicitly or implicitly, when determining the appropriate sentence.

The problem is compounded by the existence of institutional discrimination. This type of discrimination is exemplified by facially neutral sentencing policies— the crack/powder cocaine sentencing disparity, the drug-free school zones, and habitual offender or three-strikes-and-you’re-out laws—that have disparate effects

In 1993, the United States Supreme Court upheld the hate-crime statute and ruled that Mitchell’s First Amendment rights were not violated by the application of the sentencing enhancement provision. Writing for a unanimous court, Chief Justice Rehnquist stated that the primary responsibility for determining penalties for crimi- nal behavior rests with the legislature, which can differentiate among crimes based on their seriousness and the degree of harm they inflict on victims and on society. Justice Rehnquist noted that this was the case with the hate-crime statute: the Wis- consin legislature had decided that bias-inspired conduct was more harmful and thus had enhanced the penalties for these types of crimes. Although he acknowledged that “a defendant’s abstract beliefs, however obnoxious to most people, may not be taken into consideration by a sentencing judge,” Rehnquist stated that trial judges are not barred from considering the defendant’s racial animus toward his victim.

(The decision in this case is available online at http://straylight.law.cornell.edu/. Search for Wisconsin v. Mitchell.)

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on racial minorities and whites. Because these laws are applicable more often to African American and Hispanics than to whites, their effects are to increase racial disparities in incarceration rates and to exacerbate the collateral consequences of incarceration for racial minorities and the communities in which they live.

It thus appears that although flagrant racism in sentencing has been elimi- nated, equality under the law has not been achieved. Today, whites who commit crimes against racial minorities are not beyond the reach of the criminal justice system, African Americans suspected of crimes against whites do not receive “jus- tice” at the hands of white lynching mobs, and racial minorities who victimize other racial minorities are not immune from punishment. Despite these signif- icant changes, inequities persist. Racial minorities who find themselves in the arms of the law continue to suffer discrimination in sentencing.

D I S C U S S I O N Q U E S T I O N S

1. Why is evidence of racial disparity in sentencing not necessarily evidence of racial discrimination in sentencing? What are the alternative explanations? Which of these explanations is most convincing?

2. Some researchers argue that racial stereotypes affect the ways in which de- cision makers, including criminal justice officials, evaluate the behavior of racial minorities. Do an Internet search for race-linked stereotypes. What are the stereotypes most commonly associated with African Americans? Hispan- ics? Native Americans? Asian Americans? How might these stereotypes affect judges’ sentencing decisions?

3. Do you agree or disagree with the argument (see Box 7.2) that crime seriousness and prior criminal record are not necessarily legally relevant variables?

4. Based on Spohn’s (2000) review of research on race and sentencing, how would you answer the question, “When does race matter?” Prepare a Power- Point presentation that summarizes these effects.

5. Research reveals that young, unemployed African American and Hispanic males pay a higher punishment penalty than other types of offenders. What accounts for this?

6. Spohn and Spears’s study of sentencing decisions in sexual assault cases re- vealed that judges imposed the harshest sentences on African Americans who sexually assaulted whites (strangers or nonstrangers) and on African Americans who sexually assaulted African-American strangers. They im- posed much more lenient sentences on African Americans who sexually as- saulted African-American friends, relatives, and acquaintances and on whites who victimized other whites (strangers or non-strangers). How would you explain this pattern of results?

7. As discussed in Box 7.8, African Americans are more likely than whites to be willing to serve time in prison rather than be sentenced to some alterna- tive to incarceration such as electronic monitoring or intensive supervision

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probation. What accounts for these racial differences in perceptions of the severity of sanctions?

8. Under the Fair Sentencing Act of 2010, the disparity in amounts of crack and powder cocaine necessary to trigger a mandatory minimum sentence of 5 (or 10) years was reduced from 100-to-1 to 18-to-1. Does this “solve” the problem, or is the 18-to-1 disparity still racially discriminatory?

9. Those who champion the appointment/election of racial minorities to the bench argue that African-American and Hispanic judges could make a dif- ference. Why? Does research comparing the sentencing decisions of white judges to those of African American or Hispanic judges confirm or refute this assumption?

10. Do you agree with the Supreme Court’s decision (Wisconsin v. Mitchell) up- holding sentencing enhancements for hate crimes? Why or why not?

N O T E S

1. The Sentencing Project, “Schools and Prisons: Fifty Years after Brown v. Board of Edu- cation.” http://www.sentencingproject.org/pdfs/brownvboard.pdf.

2. Ibid., p. 5.

3. Ibid.

4. Ibid.

5. Bureau of Justice Statistics, Prisoners in 2014 (Washington, DC: U.S. Department of Justice, 2015), Table 10 and Appendix Table 3.

6. Alfred Blumstein, Jacqueline Cohen, Susan E. Martin, and Michael Tonry, Research on Sentencing: The Search for Reform, Volume I (Washington, DC: National Academy Press, 1983).

7. See, for example, Bruce Western, Punishment and Inequality in America (New York: Russell Sage Foundation, 2006). For a different perspective, see Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: The New Press, 2010). Alexander argues (p. 16) that “The fact that more than half of the young black men in any large American city are currently under the control of the crim- inal justice system (or saddled with criminal records) is not—as many argue—just a symptom of poverty or poor choices, but rather evidence of a new racial caste system at work.” For recent research comparing findings that the racial disparity in incarceration rates that is unexplained by racial disparity in arrest rates has increased, see Michael Tonry and Matthew Melewski, “The Malign Effects of Drug Control Policies on Black Americans,” Crime and Justice 37 (2008), pp. 1–44.

8. Michael Tonry, Malign Neglect: Race, Crime, and Punishment in America (New York: Oxford University Press, 1995), p. 49.

9. Bureau of Justice Statistics, Prison and Jail Inmates at Midyear 2009 (Washington, DC: U.S. Department of Justice, 2010), Tables 17 and 19.

10. Brian D. Johnson and Sara Betsinger, “Punishing the ‘Model Minority’: Asian- American Criminal Sentencing Outcomes in Federal District Courts,” Criminology 47 (2009), pp. 1045–1090.

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11. Paula Kautt and Cassia Spohn, “Cracking Down on Black Drug Offenders? Testing for Interactions Among Offenders’ Race, Drug Type, and Sentencing Strategy in Federal Drug Sentences,” Justice Quarterly 19 (2000), pp. 2–35.

12. Bureau of Justice Statistics, Felony Sentences in State Courts, 2006 (Washington, DC: U.S. Department of Justice, 2009), Tables 3.4 and 3.6.

13. Besiki L. Kutateladze, Nancy R. Andiloro, Brian D. Johnson, and Cassia C. Spohn, “Cumulative Disadvantage: Examining Racial and Ethnic Disparity in Prosecution and Sentencing,” Criminology 52 (2014), pp. 514–551.

14. Marjorie Zatz, “The Changing Forms of Racial/Ethnic Biases in Sentencing,” Jour- nal of Research in Crime and Delinquency 25 (1987), pp. 69–92, p. 69.

15. Thorsten Sellin, “Race Prejudice in the Administration of Justice,” American Journal of Sociology 41 (1935), pp. 212–217, p. 217.

16. John Hagan, “Extra-legal Attributes and Criminal Sentencing: An Assessment of a Sociological Viewpoint,” Law & Society Review 8 (1974), pp. 357–383; Gary Kleck, “Racial Discrimination in Sentencing: A Critical Evaluation of the Evidence with Additional Evidence on the Death Penalty,” American Sociology Review 43 (1981), pp. 783–805.

17. John Hagan and Kristin Bumiller, “Making Sense of Sentencing: A Review and Cri- tique of Sentencing Research,” in Research on Sentencing: The Search for Reform, Alfred Blumstein, Jacqueline Cohen, Susan Martin, and Michael Tonry, eds. (Washington, DC: National Academy Press, 1983).

18. Blumstein, Cohen, Martin, and Tonry, Research on Sentencing: The Search for Reform, p. 93.

19. Zatz, “The Changing Forms of Racial/Ethnic Biases in Sentencing.”

20. Ibid., p. 87.

21. Theodore G. Chiricos and Charles Crawford, “Race and Imprisonment: A Contex- tual Assessment of the Evidence,” in Ethnicity, Race, and Crime: Perspectives Across Time and Place, Darnell F. Hawkins, ed. (Albany: State University of New York Press, 1995).

22. Ibid., p. 282.

23. Ibid., p. 300.

24. Ibid.

25. Spohn, “Thirty Years of Sentencing Reform: A Quest for a Racially Neutral Sen- tencing Process,” in Policies, Processes, and Decisions of the Criminal Justice System, vol. 3, Criminal Justice 2000 (Washington, DC: U.S. Department of Justice, 2000).

26. Hagan and Bumiller, “Making Sense of Sentencing,” p. 21.

27. Spohn, “Thirty Years of Sentencing Reform,” pp. 455–456.

28. Ibid., p. 458.

29. Ibid., pp. 460–461.

30. Ibid., pp. 466–467.

31. Ibid., p. 469.

32. Ibid., p. 461.

33. Ibid., pp. 469–473.

34. Ojmarrh Mitchell. “A Meta-Analysis of Race and Sentencing Research: Explaining the Inconsistencies,” Journal of Quantitative Criminology 21 (2005), pp. 439–466.

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35. Ibid., p. 462.

36. Blumstein et al., Research on Sentencing, vol. 1, p. 93.

37. Cassia Spohn and Miriam DeLone, “When Does Race Matter? An Analysis of the Conditions Under Which Race Affects Sentence Severity,” Sociology of Crime, Law and Deviance 2 (2000), pp. 3–37.

38. These estimated probabilities are adjusted for the effects of the other legal and extra- legal variables included in the multivariate analysis. See Spohn and DeLone, “When Does Race Matter?” for a description of the procedures used to calculate the proba- bilities.

39. Spohn and DeLone, “When Does Race Matter?” p. 29.

40. Ibid.

41. Ibid., p. 30.

42. Darrell Steffensmeier and Stephen Demuth, “Ethnicity and Judges’ Sentencing Deci- sions: Hispanic–Black–White Comparison,” Criminology 39 (2001), pp. 145–178.

43. Ibid.

44. Ibid., p. 153.

45. Ibid., Table 2.

46. Ibid., Table 3.

47. Ibid., p. 170.

48. Ibid., p. 168.

49. David F. Greenberg, “‘Justice’ and Criminal Justice,” in Crime Control and Criminal Justice: The Delicate Balance, Darnell F. Hawkins, Samuel L. Meyers Jr., and Randolph N. Stone, eds. (Westport, CT: Greenwood, 2002), p. 330.

50. Ibid., p. 331.

51. United States v. Onwuemene (1999). As cited in N. V. Demleitner and J. Sands, “Non-citizen Offenders and Immigration Crimes: New Challenges in the Federal System,” Federal Sentencing Reporter 14 (2002), pp. 247–254.

52. See, for example, Celesta A. Albonetti, “Sentencing Under the Federal Sentenc- ing Guidelines: Effects of Defendant Characteristics, Guilty Pleas, and Departures on Sentence Outcomes for Drug Offenses, 1991–1992,” Law & Society Review 31 (1997), pp. 789–822; Stephen Demuth, “The Effect of Citizenship Status on Sen- tencing Outcomes in Drug Cases,” Federal Sentencing Reporter 14 (2002), pp. 271– 275; Richard D. Hartley, Sean Maddan, and Cassia Spohn, “Prosecutorial Discretion: An Examination of Substantial Assistance Departures in Federal Crack-Cocaine and Powder-Cocaine Cases,” Justice Quarterly 24 (2007), pp. 382–407; Brian D. Johnson, Jeffery T. Ulmer, and John H. Kramer, “The Social Context of Guidelines Circum- vention: The Case of Federal District Courts,” Criminology 46 (2008), pp. 737–784; Cassia Spohn and Robert Fornango, “U.S. Attorneys and Substantial Assistance De- partures: Testing for Inter-Prosecutor Disparity,” Criminology 47 (2009), pp. 813–842.

53. Scott Wolfe, David Pyrooz, and Cassia Spohn, “Unraveling the Effect of Offender Citizenship Status on Federal Sentencing Outcomes,” Social Science Research (in press).

54. Ibid., Table 1.

55. Ibid., Tables 2 and 3.

56. Johnson and Betsinger, “Punishing the Model Minority,” p. 1046.

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57. Ibid., p. 1051.

58. Ibid., pp. 1065–1066.

59. Ibid., Tables 3, 4, and 5.

60. Ibid., p. 1078.

61. Ibid., p. 1078.

62. Iris Marion Young, Justice and the Politics of Difference (Princeton, NJ: Princeton Uni- versity Press, 1990), p. 59.

63. Carol Chiago Lujan, “Stereotyping by Politicians: Or ‘The Only Real Indian Is the Stereotypical Indian,’” in Images of Color, Images of Crime, Coramae Richey Mann and Marjorie Zatz, eds. (Los Angeles: Roxbury, 1998).

64. Keith Wilmot and Miriam DeLone, “Sentencing of Native Americans: A Multistage Analysis under the Minnesota Sentencing Guidelines,” Journal of Ethnicity in Criminal Justice 8 (2010), pp. 151–180.

65. Steve Feimer, Frank Pommersheim, and Steve Wise, “Marking Time: Does Race Make a Difference? A Study of Disparate Sentencing in South Dakota,” Journal of Crime and Justice 13 (1990), pp. 86–102; Frank Pommersheim and Steve Wise, “Going to the Penitentiary: A Study of Disparate Sentencing in South Dakota,” Criminal Justice and Behavior 16 (1989), pp. 155–165.

66. B. Swift and G. Bickel, Comparative Parole Treatment of American Indians and Non- Indians at United States Federal Prisons (Washington, DC: Bureau of Social Science Research, 1974.)

67. Alexander Alvarez and Ronet D. Bachman, “American Indians and Sentencing Disparity: An Arizona Test,” Journal of Criminal Justice 24 (1996), pp. 549–561; Edwin L. Hall and Albert A. Simkins, “Inequality in the Types of Sentences Received by Native Americans and Whites,” Criminology 13, 199–222.

68. Ronet D. Bachman, Alexander Alvarez, and C. Perkins, “The Discriminatory Imposition of the Law: Does It Affect Sentence Outcomes for American Indians?” in Native Americans, Crime, and Justice, Marianne O. Nielsen and Robert A. Silverman, eds. (Boulder, CO: Westview Press, 1996); Timothy S. Bynum and Raymond Paternoster, “Discrimination Revisited: An Exploration of Frontstage and Back- stage Criminal Justice Decision Making,” Sociology and Social Research 69 (1984), pp. 90–108.

69. Alvarez and Bachman, “American Indians and Sentencing Disparity.”

70. Ibid., p. 558.

71. Ibid.

72. Wilmot and DeLone, “Sentencing of Native Americans.”

73. Ibid., Tables 2 and 3.

74. Ibid., p. 174.

75. Marjorie Zatz, “The Convergence of Race, Ethnicity, Gender, and Class on Court Decisionmaking: Looking Toward the 21st Century,” in Policies, Processes, and Decisions of the Criminal Justice System, vol. 3, Criminal Justice 2000 (Washington, DC: U.S. De- partment of Justice, 2000).

76. Ibid., p. 540.

77. John H. Kramer and Darrell Steffensmeier, “Race and Imprisonment Decisions,” The Sociological Quarterly 34 (1993), pp. 357–376.

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78. Darrell Steffensmeier, John Kramer, and Cathy Streifel, “Gender and Imprisonment Decisions,” Criminology 31 (1993), pp. 411–446.

79. Darrell Steffensmeier, John Kramer, and Jeffery Ulmer, “Age Differences in Criminal Sentencing,” Justice Quarterly 12 (1995), pp. 701–719.

80. Darrell Steffensmeier, Jeffery Ulmer, and John Kramer, “The Interaction of Race, Gender, and Age in Criminal Sentencing: The Punishment Cost of Being Young, Black, and Male,” Criminology 36 (1998), pp. 763–797.

81. Kramer and Steffensmeier, “Race and Imprisonment Decisions,” p. 370.

82. Ibid., p. 368.

83. Ibid., p. 373.

84. Steffensmeier, Ulmer and Kramer,“The Interaction of Race, Gender, and Age in Criminal Sentencing.”

85. Ibid., p. 789.

86. Ibid., p. 768.

87. Cassia Spohn and David Holleran, “The Imprisonment Penalty Paid by Young Un- employed Black and Hispanic Male Offenders,” Criminology 38 (2000), pp. 281–306.

88. Ibid., pp. 291–293.

89. Ibid., p. 301.

90. See, for example, Pauline K. Brennan and Cassia Spohn, “The Joint Effects of Of- fender Race/Ethnicity and Sex on Sentence Length Decisions in Federal Courts,” Race and Social Problems 1 (2009), pp. 200–217; Theodore R. Curry and Guadalupe Corral-Camacho, “Sentencing Young Minority Males for Drug Offenses: Testing for Conditional Effects Between Race/Ethnicity, Gender, and Age during the U.S. War on Drugs,” Punishment & Society 10 (2008), pp. 253–276; Jill K. Doerner and Stephen Demuth, “The Independent and Joint Effects of Race/Ethnicity, Gender, and Age on Sentencing Outcomes in U.S. Federal Courts,” Justice Quarterly 27 (2010), pp. 1–27; Tina L. Freiburger and Carly M. Hilinski, “An Examination of the Interactions of Race and Gender on Sentencing Decisions Using a Trichotomous Dependent Variable,” Crime & Delinquency, Online First, published on February 24, 2009; and Hartley, Maddan, and Spohn, “Prosecutorial Discretion.”

91. Brennan and Spohn, “The Joint Effects of Offender Race/Ethnicity and Sex on Sentence Length Decisions in Federal Courts.”

92. Doerner and Demuth, “The Independent and Joint Effects of Race/Ethnicity, Gen- der, and Age on Sentencing Outcomes in U.S. Federal Courts.”

93. Quinney, The Social Reality of Crime, p. 142.

94. Dario Melossi, “An Introduction: Fifty Years Later, Punishment and Social Structure in Contemporary Analysis,” Contemporary Crises 13 (1989), pp. 311–326.

95. Gregg Barak, “Between the Waves: Mass-Mediated Themes of Crime and Justice,” Social Justice 21 (1994), pp. 133–147.

96. Steven Spitzer, “Toward a Marxian Theory of Deviance,” Social Problems 22 (1975), pp. 638–651.

97. Ibid., p. 646.

98. Steven Box and Chris Hale, “Unemployment, Imprisonment, and Prison Over- crowding,” Contemporary Crises 9 (1985), pp. 209–228.

99. Ibid., p. 217.

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100. Steffensmeier, Ulmer, and Kramer, “The Interaction of Race, Gender, and Age in Criminal Sentencing,” p. 789.

101. Ibid., p. 787.

102. Spohn and Holleran, “The Imprisonment Penalty Paid by Young, Unemployed Black and Hispanic Male Offenders,” p. 301.

103. Gunnar Myrdal, An American Dilemma: The Negro Problem and Modern Democracy (New York: Harper and Brothers, 1944), p. 551.

104. Ibid., p. 553.

105. Susan Brownmiller, Against Our Will: Men, Women, and Rape (New York: Bantam Books, 1975).

106. Jennifer Wriggins, “Rape, Racism, and the Law,” Harvard Women’s Law Journal 6 (1983), pp. 103–141.

107. Wriggins, “Rape, Racism, and the Law.”

108. Ibid., p. 109.

109. Marvin E. Wolfgang and Marc Reidel, “Race, Judicial Discretion, and the Death Penalty,” Annals of the American Academy 407 (1973), pp. 119–133; Marvin E. Wolf- gang and Marc Reidel, “Rape, Race, and the Death Penalty in Georgia,” American Journal of Orthopsychiatry 45 (1975), pp. 658–668.

110. Brownmiller, Against Our Will, p. 237.

111. Gary D. LaFree, Rape and Criminal Justice: The Social Construction of Sexual Assault (Belmont, CA: Wadsworth, 1989).

112. Anthony Walsh, “The Sexual Stratification Hypothesis and Sexual Assault in Light of the Changing Conceptions of Race,” Criminology 25 (1987), pp. 153–173.

113. Ibid., p. 167.

114. Cassia Spohn and Jeffrey Spears, “The Effect of Offender and Victim Character- istics on Sexual Assault Case Processing Decisions,” Justice Quarterly 13 (1996), pp. 649–679.

115. Ibid., p. 663.

116. Ibid., p. 675.

117. Ibid., p. 665.

118. Peter B. Wood and David C. May, “Racial Differences in Perceptions of the Severity of Sanctions: A Comparison of Prison with Alternatives,” Justice Quarterly 20 (2003), pp. 605–631.

119. Ibid., p. 618.

120. Ibid., pp. 623–624.

121. Ibid., p. 628.

122. Harry Kalven Jr. and Hans Zeisel, The American Jury (Boston: Little, Brown, 1966).

123. Cassia Spohn and Jerry Cederblom, “Racial Disparities in Sentencing: A Test of the Liberation Hypothesis,” Justice Quarterly 8 (1991), pp. 305–327.

124. Ibid., p. 323.

125. Kathleen Auerhahn, “Just Another Crime? Examining Disparity in Homicide Sen- tencing,” The Sociological Quarterly 48 (2007), pp. 277–313.

126. Ibid., pp. 299–300.

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127. Michael J. Leiber and Anita N. Blowers, “Race and Misdemeanor Sentencing,” Criminal Justice Policy Review 14 (2003), pp. 464–485.

128. Ibid., pp. 475–477.

129. Michael Tonry, Malign Neglect: Race, Crime, and Punishment in America (New York: Oxford University Press, 1995), p. 105.

130. Ibid., p. 115.

131. Jerome G. Miller, Search and Destroy: African-American Males in the Criminal Justice System (Cambridge, England: Cambridge University Press, 1996), p. 83.

132. Marc Mauer, Race to Incarcerate (New York: The New Press, 1999), p. 143.

133. William J. Chambliss, “Crime Control and Ethnic Minorities: Legitimizing Racial Oppression by Creating Moral Panics,” in Ethnicity, Race, and Crime: Perspectives Across Time and Place, Darnell F. Hawkins, ed. (Albany, NY: State University of New York Press, 1995); Tonry, Malign Neglect.

134. Phillip Jenkins, “‘The Ice Age’: The Social Construction of a Drug Panic,” Justice Quarterly 11 (1994), pp. 7–31.

135. For a review of this research, see Theodore G. Chiricos and Miriam DeLone, “La- bor Surplus and Punishment: A Review and Assessment of Theory and Evidence,” Social Problems 39 (1992), pp. 421–446.

136. John Gould, “Zone Defense: Drug-Free School Zones Were Supposed to Keep Dealers Away From Kids. But What Happens When the Zones Engulf Whole Cit- ies,” Washington Monthly, June 11, 2002.

137. William Brownsberger and Susan Aromaa, “An Empirical Study of the School Zone Law in Three Cities in Massachusetts.” http://www.jointo-gether.org/sa /files/pdf/schoolzone.pdf.

138. Vincent Schiraldi and Jason Ziedenberg, Costs and Benefits? The Impact of Drug Im- prisonment in New Jersey (Washington, DC: Justice Policy Institute, 2003).

139. Human Rights Watch. Punishment and Prejudice: Racial Disparities in the War on Drugs 12, no. 2 (G), May 2000. http://www.hrw.org/reports/2000/usa/.

140. Darrell Steffensmeier and Stephen Demuth, “Ethnicity and Judges’ Sentencing Decisions: Hispanic-Black-White Comparison,” American Sociological Review 65 (2006), pp. 145–178; Sara Steen, Rodney L. Engen, and Randy R. Gainey, “Images of Danger and Culpability: Racial Stereotyping, Case Processing, and Criminal Sentencing,” Criminology 45 (2005), pp. 435–468. For other state-level studies, see Theodore G. Chiricos and William D. Bales, “Unemployment and Punishment: An Empirical Assessment,” Criminology 29 (1991), pp. 701–724; John H. Kramer and Darrell Steffensmeier, “Race and Imprisonment Decisions”; Martha Myers, “Symbolic Policy and the Sentencing of Drug Offenders,” Law & Society Review 23 (1989), pp. 295–315; Cassia Spohn and Jeffrey Spears, “Sentencing of Drug Of- fenders in Three Cities: Does Race/Ethnicity Make a Difference?” in Crime Control and Criminal Justice: The Delicate Balance, Darnell F. Hawkins, Samuel L. Meyers, Jr., and Randolph N. Stone, eds. (Westport, CT: Greenwood, 2002); James D. Unnever, “Direct and Organizational Discrimination in the Sentencing of Drug Offenders,” Social Problems 30 (1982), pp. 212–225.

141. Cassia Spohn and Lisa Sample, “The Dangerous Drug Offender in Federal Court: Intersections of Race, Ethnicity, and Culpability,” Crime & Delinquency (2009). Published Online First on July 8, 2008 as doi:10.1177/00111287083928.

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For another study of sentencing decisions involving drug offenders adjudicated in federal courts, see Albonetti, “Sentencing under the Federal Sentencing Guidelines.”

142. Steffensmeier and Demuth, “Ethnicity and Judges’ Sentencing Decisions.”

143. Ibid., p. 153.

144. Ibid., Table 2.

145. Ibid., Table 3.

146. Ibid., p. 167.

147. Steen, Engen, and Gainey, Images of Danger and Culpability. pp. 441–444.

148. Ibid., p. 444.

149. Ibid., Table 2.

150. Ibid., p. 454.

151. Ibid., p. 460.

152. Ibid., p. 461.

153. Randall Kennedy, “Changing Images of the State: Criminal Law and Racial Dis- crimination: A Comment,” Harvard Law Review 107 (1994), pp. 1255 and 1278. See also Randall Kennedy, Race, Crime, and the Law (New York: Vintage Books, 1997).

154. Omaha World Herald, April 17, 1993, p. 1.

155. U.S. v. Armstrong, 116 S. Ct. 1480 (1996).

156. United States Sentencing Commission, Report to the Congress: Cocaine and Federal Sentencing Policy (Washington, DC: U.S. Sentencing Commission, 2002), p. viii.

157. Ibid.

158. Marc Mauer, “Racial Impact Statements as a Means of Reducing Unwarranted Sentencing Disparities,” Ohio State Journal of Criminal Law 5 (2007–2008), pp. 19–46.

159. Ibid., pp. 31–32.

160. Ibid., p. 464.

161. Spohn and Sample, “The Dangerous Drug Offender in Federal Court.”

162. Steen et al., “Images of Danger and Culpability,” p. 435.

163. Baumer, Eric P., “Reassessing and Redirecting Research on Race and Sentencing,” Justice Quarterly 30 (2013), pp. 231–261; Anne Morrison Piehl and Shawn Bushway, “Measuring and Explaining Charge Bargaining,” Journal of Quantitative Criminology 23 (2007), pp. 105–124; Jeffery T. Ulmer, “Recent Developments and New Direc- tions in Sentencing Research,” Justice Quarterly 29 (2011), pp. 1–40.

164. Hagan, “Extra-Legal Attributes and Criminal Sentencing,” p. 379.

165. Baumer, “Reassessing and Redirecting Research on Race and Sentencing,” p. 240.

166. Besiki L. Kutateladze, Nancy Andiloro, Brian D. Johnson, and Cassia Spohn, “ Cumulative Disparity: Examining Racial and Ethnic Disparity in Prosecu- tion and Sentencing,” Criminology 52 (2014), pp. 514–551; Traci Schlesinger, “Racial and Ethnic Disparity in Pretrial Criminal Processing,” Justice Quar- terly 22 (2007), pp. 170–192; Lisa Stolzenberg, Steweard J. D’Alessio, and David Eitle, “Race and Cumulative Discrimination in the Prosecution of Criminal Defendants,” Race and Justice 3 (2013), pp. 275–299; John R. Sutton, “Structural Bias in the Sentencing of Felony Defendants,” Social Science Research 42 (2013), pp. 1207–1221.

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167. Schlesinger, “Racial and Ethnic Disparity in Pretrial Criminal Processing.”

168. Sutton, “Structural Bias in the Sentencing of Felony Defendants.

169. Ibid., p. 1217.

170. Ibid., p. 1219.

171. Kutateladze et al., “Cumulative Disparity.”

172. Ibid., p. 54.

173. Linn Washington, Black Judges on Justice: Perspectives from the Bench (New York: The New Press, 1994), p. 11.

174. Ibid., pp. 11–12.

175. George Crockett, “The Role of the Black Judge,” in The Criminal Justice System and Blacks, D. Georges-Abeyie, ed. (New York: Clark Boardman, 1984), p. 393.

176. Susan Welch, Michael Combs, and John Gruhl, “Do Black Judges Make a Differ- ence?” American Journal of Political Science 32 (1988), pp. 126–136.

177. Crockett, “The Role of the Black Judge”; Welch, Combs, and Gruhl, “Do Black Judges Make a Difference?”

178. Michael David Smith, Race Versus Robe: The Dilemma of Black Judges (Port Washing- ton, NY: Associated Faculty Press, 1983).

179. Cited in Smith, Race Versus Robe, p. 80.

180. Cited in Smith, Race Versus Robe, p. 81.

181. Cassia Spohn, How Do Judges Decide? The Search for Fairness and Equity in Sentencing (Thousand Oaks, CA: Sage, 2009).

182. Thomas G. Walker and Deborah J. Barrow, “The Diversification of the Federal Bench: Policy and Process Ramifications,” Journal of Politics 47 (1985), pp. 596–617.

183. Ibid., pp. 613–614.

184. Jon Gottschall, “Carter’s Judicial Appointments: The Influence of Affirmative Action and Merit Selection on Voting on the U.S. Courts of Appeals,” Judicature 67 (1983), pp. 165–173.

185. Ibid., p. 168.

186. Ibid., p. 173.

187. Todd Collins and Laura Moyer, “Gender, Race, and Intersectionality on the Federal Appellate Bench,” Political Research Quarterly 61 (2008), pp. 219–227.

188. Ibid., p. 219.

189. Ibid., p. 225.

190. Amy Farrell, Geoff Ward, and Danielle Rousseau, “Race Effects of Representation among Federal Court Workers: Does Black Workforce Representation Reduce Sentencing Disparities,” Annals of the American Academy of Political and Social Science 623 (2009), pp. 121–133; Max Schanzenbach, “Racial and Sex Disparities in Prison Sentences: The Effect of District-Level Judicial Demographics,” Journal of Legal Studies 34 (2005), pp. 57–88.

191. Farrell et al., “Race Effects of Representation among Federal Court Workers,” p. 124. For an example of a study of state court sentencing using this approach, see Ryan D. King, Kecia R Johnson, and Kelly McGeever, “Demography of the Legal Profession and Racial Disparities in Sentencing,” Law & Society Review 44 (2010), pp. 1–33.

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358 C H A P T E R 7

192. Ibid., pp. 130–131.

193. Ibid., p. 132.

194. Schanzenbach, “Racial and Sex Disparities in Prison Sentences.”

195. Charles Donald Engle, Criminal Justice in the City: A Study of Sentence Severity and Variation in the Philadelphia Court System (Ph.D. dissertation, Temple University, 1971); Cassia Spohn, “Decision Making in Sexual Assault Cases: Do Black and Fe- male Judges Make a Difference?” Women & Criminal Justice 2 (1990), pp. 83–105; Thomas M. Uhlman, “Black Elite Decision Making: The Case of Trial Judges,” American Journal of Political Science 22 (1978), pp. 884–895.

196. Engle, Criminal Justice in the City.

197. Ibid., pp. 226–227.

198. Thomas M. Uhlman, Racial Justice: Black Judges and Defendants in an Urban Trial Court (Lexington, MA: Lexington Books, 1979).

199. Ibid., p. 71.

200. Welch, Combs, and Gruhl, “Do Black Judges Make a Difference?”

201. Ibid., p. 134.

202. Ibid.

203. Jeffrey W. Spears, Diversity in the Courtroom: A Comparison of the Sentencing Decisions of Black and White Judges and Male and Female Judges in Cook County Circuit Court (Ph.D. dissertation, University of Nebraska at Omaha, 1999).

204. Ibid., p. 135.

205. Cassia Spohn, “The Sentencing Decisions of Black and White Judges: Expected and Unexpected Similarities,” Law & Society Review 24 (1990), pp. 1197–1216.

206. Ibid., p. 1206.

207. Ibid., p. 1211.

208. Ibid., p. 1212–1213.

209. Ibid., p. 1213.

210. Ibid., p. 1214.

211. Ibid.

212. Malcolm D. Holmes, Harmon M. Hosch, Howard C. Daudistel, Dolores A. Perez, and Joseph B. Graves, “Judges’ Ethnicity and Minority Sentencing: Evidence Con- cerning Hispanics,” Social Science Quarterly 74 (1993), pp. 496–506.

213. Ibid., p. 502.

214. Uhlman, “Black Elite Decision Making,” p. 893.

215. Bruce McM. Wright, “A Black Broods on Black Judges,” Judicature 57 (1973), pp. 22–23.

216. Wis. Stat. §939.6435[1][b].

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359

8

THE COLOR OF DEATH:

Race and the Death Penalty

We may not be capable of devising procedural or substantive rules to prevent the more subtle and often unconscious forms of racism from creeping into the system . . . discrimination and arbitrariness

could not be purged from the administration of capital punishment without sacrificing the equally essential component of fairness—

individualized sentencing. —SUPREME COURT JUSTICE HARRY BLACKMUN1

In January 2003, Illinois Governor George Ryan ignited a national debate by announcing that he had commuted the sentences of all of the state’s 167 death row inmates to life in prison.2 He justified his unprecedented and highly con- troversial decision, which came three years after he announced a moratorium on executions, by stating that “our capital system is haunted by the demon of error: error in determining guilt and error in determining who among the guilty deserves to die.” Governor Ryan, who left office two days after mak- ing the announcement, also stated that he was concerned about the effects of race and poverty on death penalty decisions. He acknowledged that his decision would be unpopular but stated that he felt he had no choice but to strike a blow in “what is shaping up to be one of the great civil rights struggles of our time.”

Similar views were expressed a decade earlier by Supreme Court Jus- tice Harry A. Blackmun, who announced in February 1994 that he would “no longer tinker with the machinery of death.”3 In an opinion dissent- ing from the Court’s order denying review in a Texas death penalty case, Blackmun charged the Court with coming “perilously close to murder” and announced that he would vote to oppose all future death sentences. He also stated that the death penalty was applied in an arbitrary and a racially

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360 C H A P T E R 8

discriminatory manner. “Rather than continue to coddle the Court’s delusion that the desired level of fairness has been achieved and the need for regulation eviscerated,” Blackmun wrote, “I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed.”4

Governor Ryan and Justice Blackmun are not alone in their assessment of the system of capital punishment in the United States. Legal scholars, civil liber- tarians, and state and federal policy makers also have questioned the fairness of the process by which a small proportion of convicted murderers is sentenced to death and an even smaller proportion is eventually executed.5 As a lawyer who defends defendants charged with capital crimes put it, “You are dealing with a group of people who are in this situation not so much because of what they did, but because of who they are. And who they are has a lot to do with the color of their skin and their socio-economic status.”6 Echoing Justice Blackmun, these critics contend that “the most profound expression of racial discrimination in sentencing occurs in the use of capital punishment.”7

As these comments demonstrate, controversy continues to swirl around the use of the death penalty in the United States. Although issues other than race and class animate this controversy, these issues clearly are central. The questions asked and the positions taken by those on each side of the controversy mimic to some extent the issues that dominate discussions of the non-capital sentencing process. Supporters of capital punishment contend that the death penalty is administered in an even-handed manner on those who commit the most heinous murders. They also argue that the restrictions contained in death penalty statutes and the pro- cedural safeguards inherent in the process preclude arbitrary and discriminatory decision making. Opponents contend that the capital sentencing process, which involves a series of highly discretionary charging, convicting, and sentencing deci- sions, is fraught with race- and class-based discrimination. Moreover, they argue that the appellate process is unlikely to uncover, much less remedy, these abuses.

L E A R N I N G O B J E C T I V E S

In this chapter, we address the issue of racial disparity in the application of the death penalty. We begin with a discussion of Supreme Court decisions concerning the constitutionality of the death penalty. We follow this with a discussion of racial differences in attitudes toward capital punishment. We then present statistics on death sentences and executions and summarize the results of empirical studies examining the effect of race on the application of the death penalty. The next section discusses McCleskey v. Kemp,8 the Supreme Court case that directly addressed the question of racial discrimination in the imposition of the death penalty. We conclude with a discussion of recent calls for a moratorium on the death penalty and legislation intended to reform the capital sentencing process.

After you have read this chapter:

1. You should be able to discuss the implications of Supreme Court decisions concerning the constitutionality of the death penalty.

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361T H E C O L O R O F D E A T H

2. You should understand that there are significant racial differences in attitudes toward capital punishment and you should be able to summarize and synthesize the results of empirical studies examining the effect of race on the application of the death penalty.

3. You should be able to explain the issues addressed in McCleskey v. Kemp,9 the Supreme Court case that directly confronted the question of racial discrimination in the imposition of the death penalty.

4. You should be able to evaluate the pros and cons of recent calls for a moratorium on the death penalty and legislation intended to reform the capital sentencing process.

T H E C O N S T I T U T I O N A L I T Y O F T H E D E AT H P E N A LT Y

The Eighth Amendment to the United States Constitution prohibits “cruel and unusual punishments.” The determination of which punishments are cruel and unusual, and thus unconstitutional, has been left to the courts. According to the Supreme Court,

Punishments are cruel when they involve torture or lingering death; but the punishment of death is not cruel, within the meaning of that word as used in the Constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life.10

Whatever the arguments may be against capital punishment, both on moral grounds and in terms of accomplishing the purposes of punishment— and they are forceful—the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty.11

Although the Supreme Court consistently has stated that punishments of torture violate the Eighth Amendment, the Court has never ruled that the death penalty itself is a cruel and an unusual punishment.

Furman v. Georgia

In 1972, the Supreme Court ruled in Furman v. Georgia that the death penalty, as it was being administered under then-existing statutes, was unconstitutional.12

The 5-4 decision, in which nine separate opinions were written, did not hold that the death penalty per se violated the Constitution’s ban on cruel and unusual punishment. Rather, the majority opinions focused on the procedures by which convicted defendants were selected for the death penalty. The justices ruled that because the statutes being challenged offered no guidance to juries charged with deciding whether to sentence convicted murderers or rapists to death, there was a substantial risk that the death penalty would be imposed in an arbitrary and a discriminatory manner.

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Although all of the majority justices were concerned about the arbitrary and capricious application of the death penalty, the nature of their concerns varied. Justices Brennan and Marshall wrote that the death penalty was inherently cruel and unusual punishment. Whereas Justice Brennan argued that the death penalty violated the concept of human dignity, Justice Marshall asserted that the death penalty served no legitimate penal purpose. These justices concluded that the death penalty would violate the Constitution under any circumstances.

The other three justices in the majority concluded that capital punishment as it was then being administered in the United States was unconstitutional. These justices asserted that the death penalty violated both the Eighth Amendment’s ban on cruel and unusual punishment and the Fourteenth Amendment’s requirement of equal protection under the law. Justice Douglas stated that the procedures used in administering the death penalty were “pregnant with discrimination.” Justice Stew- art focused on the fact that the death penalty was “so wantonly and so freakishly imposed.” Justice White found “no meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not.”13

The central issue in the Furman case was the meaning of the Eighth Amend- ment’s prohibition of cruel and unusual punishment, but the issue of racial discrimination in the administration of the death penalty was raised by three of the five justices in the majority. Justices Douglas and Marshall cited evidence of discrimination against defendants who were poor, powerless, or African American. Marshall, for example, noted that giving juries “untrammeled discretion” to impose a sentence of death was “an open invitation to discrimination.”14 Justice Stewart, although asserting that “racial discrimination has not been proved,” stated that Douglas and Marshall “have demonstrated that, if any basis can be discerned for the selection of these few to be sentenced to die, it is the constitutionally impermissible basis of race.”15

The Impact of Furman The impact of the Furman decision was dramatic. The Court’s ruling “emptied death rows across the country” and “brought the process that fed them to a stop.”16 Many commentators argued that Furman reflected the Supreme Court’s deep-seated concerns about the fairness of the death penalty process; they predicted that the Court’s next step would be the abolition of capital punishment. However, the Court defied these predictions, deciding to regulate capital punishment rather than to abolish it.

Also as a result of the Furman decision, the death penalty statutes in 39 states were invalidated. Most of these states responded to Furman by adopting new stat- utes designed to narrow discretion and thus avoid the problems of arbitrariness and discrimination identified by the justices in the majority. These statutes were of two types. Some required the judge or jury to impose the death penalty if a defen- dant was convicted of first-degree murder. Others permitted the judge or jury to impose the death penalty on defendants convicted of certain crimes, depending on the presence or absence of aggravating and mitigating circumstances. These “guid- ed-discretion” statutes usually also required a bifurcated trial in which the jury first decided guilt or innocence and then decided whether to impose the death penalty. They also provided for automatic appellate review of all death sentences.

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Post-Furman Decisions

The Supreme Court ruled on the constitutionality of the new death penalty statutes in 1976. The Court held that the mandatory death penalty statutes enacted by North Carolina and Louisiana were unconstitutional,17 both because they provided no opportunity for the consideration of mitigating circumstances and because the jury’s power to determine the degree of the crime (conviction for first-degree murder or for a lesser included offense) opened the door to the type of “arbitrary and wanton jury discretion”18 condemned in Furman. The jus- tices stated that the central problem of the mandatory statutes was their treatment of all defendants “as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death.”19

By contrast, the Supreme Court ruled that the guided discretion death pen- alty statutes adopted by Georgia, Florida, and Texas did not violate the Eighth Amendment’s prohibition of cruel and unusual punishment.20 In Gregg v. Georgia, the Court held that Georgia’s statute—which required the jury to consider and weigh 10 specified aggravating circumstances (see Box 8.1), allowed the jury to consider mitigating circumstances, and provided for automatic appellate review— channeled the jury’s discretion and thereby reduced the likelihood that the jury would impose arbitrary or discriminatory sentences.21 According to the Court,

No longer can a jury wantonly and freakishly impose the death sen- tence; it is always circumscribed by the legislative guidelines. In addition, the review function of the Supreme Court of Georgia affords additional assurance that the concerns that prompted our decision in Furman are not present to any significant degree in the Georgia procedure applied here.22

Since 1976, the Supreme Court has handed down additional decisions on the constitutionality of the death penalty. With the exception of McCleskey v. Kemp, which we address later, these decisions do not focus on the question of racial discrimination in the application of the death penalty. The Court has ruled that the death penalty cannot be imposed on a defendant convicted of the rape of either an adult23 or a child,24 and that the death penalty can be imposed on an offender convicted of felony murder if the offender played a major role in the crime and displayed “reckless indifference to the value of human life.”25 In 2002, the Court ruled that the execution of someone who is mentally handi- capped is cruel and unusual punishment in violation of the Eighth Amendment,26

and in 2005, the Court ruled 5-4 that the Eighth and Fourteenth Amendments forbid the imposition of the death penalty on offenders who were younger than 18 years of age when their crimes were committed.27 In 2008, the Court took up the issue of lethal injection, ruling that Kentucky’s three-drug protocol for administering lethal injection did not amount to cruel and unusual punishment under the Eighth Amendment.28 The Court expanded on this decision in 2015, ruling 5-4 that Oklahoma’s use of the drug midazolam, which critics charged created an unacceptable risk of severe pain, did not violate the Constitution.29

In 2016, the Court considered the constitutionality of Florida’s death penalty

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364 C H A P T E R 8

procedures; in that state, the jury made the sentencing recommendation but the judge decided whether the death penalty should be imposed. The Court ruled that the Sixth Amendment requires that the jury determine whether there are aggravating factors that justify imposition of the death penalty.31 In recent years, the Supreme Court has also overturned a number of death sentences due to inef- fective assistance of counsel.32

AT T I T U D E S T O WA R D C A P I TA L P U N I S H M E N T

In Gregg v. Georgia, the seven justices in the majority noted that both the pub- lic and state legislatures had endorsed the death penalty for murder. The Court stated that “it is now evident that a large proportion of American society contin- ues to regard it as an appropriate and necessary criminal sanction.” Public opinion

B o x 8.1 Georgia’s Guided Discretion Death Penalty Statute

Under Georgia law, if the jury finds at least one of the following aggravating cir- cumstances it may, but need not, recommend death:30

1. The offense was committed by a person with a prior record of conviction for a capital felony or by a person who has a substantial history of serious assaultive criminal convictions.

2. The offense was committed while the offender was engaged in the commission of another capital felony, or aggravated battery, or burglary, or arson in the first degree.

3. The offender knowingly created a great risk of death to more than one person in a public place by means of a weapon or device which would normally be hazardous to the lives of more than one person.

4. The offender committed the offense of murder for himself or another, for the purpose of receiving money or any other thing of monetary value.

5. The murder of a judicial officer, former judicial officer, district attorney or solic- itor, or former district attorney or solicitor during or because of the exercise of his official duty.

6. The offender caused or directed another to commit murder or committed murder as an agent or employee of another person.

7. The offense was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.

8. The offense was committed against any peace officer, corrections employee, or fireman while engaged in the performance of his official duties.

9. The offense was committed by a person in, or who has escaped from, the lawful custody of a peace officer or place of lawful confinement.

10. The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or custody in a place of lawful confinement of him- self or another.

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data indicate that the Court was correct in its assessment of the level of support for the death penalty. In 1976, the year that Gregg was decided, 66 percent of the respondents to a nationwide poll said that they favored the death penalty for persons convicted of murder.33 By 1997, three-fourths of those polled voiced support for the death penalty. Although the exoneration of death row inmates and subsequent decisions to impose a moratorium on executions (discussed later) led to a decline in support, in October 2014, 63 percent of Americans still reported that they favored the death penalty for people convicted of murder.34

The reliability of these figures has not gone unchallenged. In fact, Supreme Court Justices themselves have raised questions about the reliability and meaning of public opinion data derived from standard “do you favor or oppose?” polling questions. Justice Marshall observed in his concurring opinion in Furman that Americans were not fully informed about the ways in which the death pen- alty was used or about its potential for abuse. According to Marshall, the public did not realize that the death penalty was imposed in an arbitrary manner or that “the burden of capital punishment falls upon the poor, the ignorant, and the underprivileged members of society.”35 Marshall suggested that public opinion data demonstrating widespread support for the death penalty should therefore be given little weight in determining whether capital punishment is consistent with “evolving standards of decency.” In what has become known as the “ Marshall Hypothesis,”36 he stated that “the average citizen” who knew “all the facts pres- ently available regarding capital punishment would . . . find it shocking to his conscience and sense of justice.”37

Researchers also have raised questions about the poll results,38 suggesting that support for the death penalty is not absolute but depends on things such as the circumstances of the case, the character of the defendant, or the alternative pun- ishments that are available. William Bowers, for example, challenged the conclu- sion that “Americans solidly support the death penalty” and suggested that the poll results have been misinterpreted.39 He argued that instead of reflecting a “deep-seated or strongly held commitment to capital punishment,” expressing public support for the death penalty “is actually a reflection of the public’s desire for a genuinely harsh but meaningful punishment for convicted murderers.”40

In support of this proposition, Bowers presented evidence from surveys of citizens in a number of states and from interviews with capital jurors in three states. He found that support for the death penalty plummeted when respondents were given an alternative of life in prison without parole plus restitution to the victim’s family; moreover, a majority of the respondents in every state preferred this alternative to the death penalty. Bowers also found that about three-quarters of the respondents and 80 percent of jurors in capital cases agreed that “the death penalty is too arbitrary because some people are executed and others are sent to prison for the very same crimes.” Bowers concluded that the results of his study “could have the critical effect of changing the perspectives of legislators, judges, the media, and the public on how people think about capital punishment.”41

Consistent with Bowers’s results, recent public opinion polls reveal that most Americans believe that innocent people are sometimes convicted of murder. These polls also suggest that respondents’ beliefs about the likelihood of wrongful

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366 C H A P T E R 8

convictions affect their views of the death penalty. A National Omnibus Poll conducted by RT Strategies in 2007 for the Death Penalty Information Center found that 87 percent of the respondents believed that innocent people have been executed.42 Of those who stated that they believed this, 55 percent said that it had negatively affected their view of the death penalty. Respondents who favored the death penalty were given a list of factors and asked whether each one, if proven true, might lessen their support for the death penalty. As shown in Table 8.1, 27 percent of the respondents stated that knowing that innocent people had been executed would reduce their support for the death penalty. A similar percentage said that knowing the fact that the appeals process takes too long and that too few are executed would reduce their support. Twenty-two percent of the respondents stated that their level of support would be reduced by a finding that receiving the death penalty depended on race, social class, and geography or by information regarding the high cost of administering the death penalty. The results of the sur- vey led the authors of the report to conclude that “the public is losing confidence in the death penalty” and that Americans “are deeply concerned about the risk of executing the innocent, about the fairness of the process, and about the inability of capital punishment to accomplish its basic purpose.”43

It is also clear that there are significant racial differences in support for the death penalty. A 2007 Gallup poll, for example, found that 70 percent of whites but only 40 percent of African Americans expressed support for the death penalty.44 In fact, as shown in Figure 8.1, since 1972, the percentage of respon- dents who report that they support the death penalty has been consistently higher among whites than among African Americans. Other research shows that whereas 35.9 percent of whites surveyed in 2000 stated that they strongly favored the death penalty for persons convicted of murder, 34.2 percent of African Americans reported that they were strongly opposed to the use of the death penalty.45 Beliefs

T A B L E 8.1 Factors Related to Reduction in Support for the Death Penalty

Percent of respondents favoring the death penalty who said that the factor, if proven true, would reduce their support for the death penalty

%

Execution of innocent people 27

It takes too long to go through the whole appeals process in death penalty cases and only a few of those sentenced to death are actually executed

26

Receiving the death penalty often depends on race, economics, and geography

22

The high cost of the death penalty 22

Exonerations of those wrongfully convicted 21

Sentence of life without parole 12

Religious leaders’ opposition 11

SOURCE: Adapted from Richard C. Dieter, A Crisis in Confidence: Americans’ Doubts About the Death Penalty (Washington, DC: Death Penalty Information Center, 2007), p. 8.

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about the fairness of the death penalty and estimates of the number of innocent people convicted of murder also vary by race and ethnicity. Fifty-nine percent of whites but only 32 percent of African Americans stated that they believed the death penalty was applied fairly.46 African-American respondents estimated that 22 of every 100 persons convicted of murder were innocent. In contrast, the estimate was 15 of every 100 for Hispanic respondents, and 10 of every 100 for white respondents.47

Researchers have advanced a number of explanations to account for these consistent racial differences. Some attribute African-American opposition to per- ceptions of racial bias in the application of the death penalty.48 Others contend that white support is associated with racial prejudice.49 One study, for example, found that antipathy to African Americans (which was measured by two items asking respondents to indicate their attitudes toward living in a majority-African American neighborhood or having a family member marry an African American) and belief in racial stereotypes (believing that African Americans are lazy, unin- telligent, violent, and poor) predicted white respondents’ support for the death penalty.50 As the authors noted, “Simply put, many White people are both prej- udiced against Blacks and are more likely to favor capital punishment.”51 The authors concluded that their finding of an association between racial prejudice and support for the death penalty suggests “that public sentiment may be an unacceptable indicator of contemporary standards of appropriate punishment for persons convicted of homicide.”52

A more recent study by James D. Unnever and Francis T. Cullen similarly found that one-third of the racial difference in support for the death penalty could be explained by “white racism.”53 The authors also noted that the fact that substantial differences remained even after white racism was taken into account suggests that “African Americans may have a distinct history with the death pen- alty” that encompasses both the epidemic of lynching that occurred throughout the South in the early 1900s and the discriminatory use of the death penalty for crimes such as rape.54 Unnever and Cullen’s findings suggest that when policy makers justify their support for the death penalty by referencing “the will of the

100

80

60

40

20

19 80

19 82

19 84

19 86

19 88

19 90

19 91

19 94

19 96

19 98

20 00

20 02

20 04

20 06

20 08

20 09

0

Whites African Americans

F I G U R E 8.1 African American and White Attitudes Toward Capital Punishment for People Convicted of Murder, 1980–2009 SOURCE: Data from Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics Online, Tables 2.50 and 2.52.

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368 C H A P T E R 8

people,” they are ignoring a “discomforting reality.” That is, “that strong or high levels of support for capital punishment are largely rooted in the views of that segment of the public holding racist views toward African Americans.”55

There also is evidence of geographic variation in support for the death penalty and that these variations can be explained by features of the social context, such as the homicide rate, the political climate, and the size of the minority population.56

Eric Baumer and his colleagues found that support for the death penalty in 268 jurisdictions ranged from less than 50 percent to more than 90 percent. As they noted, this finding of geographic variation in support for the death penalty “ challenges conventional wisdom and popular portrayals that support for capital punishment in the United States is universally high.”57 They also found that support for the death penalty was higher among respondents who lived in areas with high homicide rates, people who lived in politically conservative jurisdictions, and respondents who lived in areas with higher percentages of African Americans in the population. Community contextual characteristics, in other words, shaped cit- izens’ attitudes toward the death penalty. This suggests that attitudes toward capital punishment are determined not only by individual characteristics, including race/ ethnicity, but also by the characteristics of the communities in which people live.

R A C E A N D T H E D E AT H P E N A LT Y:

T H E E M P I R I C A L E V I D E N C E

The Supreme Court’s decisions regarding the constitutionality of the death pen- alty have been guided by a number of assumptions. In the Furman decision, the five justices in the majority assumed that the absence of guidelines and proce- dural rules in then-existing death penalty statutes opened the door to arbitrary, capricious, and discriminatory decision making. In Gregg, the Court affirmed the guided discretion statutes on their face and assumed that the statutes would elimi- nate the problems condemned in Furman. The Court assumed that racial discrim- ination was a potential problem under the statutes struck down in Furman, but would not be a problem under the statutes approved in Gregg and the companion cases.

In this section, we address the validity of these assumptions. We begin by pre- senting statistics on the application of the death penalty. We then discuss the results of pre-Furman and post-Furman studies investigating the relationship between race and the death penalty. We also examine recent research on the federal capital sen- tencing process.

Statistical Evidence of Racial Disparity

There is clear evidence of racial disparity in the application of the death penalty. Despite the fact that African Americans make up only 13 percent of the U.S. population, they have been a much larger proportion of offenders sentenced to death and executed, both historically and during the post-Gregg era. There also

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369T H E C O L O R O F D E A T H

is compelling evidence that those who murder whites, and particularly African Americans who murder whites, are sentenced to death and executed at dispro- portionately high rates. For example, the state of Georgia, which generated both Furman and Gregg, carried out 18 executions between 1976 and 1994. Twelve of those executed were African Americans; 6 of the 12 were sentenced to death by all-white juries. Sixteen of the 18 persons executed had killed whites.58

The pattern found in Georgia casts doubt on the Supreme Court’s asser- tion in Gregg that the disparities that prompted their decision in Furman will not be present “to any significant degree”59 under the guided discretion procedures. Other evidence also calls this into question. Consider the following statistics:

■ Of the 3,002 people under sentence of death in the United States in April 2015, 1,251 (41.7 percent) were African Americans, 386 (12.9 percent) were Hispanics, and 1,284 (42.8 percent) were whites.60

■ Of the 56 females on death row in 2013, 14 (25 percent) were African American.61

■ In 2015, African Americans made up approximately half of the death row populations in Alabama, Arkansas, Georgia, Mississippi, North Carolina, Ohio, Oklahoma, South Carolina, Tennessee, and Texas; they constituted nearly two-thirds (or more) of those on death row in Delaware, Louisiana, and Pennsylvania. In California, 453 of the 746 individuals on death row were either African American or Hispanic; in Texas, 190 of the 271 persons under sentence of death were African American or Hispanic.62

■ In 2015, 28 of the 61 offenders under sentences of death imposed by the federal courts were African American, 24 were white, 7 were Hispanic, 1 was Asian American, and 1 was Native American.63

■ Of the 1,404 prisoners executed from 1976 through 2015, 782 (56 percent) were white, 487 (35 percent) were African American, 112 (8 percent) were Hispanic, and 23 (2 percent) were Native American or Asian.64

■ Of the 2,060 victims of those executed from 1977 through 2015, 1,562 (76 percent) were white, 313 (15 percent) were African American, 140 (7 percent) were Hispanic, and 45 (2 percent) were Native American or Asian. During this period, approximately 50 percent of all murder victims were African Americans.65

■ From 1977 through 2015, 52 percent of the prisoners executed were whites convicted of killing other whites, 20 percent were African Americans con- victed of killing whites, 12 percent were African Americans convicted of killing other African Americans, and only 1.4 percent were whites convicted of killing African Americans.66

■ Among those executed from 1930 through 1972 for the crime of rape, 89 percent (405 of the 455) were African Americans.67 During this period, Louisiana, Mississippi, Oklahoma, Virginia, West Virginia, and the District of Columbia executed 66 African-American men, but not a single white man, for the crime of rape.68

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■ Among those sentenced to death for rape in North Carolina from 1909 to 1954, 56 percent of the African Americans, but only 43 percent of the whites, were eventually executed.69

■ Twenty percent of the whites, but only 11 percent of the African Americans, sentenced to death for first-degree murder in Pennsylvania between 1914 and 1958 had their sentences commuted to life in prison.70

These statistics clearly indicate that African Americans have been sentenced to death and executed “in numbers far out of proportion to their numbers in the population.”71 They document racial disparity in the application of the death penalty, both prior to Furman and following Gregg.72 As we have noted frequently throughout this book, however, disparities in the treatment of racial minorities and whites do not necessarily constitute evidence of racial discrimination. Racial minorities may be sentenced to death at a disproportionately high rate, not because of discrimination in the application of the death penalty, but because they are more likely than whites to commit homicide, the crime most frequently punished by death. As illustrated by the hypothetical examples presented in Box 8.2, the appropriate comparison is not the number of African Americans and whites sentenced to death during a given year or over time. Rather, the appropriate comparison is the percentage of death-eligible homicides involving African Americans and whites that result in a death sentence.

The problem with the hypothetical examples presented in Box 8.2 is that there are no national data on the number of death-eligible homicides or on the race of those who commit or who are arrested for such crimes. Gary Kleck,

B o x 8.2 Discrimination in the Application of the Death Penalty: A Hypothetical Example

Example 1

■ 210 death-eligible homicides with African-American offenders: 70 offenders (30 percent) receive the death penalty.

■ 150 death-eligible homicides with white offenders: 50 offenders (30 percent) receive the death penalty.

■ Conclusion: No evidence of discrimination, despite the fact that a dispropor- tionate number of African Americans are sentenced to death.

Example 2

■ 210 death-eligible homicides with African-American offenders: 90 offenders (43 percent) receive the death penalty.

■ 150 death-eligible homicides with white offenders: 30 offenders (20 percent) receive the death penalty.

■ Conclusion: Possibility of discrimination because African Americans are more than twice as likely to be sentenced to death.

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noting that most homicides are intraracial, used the number of African-Amer- ican and white homicide victims as a surrogate measure.73 He created an indi- cator of “execution risk” by dividing the number of executions (for murder) of persons of a given race in a given year by the number of homicide victims of that race who died in the previous year.74 Using data from 1930 through 1967, Kleck found that the risk of execution was somewhat greater for whites (10.43 executions per 1,000 homicides) than for African Americans (9.72 executions per 1,000 homicides) for the United States as a whole, but that African Ameri- cans faced a greater likelihood of execution than whites in the South (10.47 for African Americans vs. 8.39 for whites).75 He concluded that the death penalty “has not generally been imposed for murder in a fashion discriminatory toward blacks, except in the South.”76

None of the statistics cited here, including the execution rates calculated by Kleck, prove that the death penalty has been imposed in a racially discriminatory manner, in the South or elsewhere, either before the Furman decision or after the Gregg decision. As we pointed out earlier, conclusions of racial discrimination in sentencing rest on evidence indicating that African Americans are sentenced more harshly than whites after other legally relevant predictors of sentence severity are taken into account.

Even if it can be shown that African Americans face a greater risk of execution than whites, we cannot necessarily conclude that this reflects racial prejudice or racial discrimination. The difference might be the result of legitimate legal factors—the heinousness of the crime or the prior criminal record of the offender, for example—that juries and judges consider in determining whether to sentence the offender to death. If African Americans are sentenced to death at a higher rate than whites because they commit more heinous murders than whites or because they are more likely than whites to have a prior conviction for murder, then we cannot conclude that criminal justice officials or juries are making racially discriminatory death penalty decisions.

The data presented in Table 8.2 provide some evidence in support of this possibility. Among prisoners under sentence of death in 2013, African Americans were more likely than either Hispanics or whites to have a prior felony conviction. African Americans and Hispanics also were more likely than whites to have been

T A B L E 8.2 Criminal History Profile of Prisoners under Sentence of Death in the United States, 2013

Race of Prisoner

African American

Hispanic

White

Prior felony conviction (%) 72.6 64.8 63.9

Prior homicide conviction (%) 9.6 6.6 9.0

On parole at the time of capital offense (%)

18.5 18.3 14.1

SOURCE: Department of Justice, Bureau of Justice Statistics, Capital Punishment 2013—Statistical Tables (Washington, DC: U.S. Government Printing Office, 2014), Table 8.

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372 C H A P T E R 8

on parole when they were arrested for the capital offense. There were, on the other hand, very few differences in the proportions of whites and African Ameri- cans who had a prior homicide conviction.

Just as the presence of racial dispar ity does not necessar ily signal the existence of racial discrimination, the absence of disparity does not necessarily indicate the absence of discrimination. Even if it can be shown that African Americans generally face the same risk of execution as whites, we cannot conclude that the capital sentencing process operates in a racially neutral man- ner. Assume, for example, that the crimes for which African Americans are sen- tenced to death are less serious than those for which whites are sentenced to death. If this is the case, apparent equality of treatment may be masking race- linked assessments of crime seriousness. Moreover, as we noted in our discus- sion of the non-capital sentencing process, it is important to consider not only the race of the offender but the race of the victim as well. If African Americans who murder whites are sentenced to death at a disproportionately high rate, but African Americans who murder other African Americans are sentenced to death at a disproportionately low rate, the overall finding of “no difference” in the death sentence rates for African-American and white offenders may be masking significant differences based on the race of the victim. As Guy Johnson wrote in 1941,

If caste values and attitudes mean anything at all, they mean that offenses by or against Negroes will be defined not so much in terms of their intrinsic seriousness as in terms of their importance in the eyes of the dominant group. Obviously, the murder of a white person by a Negro and the murder of a Negro by a Negro are not at all the same kind of murder from the standpoint of the upper caste’s scale of values . . . instead of two categories of offenders, Negro and white, we really need four offender–victim categories, and they would probably rank in seriousness from high to low as follows: (1) Negro versus white, (2) white versus white, (3) Negro versus Negro, and white versus Negro.77

Evidence in support of Johnson’s rankings is presented in Box 8.3, which focuses on the “anomalous” cases in which whites have been executed for crimes against African Americans. According to Michael L. Radelet, “the scandalous paucity of these cases, representing less than two-tenths of 1 percent of known executions, lends further support to the evidence that the death penalty in this country has been discriminatorily applied.”78

There is now a substantial body of research investigating the relationship between race and the death penalty. Most, but not all, of the research tests for both race-of-defendant and race-of-victim effects. Some of these studies are methodologically sophisticated, both in terms of the type of statistical analysis used and the number of variables that are taken into consideration in the analysis. Other studies use less sophisticated statistical techniques and include fewer con- trol variables.

We summarize the results of these studies—presenting the results of the pre-Furman studies first and then the results of the post-Gregg studies. Our purpose

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373T H E C O L O R O F D E A T H

B o x 8.3 Executions of Whites for Crimes against African Americans: Exceptions to the Rule?

Between 1608 and the mid-1980s, there were about 16,000 executions in the United States.79 Of these, only 30, or about two-tenths of 1 percent, were executions of whites for crimes against African Americans. Historically, in other words, there has been one execution of a white for a crime against an African American for every 533 recorded executions.

Michael Radelet believes that these white offender–black victim cases, which would appear to be “theoretically anomalous” based on the proposition that race is an important determinant of sentencing, are not really “exceptions to the rule.”80 Although he acknowledges that each case is in fact anomalous if race alone is used to predict the likelihood of a death sentence, Radelet suggests that these cases are consistent with a more general theoretical model that uses the relative social status of defendants and victims to explain case outcomes. These cases, in other words, are consistent with “the general rule that executions almost always involve lower status defendants who stand convicted for crimes against victims of higher status.”81

Radelet’s examination of the facts in each case revealed that 10 of the 30 cases involved white men who murdered slaves, and 8 of these 10 involved men convicted of murdering a slave who belonged to someone else. The scenario of one case, for example, read as follows:

June 2, 1985. Texas. James Wilson (a.k.a. Rhode Wilson). Wilson had been on bad terms with a powerful white farmer, and had threatened to kill him on sev- eral occasions. One day Wilson arrived at the farm with the intention of carry- ing out the threats. The farmer was not home, so Wilson instead murdered the farmer’s favorite slave (male).82

According to Radelet, cases such as this are really “economic crimes” in which the true victim is not the slave himself, but the slave’s owner. As he notes, “Slaves are property, the wealth of someone else, and their rank should be measured accordingly.” James Wilson, in other words, was sentenced to death not because he killed a slave, but because he destroyed the property of someone of higher status than himself. Similarly, the death sentences imposed on the two men who killed their own slaves were meant to discourage such brutality, which might threaten the legitimacy of the institution of slavery.

The twenty remaining cases of whites who were executed for crimes against African Americans involved either

■ an African American victim of higher social status than his white murderer (five cases);

■ a defendant who was a marginal member of the white community—a tramp, a recent immigrant, a hard drinker (four cases);

■ a defendant with a long record of serious criminality (seven cases); or

■ murders that were so heinous that they resulted in “an unqualified disgust and contempt for the offender unmitigated by the fact of his or the victim’s race.”83

Based on his analysis of these 30 cases, Radelet concluded that “it was not primar- ily outrage over the violated rights of the black victim or the inherent value of the vic- tim’s life that led to the condemnation.”84 Rather, the 30 white men executed for crimes against African Americans were sentenced to death because their crimes threatened the institution of slavery, involved a victim of higher social status than the defendant, or involved a defendant who was a very marginal member of the community. As Radelet noted, “The data show that the criminal justice system deems the executioner’s services warranted not simply for those who do something, but who also are someone.”85

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374 C H A P T E R 8

is to assess the validity of the Supreme Court’s assumptions that race played a role in death penalty decisions prior to Furman, but that the guided discretion statutes enacted since 1976 have removed arbitrariness and discrimination from the capi- tal sentencing process.

Pre-Furman Studies

We noted in our discussion of the Supreme Court’s decision in Furman v. Georgia that three of the five justices in the majority mentioned the problem of racial discrimination in the application of the death penalty. Even two of the dissenting justices—Chief Justice Burger and Justice Powell—acknowledged the existence of historical evidence of discrimination against African Americans. Justice Powell also stated, “If a Negro defendant, for instance, could demonstrate that members of his race were being singled out for more severe punishment than others charged with the same offense, a constitutional violation might be established.”86

Several studies suggest that African Americans, and particularly African Americans who murdered or raped whites, were “singled out for more severe punishment” in the pre-Furman era.87 Most of these studies were conducted in the South. Researchers found, for example, that Afr ican Amer icans indicted for murdering whites in North Carolina from 1930 to 1940 faced a disproportionately high risk of a death sentence,88 that whites sentenced to death in nine southern and border states during the 1920s and 1930s were less likely than African Americans to be executed,89 and that African Americans sentenced to death in Pennsylvania were less likely than whites to have their sentences commuted to life in pr ison and more likely than whites to be executed.90

Harold Garfinkel’s91 study of the capital sentencing process in North Carolina during the 1930s revealed the importance of taking both the race of the offender and the race of the victim into account. Garfinkel examined three separate decisions: the grand jury’s decision to indict for first-degree murder; the prosecutor’s decision to go to trial on a first-degree murder charge (in those cases in which the grand jury returned an indictment for first-degree murder); and the judge or jury’s decision to convict for first-degree murder (and thus to impose the mandatory death sentence).

As shown in Figure 8.2, which summarizes the movement of death- eligible cases from one stage to the next, there were few differences based on the race of the offender. In fact, among defendants charged with first-degree murder, white offenders were more likely than African-American offenders to be con- victed of first-degree murder and thus to be sentenced to death; 14 percent of the whites, but only 9 percent of the African Americans, received a death sentence.

In contrast, there were substantial differences based on the race of the vic- tim, particularly in the decision to convict the defendant for first-degree murder. Only 5 percent of the defendants who killed African Americans were convicted of first-degree murder and sentenced to death, compared to 24 percent of the defendants who killed whites.

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375T H E C O L O R O F D E A T H

The importance of considering both the race of the offender and the race of the victim is further illustrated by the data presented in Figure 8.3. Garfinkel’s analysis revealed that African Americans who killed whites were more likely than any of the other race-of-offender/race-of-victim groups to be indicted for, charged with, or convicted of first-degree murder. Again, the differences were particularly pronounced at the trial stage of the process. Among offenders charged with first-degree murder, the rate of conviction for first-degree murder ranged from 43 percent for African Americans who killed whites, to 15 percent for whites who killed whites, to 5 percent for blacks who killed blacks, to 0 percent for whites who killed blacks. The overall probability of a death sentence (i.e., the probability that an indictment for homicide would result in a death sentence) revealed similar disparities. African Americans who killed whites had a substan- tially higher overall probability of a death sentence than any of the other three groups.

The results of Garfinkel’s study suggest that there were pervasive racial dif- ferences in the administration of capital punishment in North Carolina during the 1930s. Although Garfinkel did not control for the possibility that the crimes committed by African Americans and the crimes committed against whites were more serious, and thus more likely to deserve the death penalty, the magnitude of the differences “cast[s] doubt on the possibility that legally relevant factors are responsible for these differences.”92

Studies of the use of capital punishment for the crime of rape also reveal overt and pervasive discrimination against African Americans in the pre-Furman

100

80

60

40

20

0 % Indicted % Charged % Given Death Overall Probability

African American Offender

White Offender

African American Victim

White Victim

F I G U R E 8.2 Death Penalty Decisions in North Carolina, by Race of Offender and Victim, 1930–1940 SOURCE: Data obtained from Harold Garfinkel,” Research Note on Inter- and Intra-Racial Homicides,” Social Forces 27 (1949), Tables 2 and 3.

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376 C H A P T E R 8

era. These studies reveal that “the death penalty for rape was largely used for punishing blacks who had raped whites.”93 One analysis of sentences for rape in Florida from 1940 through 1964, for example, revealed that 54 percent of the African Americans convicted of raping whites received the death penalty, com- pared to only 5 percent of the whites convicted of raping whites. Moreover, none of the eight whites convicted of raping African Americans was sentenced to death.94

Marvin E. Wolfgang and Marc Reidel’s95 study of the imposition of the death penalty for rape in 12 southern states from 1945 through 1965 uncovered a sim- ilar pattern. As shown in Table 8.3, they found that 13 percent of the African Americans, but only 2 percent of the whites, were sentenced to death. Further analysis revealed that cases in which African Americans were convicted of raping whites were 18 times more likely to receive a death penalty than were cases with any other racial combinations.

These differences did not disappear when Wolfgang and Reidel con- trolled for commission of a contemporaneous felony or for other factors asso- ciated with the imposition of the death penalty. According to the authors, “All the nonracial factors in each of the states analyzed ‘wash out,’ that is, they have no bearing on the imposition of the death penalty in disproportionate numbers upon blacks. The only variable of statistical significance that remains is race.”96

Critics of the pre-Furman research note that most researchers did not control for the defendant’s prior criminal record, for the heinousness of the crime, or

% Indicted % Charged % Given Death Overall Probability

African American / White

White / White

African American / African American

White / African American

100

80

60

40

20

0

F I G U R E 8.3 Death Penalty Process in North Carolina, by Race of Offender and Victim SOURCE: Date obtained from Harold Garfinkel, “Research Note on Inter- and Intra-Racial Homicides,” Social Forces 27 (1949), Tables 2 and 3.

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377T H E C O L O R O F D E A T H

for other predictors of sentence severity. Kleck, for example, although admitting that additional controls probably would not eliminate “the huge racial differen- tials in use of the death penalty” for rape, asserted that the more modest differ- ences found for homicide might disappear if these legal factors were taken into consideration.97

A handful of more methodologically sophisticated studies of capital sentenc- ing in the pre-Furman era controlled for these legally relevant factors. An analysis of death penalty decisions in Georgia, for example, found that African- American defendants and defendants who murdered whites received the death penalty more often than other equally culpable defendants.98 These results were limited, however, to borderline cases in which the appropriate sentence (life in prison or death) was not obvious.

An examination of the capital sentencing process in pre-Furman Texas also found significant racial effects.99 Paige H. Ralph and her colleagues con- trolled for legal and extralegal factors associated with sentence severity. They found that offenders who killed during a felony had a higher probability of receiving the death penalty, as did non-white offenders and offenders who killed whites. In fact, their analysis revealed that the race of the victim was the most important extralegal variable; those who killed whites were 25.2 percent more likely to be sentenced to death than those who killed non- whites. The authors concluded, “Overall we found a significant race-linked bias in the death sentencing of non-Anglo-American murderers; the victim’s race, along with legal factors taken together, emerged as the pivotal element in sentencing.”100

The results of these studies, then, reveal that the Supreme Court was correct in its assumption of the potential for racial discrimination in the application of the death penalty in the pre-Furman era. The death penalty for rape was primar- ily reserved for African Americans who victimized whites (for a discussion of gendered racism in capital sentencing, see Box 8.4). The evidence with respect to homicide, although less consistent, also suggests that African Americans, and

T A B L E 8.3 Race and the Death Penalty for Rape in the South, 1945–1965

Sentenced to Death Not Sentenced to Death

N % N %

Race of offender

African American 110 13 713 87

White 9 2 433 98

Race of offender/victim

African American/white 113 36 204 64

All other combinations 19 2 902 98

SOURCE: Marvin E. Wolfgang and Marc Reidel, “Race, Judicial Discretion, and the Death Penalty,” Annals of the American Academy 407 (1973), pp. 119–133, p. 129, Tables 1 and 2.

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378 C H A P T E R 8

particularly African Americans who murdered whites, were sentenced to death at a disproportionately high rate. We now turn to an examination of the capital sentencing process in the post-Gregg period.

Post-Gregg Studies

In Gregg v. Georgia, the Supreme Court upheld Georgia’s guided discretion death penalty statute and stated that “the concerns that prompted our decision in Furman are not present to any significant degree in the Georgia procedure applied here.”103 The Court, in essence, predicted that race would not affect the capital sentencing process in Georgia or in other states with similar statutes. Critics of the Court’s ruling were less optimistic. Wolfgang and Reidel, for example, noted that the post-Furman statutes narrowed but did not eliminate discretion. They suggested that “it is unlikely that the death penalty will be applied with greater equity when substantial discretion remains in these post-Furman statutes.”104

Other commentators predicted that the guided discretion statutes would simply shift discretion, and thus the potential for discrimination, to earlier stages in the capital sentencing process. They suggested that discretion would be trans- ferred to charging decisions made by the grand jury and the prosecutor. Thus, according to Bowers and Glenn L. Pierce, “under post-Furman capital statutes, the extent of arbitrariness and discrimination, if not their distribution over stages of the criminal justice process, might be expected to remain essentially unchanged.”

There also is the possibility that the “guidance” provided under guided dis- cretion statutes does not sufficiently narrow the discretion inherent in the death

B o x 8.4 African-American Female Executions—Gendered Racism in Capital Sentencing

In an article published in Criminal Justice Review in 2008, David V. Baker contends that criminal justice researchers have largely ignored the use of capital punishment for African-American women. In an attempt to remedy this, Baker examines the “contextual peculiarities giving rise to Black female executions since the earliest periods of American history.”101

Baker presents data that illustrate the situations that gave rise to the execution of African-American slave women during the colonial and antebellum periods. He notes that “slave women mostly strangled, clubbed, stabbed, burned, shot, poi- soned, or hacked to death their White masters, mistresses, overseers, and even their owner’s children.”102 These crimes were prompted by mistreatment, including sex- ual abuse, at the hands of their owners. According to Baker, “The historical record makes clear that slave women fought back viciously against the sexualized brutality of White masters,” either by killing their owners or members of their owner’s family or by intentionally aborting pregnancies that resulted from sexual abuse by their owners. Slave women often were assisted by slave men or, occasionally, by white coconspirators. However, Baker notes that slave women were given harsher punish- ments than slave men; they were often burned at the stake while their male cocon- spirators were hanged.

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379T H E C O L O R O F D E A T H

penalty process. If a state’s capital sentencing statute identifies a long list of broad aggravating circumstances that justify imposition of the death penalty, such that virtually any first-degree murder case would be eligible for the death penalty, the statute would provide little, if any, guidance regarding the types of cases for which the death penalty would be appropriate. For example, the Arizona statute (A.R. S. 13-751), which specifies that the death penalty can be imposed only if there is at least one statutorily defined aggravating circumstance (and no mitigat- ing circumstances sufficiently substantial to call for leniency), lists 14 aggravating circumstances. Included are: whether the defendant was convicted of a contem- poraneous serious offense, whether the defendant created a grave risk of death to others; whether the defendant committed the offense as consideration for the receipt of anything of pecuniary value; and whether the defendant committed the offense in an especially heinous, cruel, or depraved manner.

To determine whether the Arizona statute genuinely narrowed the class of persons eligible for the death penalty, Spohn and Kaiser examined all first-degree murder cases in Maricopa County (Phoenix) from 2002 to 2012.105 They found that there was at least one aggravating circumstance in 856 (98.8 percent) of the 866 cases filed during that time period. More than three-fourths of the cases involved commission of a contemporaneous felony, 40 percent involved either a murder committed in an especially heinous, cruel, or depraved manner or a murder for pecuniary gain, and a third involved risk of death to another per- son or persons. Almost all of the first-degree murder cases, in other words, were death-eligible under the Arizona statute. They also found that prosecutors filed a notice of intent to seek death in only 25 percent of these cases. Given that all of the cases were death-eligible, prosecutors had substantial discretion in deciding whether to seek death or not.

There is additional evidence in support of the argument that the guided discretion statutes did not eliminate arbitrariness and capriciousness in capital sentencing. (See also Box 8.5.) Studies conducted during the past three decades document substantial discrimination in the application of the death penalty under post-Furman statutes. In fact, a 1990 report by the U.S. General Accounting Office (GAO) concluded that there was “a pattern of evidence indicating racial dispar- ities in the charging, sentencing, and imposition of the death penalty after the Furman decision.”106

The GAO evaluated the results of 28 post-Gregg empirical studies of the cap- ital sentencing process. They found that the race of the victim had a statistically significant effect in 23 of the 28 studies; those who murdered whites were more likely to be charged with capital murder and to be sentenced to death than those who murdered African Americans. The authors of the report noted that the race of the victim affected decisions made at all stages of the criminal justice process. They concluded that these differences could not be explained by the defendant’s prior criminal record, by the heinousness of the crime, or by other legally relevant variables.

With respect to the effect of the race of the defendant, the GAO report con- cluded that the evidence was “equivocal.”107 The report noted that about half of the studies found that the race of the defendant affected the likelihood of being

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380 C H A P T E R 8

charged with a capital crime or receiving the death penalty; most, but not all, of these studies found that African Americans were more likely than whites to be sentenced to death. The authors of the report also stated that although some stud- ies found that African Americans who murdered whites faced the highest odds of receiving the death penalty, “the extent to which the finding was influenced by race of victim rather than race of defendant was unclear.”112

A more recent review of research on the capital sentencing process reached a somewhat different conclusion. David C. Baldus and George Woodworth reviewed post-Furman research, concluding that there was no systematic evidence of discrimination against black defendants.113 The authors suggested three possible explanations for this change from the pre-Furman period. First, the change might reflect the fact that prosecutors are striving for equal treatment.114 Alternatively, it might reflect greater racial diversity among judges, prosecutors, and defense attorneys and/or the fact that defendants facing capital charges are provided with more competent defense attorneys than they were in the past. Consistent with the results of the GAO report, Baldus and Woodworth reported that a number of the studies they reviewed continued to find a race-of-victim effect. They con- cluded that “while the discriminatory application of the death penalty continues to occur in some places, it does not appear to be inherent to the system; in other words, it is not an inevitable feature of all American death-sentencing systems.”115

A comprehensive review of the post-Gregg research is beyond the scope of this book.116 Instead, we summarize the results of four studies. The first, a study

B o x 8.5 Discrimination in the Georgia Courts: The Case of Wilburn Dobbs

Statistical evidence of racial disparities in the use of the death penalty, although important, cannot illustrate the myriad ways in which racial sentiments influence the capital sentencing process. Consider the case of Wilburn Dobbs, an African American on death row in Georgia for the murder of a white man.108 The judge trying his case referred to him in court as “colored” and “colored boy,” and two of the jurors who sentenced him to death admitted after trial that they used the racial epithet “nig- ger.” Moreover, the court-appointed lawyer assigned to his case, who also referred to Dobbs as “colored,” stated on the morning of trial that he was “not prepared to go to trial” and that he was “in a better position to prosecute the case than defend it.” He also testified before the federal court hearing Dobbs’s appeal that he believed that African Americans were uneducated and less intelligent than whites and admitted that he used the word “nigger” jokingly.109

The federal courts that heard Dobbs’s appeals ruled that neither the racial attitudes of the trial judge or the defense attorney nor the racial prejudice of the jurors required that Dobbs’s death sentence be set aside. The Court of Appeals, for instance, noted that although several of the jurors made statements reflecting racial prejudice, none of them “viewed blacks as more prone to violence than whites or as morally inferior to whites.”110

The Court’s reasoning in this case led Stephen Bright to conclude that “racial discrimination which would not be acceptable in any other area of American life today is tolerated in criminal courts.”111

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381T H E C O L O R O F D E A T H

of the capital sentencing process in Georgia,117 is one of the most sophisticated studies conducted to date. It also figured prominently in the Supreme Court’s decision in McCleskey v. Kemp. The second is a study of capital sentencing patterns in eight states,118 the third is a study of death sentencing for California homicides during the 1990s,119 and the fourth is a study of the effects of race and gender on capital sentencing in Kentucky.120 We then discuss recent research on the federal capital sentencing process. We end this section by summarizing the results of a study of race and the probability of execution in the post-Gregg period.

Race and the Death Penalty in Georgia David Baldus and his colleagues analyzed the effect of race on the outcomes of more than 600 homicide cases in Georgia from 1973 through 1979.121 Their examination of the raw data revealed that the likelihood of receiving a death sentence varied by both the race of the offender and the race of the victim. The first column of Table 8.4 shows that 35 percent of the African Americans charged with killing whites were sentenced to death, compared with only 22 percent of the whites who killed whites, 14 per- cent of the whites who killed African Americans, and 6 percent of the African Americans who killed other African Americans.

Baldus and his coauthors also discovered that the race of the victim played an important role in both the prosecutor’s decision to seek the death penalty and the jury’s decision to impose the death penalty (see columns 2 and 3, Table 8.4). The victim’s race was a particularly strong predictor of the prosecutor’s decision to seek or waive the death penalty. In fact, Georgia prosecutors were nearly four times more likely to request the death penalty for African-American offenders convicted of killing whites than for African-American offenders convicted of kill- ing African Americans. The effect of the race of the victim was less pronounced when the offender was white; prosecutors sought the death penalty in 38 percent of the cases with white offenders and white victims but only 21 percent of the cases with white offenders and black victims.

The authors of this study then controlled for more than 200 variables that might explain these disparities; they included detailed information on the defen- dant’s background and prior criminal record, information concerning the cir- cumstances and the heinousness of the crime, and measures of the strength of

T A B L E 8.4 Death Penalty Decisions in Post-Gregg Georgia

Overall Death Sentencing

Rate

Prosecutor’s Decision To Seek

Death Penalty

Jury’s Decision To Impose

Death Penalty

Offender and Victim Race

Black/Black 0.35 (45/130) 0.58 (72/125) 0.58 (45/77)

White/Black 0.22 (51/230) 0.38 (85/224) 0.56 (51/91)

Black/White 0.06 (17/232) 0.15 (34/231) 0.40 (14/35)

White/White 0.14 (2/14) 0.21 (3/14) 0.67 (2/3)

SOURCE: David C. Baldus, George G. Woodworth, and Charles A. Pulaski, Jr., Equal Justice and the Death Penalty ( Boston: Northeastern University Press, 1990), Tables 30 and 34.

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382 C H A P T E R 8

evidence against the defendant. They found that inclusion of these controls did not eliminate the racial differences. Although the race of the offender was only a weak predictor of death penalty decisions once these legal factors were taken into consideration, the race of the victim continued to exert a strong effect on both the prosecutor’s decision to seek the death penalty and the jury’s decision to impose the death penalty. In fact those who killed whites were more than four times as likely to be sentenced to death as those who killed African Americans.

Further analysis revealed that the effects of race were not uniform across the range of homicide cases included in the analysis. Not surprisingly, race had little effect on decision making in the least aggravated cases, in which virtually no one received the death penalty, or in the most heinous cases, in which a high percentage of murderers, regardless of their race or the race of their victims, were sentenced to death. Rather, race played a role primarily in the mid-range of cases where decision makers could decide either to sentence the offender to life in prison or to impose the death penalty. In these types of cases, the death- sentencing rate for those who killed whites was 34 percent compared with only 14 percent for those who killed African Americans.

These findings led Baldus and his colleagues to conclude that the race of the victim was “a potent influence in the system”122 and that the state of Georgia was operating a “dual system” for processing homicide cases. According to the authors, “Georgia juries appear to tolerate greater levels of aggravation without imposing the death penalty in black victim cases; and, as compared to white victim cases, the level of aggravation in black victim cases must be substantially greater before the prosecutor will even seek a death sentence.”123

Anthony Amsterdam’s124 analysis was even blunter. Noting that 9 of the 11 murderers executed in Georgia between 1973 and 1988 were African American and that 10 of the 11 had killed white victims, Amsterdam asked, “Can there be the slightest doubt that this revolting record is the product of some sort of racial bias rather than a pure fluke?”125

Some commentators would be inclined to answer this question in the affirmative. They would argue that the statistics included in the Baldus study are not representative of death penalty decisions in the United States as a whole; rather, they are peculiar to southern states such as Georgia, Texas, Florida, and Mississippi. A study by Samuel R. Gross and Robert Mauro addressed this possibility.

Death Penalty Decisions in Eight States Gross and Mauro examined death penalty decisions in the post-Gregg era (1976–1980) in eight states—Arkansas, Florida, Georgia, Illinois, Mississippi, North Carolina, Oklahoma, and Virginia.126

They found that the risk of a death sentence was much lower for defendants charged with killing African Americans than for defendants charged with killing whites in each of the eight states included in their study. In Georgia and Mississippi, for example, those who killed whites were nearly 10 times as likely to be sentenced to death as those who killed African Americans. The ratios for the other states included in the study were 8:1 (Florida), 7:1 (Arkansas), 6:1 (Illinois, Oklahoma, and North Carolina), and 5:1 (Virginia).

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383T H E C O L O R O F D E A T H

The authors also discovered that African Americans who killed whites faced the greatest odds of a death sentence. Figure 8.4 presents the percentages of death sentences by race of suspect and race of victim for the three states with the largest number of death-eligible cases. In Georgia, 20.1 percent of the African Ameri- cans who killed whites were sentenced to death, compared with only 5.7 percent of the whites who killed whites, 2.9 percent of the whites who killed African Americans, and less than 1 percent (0.8 percent) of the African Americans who killed African Americans. There were similar disparities in Florida and Illinois. In fact, in these three states only 32 of the 4,731 cases with African- American defen- dants and African-American victims resulted in a death sentence, compared with 82 of the 621 cases involving African-American defendants and white victims.

These racial disparities did not disappear when Gross and Mauro con- trolled for other legally relevant predictors of sentence severity. According to the authors, the major factual finding of this study is simple: there has been racial discrimination in the imposition of the death penalty under post-Furman statutes in the eight states that we examined. The discrimination is based on the race of the victim, and it is a remarkably stable and consistent phenomenon . . . The data show “a clear pattern, unexplainable on grounds other than race.”127

Like the Baldus study, then, this study of the capital sentencing process in eight states showed that the race of the victim was a powerful predictor of death sentences.

Race and the Death Penalty in California The two studies described pre- viously provide compelling evidence of victim-based racial discrimination in the use of the death penalty in the years immediately following the Gregg

30

25

20

15

10

5

0

Georgia Florida Illinois

African American / White

White / White

African American / African American

White / African American

% S

e n te

n c

e d

t o D

e a th

F I G U R E 8.4 Death Sentence Rates in Post-Furman Era, by Race of Offender and Victim SOURCE: Data obtained from Samuel R. Gross and Robert Mauro, Death and Discrimination: Racial Disparities in Capital Sentencing (Boston: Northeastern University Press, 1989).

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decision. Recent research in states such as Maryland,128 North Carolina,129

Virginia,130 Ohio,131 and California132 provides equally compelling evidence of racial disparities in the capital sentencing process during the 1990s and early 2000s.

Research conducted in California illustrates this more recent trend. In 2005, California had the largest death row population in the United States, with 648 inmates under sentence of death.133 Of those inmates on death row, 39 percent were white, 36 percent were African American, 20 percent were Hispanic, 3 per- cent were Asian, and 2 percent were Native American.

To determine whether these figures reflected racial/ethnic bias in the impo- sition of the death penalty in California, Pierce and Radelet examined the char- acteristics of all offenders sentenced to death in the state from 1990 through 2003 (for homicides committed from 1990 to 1999). They found that offenders who killed whites were 3.7 times more likely to be sentenced to death than offend- ers who killed African Americans; those who killed whites were 4.7 times more likely to be sentenced to death than those who killed Hispanics.134 To address the possibility that these differences were because the murders of whites were more aggravated or more heinous than the murders of non-whites, the authors divided the homicides in their sample into three categories: those with no aggra- vating circumstances, those with one aggravating circumstance, and those with two aggravating circumstances. As the authors noted, “If homicides that victimize whites are indeed more aggravated than other homicides, death sentencing rates will be similar across each category of victim’s race/ethnicity for each level of aggression.”135

The results presented in Table 8.5 do not support the hypothesis that those who kill whites are sentenced to death more often because their crimes are more heinous. Although the death sentencing rate increased for each of the three groups as the number of aggravating circumstances increased, for each level of aggravation, those who killed whites were substantially more likely than those who killed African Americans or Hispanics to be sentenced to death. These find- ings were confirmed by the results of a multivariate analysis, which simultane- ously controlled for the number of aggravating circumstances, the race/ethnicity of the victim, and the population density and racial makeup of the county in which the crime occurred. The authors found that those who killed African Americans or Hispanics were significantly less likely than those who killed whites to be sentenced to death. They concluded that “the data clearly show that the race and ethnicity of homicide victims is associated with the imposition of the death penalty.”136

Race and the Death Penalty in Kentucky Vito and his colleagues used data on death eligible homicide cases from 2000 to 2010 in Kentucky, focusing on the prosecutor’s decisions to seek the death penalty and to offer a plea bargain after filing a notice of intent to seek death.137 They controlled for the statutory aggravating circumstances, the race of the offender, the race of the victim, the sex of the offender, and the sex of the victim. They found that prosecutors were more than three times more likely to seek the death penalty if the victim was

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female. There were, however, no differences in the likelihood that the prosecutor would seek the death penalty if the victim was white and the offender was Afri- can American.

When the authors examined the prosecutor’s decision to offer a plea bar- gain following a notice of intent to seek death, they found that cases involving African-American defendants and white victims were about half as likely to result in a plea offer than cases involving other offender race/victim race combina- tions. Moreover, African Americans convicted of murdering whites who were not offered a plea deal were more likely than all other offenders to be sentenced to life without the possibility of parole, the most punitive punishment after a death sentence.

Race and the Probability of Execution The research discussed thus far focused on the likelihood that a defendant would be charged with a capital crime and, if so, the probability of a death sentence. In an article entitled, “Who Survives on Death Row?” David Jacobs and his colleagues addressed a different question— that is, what factors affect whether an offender who has been sentenced to death will be executed?138

This is an important question, given that only about 10 percent of offenders on death row ultimately are executed. Most death-sentenced offenders eventually are resentenced to life in prison or some other sentence as a result of a successful appeal, are pardoned as a result of a clemency proceeding, are freed as a result

T A B L E 8.5 Race and the Death Penalty in California, Controlling for Aggravating Circumstances

Death Sentence Rate per 100 Offenders

Ratio of White Victim Rate/Other Victim Rate

No Aggravating Circumstances

White Victim 0.775 —

African-American Victim 0.102 7.60

Hispanic Victim 0.070 11.07

One Aggravating Circumstance

White Victim 4.560 —

African-American Victim 1.999 2.28

Hispanic Victim 1.583 2.88

Two Aggravating Circumstances

White Victim 24.286 —

African-American Victim 12.162 2.00

Hispanic Victim 14.773 1.64

SOURCE: Glenn L. Pierce and Michael L. Radelet, “The Impact of Legally Inappropriate Factors on Death Sentencing for California Homicides, 1990–1999,” Santa Clara Law Review 46 (2005), Table 6.

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of evidence of their innocence, or die of natural causes while on death row. Yet there is very little research designed to identify the individual and contextual fac- tors that determine who, among all those sentenced to death, ultimately will be executed. As Jacobs and his colleagues noted, “whether victim race continues to explain the fate of condemned prisoners after they have been sentenced remains a complete mystery.”139

The authors of this study used data on offenders sentenced to death from 1973 to 2002 to examine the ways in which “offender attributes and the politi- cal and social context of the states affect post-sentencing execution likelihood.” When they examined the characteristics of those who were executed, they found that 55.5 percent were white, 34.9 percent were African American, and 9.7 per- cent were Hispanic; among cases for which the race of the victim was known, 80.3 percent of the offenders who were executed had white victims and only 19.7 percent had non-white victims.140

The results of the authors’ multivar iate analysis revealed that Afr ican Americans who killed whites had significantly greater odds of execution than did other death-sentenced offenders and that Hispanics also faced a some- what higher probability of execution if their victims were white. The authors concluded that “the post-sentencing capital punishment process continues to place greater value on white lives” and that “despite efforts to transcend an unfortunate racial past, residues of this fierce discrimination evidently still linger, at least when the most morally critical decision about punishment is decided.”141

Race and the Death Penalty in the Post-Gregg Era The results of the death penalty studies conducted in the post-Gregg era provide compelling evidence that the issues raised by the Supreme Court in Furman have not been resolved. The Supreme Court’s assurances in Gregg notwithstanding, racial discrimination in the capital sentencing process did not disappear as a result of the guided-dis- cretion statutes enacted in the wake of the Furman decision. Methodologically sophisticated studies conducted in southern and non-southern jurisdictions, and in the 1990s and 2000s as well as in the 1970s and 1980s, consistently conclude that the race of the victim affects death sentencing decisions. Many of these stud- ies also conclude that the race of the defendant, or the racial makeup of the offender/victim pair, influences the capital sentencing process.

According to Austin Sarat, professor of jurisprudence and political science at Amherst College, “the post-Furman effort to rationalize death sentences has utterly failed; it has been replaced by a policy that favors execution while trimming away procedural protection for capital defendants. This situation only exacerbates the incompatibility of capital punishment and legality.”142

Scott W. Howe, a professor of criminal law at Chapman University School for Law, similarly contends that widespread evidence of racial disparity in capital sentencing under mines “ confidence in the neutrality of capital selection nationwide. . . The studies, considered as a group, imply racial discrimination.”143

(See Box 8.6 for a discussion of the effect of the race and gender of the victim on the capital sentencing process.)

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B o x 8.6 The Death Penalty and the Race and Gender of the Victim: Are Those Who Kill White Women Singled Out for Harsher Treatment?

Research on the application of the death penalty reveals that those who kill whites are more likely than those who kill African Americans to be sentenced to death. There also is evidence that those who kill females are more likely than those who kill males to receive the death penalty. This raises the question, Are those who kill white women sentenced to death at a disproportionately high rate?

To answer this question, Marian R. Williams and Jefferson E. Holcomb analyzed data on homicides in Ohio for the years 1981 to 1994.144 When they looked at the raw data, they found that white females made up only 15 percent of all homi- cide victims but 35 percent of all death sentences. Cases in which the offender was a white male and the victim was a white female made up 12 percent of all homicides but 28 percent of all death sentences; cases in which the offender was an African-American male and the victim was a white female made up 2 percent of homicide cases but 8 percent of death sentences.145

Multivariate analysis confirmed these findings. The authors controlled for the race, gender, and age of the victim and the offender; whether a gun was used; whether the victim and offender were strangers; whether the homicide involved another felony or multiple victims; and the location of the crime. They found that homicides with female victims were more than twice as likely as those with male victims to result in a death sentence and that homicides with white victims were about one and a half times more likely as those with African-American victims to result in a death sentence. Further analysis revealed that offenders who victimized white females had significantly higher odds of being sentenced to death than offenders who victimized African-American females, African-American males, or white males.146

Williams and Holcomb concluded that the results of their study, which they acknowledged provided only a preliminary test of their hypothesis, suggested “that the central factor in understanding existing racial disparity in death sentences may be the severity with which those who kill White females are treated relative to other gender-race victim combinations.”147 This suggests that criminal justice officials and jurors who make death penalty decisions believe that homicides involving white women are especially heinous and that those people who kill white women are therefore more deserving of death sentences than those who kill men or women of color.

Race and the Federal Capital Sentencing Process

As noted earlier, state legislatures moved quickly to revise their death penalty stat- utes in the wake of the 1972 Furman decision. The federal government, however, did not do so until 1988, when passage of the Anti-Drug Abuse Act made the death penalty available for certain serious drug-related offenses. The number of federal offenses for which the death penalty is an option increased substantially as a result of legislation passed during the mid-1990s. The Federal Death Penalty Act of 1994 added over 40 federal offenses to the list of capital crimes, and the Antiterrorism and Effective Death Penalty Act of 1996 added an additional four offenses.148

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The Department of Justice has adopted a set of standards and procedures— commonly known as the “death penalty protocol”—to govern death penalty decisions in federal cases. According to this protocol, a U.S. attorney cannot seek the death penalty without prior written authorization from the attorney general. The steps in the capital case review process are as follows:149

■ U.S. attorneys are required to submit all cases involving a charge for which the death penalty is a legally authorized sanction, regardless of whether the attorney recommends seeking the death penalty, to the Capital Case Unit of the Criminal Division for review.

■ The Capital Case Unit reviews the case and prepares an initial analysis and recommendation regarding the death penalty.

■ The case is forwarded to the attorney general’s Capital Case Review Committee, which is composed of senior U.S. Justice Department lawyers— the members of the committee meet with the U.S. attorney and defense counsel responsible for the case, review documents submitted by all parties, and make a recommendation to the attorney general.

■ The attorney general makes the final decision regarding whether to seek the death penalty.

According to the U.S. Department of Justice, these procedures are designed to ensure that the federal capital sentencing process is fair and equitable: “Both the legal rules and the administrative procedures that currently govern federal capital cases incorporate extensive safeguards against any influence of racial or ethnic bias or prejudice.”150

The U.S. Department of Justice has conducted two studies of the federal capital sentencing process. The first study, which was released in 2000, revealed that from 1995 to 2000, U.S. attorneys forwarded for review 682 death- eligible cases. Eighty percent of the defendants in these cases were racial minorities: 324 (48 percent) were African American; 195 (29 percent) were Hispanic; and 29 (4 percent) were Native American, Asian, and other races.151 This study also revealed, however, that participants in the review process were less likely to rec- ommend (or to seek) the death penalty if the defendant was a racial minority. As shown in Table 8.6, U.S. attorneys recommended the death penalty in 36 per- cent of the cases involving white defendants, compared with 25 percent of those involving African-American defendants and 20 percent of those involving His- panic defendants. There was a similar pattern of results for the Capital Case Unit’s recommendation (to the attorney general) to request the death penalty, the attor- ney general’s decision to authorize the U.S. attorney to file a notice of intent to seek the death penalty, and the U.S. Department of Justice’s final decision to seek the death penalty.

The data presented in Table 8.6 demonstrate that although the U.S. Justice Department’s study did not find racial bias in the decisions that followed the U.S. attorney’s initial decision to submit the case for review, it did find that a significant majority of the cases that were submitted for review involved African- American and Hispanic defendants. The attorney general at the time, Janet Reno,

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stated that she was “sorely troubled” by these findings, adding that “we must do all we can in the federal government to root out bias at every step.” Reno’s concerns were echoed by then-Deputy Attorney General of the United States (and Attor- ney General of the United States from 2009 to 2015) Eric Holder, an African- American prosecutor who oversaw the study. He said that he was “both personally and professionally disturbed by the numbers.”152 Publication of the report also led then-President Clinton to grant a six-month reprieve to Juan Raul Garza, a Mex- ican American from Texas who was scheduled to be executed in January 2001. In granting the reprieve, Clinton stated that “the examination of possible racial and regional bias should be completed before the United States goes forward with an execution in a case that may implicate the very questions raised by the Justice Department’s continuing study.”153

Attorney General Reno ordered the Department of Justice to gather additional data about the federal capital sentencing process. The results of this study, which was overseen by Janet Reno’s successor, John Ashcroft, were released in 2001.154 Unlike the first study, which examined only those cases that were charged as capital crimes and submitted for review, this study included an analysis of cases in which the facts would have supported a capital charge but the defendants were not charged with a capital crime (and thus the case was not submitted for review). The results of the second study were generally similar to those of the first. Within the larger pool of cases examined in the follow-up study, which included 973 defendants, 17 percent (166) were white, 42 percent (408) were African American, and 36 percent (350) were Hispanic. Consistent with

T A B L E 8.6 Race/Ethnicity and the Federal Death Penalty: 1995–2000

Race of the Defendant

Total White African

American Hispanic Other

Number (% of total) of cases submitted for review

682 134 (20%) 324 (48%) 195 (29%) 29 (4%)

Rate at which U.S. attorneys recommended seeking the death penalty

0.27 0.36 0.25 0.20 0.52

Rate at which the Review Committee recommended seeking the death penalty

0.30 0.40 0.27 0.25 0.50

Rate at which the attorney general approved filing of notice of intent to seek the death penalty

0.27 0.38 0.25 0.20 0.46

Rate at which the U.S. Department of Justice sought the death penalty

0.23 0.33 0.22 0.16 0.41

SOURCE: U.S. Department of Justice, The Federal Death Penalty System: A Statistical Survey (1988–2000) (Washington, DC: U.S. Department of Justice), pp. 10–11.

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the results of the 2000 study, “potential capital cases involving Black or Hispanic defendants were less likely to result in capital charges and submission of the case to the review procedure . . . likewise [these cases] were less likely to result in decisions to seek the death penalty.”155

The 2001 report, which noted that the proportion of racial minorities in federal capital cases was substantially greater than the proportion of racial minor ities in the general population, concluded that “the cause of this disproportion is not racial or ethnic bias, but the representation of minorities in the pool of potential federal capital cases.”156 The report attributed the overrepresentation of African Americans and Hispanics in the federal capital case pool to a number of factors, including the fact that federal law enforcement officers focused their attention on drug trafficking and related criminal violence. According to the report,

In areas where large-scale, organized drug trafficking is largely carried out by gangs whose memberships is drawn from minority groups, the active federal role in investigating and prosecuting these crimes results in a high proportion of minority defendants in federal cases, including a high proportion of minority defendants in potential capital cases arising from the lethal violence associated with the drug trade. This is not the result of any form of bias, but reflects the normal factors that affect the division of federal and state prosecutorial responsibility.157

Opponents of the death penalty criticized the 2001 report, and the Justice Department’s interpretation of the data, on a number of grounds. The Ameri- can Civil Liberties Union (ACLU), for example, asserted that there were a num- ber of problems with the study, which the organization characterized as “fatally flawed.”158 The ACLU noted that the report did not address questions regard- ing the prosecution of cases in the federal system rather than the state system or examine whether race/ethnicity played a role in these decisions or in U.S. attorneys’ decisions to enter into plea bargains. The ACLU asserted that Attorney General Ashcroft reached a “premature” conclusion that “racial bias has not played a role in who is on federal death row in America,” adding that “This remarkable conclusion is not only inaccurate, but also dangerous, because it seeks to give Americans the impression that our justice system is fair when in fact there is sub- stantial evidence that it is not.”159

On June 11, 2001, Timothy McVeigh, who was convicted of a number of counts stemming from the 1995 Oklahoma City bombing, became the first federal offender since 1963 to be put to death. The execution of Juan Raul Garza, a Texas marijuana distributor who was sentenced to death in 1993 for the murder of three other drug traffickers, followed eight days later. A third federal offender, Louis Jones, who was sentenced to death for kidnapping and murdering a white female soldier, was executed in March 2003. By June 2015, there were 62 offenders on federal death row: 27 were Afr ican Amer ican, 25 were white, 8 were Hispanic, 1 was Native Amer ican, and 1 was Asian American.160

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Explanations for Disparate Treatment

Researchers have advanced two interrelated explanations for the higher death penalty rates for homicides involving African-American offenders and white victims and the lower rates for homicides involving African-American offenders and African-American victims.

The first explanation builds on conflict theory’s premise that the law is applied to maintain the power of the dominant group and to control the behav- ior of individuals who threaten that power.161 It suggests that crimes involving African- American offenders and white victims are punished most harshly because they pose the greatest threat to “the system of racially stratified state authority.”162

Some commentators further suggest that in the South, the death penalty may be imposed more often on African Americans who kill whites “because of a continuing adherence to traditional southern norms of racial etiquette.”163

The second explanation for the harsher penalties imposed on those who vic- timize whites emphasizes the race of the victim rather than the racial composi- tion of the victim–offender dyad. This explanation suggests that crimes involving African-American victims are not taken seriously and/or that crimes involv- ing white victims are taken very seriously. It also suggests that the lives of African-American victims are devalued relative to the lives of white victims. Thus, crimes against whites will be punished more severely than crimes against Afri- can Americans regardless of the offender’s race. Some commentators suggest that these beliefs are encouraged by the media, which plays up the murders of wealthy whites but ignores those involving poor African Americans and Hispanics. The publicity accorded crimes involving middle-class and wealthy white victims also influence prosecutors to seek the death penalty more often in these types of cases than in cases involving poor racial minorities. According to David Baldus, “If the victim is black, particularly if he’s an unsavory character, a drug dealer, for exam- ple, prosecutors are likely to say, ‘No jury would return a death verdict.’”164

Most researchers have failed to explain adequately why those who victim- ize whites are treated more harshly than those who victimize African Americans. Gross and Mauro165 suggest that the explanation, at least in capital cases, may hinge on the degree to which jurors are able to identify with the victim. The authors argue that jurors take the life-or-death decision in a capital case very seri- ously. To condemn a murderer to death thus requires something more than sym- pathy for the victim. Jurors will not sentence the defendant to death unless they are particularly horrified by the crime, and they will not be particularly horrified by the crime unless they can identify or empathize with the victim. According to Gross and Mauro:

In a society that remains segregated socially if not legally, and in which the great majority of jurors are white, jurors are not likely to identify with black victims or to see them as family or friends. Thus jurors are more likely to be horrified by the killing of a white than of a black, and more likely to act against the killer of a white than the killer of a black.166

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Bright167 offers a somewhat different explanation. He contends that the unconscious racism and racial stereotypes of prosecutors, judges, and jurors, the majority of whom are white, “may well be ‘stirred up’” in cases involving an African-American offender and a white victim.168 In these types of cases, in other words, officials’ and jurors’ beliefs that African Americans are violent or morally inferior, coupled with their fear of African Americans, might incline them to seek or to impose the death penalty. Bright also asserts that black-on-white murders generate more publicity and evoke greater horror than other types of crimes. As he notes, “Community outrage, . . . the social and political clout of the family in the community, and the amount of publicity regarding the crime are often far more important in determining whether death is sought than the facts of the crime or the defendant’s record and background.”169

M c C L E S K Y v. K E M P : T H E S U P R E M E C O U R T

A N D   R A C I A L D I S C R I M I N AT I O N I N T H E A P P L I C AT I O N

O F T H E D E AT H P E N A LT Y

Empirical evidence of racial discrimination in the capital sentencing process has been used to mount constitutional challenges to the imposition of the death pen- alty. African-American defendants convicted of raping or murdering whites have claimed that the death penalty is applied in a racially discriminatory manner in violation of both the equal protection clause of the Fourteenth Amendment and the cruel and unusual punishment clause of the Eighth Amendment.

These claims have been consistently rejected by state and federal appellate courts. The case of the Martinsville Seven, a group of African-American men who were sentenced to death for the gang rape of a white woman, was the first case in which defendants explicitly argued that the death penalty was adminis- tered in a racially discriminatory manner.170 It also was the first case in which lawyers presented statistical evidence to prove systematic racial discrimination in capital cases. As explained in more detail in “In the Courts: The Case of the Martinsville Seven,” the defendants’ contention that the Virginia rape statute had “been applied and administered with an evil eye and an unequal hand”171 was repeatedly denied by Virginia appellate courts.

The question of racial discrimination in the application of the death pen- alty also has been addressed in federal court. In a series of decisions, U.S. Courts of Appeals ruled, first, that the empirical studies used to document systematic racial discrimination did not take every variable related to capital sentencing into account and, second, that the evidence presented did not demonstrate that the appellant’s own sentence was the product of discrimination.172

The Supreme Court directly addressed the issue of victim-based racial dis- crimination in the application of the death penalty in the case of McCleskey v. Kemp.173 Warren McCleskey, an African American, was convicted and sentenced to death in Georgia for killing a white police officer during the course of an armed robbery. McCleskey claimed that the Georgia capital sentencing process

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In the Courts: The Case of the Martinsville Seven

Just after dark on January 8, 1949, Ruby Floyd, a 32-year-old white woman, was assaulted and repeatedly raped by several men as she walked in a predominately black neighborhood in Martinsville, Virginia.174 Within a day and a half, seven African-American men had been arrested; when confronted with incriminating state- ments made by their codefendants, all of them confessed. Two months later, a grand jury composed of four white men and three African-American men indicted each defendant on one count of rape and six counts of aiding and abetting a rape by the other defendants.

The defendants were tried in the Seventh Judicial Circuit Court, located in Mar- tinsville. Before the legal proceedings began, Judge Kennon Caithness Whittle, who presided over all of the trials, called the prosecutors and defense attorneys into his chambers to remind them of their duty to protect the defendants’ right to a fair trial and to plead with them to “downplay the racial overtones” of the case. He empha- sized that the case “must be tried as though both parties were members of the same race.”175

Although prosecutors took Judge Whittle’s admonitions to heart and empha- sized the seriousness of the crime and the defendants’ evident guilt rather than the fact that the crime involved the rape of a white woman by African-American men, the “racial overtones” of the case inevitably surfaced. Defense attorneys, for example, moved for a change of venue, arguing that inflammatory publicity about the case, coupled with widespread community sentiment that the defen- dants were guilty and “ought to get the works,”176 meant that the defendants could not get a fair trial in Martinsville. Judge Whittle, who admitted that it might be difficult to find impartial jurors and acknowledged that some jurors might be biased against the defendants because of their race, denied the motion, asserting that “no mass feeling about these defendants”177 had surfaced. Later, prosecutors used their peremptory challenges to exclude the few African Amer- icans who remained in the jury pool after those who opposed the death penalty had been excused for cause. As a result, each case was decided by an all-white jury. The result of each day-long trial was the same: all seven defendants were found guilty of rape and sentenced to death. On May 3, 1949, less than four months after the assault on Ruby Floyd, Judge Whittle officially pronounced sen- tence and announced that four of the defendants were to be executed on July 15, the remaining three on July 22. Noting that this gave the defendants more than 60 days to appeal, he stated, “If errors have been made I pray God they may be corrected.”178

The next 19 months witnessed several rounds of appeals challenging the con- victions and death sentences of the Martinsville Seven. The initial petition submitted by attorneys for the NAACP Legal Defense Fund, which represented the defendants on appeal, charged the trial court with four violations of due process. Although none of the charges focused directly on racially discriminatory practices, allegations of racial prejudice were interwoven with a number of the arguments. Appellants noted, for example, that prior to 1866 Virginia law specified that the death pen- alty for rape could be imposed only on African-American men convicted of raping white women and that even after the law was repealed virtually all of those sen- tenced to death for rape had been African American. They also stated that the trial judge’s questioning of prospective jurors about capital punishment and subsequent exclusion of those who were opposed to the imposition of the death penalty sent the unmistakable message that “only one penalty would be appropriate for the offenders.”179

(Continued )

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These appeals failed at both the state and federal level. The Virginia Supreme Court of Appeals voted unanimously to affirm the convictions. Chief Justice Edward W. Hudgins, who wrote the opinion, vehemently denied appellants’ assertions that the death penalty was reserved for blacks, noting that there was not “a scintilla of evidence” to support it.180 Hudgins also chastised the defendants’ attorneys for even raising the issue, contending that it was nothing more than “an abortive attempt to inject into the proceedings racial prejudice.”181

The defendants appealed the decision to the U.S. Supreme Court, but the Court declined to review the case. This prompted the NAACP attorneys to adopt a radically different strategy for the next round of appeals. Rather than challenging the defen- dants’ convictions and death sentences on traditional due process grounds, the attor- neys mounted a direct attack on the discriminatory application of the death penalty in Virginia. Martin Martin and Samuel Tucker, the NAACP attorneys who argued in support of the defendants’ habeas corpus petition, presented statistical evidence documenting a double standard of justice in Virginia rape cases. Noting that 45 Afri- can Americans, but not a single white, had been executed for rape since 1908, Tucker stated that African Americans were entitled to the same protection of the law as whites and concluded “if you can’t equalize upward [by executing more whites], we must equalize downward.”182

In an opinion that foreshadowed the Supreme Court’s decision in McCleskey v. Kemp a quarter of a century later, Judge Doubles, who was presiding over the Hustings Court of the City of Richmond, denied the petition. Judge Doubles stated that there was no evidence of racial discrimination in the actions of the six juries that sentenced the Martinsville Seven to death or in the performance of other juries in similar cases. He then concluded that even if one assumed that those juries had been motivated by racial prejudice, “the petitioners could not demonstrate that an offi- cial policy of discrimination, rather than the independent actions of separate juries, resulted in the death verdicts.”183 As a result, there was no constitutional violation.

The case then was appealed to the Virginia Supreme Court and, when that appeal failed, to the U.S. Supreme Court. In January 1951, the Supreme Court again declined to review the case. Last-minute efforts to save the Martinsville Seven failed. Four of the men were executed on February 2, the remaining three on February 5. “After two years, six trials, five stays of execution, ten opportunities for judicial review, and two denials of executive clemency, the legal odyssey of the Martinsville Seven had ended.”184

was administered in a racially discriminatory manner. In support of his claim, he offered the results of the study conducted by Baldus and his colleagues.185

As noted earlier, this study found that African Americans convicted of murdering whites had the greatest likelihood of receiving the death penalty.

The Supreme Cour t rejected McCleskey’s Four teenth and Eighth Amendment claims. Although the majority accepted the validity of the Bal- dus study, they nonetheless refused to accept McCleskey’s argument that the disparities documented by Baldus signaled the presence of unconstitutional racial discrimination. Justice Powell, writing for the majority, argued that the dispar ities were “unexplained” and stated that “At most, the Baldus study indicates a discrepancy that appears to correlate with race.”186 The Court stated that the Baldus study was “clearly insufficient to support an inference that any of the decisionmakers in McCleskey’s case acted with discriminatory purpose.”187

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The Court also expressed its concern that accepting McCleskey’s claim would open a Pandora’s box of litigation. “McCleskey’s claim, taken to its log- ical conclusion,” Powell wrote, “throws into serious question the principles that underlie our entire criminal justice system . . . if we accepted McCleskey’s claim that racial bias impermissibly tainted the capital sentencing decision, we would soon be faced with similar claims as to other types of penalty.”188 A ruling in McCleskey’s favor, in other words, would open the door to constitutional chal- lenges to the legitimacy not only of the capital sentencing process but also of sentencing in general.

The four dissenting justices were outraged. Justice Brennan, who was joined in dissent by Justices Blackmun, Marshall, and Stevens, wrote, “The Court today holds that Warren McCleskey’s sentence was constitutionally imposed. It finds no fault with a system in which lawyers must tell their clients that race casts a large shadow on the capital sentencing process.” Brennan also characterized the major- ity’s concern that upholding McCleskey’s claim would encourage other groups— “even women”189—to challenge the criminal sentencing process “as a fear of too much justice” and “a complete abdication of our judicial role.”190

Legal scholars were similarly outraged. Anthony Amsterdam, who was the lead attorney in a 1968 U.S. Court of Appeals case in which an African-American man challenged his death sentence for the rape of a white woman,191 wrote,

I suggest that any self-respecting criminal justice professional is obliged to speak out against this Supreme Court’s conception of the criminal justice system. We must reaffirm that there can be no justice in a sys- tem which treats people of color differently from white people, or treats crimes against people of color differently from crimes against white people.192

Randall Kennedy’s analysis was similarly harsh. He challenged Justice Powell’s assertion that the Baldus study indicated nothing more “than a discrepancy that appears to correlate with race,” which he characterized as “a statement as vacuous as one declaring, say, that ‘at most’ studies on lung cancer indicate a discrepancy that appears to correlate with smoking.”193 Bright characterized the decision as “a badge of shame upon America’s system of justice,”194 while Gross and Mauro concluded that “The central message of the McCleskey case is all too plain; de facto racial discrimination in capital sentencing is legal in the United States.”195

(See Box 8.7 for a discussion of the possible remedies for racial discrimination in the application of the death penalty.)

The Execution of Warren McCleskey The Court’s decision in McCleskey v. Kemp did not mark the end of Warren McCleskey’s odyssey through the appellate courts. He filed another appeal in 1987, alleging that the testimony of a jail- house informant, which was used to rebut his alibi defense, was obtained illegally. Offie Evans testified at McCleskey’s trial in 1978 that McCleskey admitted to and boasted about killing the police officer. McCleskey argued that the state placed Evans in the jail cell next to his cell and instructed Evans to try to get him to talk about the crime. He contended that because he did not have the assistance of

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B o x 8.7 Racial Discrimination in Capital Sentencing: The Problem of Remedy

A number of commentators have suggested that the Court’s reluctance to accept McCleskey’s claim reflected its anxiety about the practical consequences of ruling that race impermissibly affected the capital sentencing process.196 The Court’s deci- sion, in other words, reflected its concern about the appropriate remedy if it found a constitutional violation.

The remedies that have been suggested include the following:

1. Abolish the death penalty and vacate all existing death sentences nationwide. ■ The problem with this remedy, of course, is that it is impractical, given the

level of public support for the death penalty and the current emphasis on crime control. As Gross and Mauro note “Although abolition is a perfectly practical solution to the problems of capital punishment . . . it is not a seri- ous option in America now.”197

2. Vacate all death sentences in each state where there is compelling evidence of racial disparities in the application of the death penalty.

■ Although this state-by-state approach would not completely satisfy the abolitionists, according to Kennedy, it would place “a large question mark over the legitimacy of any death penalty system generating unexplained racial disparities of the sort at issue in McCleskey.198

3. Limit the class of persons eligible for the death penalty to those who com- mit the most heinous, the most aggravated homicides. As Justice Stevens suggested in his dissent in McCleskey, the Court could narrow the class of death-eligible defendants to those “categories of extremely serious crimes for which prosecutors consistently seek, and juries consistently impose, the death penalty without regard to the race of the victim or the race of the offender.”199

■ Although not an “ideal” solution for a number of reasons, this would, as Baldus and his colleagues contend, impart “a greater degree of ratio- nality and consistency into state death-sentencing systems than any of the other procedural safeguards that the Supreme Court has heretofore endorsed.”200

4. Reinstate mandatory death sentences for certain crimes. ■ This remedy would, of course, require the Supreme Court to retract its

invalidation of mandatory death penalty statutes. ■ Kennedy contends that this would not solve the problem, since pros-

ecutors could refuse to charge the killers of African Americans with a capital crime and juries could decline to convict those who killed African Americans of crimes that triggered the mandatory death sentence.201

5. Opt for the “level-up solution,”202 which would require courts to pur- posely impose more death sentences on those who murdered African Americans.

■ According to Kennedy, states in which there are documented racial dis- parities in the use of the death penalty could be given a choice: either condemn those who kill African Americans to death at the same rate as those who kill whites or “relinquish the power to put anyone to death.”203

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counsel at the time he made the incriminating statements, they could not be used against him.

In 1991, the Supreme Court denied McCleskey’s claim, asserting that the issue should have been raised in his first appeal.204 The Court stated that McCleskey would have been allowed to raise a new issue if he had been able to demonstrate that the alleged violation resulted in the conviction of an innocent person. How- ever, according to the Court, “the violation, if it be one, resulted in the admission at trial of truthful inculpatory evidence which did not affect the reliability of the guilt determination. The very statement that McCleskey now embraces confirms his guilt.”205

After a series of last-minute appeals, requests for clemency, and requests for commutation were denied, Warren McCleskey was strapped into the electric chair at the state prison in Jacksonville, Georgia. He was pronounced dead at 3:13 a.m., September 26, 1991.

Justice Thurgood Marshall, one of the three dissenters from the Supreme Court’s decision not to grant a stay of execution, wrote, “In refusing to grant a stay to review fully McCleskey’s claims, the court values expediency over human life. Repeatedly denying Warren McCleskey his constitutional rights is unaccept- able. Executing him is inexcusable.”206

The Aftermath of McCleskey: Calls for Reform or Abolition

of the Death Penalty

Opponents of the death penalty viewed the issues raised in McCleskey v. Kemp as the only remaining challenge to the constitutionality of the death penalty. They predicted that the Court’s decision, which effectively closed the door to similar appeals, would speed up the pace of executions. Data on the number of people executed since 1987 provide support for this. Although only 25 people were exe- cuted in 1987, 11 in 1988, 16 in 1989, 23 in 1990, and 14 in 1991, the numbers began to increase in 1992. As shown in Figure 8.5, 31 people were put to death in 1992, and the number of executions reached a post-McCleskey high of 98 in 1999.

0

20

40

60

80

100

120

200920072005200320011999199719951993199119891987

F I G U R E 8.5 Executions in the United States, 1987–2004 SOURCE: Death Penalty Information Center, Facts about the Death Penalty. http://www.deathpenaltyinfo.org/ documents/FactSheet.pdf

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Beginning in 2000, the number of executions began to decline, reaching a low of 28 in 2015.207

The increase in executions since 1991 no doubt reflects the impact of two recent Supreme Court decisions sharply limiting death-row appeals. As noted above, in 1991, the Court ruled that with few exceptions death row inmates and other state prisoners must raise constitutional claims on their first appeals.208 This ruling, coupled with a 1993 decision stating that “late claims of innocence” raised by death row inmates who have exhausted other federal appeals do not auto- matically qualify for a hearing in federal court,209 severely curtailed the ability of death row inmates to pursue multiple federal court appeals.

The Racial Justice Act

The U.S. House of Representatives responded to the Supreme Court’s ruling in McCleskey v. Kemp by adding the Racial Justice Act to the Omnibus Crime Bill of 1994. A slim majority of the House voted for the provision, which would have allowed condemned defendants to challenge their death sentences by show- ing a pattern of racial discrimination in the capital sentencing process in their jurisdictions. Under this provision, in other words, the defendant would not have to show that criminal justice officials acted with discriminatory purpose in his or her case; rather, the defendant could use statistical evidence indicating that a disproportionate number of those sentenced to death in the jurisdiction were African Americans or had killed whites. Once this pattern of racial discrimination had been established, the state would be required to prove that its death pen- alty decisions were racially neutral. The state might rebut an apparent pattern of racial discrimination in a case involving an African American convicted of killing a white police officer, for example, by showing a consistent pattern of seeking the death penalty for defendants, regardless of race, who were accused of killing police officers.

Opponents of the Racial Justice Act argued that it would effectively abolish the death penalty in the United States. As Senator Orrin Hatch remarked, “The so-called Racial Justice Act has nothing to do with racial justice and everything to do with abolishing the death penalty.”210 The provision was a source of heated debate before it was eventually eliminated from the 1994 Omnibus Crime Bill.

In 1998, Kentucky became the first state to enact a Racial Justice Act. This was followed by the adoption of a similar law in North Carolina in 2009; passage of the North Carolina law was motivated in part by the fact that over a five-year period, five African-American men on death row were exonerated after having spent a total of 60 years in prison. As of 2010, these are the only states that have adopted such laws.

Both the Kentucky and the North Carolina laws permit the defense to intro- duce statistical evidence of racial bias in the capital sentencing process. In both states, the defense has the burden of proof and the state can rebut the evidence with its own statistical data. A judge determines whether the data prove that the death penalty was sought or imposed on the basis of race.

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The North Carolina law allowed defendants who were on death row at the time of the law’s adoption to file racial bias claims. By the August 2010 deadline, 152 of the 159 inmates had filed such a claim.211 Included among those who filed claims was Kenneth Bernard Rouse, an African American who was tried by an all-white jury and sentenced to death for the murder of a 63-year-old white woman. Although Rouse cited these facts in his claim, he also presented more specific evidence of racial bias. His petition claimed that when his lawyer inter- viewed one of the jurors in his case, the juror used a racial epithet to describe African Americans and said that “Black men rape white women so that they can brag to their friends about having done so.”212 According to Rouse’s attorney, “If the Racial Justice Act covers anything, it covers Kenneth Rouse.”

The North Carolina Racial Justice Act was repealed by the state legislature in 2013. Critics charged that the legislation provided too many opportunities and made it too easy for death row inmates to challenge their death sentences. By contrast, a supporter of the act, Rep. Darren Jackson, stated that “[W]e voted for the RJA because we wanted the death penalty to be applied uniformly, without regard to race. Be it the perpetrator, the victim, or an individual juror, race should play no part in the process.”213

B o x 8.8 Death and Discrimination in Texas

On June 5, 2000, the U.S. Supreme Court set aside Victor Saldano’s death sentence after lawyers for the state of Texas admitted that the decision had been based in part on the fact that he is Hispanic.214 Saldano kidnapped Paul Green at gunpoint from a grocery store parking lot, took him to an isolated area, shot him five times, and stole his watch and wallet. At his sentencing hearing, a psychologist testified about Saldano’s “future dangerousness.” He noted that blacks and Hispanics were overrepresented in prison and stated that the fact that Saldano was Hispanic was an indicator of his future dangerousness. The Texas Court of Criminal Appeals upheld Saldano’s death sentence, stating that allowing his ethnicity to be used as an indica- tor of dangerousness was not a “fundamental error.”

In his appeal to the U.S. Supreme Court, Saldano disagreed with that conclu- sion. He stated that it is “fundamentally unfair for the prosecution to use racial and ethnic stereotypes in order to obtain a death penalty.” The Texas Attorney General conceded Saldano’s point. He admitted that the state had erred and joined Saldano in asking the Supreme Court to order a new sentencing hearing. After the Court’s decision was announced, a spokesperson for the Texas Attorney General’s Office stated that an audit had uncovered eight additional cases that might raise simi- lar issues regarding testimony linking race and ethnicity to assessments of future dangerousness.

Questions about the fairness of the Texas death penalty process have been raised in other forums. During the summer of 2000, for example, the Chicago Tribune published a two-part series that focused on the 131 executions that were carried out during Texas Governor George W. Bush’s tenure.215 (Since 1977, Texas has executed 218 people, which is more than three times the number executed by any

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other state.216) The report noted that in 40 of the 131 cases, the defense attorney either presented no mitigating evidence at all or called only one witness during the sentencing hearing. In 43 of the cases, the defendant was represented by an attorney who had been (or was subsequent to the trial) publicly sanctioned for misconduct by the State Bar of Texas. One attorney, for example, who had been practicing for only 17 months, was appointed to represent Davis Losada, who was accused of rape and murder. Losada was found guilty and sentenced to death after the attorney deliv- ered a “disjointed and brief argument” in which he told the jury: “The System. Jus- tice. I don’t know. But that’s what y’all are going to do.” He later admitted that he had a conflict of interest in the case (he previously had represented the key witness against his client), and in 1994 he was disbarred for stealing money from his clients.

Other problems cited in the Tribune report included the use of unreliable evi- dence, such as testimony by jailhouse informants; the use of questionable testimony from a psychiatrist, nicknamed “Dr. Death,” regarding the potential dangerousness of capital offenders; and the refusal of the Texas Court of Criminal Appeals to order new trials or sentencing hearings despite allegations of fundamental violations of defendants’ rights. The report noted that since Governor Bush took office in 1995, the Court of Criminal Appeals affirmed 270 capital convictions, granted new trials eight times, and ordered new sentencing hearings only six times.

In September 2000, the Texas Civil Rights Project issued a comprehensive report on “The Death Penalty in Texas” that identified many of the same problems.217 The authors of the report stated that there were “six areas where the probability of error and the probability of wrongful execution grow dramatically”: appointment of counsel to represent indigent defendants; the prosecutor’s decision to seek the death penalty; the jury selection process; the sentencing process; the appellate process; and the review of cases by the Board of Pardons and Parole. The report emphasized that the issue was not “a possible break at one juncture, but a probable break at two or more critical junctures.” To remedy these deficiencies, the Texas Civil Rights Project recommended that Governor Bush call for a moratorium on the death penalty in Texas. They also recommended that Governor Bush appoint a commission to review the convictions of those currently on death row; the commission would be charged with determining whether the defendant’s rights to due process had been violated and whether race and/or social class affected the death penalty process.218 According to the report, “[i]f the State of Texas is going to continue to take the lives of people, then it needs to repair the system . . .” The report concluded that “The frighten- ing truth of the matter is that Texas is at greater risk than at anytime [sic] since it resumed executions in 1982 of killing innocent people.”219

T H E D E AT H P E N A LT Y I N T H E T W E N T Y- F I R S T C E N T U RY

Opponents of the death penalty assumed that the Supreme Court’s decision in McCleskey v. Kemp, coupled with the defeat of the Racial Justice Act by Con- gress, sounded a death knell for attempts to abolish the death penalty. They pre- dicted that these decisions would dampen—if not extinguish—the controversy surrounding the death penalty. Contrary to their predictions, however, the con- troversy did not die down. In fact, a series of events at the turn of the century pushed the issue back on the public agenda:

■ In February 1997, the American Bar Association (ABA) went on record as being formally opposed to the current capital sentencing system and called

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for an immediate moratorium on executions in the United States. The ABA report cited the following concerns: lack of adequate counsel in death pen- alty cases; restrictions on access to appellate courts; and racial disparities in the administration of capital punishment.220

■ In January 2000, George Ryan, the governor of Illinois, issued a moratorium on the use of the death penalty in that state. His decision was motivated by the fact that since the death penalty was reinstated in Illinois, 12 people were executed but 13 were exonerated. Governor Ryan, who called for a “public dialogue” on “the question of the fairness of the application of the death penalty in Illinois,” stated that he favored a moratorium because of his “grave concerns about our state’s shameful record of convicting innocent people and putting them on death row.”221 Three years later, Governor Ryan commuted the sentences of all of the state’s 167 death row inmates to life in prison. In March 2011, Illinois Governor Patrick Quinn signed into law a bill repealing the death penalty.

■ In May 2000, the New Hampshire legislature voted to repeal the death penalty. One legislator—a Republican and a longtime supporter of the death penalty—justified his vote for repeal by saying, “There are no million- aires on death row. Can you honestly say that you’re going to get equal jus- tice under the law when, if you’ve got the money, you are going to get away with it.”222 Although the legislation was subsequently vetoed by the gover- nor, it was the first time in more than two decades that a state legislature had voted to repeal the death penalty.

■ In October 2000, the Texas Civil Rights Project (TCRP) released a report on the death penalty in Texas (see Box 8.8: Death and Discrimination in Texas). The report identified six critical issues, including the competency of attorneys appointed to represent defendants charged with capital mur- der, that “decrease due process for low-income death penalty defendants and increase the probability of wrongful convictions.” The report called on then-Governor George Bush to institute a moratorium on the death penalty pending the results of two studies, one of which would determine whether race and social class influenced the use of the death penalty in Texas.223

■ In 2004, the New York State Court of Appeals ruled that the state’s death penalty statute was unconstitutional. Efforts to reinstate the death penalty through legislation were unsuccessful.

■ In 2007, New Jersey became the first state in the nation to pass legislation abolishing the death penalty since the use of capital punishment was rein- stated by Gregg v. Georgia in 1976. Two years later, New Mexico also enacted legislation abolishing the death penalty. Maryland abolished the death pen- alty in 2013 and Nebraska abolished it in 2015.

■ In October 2009, the American Law Institute voted to disavow the frame- work for capital punishment that it had created in 1962 as part of the Model Penal Code, “in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital

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punishment.” A study commissioned by the institute said that experience proved that the goal of individualized decisions about who should be exe- cuted and the goal of systemic fairness for minorities and others could not be reconciled.224

■ In March 2016, a Jefferson County (Alabama) circuit judge ruled that Alabama’s capital sentencing procedures, which allow judges to override a jury’s recommendation for a life sentence and instead impose a death sen- tence, were constitutional. Also in March 2016, Delaware public defenders filed a brief with the Delaware Supreme Court arguing that the state’s death penalty procedures were unconstitutional.

As these examples illustrate, concerns about the fairness and accuracy of the capital sentencing process led many to conclude that it was time to rethink the death penalty. This period of “rethinking” spawned two distinct movements, one for reform of the capital sentencing process and one for abolishing the death penalty.

The Movement to Reform the Death Penalty

Advocates of reform contend that the capital sentencing process can be “fixed.” While acknowledging that the system is not infallible, they argue that the enact- ment of reforms designed to ensure that innocent persons are not convicted and sentenced to death will remedy the situation. The reforms that have been pro- posed include increasing access to post-conviction DNA testing and providing funding to pay for DNA tests requested by indigent inmates; banning the exe- cution of the mentally retarded; and establishing standards on qualifications and experience for defense counsel in death penalty cases.

Typical of this approach is the Innocence Protection Act of 2004 (HR 5107), a package of criminal justice reforms that President George W. Bush signed into law on October 30, 2004. The act was part of the larger Justice for All Act, which had broad bipartisan support in the U.S. Senate and House of Representatives; this bill enhanced protection for victims of federal crimes, increased federal resources available to state and local governments to combat crimes with DNA technology, and provided safeguards designed to prevent wrongful convictions and executions. The Innocence Protection Act (Title VI of the Justice for All Act) has three important provisions. The first provision allows a person convicted of a federal crime to obtain DNA testing to support a claim of innocence, prohibits the destruction of DNA evidence in federal criminal cases while a defendant remains incarcerated, and provides funding to states to help defray the costs of post-conviction DNA testing. The second provision authorizes a grant program to improve the quality of legal representation provided to indigent defendants in state capital cases. The third provision increases the maximum amount of damages that can be awarded in cases of unjust imprisonment to $100,000 per year in cap- ital cases.225

One of the act’s main supporters in the Senate, Patrick Leahy (Democrat from Vermont), characterized the Innocence Protection Act as “the most signif- icant step we have taken in many years to improve the quality of justice in this

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country.” Leahy added that DNA testing, which he called the “miracle forensic tool of our lifetimes,” had revealed the flaws in the death penalty process. He also stated that the bill’s provisions regarding provision of counsel represent “a modest step toward addressing one of the most frequent causes of wrongful convictions in capital cases, the lack of adequate legal counsel.”226

A similar approach was taken by the bipartisan commission appointed by Illinois Governor George Ryan after he halted executions in January 2000. The commission’s report, which was issued in April 2002, recommended 85 changes in the capital sentencing process in Illinois. Included were proposals to prohibit the imposition of the death penalty based solely on the testimony of a single eye- witness, a jailhouse informant, or an accomplice; videotape interrogations of sus- pects; establish an independent forensics laboratory; and establish a state panel to review prosecutors’ decisions to seek the death penalty. The report also proposed eliminating several categories of capital crimes, including murder committed in the course of a felony. The co-chairman of the commission, Thomas P. Sullivan, a former federal prosecutor, stated that the options were to “repair or repeal” the death penalty. “Fix the capital punishment system or abolish it,” he said. “There is no other principled recourse.”233

The Movement to Abolish the Death Penalty

In contrast to those who advocate reform of the capital sentencing system, pro- ponents of abolishing the death penalty contend that the system is fatally flawed. To support their position, these “new abolitionists”234 cite mounting evidence of wrongful conviction of those on death row (see Box 8.9), as well as evidence that

B o x 8.9 The Death Penalty and Wrongful Convictions

Opponents of the death penalty consistently note the possibility that an individual will be sentenced to death for a crime that he or she did not commit. Hugo A. Bedau and Michael L. Radelet227 have identified 350 cases in which defendants were wrong- fully convicted of a homicide for which they could have received the death penalty or of a rape in which the death penalty was imposed. Of those individuals, 139 were sentenced to die; 23 eventually were executed. Another 22 people came within 72 hours of being executed.

These wrongful convictions include a number of people sentenced to death in the post-Furman era. In 1987, for example, Walter McMillian, an African-American man who was dating a white woman, was charged with the death of an 18-year-old white female store clerk in Alabama. In spite of testimony from a dozen witnesses, who swore he was at home on the day of the murder, and despite the lack of any physical evidence, McMillian was convicted after a one-and-a-half-day trial. His con- viction hinged on the testimony of Ralph Myers, a 30-year-old with a long criminal record. The jury recommended life in prison without parole, but the judge hearing

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the case, citing the “vicious and brutal killing of a young lady in the full flower of adulthood,”228 sentenced McMillian to death.

Six years later, Myers recanted his testimony. He said he had been pressured by law enforcement officials to accuse McMillian and to testify against him in court. McMillian was freed in March 1993, after prosecutors conceded that his conviction was based on perjured testimony and that evidence had been with- held from his lawyers. He had spent six years on death row for a crime he did not commit.

A similar fate awaited Rolando Cruz, a Hispanic American who, along with co-defendant Alejandro Hernandez, was convicted of the 1983 kidnapping, rape, and murder of 10-year-old Jeanine Nicarico in DuPage County (Illinois) Circuit Court. Cruz was twice convicted and condemned to death for the crime, but both verdicts were overturned by appellate courts because of procedural errors at trial. He spent nearly 10 years on death row before he was acquitted at a third trial in November 1995. Hernandez also was convicted twice and sentenced to death once before his case was dropped following the acquittal of Cruz.229

This case attracted national attention for what many believed was the “rail- roading” of Cruz and Hernandez. Prosecutors presented no physical evidence or eyewitness testimony linking the two to the crime but relied almost exclusively on the testimony of jailhouse informants, who stated that the defendants had admitted the crime, and on questionable testimony regarding a dream about the crime that Cruz allegedly described to sheriff’s deputies. They also ignored compelling evidence that another man, Brian Dugan, had committed the crime. According to one com- mentator, “The crime had been ‘solved’ by cobbling together a shabby case against Rolando Cruz and Alex Hernandez of Aurora and presenting it to a jury that con- victed them and sent them to Death Row.”230

On November 3, 1995, Judge Ronald Mehling, who was presiding at Cruz’s third trial, acquitted Cruz of the charges. In a strongly worded address from the bench, Mehling stated that the murder investigation was “sloppy” and that the government’s case against Cruz was “riddled with lies and mistakes.” He also sharply criticized prosecutors for their handling of the “vision statement” and suggested that investigators had lied about the statement and about other evi- dence. “What troubles me in this case,” Mehling said, “is what the evidence does not show.”231 Cruz was set free that day; Hernandez was released several weeks later.

One year later, a grand jury handed down a 47-count indictment against three of the prosecutors and four of the sheriff’s deputies involved in the case. The indictment charged the deputies with repeated acts of perjury and alleged that prosecutors knowingly presented perjured testimony and buried the notes of an interview with Dugan that could have exonerated Cruz.232 The defendants, dubbed the “ DuPage Seven,” were acquitted of all charges in 1999. Lawyers for Rolando Cruz, Alejandro Hernandez, and Stephen Buckley (a third defendant who had been charged in the crime) then filed a federal civil rights suit. In October 2000, the DuPage County State’s Attorney agreed to pay the defendants an out-of-court settlement of $3.5 million.

These two cases are not isolated incidents. In April 2002, Ray Krone, who was convicted and sentenced to death for the murder of a cocktail waitress in 1991, became the 100th former death-row prisoner to be exonerated since 1973. Krone was freed after DNA tests revealed that he was not the killer. In 2005, Derrick Jami- son became the 121st death-row inmate to be exonerated. He was freed and all charges were dismissed after it came to light that prosecutors in the case had with- held critical eyewitness statements and other evidence from his attorneys.

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the death penalty is administered in an arbitrary and a discriminatory manner. Like former Supreme Court Justice Harry Blackmun, they argue that it is futile to continue to “tinker with the machinery of death.”

Whereas traditional abolitionists base their opposition to the death penalty on the immorality of state killing, the sanctity of human life, or the inherent cruelty of death as a punishment, the new abolitionists claim that the death penalty “has not been, and cannot be, administered in a manner that is compatible with our legal system’s fundamental commitments to fair and equal treatment.”235 They contend that the implementation of procedural rules, such as those proposed by the advocates of reform, has not solved—indeed, cannot solve—the problems inherent in the capital sentencing process: the post-Furman reforms notwithstand- ing, “the death penalty remains fraught with arbitrariness, discrimination, caprice, and mistake.”236 Like Justice Blackmun, the advocates of abolition insist that “no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies.”237

Concerns about fairness and discrimination in the capital sentencing process prompted death penalty opponents to call not for procedural reforms but for a moratorium on executions in the United States. Although these resolutions typi- cally call for a cessation of executions until reforms designed to ensure due process and equal protection have been implemented, Sarat maintains that they “amount to a call for the abolition, not merely the cessation, of capital punishment.”238

Sarat contends that the reforms needed to “fix” the capital sentencing process—provision of competent counsel for all capital defendants, expansion of death row inmates’ rights to appeal, guaranteed access to DNA testing, and review of prosecutors’ decisions to seek the death penalty—while feasible, are “hardly a likely or near-term possibility.”239 He notes, for example, that one of the reasons the American Bar Association cites in its call for a moratorium on the death pen- alty is the “longstanding patterns of racial discrimination . . . in courts around the country.” To address this problem, the ABA calls for the development of “effec- tive mechanisms” to eliminate racial discrimination in capital cases. Similarly, the National Death Penalty Moratorium Act, which was introduced in both houses of Congress in 2001 but which did not pass, would have set up a National Com- mission on the Death Penalty; the commission would have been charged with “establishing guidelines and procedures which . . . ensure that the death penalty is not administered in a racially discriminatory manner.”240 The problem, according to Sarat, is that it is not clear that any such “mechanisms,” “guidelines,” or “proce- dures” exist. As he contends,

The pernicious effects of race in capital sentencing are a function of the persistence of racial prejudice throughout society combined with the wide degree of discretion necessary to afford individualized justice in capital prosecutions and capital trials. Prosecutors with limited resources may be inclined to allocate resources to cases that attract the greatest public attention, which often will mean cases where the victim was white and his or her assailant black. Participants in the legal system—whether

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white or black—demonize young black males, seeing them as more deserving of death as a punishment because of their perceived danger. These cultural effects are not remediable in the near term . . . 241

Because it may be impossible to ensure that the capital sentencing process is operated in a racially neutral manner, in other words, Sarat and others who embrace the new abolitionism maintain that the only solution is to abolish the death penalty.

C O N C L U S I O N

The findings of research examining the effect of race on the capital sentencing process are consistent. Study after study has demonstrated that those who murder whites are much more likely to be sentenced to death than those who murder African Americans. Many of these studies also have shown that African Americans convicted of murdering whites receive the death penalty more often than whites who murder other whites. These results come from studies conducted before Fur- man, in the decade following the Gregg decision, and in the 1980s, 1990s, and beyond. They come from studies conducted in both southern and non-southern jurisdictions and from studies examining prosecutors’ charging decisions as well as jurors’ sentencing decisions.

These results suggest that racial disparities in the application of the death penalty reflect racial discrimination. Some might argue that these results sig- nal contextual, rather than systematic, racial discrimination. As noted earlier, although research consistently has revealed that those who murder whites are sen- tenced to death at a disproportionately high rate, not all studies have found that African-American offenders are more likely than white offenders to be sentenced to death.

We contend that the type of discrimination found in the capital sentencing process falls closer to the systematic end of the discrimination continuum pre- sented in Chapter 1. Racial discrimination in the capital sentencing process is not limited to the South, where historical evidence of racial bias would lead one to expect differential treatment, but is applicable to other regions of the coun- try as well. It is not confined to one stage of the decision-making process but affects decisions made by prosecutors as well as juries. It also is not confined to the pre-Furman period, when statutes offered little or no guidance to judges and juries charged with deciding whether to impose the death penalty, but is found, too, under the more restrictive guided discretion statutes enacted since Furman. Moreover, this effect does not disappear when legally relevant predictors of sen- tence severity are taken into consideration.

With respect to the capital sentencing process, then, empirical studies suggest that the Supreme Court was overly optimistic in predicting that the statutory reforms adopted since Furman would eliminate racial discrimination. To the con- trary, these studies document “a clear pattern unexplainable on grounds other than race.”242

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D I S C U S S I O N Q U E S T I O N S

1. Do you agree or disagree with the so-called Marshall Hypothesis—that is, that the average citizen who knew “all the facts presently available regarding capital punishment would . . . find it shocking to his conscience and sense of justice”?

2. In Gregg v. Georgia, the Supreme Court assumed that racial discrimination would not be a problem under the guided-discretion statutes enacted in the wake of the Furman decision. Does the empirical evidence support or refute this assumption?

3. Explain why Michael Radelet believes that the handful of executions of whites for crimes against African Americans are not really “exceptions to the rule.”

4. The procedures adopted by the U.S. Department of Justice to govern death penalty decisions in federal cases (the so-called “death penalty protocol”) are designed to ensure that the federal capital sentencing pro- cess is fair and equitable. But studies conducted by the Department of Jus- tice revealed that racial minorities were overrepresented in federal capital criminal cases and among those sentenced to death in U.S. District Courts. How did the Department of Justice interpret these findings? Why did the American Civil Liberties Union conclude that the 2001 study was “fatally flawed”?

5. In the case of the Martinsville Seven, a series of state and federal court rulings rejected the defendants’ allegations regarding racial discrimination in the application of the death penalty; Judge Doubles, for instance, ruled that there was no evidence of racial discrimination in the actions of the six juries that sentenced the seven men to death. In McCleskey v. Kemp, the U.S. Supreme Court similarly ruled that there was insufficient evidence “to support an inference that any of the decisionmakers in McCleskey’s case acted with discriminatory purpose.” Assume that you are the lawyer repre- senting an African-American offender who has been sentenced to death. What types of evidence would you need to convince the appellate courts that decision makers in your client’s case had “acted with discriminatory purpose”? Is it realistic to assume that any offender can meet this burden of proof?

6. Consider the five remedies for racial discrimination in capital sentencing (Box 8.6). Which do you believe is the appropriate remedy? Why?

7. In 1994, Supreme Court Justice Harry Blackmun stated that it was futile to continue to “tinker with the machinery of death.” Although those who advocate abolishing the death penalty agree with this assessment, advocates of reform contend that the death penalty can be “fixed.” Summarize their arguments.

8. Do you agree or disagree with our conclusion that “the type of discrimina- tion found in the capital sentencing process falls closer to the systematic end of the discrimination continuum presented in Chapter 1”? Why?

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N O T E S

1. Callins v. Collins, 510 U.S. 1141 (1994), at 1154–1155.

2. Jeff Flock, “‘Blanket Commutation’ Empties Illinois Death Row,” CNN, January 13, 2003. http://www.cnn.com/2003/LAW/01/11/illinois.death.row/html

3. Callins v. Collins, 510 U.S. 1141 (1994), at 1145.

4. Ibid.

5. For a discussion of the “new abolitionist policies,” see Austin Sarat, “Recapturing the Spirit of Furman: The American Bar Association and the New Abolitionist Politics,” Law and Contemporary Problems 61 (1998), pp. 5–28 and Austin Sarat, When the State Kills: Capital Punishment and the American Condition (Princeton: Princeton University Press, 2001), Ch. 9.

6. Cited in Sarat, “Recapturing the Spirit of Furman,” p. 14.

7. Clyde E. Murphy, “Racial Discrimination in the Criminal Justice System,” North Carolina Central Law Journal 17 (1988), pp. 171–190.

8. McCleskey v. Kemp, 481 U.S. 279 (1987).

9. Ibid.

10. In re Kemmler, 136 U.S. 436,447 (1890).

11. Trop v. Dulles, 356 U.S. 86, 99 (1958).

12. Furman v. Georgia, 408 U.S. 238 (1972).

13. Ibid., at 257 (Douglas, J., concurring); at 310 (Stewart, J., concurring); at 313 (White, J., concurring).

14. Ibid., at 257 (Marshall, J., concurring).

15. Ibid., at 310 (Stewart, J., concurring).

16. Samuel R. Gross and Robert Mauro, Death & Discrimination: Racial Disparities in Capital Sentencing (Boston: Northeastern University Press, 1989), p. 215.

17. Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 325 (1976).

18. Woodson v. North Carolina, 428 U.S. 280 (1976), at 303.

19. Ibid., at 305.

20. Gregg v. Georgia, 428 U.S. 153 (1976); Proffitt v. Florida, 428 U.S. 242 (1976); Jurek v. Texas, 428 U.S. 262 (1976).

21. Gregg v. Georgia, 428 U.S. 153 (1976).

22. Ibid., at 206–207.

23. Coker v. Georgia, 433 U.S. 584, 592 (1977).

24. Kennedy v. Louisiana, 554 U.S. 334 (2008).

25. Tison v. Arizona, 107 S.Ct. 1676 (1987).

26. Atkins v. Virginia, 536 U.S. 304 (2002).

27. Roper v. Simmons, 543 U.S. 551 (2005).

28. Baze v. Rees, 128 S.Ct. 1520 (2008).

29. Glossip v. Gross, 576 US ____ (2015).

30. Georgia Code Ann., §27-2534.1 (Supp. 1975).

31. Hurst v. Florida, 577 US _____ (2016).

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32. See, for example, Porter v. McCollum, 130 S.C. 447 (2009) and Sears v. Upton, 130 S.C. 3259 (2010).

33. National Opinion Research Center, General Social Surveys, 1972–1994, General Social Surveys, 1996 (Storrs, CT: The Roper Center for Public Opinion Research, University of Connecticut, 1997).

34. Data on public attitudes toward the death penalty since 1936 can be found at http://www.gallup.com/poll/1606/death-penalty.aspx

35. Furman v. Georgia, 408 U.S. 238, at 365–366 (1972), (Marshall, J., concurring).

36. Raymond Paternoster, Capital Punishment in America (New York: Lexington Books, 1991), p. 72.

37. Furman v. Georgia, 408 U.S. 238, at 369 (1972), (Marshall J., concurring).

38. See, for example, Robert M. Bohm, “American Death Penalty Opinion, 1936–1986: A Critical Examination of the Gallup Polls,” in The Death Penalty in America: Current Research, Robert M. Bohm, ed. (Cincinnati, OH: Anderson, 1991); William Bow- ers, “Capital Punishment and Contemporary Values: People’s Misgivings and the Court’s Misperceptions,” Law & Society Review 27 (1993), pp. 157–175; James Alan Fox, Michael L. Radelet, and Julie L. Bonsteel, “Death Penalty Opinion in the Post- Furman Years,” New York University Review of Law and Social Change 18 (1990–1991); Philip W. Harris, “Over-Simplification and Error in Public Opinion Surveys on Capital Punishment, Justice Quarterly 3 (1986), pp. 429–455; Austin Sarat and Neil Vidmar, “Public Opinion, the Death Penalty, and the Eighth Amendment: Testing the Marshall Hypothesis,” in Capital Punishment in the United States, Hugo A. Bedau and Chester M. Pierce, eds. (New York: AMS Publications, 1976).

39. Bowers, “Capital Punishment and Contemporary Values,” p. 162.

40. Ibid.

41. Ibid., p. 172.

42. Richard C. Dieter, A Crisis of Confidence: Americans’ Doubts About the Death Penalty (Washington, DC: Death Penalty Information Center, 2007), p. 5.

43. Ibid., p. 1.

44. http://www.gallup.com/poll/28243/racial-disagreement-over-death- penalty- has-varied-historically.aspx

45. Mark Peffley and Jon Hurwitz, “Persuasion and Resistance: Race and the Death Penalty in America,” American Journal of Political Science 51 (2007), pp. 996–1012.

46. Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics 2003, Table 2.54.

47. Taylor, “Support for Death Penalty Still Very Strong in spite of Widespread Belief that Some Innocent People are Convicted of Murder,” (2001, August 17). The Harris Poll, 41, Table 6.

48. Tom W. Smith, “A Trend Analysis of Attitudes Toward Capital Punishment, 1936– 1974,” in Studies of Social Change Since 1948: Vol. 2, James E. Davis, ed. (Chicago: National Opinion Research Center, 1975), pp. 257–318.

49. Steven E. Barkan and Steven F. Cohn, “Racial Prejudice and Support for the Death Penalty by Whites,” Journal of Research in Crime and Delinquency 31 (1994), pp. 202– 209; James D. Unnever and Francis T. Cullen, “The Racial Divide in Support for the Death Penalty: Does White Racism Matter?” Social Forces 85 (2007), pp. 1281–1301; Robert L. Young, “Race, Conceptions of Crime and Justice, and Support for the Death Penalty,” Social Psychological Quarterly 54 (1991), pp. 67–75.

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50. Barkan and Cohn, “Racial Prejudice and Support for the Death Penalty by Whites.”

51. Ibid., p. 206.

52. Ibid., p. 207.

53. Unnever and Cullen, “The Racial Divide in Support for the Death Penalty.”

54. Ibid., pp. 1292–1293.

55. Ibid., p. 1293.

56. Eric P. Baumer, Steven F. Messner, and Richard Rosenfeld, “Explaining Structural Variation in Support for Capital Punishment: A Multilevel Analysis,” American Jour- nal of Sociology 108 (2003), pp. 844–875. For a discussion of regional differences in support by whites for the death penalty, see Steven E. Barkan and Steven F. Cohn, “Contemporary Regional Differences in Support by Whites for the Death Penalty: A Research Note,” Justice Quarterly 27 (2010), pp. 458–471.

57. Baumer, Messner, and Rosenfeld, p. 856.

58. Stephen B. Bright, “Discrimination, Death, and Denial: The Tolerance of Racial Dis- crimination in Infliction of the Death Penalty,” Santa Clara Law Review 35 (1995), pp. 901–950.

59. Gregg v. Georgia, 428 U.S. 153 (1976), at 207.

60. NAACP Legal Defense Fund, Death Row, U.S.A., Spring 2015 (New York: NAACP LDF, 2015).

61. U.S. Department of Justice, Bureau of Justice Statistics, Capital Punishment, 2013— Statistical Tables (Washington, DC: U.S. Government Printing Office, 2014), Table 6.

62. NAACP Legal Defense and Educational Fund, Death Row U.S.A., Spring 2015, pp. 36–37.

63. Ibid., p. 37.

64. Ibid., p. 6.

65. Ibid.

66. Ibid.

67. U.S. Department of Justice, Bureau of Justice Statistics, Capital Punishment 1991 (Washington, DC: U.S. Government Printing Office), p. 8.

68. Marvin E. Wolfgang and Marc Riedel, “Race, Judicial Discretion, and the Death Penalty,” The Annals of the American Academy of Political and Social Science 407 (1973), pp. 119–133, p. 123.

69. Elmer H. Johnson, “Selective Factors in Capital Punishment,” Social Forces 36 (1957), p. 165.

70. Marvin E. Wolfgang, Arlene Kelly, and Hans C. Nolde, “Comparisons of the Exe- cuted and the Commuted Among Admissions to Death Row,” Journal of Criminal Law, Criminology, and Police Science 53 (1962), p. 301.

71. Gary Kleck, “Racial Discrimination in Criminal Sentencing: A Critical Evaluation of the Evidence With Additional Evidence on the Death Penalty,” American Sociologi- cal Review 46 (1981), p. 793.

72. For example, according to Raymond Fosdick, who studied U.S. police departments shortly before the country’s entry into World War I, southern police departments had three classes of homicide. One official told Fosdick, “If a nigger kills a white man, that’s murder. If a white man kills a nigger, that’s justifiable homicide. If a nigger kills another nigger, that’s one less nigger.” See Raymond Fosdisk, American Police Systems

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(Montclair, NJ: Patterson Smith Reprint Series, 1972), p. 45 (originally published in 1920).

73. Gary Kleck, “Racial Discrimination in Criminal Sentencing,” p. 793.

74. Ibid.

75. Ibid., p. 796.

76. Ibid., p. 798.

77. Guy Johnson, “The Negro and Crime,” Annals of the American Academy 217 (1941), p. 98.

78. Michael L. Radelet, “Executions of Whites for Crimes Against Blacks: Exceptions to the Rule?” The Sociological Quarterly 30 (1989), p. 535.

79. Ibid., pp. 529–544, p. 531.

80. Ibid., p. 533.

81. Ibid., p. 536.

82. Ibid., p. 538.

83. Ibid., pp. 534–535.

84. Ibid., p. 536.

85. Ibid., p. 536 (emphasis in original).

86. Furman v. Georgia, 408 U.S. 238 (1972), The Annals of the American Academy of Political and Social Sciences 217 (1941), pp. 93–104; at 449 (Powell, J., dissenting).

87. Harold Garfinkel, “Research Note on Inter- and Intra-Racial Homicides,” Social Forces 27 (1949), pp. 369–381; Guy Johnson, “The Negro and Crime”; Charles S. Mangum, Jr., The Legal Status of the Negro (Chapel Hill, NC: North Carolina Press, 1940); Paige H. Ralph, Jonathan R. Sorensen, and James W. Marquart, “A Comparison of Death-Sentenced and Incarcerated Murderers in Pre-Furman Texas,” Justice Quarterly 9 (1992), pp. 185–209; Wolfgang, Kelly, and Nolde, “Comparison of the Executed and Commuted Among Admis- sions to Death Row”; Marvin E. Wolfgang and Marc Reidel, “Race, Judi- cial Discretion, and the Death Penalty,” Annals of the American Academy 407 (1973), pp. 119–133; Marvin E. Wolfgang and Marc Reidel, “Rape, Race, and the Death Penalty in Georgia,” American Journal of Orthopsychiatry 45 (1975), pp. 658–668.

88. Guy Johnson, “The Negro and Crime.”

89. Charles S. Mangum Jr., The Legal Status of the Negro (Chapel Hill, NC: North Carolina Press, 1940).

90. Wolfgang, Kelly, and Nolde, “Comparisons of the Executed and Commuted Among Admissions to Death Row.”

91. Garfinkel, “Research Note on Inter- and Intra-Racial Homicides.”

92. William Bowers and Glenn L. Pierce, “Arbitrariness and Discrimination Under Post-Furman Capital Statutes,” Crime and Delinquency 74 (1980), pp. 1067–1100.

93. Kleck, “Racial Discrimination in Criminal Sentencing,” p. 788.

94. Florida Civil Liberties Union, Rape: Selective Electrocution Based on Race (Miami: Florida Civil Liberties Union, 1964).

95. Wolfgang and Reidel, “Race, Judicial Discretion, and the Death Penalty.”

96. Ibid., p. 133.

97. Kleck, “Racial Discrimination in Criminal Sentencing,” p. 788.

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98. David C. Baldus, George Woodworth, and Charles A. Pulaski, Equal Justice and the Death Penalty: A Legal and Empirical Analysis (Boston: Northeastern University Press, 1990).

99. Ralph, Sorensen, and Marquart, “A Comparison of Death-Sentenced and Incarcer- ated Murderers in Pre-Furman Texas.”

100. Ibid., p. 207.

101. David V. Baker, “Black Female Executions in Historical Context,” Criminal Justice Review 33 (2008), pp. 64–88, p. 64.

102. Ibid., p. 66.

103. Gregg v. Georgia.

104. Wolfgang and Reidel, “Rape, Race, and the Death Penalty in Georgia,” p. 667.

105. Cassia Spohn and Kimberly Kaiser, “Applying the Death Penalty in Arizona: Arbitrary and Capricious Decision Making?” Paper presented at the annual meeting of the American Society of Criminology, 2015.

106. U.S. General Accounting Office, Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities (Washington, DC: General Accounting Office, 1990), p. 5.

107. Ibid., p. 6.

108. Case described in Stephen B. Bright, “Discrimination, Death, and Denial: The Tolerance of Racial Discrimination in the Infliction of the Death Penalty,” Santa Clara Law Review 35 (1995), pp. 901–950, pp. 912–915.

109. Ibid., pp. 912–913.

110. Dobbs v. Zant, 963 F.2d 1403, 1407 [11th Cir. 1991], cited in Bright, “Discrimina- tion, Death, and Denial,” n. 7.

111. Ibid., p. 914.

112. Ibid.

113. David C. Baldus and George Woodworth, “Race Discrimination and the Legiti- macy of Capital Punishment: Reflections on the Interaction of Fact and Percep- tion,” DePaul Law Review (2004), pp. 1411–1496.

114. Ibid., p. 1421.

115. Ibid., p. 1479.

116. Studies that find either race-of-victim or race-of-defendant effect include (but are not limited to): Stephen Arkin, “Discrimination and Arbitrariness in Capital Punishment: An Analysis of Post-Furman Murder Cases in Dade County, Florida, 1973–1976,” Stanford Law Review 33 (1980), pp. 75–101; William Bowers, “The Per- vasiveness of Arbitrariness and Discrimination Under Post-Furman Capital Statutes,” Journal of Criminal Law & Criminology 74 (1983), pp. 1067–1100; Bowers and Pierce, “Arbitrariness and Discrimination Under Post-Furman Capital Statutes”; Sheldon Ekland-Olson, “Structured Discretion, Racial Bias, and the Death Penalty: The First Decade After Furman in Texas, Social Science Quarterly 69 (1988), pp. 853–873; Thomas Keil and Gennaro Vito, “Race and the Death Penalty in Kentucky Murder Trials: An Analysis of Post-Gregg Outcomes,” Justice Quarterly (1990), pp. 189–207; Raymond Paternoster, “Prosecutorial Discretion in Requesting the Death Penalty: A Case of Victim-Based Racial Discrimination,” Law & Society Review 18 (1984), pp. 437–478; Michael L. Radelet, “Racial Characteristics and the Imposition of the Death Penalty,” American Sociological Review 46 (1981), pp. 918–927; Michael L. Radelet and Glenn L. Pierce, “Race and Prosecutorial Discretion in Homicide

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Cases,” Law & Society Review 19 (1985), pp. 587–621; Dwayne M. Smith, “Patterns of Discrimination in Assessments of the Death Penalty: The Case of Louisiana,” Journal of Criminal Justice 15 (1987), pp. 279–286, and Gennaro F. Vito, George E. Higgins, and Anthony G. Vito, “Capital Sentencing in Kentucky, 2000–2010,” American Journal of Criminal Justice 39 (2014), pp. 753–770.

117. Baldus, Woodworth, and Pulaski, Equal Justice and the Death Penalty.

118. Gross and Mauro, Death & Discrimination.

119. Glenn L. Pierce and Michael L. Radelet, “The Impact of Legally Inappropriate Factors on Death Sentencing for California Homicides, 1990–99,” Santa Clara Law Review 46 (2005).

120. Vito, Higgins, and Vito, “Capital Sentencing in Kentucky, 2000–2010.”

121. Baldus, Woodworth, and Pulaski, Equal Justice and the Death Penalty.

122. Ibid., p. 185.

123. David Baldus, Charles Pulaski, and George Woodworth, “Comparative Review of Death Sentences: An Empirical Study of the Georgia Experience,” The Journal of Criminal Law & Criminology 74 (1983), pp. 709–710.

124. Anthony Amsterdam, “Race and the Death Penalty,” Criminal Justice Ethics 7 (1988), p. 2, pp. 84–86.

125. Ibid., p. 85.

126. Gross and Mauro, Death & Discrimination, Chs. 4 and 5.

127. Ibid., pp. 109–110.

128. Raymond Paternoster and Robert Brame, “Reassessing Race Disparities in Maryland Capital Cases,” Criminology 46 (2008), pp. 971–1007.

129. Isaac Unah and Jack Boger, “Race and the Death Penalty in North Carolina: An Empirical Analysis: 1993–1997.” http://www.deathpenaltyinfo.org

130. Rachel King, “Broken Justice: The Death Penalty in Virginia.” http://www.aclu. org/DeathPenalty/DeathPenalty.cfm?ID=14388&c=17

131. Andrew Welsh-Huggins, “Death Penalty Unequal,” Associated Press, May 7, 2005.

132. Pierce and Radelet, “The Impact of Legally Inappropriate Factors on Death Sentencing for California Homicides, 1990–1999.”

133. NAACP Legal Defense and Educational Fund, Inc., Death Row, USA, Summer 2005.

134. Pierce and Radelet, “The Impact of Legally Inappropriate Factors on Death Sentencing for California Homicides, 1990–1999,” Table 4.

135. Ibid.

136. Ibid.

137. Vito et al., “Capital Sentencing in Kentucky: 2000–2010.”

138. David Jacobs, Jason T. Carmichael, Zhenchao Qian, and Stephanie L. Kent, “Who Survives on Death Row? An Individual and Contextual Analysis,” American Sociolog- ical Review 72 (2007), pp. 610–632.

139. Ibid., p. 610.

140. Ibid., Table 1.

141. Ibid., p. 629.

142. Sarat, “Recapturing the Spirit of Furman,” p. 27.

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143. Scott W. Howe, “The Futile Quest for Racial Neutrality in Capital Selection and the Eighth Amendment Argument for Abolition Based on Unconscious Racial Dis- crimination,” William & Mary Law Review 45 (2004), pp. 2083–2166.

144. Ibid., Table 2 and p. 366.

145. Ibid., Tables 3 and 4.

146. Ibid., p. 370.

147. U.S. Department of Justice, The Federal Death Penalty System: A Statistical Survey (1988–2000) (Washington, DC: U.S. Department of Justice, 2000), p. 4.

148. Marian R. Williams and Jefferson E. Holcomb, “The Interactive Effects of Vic- tim Race and Gender on Death Sentence Disparity Findings,” Homicide Studies 8 (2004), pp. 350–376.

149. U.S. Department of Justice, The Federal Death Penalty System: Supplementary Data, Analysis, and Revised Protocols for Capital Case Review (Washington, DC: U.S. Depart- ment of Justice, 2001), pp. 6–7.

150. Ibid., p. 5.

151. U.S. Department of Justice, The Federal Death Penalty System: A Statistical Survey (1988–2000), p. 9.

152. Marc Lacey and Raymond Bonner, “Reno Troubled by DP Stats,” New York Times, September 12, 2000, A17.

153. American Civil Liberties Union, Federal Death Row: Is It Really Color-Blind? Analy- sis of June 6 Department of Justice Report on the Death Penalty. http://www.aclu.org/ Congress/10614la.htm

154. U.S. Department of Justice, The Federal Death Penalty System: Supplementary Data, Analysis, and Revised Protocols for Capital Case Review.

155. Ibid., p. 9.

156. Ibid., p. 3.

157. Ibid.

158. American Civil Liberties Union, Federal Death Row.

159. Ibid.

160. Death Penalty Information Center, The Federal Death Penalty. http://www. deathpenaltyinfo.org/federal-death-penalty

161. Richard Quinney, The Social Reality of Crime (Boston: Little, Brown, 1970); Austin Turk, Criminality and Legal Order (New York: Rand McNally, 1969).

162. Darnell F. Hawkins, “Beyond Anomalies: Rethinking the Conflict Perspective on Race and Criminal Punishment,” Social Forces 65 (1987), p. 726.

163. Keil and Vito, “Race and the Death Penalty in Kentucky Murder Trials,” p. 204.

164. Quoted in Stephen Wissink, “Race and the Big Needle,” Spectator Online. http://www.spectatoronline.com/2001-03-07/news_cover.html

165. Gross and Mauro, Death & Discrimination.

166. Ibid., p. 113.

167. Bright, “Discrimination, Death, and Denial,” pp. 903–905.

168. Ibid., p. 904–905.

169. Ibid., p. 921.

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170. For an excellent and detailed discussion of this case, see Eric W. Rise, The Martins- ville Seven: Race, Rape, and Capital Punishment (Charlottesville: University Press of Virginia, 1995).

171. Ibid., p. 122.

172. See, for example, Maxwell v. Bishop, F.2d 138 (8th Cir. 1968); Spinkellink v. Wain- wright, 578 F.2d 582 (5th Cir. 1978); Shaw v. Martin, 733 F.2d 304 (4th Cir. 1984); and Prejean v. Blackburn, 743 F.2d 1091 (5th Cir. 1984).

173. McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756 (1987).

174. Rise, The Martinsville Seven.

175. Ibid., p. 30.

176. Ibid., p. 32.

177. Ibid., p. 35.

178. Ibid., p. 48.

179. Ibid., p. 85.

180. Hampton v. Commonwealth, 58 S.E.2d 288, 298 (Va. Sup. Ct., 1950).

181. Ibid.

182. Rise, The Martinsville Seven, p. 121.

183. Ibid., p. 124.

184. Ibid., p. 148.

185. David C. Baldus, George W. Woodworth, and Charles A. Pulaski, “Monitoring and Evaluating Contemporary Death Penalty Systems: Lessons From Georgia,” Univer- sity of California at Davis Law Review 18 (1985), pp. 1375–1407.

186. McCleskey v. Kemp, 107 S.Ct 1756 (1987), at 1777.

187. Ibid., at 1769.

188. Ibid.

189. McCleskey v. Kemp, 481 U.S. 279 (1987), at 315 (Brennan, J., dissenting).

190. Ibid., at 316–317.

191. Maxwell v. Bishop, 398 F.2d 138 (CA 8 1968).

192. Amsterdam, “Race and the Death Penalty,” p. 86.

193. Randall Kennedy, Race, Crime, and the Law (New York: Vintage Books, 1998).

194. Bright, “Discrimination, Death, and Denial,” p. 947.

195. Gross and Mauro, Death & Discrimination, p. 212.

196. Baldus, Woodworth, and Pulaski, Equal Justice and the Death Penalty, pp. 384–387; Gross and Mauro, Death & Discrimination, Ch. 11; Kennedy, Race, Crime, and the Law, pp. 340–345.

197. Gross and Mauro, Death & Discrimination, p. 216.

198. Kennedy, Race, Crime, and the Law, p. 341.

199. McCleskey v. Kemp, 107 S.Ct., 1756 (1987) at 1806 (Stevens, J., dissenting).

200. Baldus, Woodworth, and Pulaski, Equal Justice and the Death Penalty, p. 385.

201. Kennedy, Race, Crime, and the Law, p. 343.

202. Ibid., p. 344.

203. Ibid.

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204. McCleskey v. Zant, 111 S. Ct. 1454 (1991).

205. Ibid.

206. New York Times, September 26, 1991, p. A10.

207. Death Penalty Information Center, Facts About the Death Penalty. http://www.deathpenaltyinfo.org/documents/FactSheet.pdf

208. McCleskey v. Zant, 111 S.Ct. 1454 (1991).

209. Herrera v. Collins, 113 S.Ct. 853 (1993).

210. Congressional Record, S 4602 (April 21, 1994).

211. Nathan Koppel, “Death Penalty Goes on Trial in North Carolina,” The Wall Street Journal, September 20, 2010.

212. Ibid.

213. Death Penalty Information Center, “Recent Legislation.” http://www. deathpenaltyinfo.org/recent-legislation-north-carolina-legislators-vote-repeal- racial-justice-act

214. Saldano v. Texas, 99–8,119.

215. Chicago Tribune, “Flawed Trials Lead to Death Chamber,” June 11, 2000; “Gate- keeper Court Keeps Gates Shut,” June 12, 2000.

216. U.S. Department of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics, 1999 (Washington, DC: Government Printing Office, 2000).

217. Texas Civil Rights Project, The Death Penalty in Texas: Due Process and Equal

Justice . . . or Rush to Execution? (Austin, TX: Texas Civil Rights Project, 2000).

218. Ibid., p. iv.

219. Ibid., p. ii.

220. American Bar Association, “Whatever You Think About the Death Penalty, A Sys- tem That Will Take Life Must First Give Justice: A Report from the IR&R Death Penalty Committee,” 24 W.T.R. Hum. Rts. 22.

221. Press Release, January 31, 2000. http://www.state.il.us/gov/press/00/Jan/morat. htm

222. John Kifner, “A State Votes to End Its Death Penalty,” New York Times, May 19, 2000, A8.

223. Press Release, September 20, 2000. http://www.igc.org/tcrp/press/HRR/death _penalty.htm

224. Adam Liptak, “Group Gives Up Death Penalty Work,” New York Times, January 4, 2010.

225. Public Law No. 108–405.

226. Comments taken from U.S. Senator Patrick Leahy’s website, http://leahy.senate .gov/press/200410/103004A.html

227. Hugo A. Bedau and Michael L. Radelet, “Miscarriages of Justice in Potentially Capital Cases,” Stanford Law Review 40 (1987), pp. 21–179.

228. Omaha World Herald, March 3, 1993.

229. Information about this case was obtained from articles appearing in the Chicago Tribune from 1995 to 1998.

230. Eric Zorn, “Dark Truths Buried in Nicarico Case May Yet See Light,” Chicago Tribune, October 18, 1995, Section 2, p. 1.

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417T H E C O L O R O F D E A T H

231. Chicago Tribune, November 4, 1995, Section 1, pp. 1–2.

232. Chicago Tribune, April 9, 1998, DuPage section, p. 1.

233. Jodi Wilgoren, “Few Death Sentences or None Under Overhaul Proposed by Illinois Panel,” New York Times online, April 16, 2002.

234. Austin Sarat, When the State Kills, pp. 246–260.

235. Ibid., p. 251.

236. Callins v. Collins, 510 U.S. 1,141 (1994), at 1144 (Blackmun, J., dissenting).

237. Ibid., at 1145.

238. Sarat, When the State Kills, p. 255.

239. Ibid., p. 256.

240. National Death Penalty Moratorium Act of 2001, S. 223, H.R. 1038.

241. Sarat, When the State Kills, p. 257.

242. Gross and Mauro, Death & Discrimination, pp. 109–110.

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419

9

CORRECTIONS IN AMERICA:

A Portrait in Color

Education versus Corrections: A Different View of America

The United States is often said to have a “prison industrial complex.” At the end of 2014, an estimated 6.8 million adults were incarcerated or under super- vision in the community. This still means that 1 in 36 adults are under correc- tional supervision. What are the racial and ethnic dimensions of this trend? We will discuss these issues throughout the chapter. However, we start the chapter by focusing on a trend that is referred to as a “pipeline” into the prison system.1

More than 20 million people in the United States attended college in 2014.2 Notably, the racial composition of college students in each racial group discussed in this book is almost identical to their representation in the general U.S. population. For example, 58.3 percent of college students are white (compared to 59.3 percent of the U.S. population) and African- American students are exactly the percentage you would project from the U.S. population—14.7 percent.

An examination of the racial composition of U.S. correctional popula- tions, however, shows a different racial picture. Specifically, these data reveal an overrepresentation of African Americans and Hispanics compared to their percentage in the general population and an underrepresentation of whites (see Table 9.1).

A review of two key data sources, the U.S. Department of Education and the Bureau of Justice Statistics, reveals that four times as many whites attend college than are under correctional supervision, while the number of Hispan- ics is slightly higher than the number under some form of correctional super- vision. There are more African Americans under correctional supervision than there are African Americans attending college. Typically, more women attend college than men; however, the reverse is the trend for correctional

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420 C H A P T E R 9

populations, where men make up the vast majority of offenders. Marc Mauer, of the Sentencing Project, helps us understand the intersection of race and gender within correctional populations, with his assertion that 1 in 3 African-American males will be incarcerated at some point in their lifetime, while 1 in 6 Hispanic males and 1 in 17 white males will be incarcerated in their lifetimes.3

One final concerning trend with race and education is that African- American and Hispanic students are overrepresented in the private for-profit educational institutions compared to white students.4 Students at these institutions have higher tuition costs, higher student loan debt, and lower graduation rates than both public and private not-for-profit institutions.

L E A R N I N G O B J E C T I V E S

In previous chapters we have seen that a number of forces contribute to the overrep- resentation of minorities at various stages of criminal justice systems processing. This chapter describes various disparities in the ethnic and racial makeup of American correctional populations. It examines which groups are overrepresented in situations of incarceration and supervision in the community. The extent of minority overrep- resentation also is explored in relation to gender distinctions, federal versus state pop- ulations, recidivism, and offender reentry with an emphasis on historical fluctuations. The juxtaposition of Native American philosophies and methods of community correction with the mainstream American criminal justice system is also explored.

After you have read this chapter:

1. You will have a good picture of the racial and ethnic composition of who is in jail, as well as state and federal prison in the United States.

2. You will be able to discuss in an informed manner the racial and ethnic dif- ferences between prison and jail, between probation and parole, and between federal and state prisons.

3. You will understand the special problems involving Native Americans and the corrections system.

4. You will be familiar with the unique issues related to women of color in prison and in reentry after prison.

5. You will be familiar with the challenges to offender reentry into the community, including the issue of collateral consequences.

6. You will be able to discuss what difference it makes when corrections personnel (prison guards, parole officers) are people of color.

7. Because prison is often the end result of social and economic inequalities, you will have a new perspective on the issues covered in Chapter 3.

The descriptive information in this chapter is supplemented by a discus- sion of current research on discrimination in the correctional setting. Finally, the inmate social system, which reflects key aspects of prison life, is discussed. This section will focus on the influence of minority group status on prison subcultures (including security threat groups) and religion.

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421C O R R E C T I O N S I N A M E R I C A

FOCUS ON AN ISSUE

School to Prison Pipeline

The “school-to-prison pipeline” is a

phrase that is used to refer to a myriad

of “zero-tolerance” disciplinary policies

and practices used in nearly every school

district across the country that “push our

nation’s schoolchildren, especially our

at-risk children, out of classrooms and into

the juvenile and criminal justice systems.”5

The U.S. Department of Education found

in a recent study that the higher the per-

centage of minority students in a school,

the more likely the school was to have

“zero-tolerance” policies.6 It is increas-

ingly clear that there is a racial dimension

to this use of harsh penalties for serious

but often minor misbehavior. In a study

of racial justice in school settings across

five states, Gordon and colleagues,7 found

that “African American . . ., Latino and

Native American students, were suspended

or expelled in disproportionate numbers.

(Further) students of color were more

likely to drop out or be pushed out of

school and less likely to graduate than

were white students.”

Student misbehavior is common in

all schools, at all grade levels. How such

misbehavior is dealt with can result in stu-

dent redirection that leaves a problematic

student within the school system or can

result in an official police response where

a problematic student is arrested and taken

to detention or jail. While there may be

widespread agreement about the need for

schools to be safe environments, concern

has risen over the pursuit of school safety

resulting in a disproportionately harsh

response to students, particularly students

of color, which has been dubbed the

school to prison pipeline.

Discipline is seen by many as cru-

cial in school environments to facilitate

learning. Mowen and Brent question,

“Does school discipline contribute to

increased odds of arrest?” Based on their

work with data from the National Longi-

tudinal Survey of Youth, they find that stu-

dents who are suspended have an increased

risk of arrest, compared to students who

are not suspended. They find that “youth

who receive suspension are at an increased

odds of contact with the criminal justice

system and increases in the number of sus-

pensions received contribute to significant

increases in arrest. Findings demonstrate

that suspensions present a form of cumula-

tive effect over time.”8

Law enforcement officers are increas-

ingly expected to intervene in school

misconduct issues and to control unruly

students in classroom settings. Research

has been focused on the “criminalization”

of school misconduct through the policy

of School Resource Officers (SRO). This

policy allows for the placement of sworn

law enforcement officers in public schools

to assist in prevention of crimes, such as

assaults, weapon possession on campus,

and so on. However, these officers are also

faced with situations of student discipline,

where they make subjective decisions

about disruptive behavior and the need for

a formal legal system response, rather than

a determination of a school-based disci-

plinary response by school administrators

(e.g., suspension).

Bailey (2006)9 notes that the stan-

dard for search and issuance of a warrant

is the traditional probable cause. However,

searches of a student and student’s locker or

car on school grounds is a lesser standard

of reasonable suspicion. Theriot’s (2009)10

recent study of one county in the South-

eastern part of the United States compared

(Continued )

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422 C H A P T E R 9

schools with SROs and without SROs.

When controlling for the socioeconomic

status of each school, there was no signif-

icant difference in arrest rates with SRO

present and SRO not present. This finding

suggests that the school to prison pipe-

line may function in schools, regardless of

the presence of SRO. However, a further

analysis by individual offenses revealed that

while the presence of SROs seemed to sig-

nificantly decrease the arrests for assault and

weapons possession, and had no significant

impact on arrests for drugs, the presence of

SROs did lead to significantly more arrests

for minor offenses like disorderly conduct.

It is important to note that arrests

made at middle schools and high schools

are predominantly handled in juvenile

court, such charges can lead to removal

from school and confinement in detention

of treatment facilities. In some states, such

as North Carolina and New York, youth

aged 16 and older are automatically treated

as adults after arrest and for charging and

sentencing. Some states, such as Texas, have

an additional model of handling criminal

offenses by juveniles with blended juvenile

and adult system sentencing.

“Criminalization” of student mis-

conduct offenses can leave students with

juvenile and/or adult criminal arrest, con-

viction, and sentencing records. This leads

to missed educational opportunities, disrup-

tion of after school activities (each of which

can insulate students from delinquent

behavior) and a rise in dropout rates (which

can contribute to criminal behavior). In

addition, arrest and disposition in the legal

system results in negative labeling of the

youth in the eyes of peers and school offi-

cials. If the youth ends up with a conviction

for a felony, this eliminates their ability to

qualify for federal financial aid for college,

among other collateral consequences. More

information on the racial nature of sus-

pension and arrest policies can be found in

the report “Education under Arrest by the

Policy Institute,” available at http://www.

justicepolicy.org/research/3177.

Morris asserts that African-American

girls are even more vulnerable, “our chal-

lenge is to capture the authentic experi-

ences of Black girls who are marginalized

in their learning environments and then

thrust toward life experiences that increase

their risk of incarceration. But first, we

must acknowledge that they are relevant

to the discussion. Only then can we move

on to engage in a dynamic examination of

the ways in which Black girls are uniquely

impacted by stereotypes about their fem-

ininity and the ways in which they might

be affected by school policies that facilitate

the arrest of girls who are running—either

from or to—relationships that lead them to

participate in illegal, underground econo-

mies.” See her publication, “Race, Gender

and the School to Prison Pipeline: Expand-

ing our discussion to black girls,” available

at http://www.aapf.org/publications/ for

more research on this topic.

Educational researchers are concerned

that students with disabilities may be dis-

proportionately the target of harsh, zero-

tolerance disciplinary policies. Children

with learning and behavioral disabilities

may have difficulty adapting to the structure

of a school environment, thus exhibiting

behavior that can be interpreted as unruly

and labeled misconduct. In some instances

schools may rely on SROs to resolve poten-

tially volatile situations. See these publica-

tions for more information: L. J. Heflin and

L. M. Bullock, (1999) “Inclusion of Students

with Emotional/Behavioral Disorders: A

Survey of Teachers in General and Special

Education,” Preventing School Failure, 43 (3):

103–111; and E. Carter and C. Hughes,

(2006) “Including High School Students

with Severe Disabilities in General Edu-

cation Classes: Perspectives of General and

Special Educators, Paraprofessionals, and

Administrators,” Research and Practice for Per-

sons with Severe Disabilities, 31 (2):174–185.

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423C O R R E C T I O N S I N A M E R I C A

T H E I N C A R C E R AT E D : P R I S O N A N D J A I L

P O P U L AT I O N S

Describing incarcerated populations in the United States is a complicated task. The answer to the question, “Who is locked up?” depends on what penal institu- tion and which inmates we are discussing. Jail and prison population figures are descriptive counts taken on one particular day, often at midyear. These figures are used for the purpose of describing disparity and are not standardized rates (see discussion later in this chapter). There are a number of important distinctions between jails and prisons, male and female inmates, and state and federal popula- tions. In addition, important changes occur over time.

Jails and prisons are not the same: they serve different functions in the crim- inal justice system. These differences may result in different levels of minority overrepresentation, so jails and prisons are discussed separately. Gender differences are also important when discussing incarceration; therefore, we also explore the issues of the racial and ethnic composition of male and female prisoner popula- tions. State and federal prison populations must be examined separately because of the differences in state and federal crime statues and sentencing procedures.

Minority Overrepresentation

In 2014, more than 2.3 million people were incarcerated in local jails, state and federal prisons.11 Looking at this population through the lens of race and eth- nicity of incarcerated inmates, our primary observation about the jail and prison populations in the United States (Table 9.1) is that African Americans are strik- ingly overrepresented compared with their presence in the general population. African Americans comprise less than 15 percent of the U.S. population but roughly 37 percent of all incarcerated offenders. Hispanics not more than 15% of the general population are overrepresented in state prison populations, and even more so in federal prison populations. Conversely, whites (non-Hispanic) are underrepresented compared with their presence in the population—they are more than 70 percent of the general population but are not quite one half of the jail population, just more than one-third (35.3 percent) of the state prison popu- lation and just over one-quarter of the federal prison population.

The racial gap in incarceration figures for white and African-American offenders appears consistent across jail, state prison, and federal prison population figures. Recalling the racial disparity in UCR arrest figures from Chapter 2, these percentages represent a similar level of overrepresentation of African Americans in the serious offenses that are likely to lead to incarceration.

Hispanic offenders have a higher level of overrepresentation compared to their percentage in the general population for both state and federal prison populations. While immigration offenses are typically federal crimes, this does not explain the substantial disparity in federal prison populations. Arrest figures do not assist in understanding this disparity, as the figures presented in Chapter 2 do not distin- guish federal prosecutions from state prosecutions, in particular for drug offenses.

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424 C H A P T E R 9

FOCUS ON AN ISSUE

Indigenous Justice Paradigm

In “Crime and Punishment: Traditional

and Contemporary Tribal Justice,” Ada

Pecos Melton observes that in many con-

temporary tribal communities “a dual

justice system exists, one based on an

American paradigm of justice and the

other based on an indigenous paradigm.”12

The American justice paradigm is charac-

terized by an adversarial system and stands

apart from most religious tenants. Crimes

are viewed as actions against the state, with

little attention to the needs of the victim

or community. The focus is on the defen-

dant’s individual rights during adjudica-

tion. Punishing the offender is generally

governed by a retributive philosophy and

removal from society.

In contrast, tribal justice is based

on a holistic philosophy and is not easily

divorced from the religious and spiritual

realms of everyday life. Melton attempts

to distill the characteristic elements of a

number of diverse American tribal justice

ideologies into an indigenous justice par-

adigm. The holistic philosophy is the key

element of this paradigm and supports a

“circle of justice” where “the center of

the circle represents the underlying prob-

lems and issues that need to be resolved to

attain peace and harmony for the individ-

uals and the community.” The correspond-

ing values of restorative and reparative

justice prescribe the actions the offender

must perform to be forgiven. These values

reflect the importance of the victim and

the community in restoring harmony.

The influence of the American par-

adigm of justice on Native American

communities has a long and persistent

history.13 However, the values of restorative

and reparative justice are emerging in a

number of programs off the reservation. In

particular, the restorative justice practices

of the Navajo Nation have influenced a

number of new-offender rehabilitation

programs.

T A B L E 9.1 Racial and Ethnic Profile of Jail, State Prison, and Federal Prison Populations by Race, 2014

Jail State Federal

White (non-Hispanic) 47.4 35.3 26.7

African American (non-Hispanic) 35.4 37.5 37.0

Hispanic 14.9 20.7 33.0

Other (Native American, Alaskan Native, Asian, and Pacific Islander) 2.23 6.5 3.1

SOURCES: Ann E. Carson, Prisoners in 2014 (Bureau of Justice Statistics, 2015) computed from Appendix Tables 4 and 5); Todd D. Minton and Zhen Zeng, Jail Inmates at Midyear 2014 (Bureau of Justice Statistics, 2015), computed from Table 2.

When looking at the percent of state-sentenced prisoners by type of offense, a number of racial and ethnic patterns emerge.14 Nearly 60 percent of Hispanics and African Americans are incarcerated in state prisons for violent offences com- pared to less than half of whites. Thus, statistics reveal that a higher percentage of whites are incarcerated for property offenses than either African Americans

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425C O R R E C T I O N S I N A M E R I C A

or Hispanics. The percentage of offenders by race sentenced for drug offenses in state prisons varies little and is approximately 14 percent of each racial/ethnic group.

A look at federal-sentenced prisoners by race and ethnicity reveals distinct racial and ethnic differences.15 The majority of African American (52.5 percent) and Hispanic (56.9 percent) are under sentence for drug offenses. The most com- mon offense for whites in federal prison is public order (41.2 percent) followed by drug offenses (40.3 percent). Twenty-five percent of Hispanics under sen- tence in federal prison are there for immigration offenses, which is higher than both whites and African Americans. Twenty-five percent of African Americans are incarcerated for weapon offenses, twice as high as the proportion of whites and four times the proportion of Hispanics for this offense.

Intersectionality with Gender and Age

The picture of the racial and ethnic composition of state and federal prison popu- lations changes slightly when focusing on gender (Table 9.2) and age (Table 9.3). Because women make up roughly 7 percent of the incarcerated persons (up from 5.7 percent in 1990 and down from 9.5 percent in 2009), we should not gener- alize patterns from predominantly male populations to female populations. For example, although prison populations have increased markedly in the last several years, the increase for female inmates is more rapid than that for male inmates from 1995 to 2009. Over this nearly 15-year period, female prison populations have increased by more than 50 percent, whereas male populations increased by

FOCUS ON AN ISSUE

Jails on Tribal Lands

The picture of jails on tribal lands is

presented by the BJS, in “Jails in Indian

Country, 2014.”16 The statutory meaning

of “Indian country” (18 U.S.C. 1151) is all

lands within an Indian reservation, depen-

dent Indian Communities, and Indian

Trust allotments.17 Currently, nearly 300

Native American land areas/reservations

exist across 33 states. Federal regulations

limit the jurisdiction and incarceration

powers of tribal governments by identity

of the victim and offender, the severity

of the crime, and location of the crime.

Tribal sentencing authority is limited to

one year, a $5,000 fine per offense, or both

(25 U.S.C. 1153).18

More than 10,460 people were

admitted to jails in the first six months of

2014, with an average daily population of

2,170 people on the census date, June 30.

This census reflects reports from 79 Indian

country jails. Twelve percent of the jailed

population were held for domestic vio-

lence and 9 percent for simple assault

(down from 40 percent of the population

in 2007). The typical length of stay was

6.2 days. Male inmates made up 75 percent

of the population, with roughly half of the

population awaiting trial and half com-

posed of convicted offenders. Fifty-one

attempted suicides were reported, with

three deaths reported.

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426 C H A P T E R 9

only one-third of a percent.19 Both male and female populations are experiencing decreases in the last several years.

Among females sentenced to prison, similarities and differences exist when comparing their racial and ethnic makeup to the male prison population. Although people of color represent more than half of the women incarcerated in federal and state prisons, white, non-Hispanic women make up the largest group of female prisoners (49.9 percent). Whereas, in the male population of sentenced prisoners, the largest racial group is African-American males (36.9 percent).

The percentage of female inmates who identify themselves as African American indicates an overrepresentation of African-American females in prison compared with the general population, but the proportion of this overrepresen- tation is not as substantial as the overrepresentation of African-American males sentenced to prisons to the general population. Notably, the percentage of female prisoners who are Hispanic is lower than the percentage of male prisoners who are Hispanic (16.8 percent compared with 22.0 percent).

The information offered by incarceration rates expands the picture of the prison inmate offered in population totals and percentages (as outlined previ- ously). Incarceration rates offer the most vivid picture of the overrepresentation of African Americans and Hispanics in prison populations. Rates allow for the standardization of population figures that can be calculated over a particular target

T A B L E 9.2 Racial and Ethnic Profiles of State Prison and Federal Prison Populations by Gender, 2014

Female Male

White (non-Hispanic) 49.9 32.3

African American (non-Hispanic) 21.3 36.9

Hispanic 16.8 22.0

Other (Native American, Alaskan Native, Asian, and Pacific Islander) 12.0 8.8

SOURCE: Ann E. Carson, Prisoners in 2014 (Bureau of Justice Statistics, 2015). Computed from Table 10.

T A B L E 9.3 Incarceration Rates by Race/Ethnicity and Gender

Female Male

White African

American Hispanic White African

American Hispanic

1990 19 125 43 339 2376 817

1995 27 176 57 461 3250 1174

2000 63 380 117 683 4777 1715

2005 88 347 144 709 4682 1856

2014 53 109 64 465 2724 1091

SOURCES: Heather West, Prison Inmates at Midyear 2009—Statistical Tables (Bureau of Justice Statistics, 2010), Table 18; Ann E. Carson, Prisoners in 2014 (Bureau of Justice Statistics, 2015), Table 10.

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427C O R R E C T I O N S I N A M E R I C A

population. The overall U.S. incarceration rate in 2014 was 612 prisoners per 100,000 U.S. residents over age 18. This aggregate one-year number hides a num- ber of gender and age observations. Table 9.3 reveals that female incarceration rates are substantially lower than male incarceration rates. Moreover, incarceration rates vary by race and ethnicity as well as over time. Consistent patterns over time are that incarceration rates are lowest for white females, highest for African-American females, with Hispanic females falling in between. These rates are lower in 2014 than in 2000 and 2005 but have not returned to the lows of 1990 and 1995. In the most current year, African-American females have incarceration rates twice that of white females. Interestingly, the racial gap in incarceration rates has declined recently as well from more than six times higher for African- American females than white females in 1990.

Male incarceration rates have changed over time as well, with statistics indi- cating that each racial and ethnic group reported have the lowest rates of incar- ceration since 1990. Currently, African-American males have an incarceration rate nearly six times higher than that of white males (down from a high of nearly seven times higher in 2000). Hispanic males have more than twice the incarcera- tion rate of white males, but half the rate of African-American males.

Incarceration rates by gender are revealing but fail to reveal the stark differences that occur among racial and gender groups by age. The numbers in Table 9.4 reveal that in 2014, incarceration rates peak for females and males between the ages 30 and 34 and that male incarceration rates are substantially higher than female incarceration

T A B L E 9.4 Incarceration Rates by Race/Ethnicity, Age, and Gender, 2009 (per 100,000 Population U.S. Residents by Race/ Ethnicity, Age, and Gender)

Female Male

Age Total White African

American Hispanic Total White African

American Hispanic

Total 65 53 109 64 890 465 2724 1091

18–19 14 8 32 17 317 102 1072 349

20–24 96 72 152 94 1365 584 3868 1521

25–29 170 150 244 165 1912 958 5434 2245

30–34 185 163 264 174 2129 1111 6412 2457

35–39 155 138 229 137 1982 1029 6122 2272

40–44 132 119 213 107 1689 942 5105 1933

45–49 111 90 203 94 1417 815 4352 1602

50–54 72 57 128 67 1081 633 3331 1320

55–59 37 27 72 42 698 400 2178 978

60–64 20 15 37 25 422 353 1265 680

65 or older 5 4 7 12 158 109 418 299

SOURCE: Ann E. Carson, Prisoners in 2014 (Bureau of Justice Statistics, 2015), Table 10.

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428 C H A P T E R 9

rates at all age levels. At this age level, African-American men have incarceration rates nearly six times higher than white men and 2.6 times higher than Hispanic men. However, the largest gap between African-American male incarceration rates and the white male incarceration rates was among the 18–19 age group, with the former being 10 times higher than the latter. Similarly, the greatest gap between Hispanic males and white males is evident in the youngest age group at 2.6 times higher.

The information in Table 9.4 for females reveals similar patterns within race by age and within age by race. Notably, incarceration rates for African-American females at ages 18–19 are four times the incarceration rate for white females. All groups experience the highest rates of incarceration at the 30–34 age group and then declining rates at later age groups. The gap in incarceration rates between African-American females and white females ranges from 2.1 to 2.6 times higher throughout the rest of the age groups. The incarceration rates for Hispanic females never reach the higher rates for African-American females, rather they are gen- erally similar, and on two occasions lower than the rates for white females. (See Box 9.1 for information on incarceration rates in other parts of the world.)

Security Level of Facilities

When convicted offenders are committed to federal prison, they undergo a clas- sification process that determines, among other things, what type of institution (or security level) they should be assigned to as inmates. Federal Bureau of Prison statistics offer a picture of male inmates of color by security level of the prison they are assigned to, presented in Figure 9.1. Roughly the same percentages of

B o x 9.1 International Comparisons

In the international arena, the United States consistently has the highest incarcer- ation rate in the world, even when factoring in recent declines. The Institute for Criminal Policy Research reported in 2015 that the United States has 698 people incarcerated in jails and prisons for every 100,000 people in the general population; in distant second is Rwanda at 492 per 100,000 population, with the Russian Federa- tion at 446 per 100,000 resident population. Notably, more than half of the world’s countries have incarceration rates of 151 per 100,000 population (or less). These countries include Australia, 151; China, 119; Canada, 106; France, 100; Germany, 78; Denmark, 61; Sweden, 60; and India, 30 per 100,000 population.20

The Sentencing Project compares the incarceration rate of the United States in 1993 for African-American males to the rate of South Africa in the last years of apartheid—that is, in 1993 the incarceration rate for African-American males in the United States was 3,822 per 100,000 compared to the rate of 815 per 100,000 for South African males. That is four times higher in the United States! By 2001, the incarceration rate for African-American males in the United States was even higher: 4,848 per 100,000 African Americans in the population.

The racial disparity in the nation’s prison populations is revealed even more dramatically by The Sentencing Project, which estimates that at some point in their lives, African-American males have a 29 percent chance of serving time in prison or jail. Hispanic males have a lower lifetime risk at 16 percent, whereas white males have a 4 percent chance of being incarcerated at some time during their lives.21

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429C O R R E C T I O N S I N A M E R I C A

F I G U R E 9.1 Federal Prisoners by Race and Security Level SOURCE: Bureau of Justice Satistics, Sourcebook of Criminal Justice Statistics 2002 (Washington, DC: Government Printing Office, 2003). www.albany.edu/sourcebook/.

50

40

30

20

10

0

P e rc

e n ta

g e

Security Level

White Males African-American Males

High

8.6

16.9

23.6

31.4

25.8 24.5

10.8 11.3

17.9

10.5 13.4

5.4

Medium Low Minimum Administrative Contract

FOCUS ON AN ISSUE

Correctional Personnel: Similarities and Differences on the Basis of Race

Currently, federal and state prisons

have fairly equitable representation of

African-American citizens among correc-

tional officers and supervisors, as compared

with the general population. Hispanic rep-

resentation among correctional personnel

is still lacking.22 Important goals include

ensuring fair employment practices in

government hiring and ensuring there are

minority decision makers to cause a benefi-

cial (and perhaps less discriminatory) impact

on the treatment of minority populations.

A review of the research in the area of

attitudes and beliefs of correctional officers

toward inmates and punishment ideolo-

gies suggests that respondents’ views do

appear to differ in many ways on the basis

of race. In particular, the author notes that

African-American officers appear to have

more positive attitudes toward inmates

than do white officers; however, others

have found that black officers expressed

a preference for greater distance between

officers and inmates than did white offi-

cers.23 Additionally, neither white nor

African-American correction officers seem

able to correctly identify the self-reported

needs of prison inmates.

Ideologically, African-American offi-

cers were more often supportive of reha-

bilitation than their white counterparts.

African-American officers also appear to

be more ambivalent about the current

punitive nature of the criminal justice

system, indicating that the court system is

often too harsh.

In short, current research does not

offer a definitive answer to the question

of whether minority correctional officers

make different decisions. Assuming that

differential decision making by correc-

tion officers could be both a positive and

negative exercise of discretion, at what

point are differential decisions beneficial

to inmates, and at what point are they

unprofessional or unjust? What research

could be done to resolve the issue of the

presence or absence of differential decision

making by correctional officers on the

basis of race?

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430 C H A P T E R 9

F I G U R E 9.2 Admissions to State and Federal Prisons by Race, 1926–2010 SOURCES: Bureau of Justice Statistics, Race of Prisoners Admitted to State and Federal Institutions, 1926–1986 (Wash- ington, DC: Government Printing Office, 1991); Bureau of Justice Statistics, Correctional Populations in the United States, 1996 (Washington, DC: Government Printing Office, 1997); Bureau of Justice Statistics, Correctional Populations in the United States, 1996 (Washington, DC: Government Printing Office, 1998); Allen J. Beck, Prison and Jail Inmates, 1999; Allen J. Beck and Jennifer C. Karberg, Prison and Jail Inmates at Midyear 2000; Allen J. Beck, Jennifer C. Karberg, Paige M. Harrison, Prison and Jail Inmates at Midyear 2001; Paige M. Harrison and Allen J. Beck, Prison and Jail Inmates at Midyear 2004.

80

70

60

50

40

30

20

10

0

P e

rc e

n ta

g e

( %

)

34 42 4638 5030 20029890 94 1006868262 70 74 786658541926

White African American

inmates, regardless of race, are found in the low- and minimum-security settings (about 25 percent and 10 percent, respectively). However, a larger percentage of African-American inmates are in the highest two security levels compared to the white inmates. Thus, although the typical federal prison inmate is white, the typi- cal inmate in the high-security facilities is African American.

Historical Trends

The overrepresentation of African Americans in state and federal prisons is not a new phenomenon. Figure 9.2 illustrates the changing demographic composition of the prison population from 1926 to 2009. Reviewing this figure we can doc- ument a disproportionate number of African Americans in the prison population since 1926 (the beginning of national-level data collection on prison popula- tions). The racial disparity has increased in recent years, however. In 1926, African Americans represented 9 percent of the population and 21 percent of the prison population. Over time, the proportion of the prison population of African Amer- icans increased steadily, reaching 30 percent in the 1940s, 35 percent in 1960, 44 percent in 1980, peaking at slightly more than 50 percent in the mid-1990s, and leveling off at about 45 percent in the late 1990s to the present. The rep- resentation of African Americans in the general population has never exceeded 15 percent. The African-American prisoner population ratio to white prisoner population ratio was 2.5:1.0 in 1926, but it has reached the current ratio of 3:1.

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431C O R R E C T I O N S I N A M E R I C A

Conclusion

The impact of racial and ethnic overrepresentation in incarceration settings varies in magnitude and quality. One of the important implications of the more extreme overrepresentation of Hispanic offenders in federal prison is that offenders sen- tenced to federal prison serve longer sentences with more time served than those offenders sentenced to state prisons, given that federal prisoners can expect to serve 50 percent more of their original sentence than do state inmates. Additional information about type of offense by race and ethnicity raises questions about dif- ferential offending and differential enforcement patterns. Finally, the intersection of race, ethnicity, and gender reveals important observations about the character of incarcerated populations and how the level of overrepresentation by race and ethnicity has changed somewhat over time.

Race, Ethnicity, and Recidivism

In a country that incarcerates millions of people a year, transition of ex-offenders to the community without reoffending is crucial. The concept of recidivism can

B o x 9.2 The New Jim Crow: Mass Incarceration in the Age of Colorblindness24

Michelle Alexander defines mass incarceration as a term that refers, “not only to the criminal justice system, but also to the larger web of laws, rules, policies, and customs that control those labeled criminals both in and out of prison.” In her book, she con- fronts the reality of mass incarceration in America by stating that after more than 200 years, America has still not reached the promise of an egalitarian democracy.

Is short, as Jim Crow replaced the social caste system of slavery, so has mass incarceration replaced the social control of Jim Crow, creating a new “undercaste.” Alexander argues that, “it may be useful, in attempting to understand the basic nature of this new caste system, to think of the criminal justice system—the entire collection of institutions and practices that compromise it—not as an independent system but rather as a gateway into a much larger system of racial stigmatization and permanent marginalization” (p. 12).

Moreover, she asserts that “while it is no longer socially permissible to use race, explicitly as a justification for discrimination, exclusion and social contempt . . . rather than rely on race, we use our criminal justice system to label people of color as criminals and then we engage in all the practices we left behind” (p. 2). Simply put, mass incar- ceration “is a system that locks people not only behind actual bars, in actual prisons, but also behind virtual bars and virtual walls—walls that are invisible to the naked eye, but functional nearly as effectively as Jim Crow laws once did in locking people of color into permanent second-class citizenship. Once released former prisoners enter a hidden underworld of legalized discrimination and permanent social exclusion” (pp. 12–13).

How does the “The New Jim Crow” compare to Angela Davis’s thesis about the “Prison Industrial Complex” as an explanation for incarceration rates in the United States.25 Are we in the age of colorblindness where people are incarcerated due solely to their own free will actions, or are prisons still functioning as a warehouse for a population deemed disposable in the new global economy.

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432 C H A P T E R 9

take on different meanings in different settings. Generally, the term is used to refer to offenders who return to offending after experiencing a criminal convic- tion and the corresponding punishment. Four key distinctions in the research on offender recidivism center on the point in the system we measure as the return to criminal behavior: (1) rearrest for a new crime (either felony or misdemeanor), (2) reconviction (in state or federal court), (3) resentence to prison, and (4) revo- cation of parole (technical or new offense violation).

In a study of recidivism among prisoners released from 30 states, racial differences did emerge in the findings.26 A group of 404,638 offenders released from prison in 2006 were followed for three years after their release. While fewer than half were rearrested within the first year, roughly three-quarters of ex-offenders were rearrested within 5 years. Findings indicate that after 5 years, non-Hispanic African Americans were more likely to be rearrested (80.8 percent) compared to non-Hispanic whites (76.6 percent) and Hispanics (75.3 percent). The BJS estimates that just over half of these ex-offenders will be convicted of the offense for which they were arrested.

The Age of Mass Incarceration

Dramatic increases in the overrepresentation of African Americans in the prison population have occurred in a context of generally increasing prison population totals and rising incarceration rates since the early 1970s. The incarceration binge seems to be slowing in the first years of the twenty-first century, but it remains at a level of over 2 million people incarcerated in state and federal jails and prisons. Although the incarceration binge surely has multiple sources, it may reflect an impact of the “War on Drugs.” Michael Tonry,27 for example, argues that the war on drugs has had a particularly detrimental effect on African-American males. Evidence of this impact, he argues, can be seen by focusing on the key years affected by the war on drugs: 1980 to 1992. During this period, the number of white males incarcerated in state and federal prison increased by 143 percent; for African-American males the number increased by 186 percent.

Statisticians for the BJS argue that the sources of growth for prison popula- tions differ for white and African-American inmates. Specifically, drug offenses and violent offenses account for the largest source of growth among state prison inmates. During the 10-year period from 1985 to 1995, “the increasing number of drug offenders accounted for 42 percent of the total growth of black inmates and 26 percent of the growth among white inmates.” Similarly, the number of African-American inmates serving time for violent offenses increased by 37 per- cent, whereas growth among white inmates was higher at 47 percent.28

As we discussed in Chapters 3 and 4, the differential impact of the “War on Drugs” may result more from the enforcement strategies of law enforcement than from higher patterns of minority drug use. Critics argue that although the police are reactive in responding to robbery, burglary, and other index offenses, they are proactive in dealing with drug offenses. There is evidence to suggest that they target minority communities—where drug dealing is more visible and where it is thus easier to make arrests—and tend to give less attention to drug activities in other neighborhoods.

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433C O R R E C T I O N S I N A M E R I C A

The “War on Drugs” fostered a massive surge toward incarceration of crimi- nal offenders. While harsh sentencing statutes led to longer prison sentences, the vast majority of incarcerated offenders return to the community. Ex-offenders are released back into communities that fostered their delinquent behavior. The basic elements for the successful reentry of offenders into the community are employ- ment and housing; however, such avenues are often closed to ex-offenders (see discussion on collateral consequences). There are also additional needs related to addiction recovery, mental health, and physical health.

Reviewing the data from the website Justice Atlas of Sentencing and Cor- rections (www.justiceatlas.org), we find that the residences of parolees and ex- offenders are not randomly dispersed across the country. This website docu- ments reentry disparities with an interactive mapping tool that reveals highly con- centrated “pockets” of criminal justice system activity across urban and rural areas. Typically those released from prison return to the communities they came from, with consistently high poverty levels and high levels of ex-offenders. A number of criminological theories outline the criminogenic aspects of communities, such as social disorganization theory, social learning theory, and critical race theory. This section poses the question, “How does a high presence of ex-offenders destabilize communities?” Given the highest rates of incarceration are for African Americans, what is the impact of ex-offender reintegration on African-American communi- ties? As noted in Chapter 3, African Americans are substantially more likely to live in poverty and have higher unemployment rates. Do U.S. legal policies perpetuate a cycle of incarceration that correlates with high levels of social disorganization, poverty, and unemployment?

Offender Reentry

Access to employment and housing are two basic pillars of reentry success. Clearly having an income can forestall recidivism, as much of crime in American society is crime-generating activity (theft, drug sales, fraud, and so on). It is a challenge to retain employment with a criminal record. Some programs exist as “second chance” initiatives to offer stipends from public funds to private employers to hire ex-offenders. “Ban the Box” is a movement by more than 100 local, state, and fed- eral hiring authorities to delay the questioning on felony conviction status from the initial application phase to a later interview stage.29

Geneva Brown asserts that “female offenders form a complex population that require gender based services and treatment, and often have suffered harsher social and economic circumstances than male offenders before being incarcerated.”30

Brown argues that the needs of African-American women are centered on health- care needs (addiction and sexual abuse recovery) and family (caregivers of parents and children). Brown’s review of the literature in this area reveals the African-American women are more likely than Latino or white women to exit prison with their chil- dren in foster care, are more likely to exit prison as HIV positive than any other group, and are more likely to have no partner to share the demands of household support. In short, spending years in prison leaves women unprepared to deal with state child welfare systems and publicly funded medical care.

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434 C H A P T E R 9

C O M M U N I T Y C O R R E C T I O N S

More than 6.8 million people were under correctional supervision in the United States in 2014.32 Nearly 5 million of these offenders were supervised in the com- munity on the status of parole or probation, with nearly all jurisdictions having more offenders supervised in the community than in jail or prison. Are there pat- terns of racial and ethnic disparity present in community corrections? If so, how do they mirror or contrast with institutional correction patterns?

Parole: Early Release from Prison

Parole is a form of early release from prison under supervision in the community. Prison inmates are released to one of two forms of parole: discretionary parole or mandatory parole. The U.S. Department of Justice defines discretionary parole as a decision made by a parole board to “conditionally release prisoners based on a statutory or administrative determination of eligibility,” whereas mandatory parole “occurs in jurisdictions using determinate sentencing statutes. Inmates are conditionally released from prison after serving a portion of their original sen- tence minus any good time earned.”33 It is not surprising, therefore, that parole populations are similar in racial and ethnic distribution to federal and state prison populations. In 2014 (Figure 9.3), slightly more whites than African Americans

FOCUS ON AN ISSUE

The Case for Education Programs in Prisons

In 2016, the RAND Corporation released

a report asserting that “inmates who par-

ticipate in any kind of educational pro-

gram behind bars—from remedial math

to vocational auto shop to college-level

courses—are up to 43 percent less likely

to reoffend and return to prison”31 within

three years. RAND identifies individu-

als in the U.S. correctional population as

more likely to have learning disabilities,

have inconsistent work histories, and have

to struggle with reading comprehension.

Educational advocates, such as the U.S.

Secretary of Education, argue that pris-

oners need more access to education,

starting a pilot project in 2015 to restore

access to Pell grants for prisoners (this

access was banned during the 1990s surge

in the War on Drugs). There review of

decades of educational programs and their

outcomes from across the county led to

the conclusion that “every dollar spent on

correctional education . . . saves nearly five

dollars in reincarceration costs.”

The RAND report notes that nearly

all incarcerated offenders will be returning

to the community. Isn’t it best to return

ex-offenders to the community with the

enhanced self-esteem and job prospects

that education provides? Funding prison

education programs is often seen as com-

peting with funding for traditional college

and university programs. What do you

think the balance should be between these

two educational settings?

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435C O R R E C T I O N S I N A M E R I C A

were released on parole (42.6 percent compared to 38.7 percent). The percent- age of the parolee population that is African American has declined over the past 15 years from 45 percent in 1995. Hispanics make up 16.3 percent of parolees. While African Americans and Hispanics are still overrepresented in parole popu- lations compared to their presentation in the population, the proportions of parol- ees that are African American and Hispanic are not dramatically different from the percentages of incarcerated inmates that are African American and Hispanic.

Recent research by Kathryn D. Morgan and Brent Smith examining parole decision making in one southern state found that the significant predictors for setting the parole hearing were seriousness of the original offense, time served, total disciplinary reports, and recommendations from the institutional parole officer; granting the release decision was significantly impacted only by prison personnel recommendations.34 Race did not have a direct impact on either deci- sion, when controlling for the expected legal/institutional variables. This finding is similar to the sentencing research (Chapter 7) that finds that legal variables are the strongest predictors of a decision to incarcerate and length of prison sentence. However, as suggested in the works of Marjorie S. Zatz and Cassia Spohn, the interaction of race with these decision-making factors is also important to con- sider.35 When partitioning the sample, Morgan and Smith found little evidence or racial patterns in the influences on the parole release decision, but the eligibil- ity for parole release decision does suggest that time since last disciplinary report may have an impact for African-American inmates but not for white inmates.

In an analysis of parole timing decisions in one state, Beth M. Huebner and Timothy S. Bynum look at the impact of race in combination with a number of institutional factors.36 Their analysis found that parole board members were influ- enced by “measures of the current offense, institutional behavior, and the offi- cial parole guidelines score.” In addition to these institutional/legal factors, race emerged as a direct and indirect predictor of the parole timing decision. In short, African-American “offenders spent a longer time in prison awaiting parole com- pared with white offenders, and the racial and ethnic differences were maintained

F I G U R E 9.3 U.S. Parole Populations by Race and Ethnicity, 2014 SOURCE: Thomas Bonzcar, Bureau of Justice Statistics. (Count of yearend parole population by race/Hispanic origin). Computed with known race from table generated using the Corrections Statistics Analysis Tool (CSTAT)—Parole (May 1, 2016). www.bjs.gov.

White, non-Hispanic

42.6 %

African American,

non-Hispanic 38.7%

Hispanic 16.3%

Other racial groups, non-Hispanic

1.9%

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436 C H A P T E R 9

net of legal and individual demographic and community characteristics” and “increases with time.” Huebner and Bynum place these decisions by the parole board members in a familiar theoretical context: they characterize the parole decisions as being influenced by members’ perceptions of how the dangerousness of the typical black male drug offender impacts community safety (focal concerns theory and perceptual shorthand were discussed in Chapter 7). Additionally, they draw on social context of the social threat perspective (Chapters 2 and 3) and the legal organizational context (legal variables having the most influence on decision making, Chapter 7) to discuss their findings.

Success and Failure on Parole

A parolee “succeeds” on parole if he or she completes the terms of supervision without violations. A parolee can “fail” in one of two ways: by being arrested for another crime or by violating one of the conditions of parole release (using drugs, possessing a weapon, violating curfew, and so on). In either case, parole authorities can revoke parole and send the person back to prison.

Parole revocation, therefore, is nearly equivalent to the judge’s power to sen- tence an offender in the first place because it can mean that the offender will return to prison. The decision to revoke parole is discretionary; parole authorities may choose to overlook a violation and not send the person back to prison. This use of discretion opens the door for possible discrimination.

The average length of stay on parole is 22.7 months. In 2015, 53 per 100 parolees exited parole successfully.37 This number is lower than the 69 per 100 parolees from 2008, but is due to the longer stay on parole, as the revocation rate to prison has declined over this period from 24 to 14.

Most parolees are released from state prisons. Currently, nearly 80 percent of persons sentenced to prison will be released to parole supervision rather than simply being released at the expiration of their sentence. Recent data indicate that 42 percent of all parolees at the state level successfully completed parole. The success rate varied somewhat by racial/ethnic groups: 40.0 percent of whites, 39.0 percent of African Americans, 50.6 percent of Hispanics, and 42.2 percent of other races. The percentage of parole violators by race within one study year indicates that the majority of those violating parole were African American (51.8 percent), with whites representing less than one-third of violators (27.5 percent) and Hispanics representing approximately one-fifth of violators (18.3 percent).38

A small number of federal inmates are still eligible for parole consideration. Recent data on federal parole reveal that approximately 78 percent of federal parole discharges were from successful completion of parole conditions. Once again, these rates vary by minority group status. Whites and other races had the highest successful completion rate of 76 percent, followed by Hispanics at 68 percent and African Americans with the lowest at 53 percent. Similarly, African Americans had the highest return-to-prison rates (36 percent), with all other groups exhibiting a return rate of lower than 20 percent.39 (See Box 9.3 for a discussion of supervision of people on parole in the community.)

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437C O R R E C T I O N S I N A M E R I C A

Probation: A Case of Sentencing Discrimination?

Probation is an alternative to incarceration, a sentence, by a judge, to supervision in the community. The majority of all the people under correctional supervision are on probation, totaling more than 3.9 million people.

The racial demographics in Figure 9.4 for 2014 offer a picture of the probation population with race and ethnicity. These figures indicate that non- Hispanic African Americans are overrepresented (30.3 percent) in the probation population relative to their presence in the general population. Correspondingly, non-Hispanic whites are underrepresented at 53.5 percent of all probationers and Hispanics are represented at roughly the same as their representation in the population (13 percent).

It is immediately apparent that the racial disparity for probation is not as great as it is for the prison population, however. Given that probation is a less severe sentence than prison, this difference may indicate that the advantage of receiving the less severe sentence of probation is more likely to be reserved for whites. In a study of sentencing in California, Joan Petersilia found that 71 percent of whites convicted of a felony were granted probation, compared with 67 percent of African Americans and 65 percent of Hispanics.41 Similarly, Spohn and other colleagues found that in “borderline cases” in which judges could impose either a long probation sentence or a short prison sentence, whites were more likely to

B o x 9.3 Supervision in the Community: An Uneven Playing Field?

Both parole and probation involve supervision in the community under a set of specific provisions for client behavior. One of the most common provisions is the requirement of employment. Not being able to attain or retain employment may lead to a violation of supervision conditions and unsuccessful discharge of an indi- vidual from probation or parole. Essentially, a person could be sent to prison for being unemployed. It is possible that the employment provision creates uneven hardships for minorities. In 2010 the unemployment rate for U.S. citizens, regardless of race, was 5.2 percent. This rate, of course, varies by race and ethnicity: the rate for whites lower than the average at 4.6 percent; Asians at 3.8 percent; Hispanics at 6.1 percent; and African Americans at 9.0 percent. Unemployment40 rates also vary by age and gender; male youth between the ages of 16 and 24 have higher unemployment rates than the general population. Young males (16–19 years of age) have unemployment rates two to three times higher than the national average, with the highest unemployment rates found for young African-Americans males at 32.7 percent and young white males at 15.9 percent; the lowest was for young Hispanic males at 14.0 percent. In short, ethnic- and race-specific unemployment rates vary substantially, showing the disadvantaged status of minorities in the labor market. If employment is a nearly universal expectation for probation and parole, does this aspect of the general economy adversely affect defendants and inmates of color when judges make decisions about who is suitable for probation or when parole boards make decisions about who is suitable to be granted parole? If yes, could this be seen as a form of institutional discrimination? (See Chapter 1 for discussion of types of discrimination.)

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438 C H A P T E R 9

get probation and African Americans were more likely to get prison. (See the dis- cussion of discrimination in sentencing in Chapter 7 and Figure 9.4.)

Being on probation can result in revocation, adjudication, and early discharge completion of the sentence. Steinmetz and Henderson42 find that while the most important predictors of probation revocation were risk and need scores, being African American negatively impacted probation success. This finding was sig- nificant, revealing an enhanced likelihood of revocation and adjudication, with a corresponding decreased likelihood of early discharge compared to Hispanic and white probationers. Extending their analysis to include race and gender, they found that African-American men were significantly more likely to receive revocation and adjudication. This research suggests a “racialized reality” in the probation setting. The authors suggest a link to the media-infused image of the “criminalblackman” proposed by Russell and discussed in Chapter 3. The rela- tionship between Hispanic and probation outcomes was less straightforward. Being Hispanic did not impact adjudication, but did decrease the likelihood of early release and increase the likelihood of revocation.

Community Corrections: A Native American Example

The phenomenon of drug courts in American criminal justice emerged in the late 1980s. Primarily, these specialized courts emerged in response to the growing concern over drug-related cases that were clogging the courts and filling up our jails and prisons and the perception that traditional “War on Drugs” strategies of attacking supply and incarcerating users to control demand was not producing the desired results.

The Drug Courts Program Office of the U.S. Department of Justice defines the drug court approach as departing “from the standard court approach by sys- tematically bringing drug treatment to the criminal justice population entering

F I G U R E 9.4 U.S. Probation Population by Race and Ethnicity, 2014 SOURCE: Thomas Bonzcar, Bureau of Justice Statistics. (Count of year end probation population by race/Hispanic origin). Computed with known race from table generated using the Corrections Statistics Analysis Tool (CSTAT)—Probation (May 1, 2016). www.bjs.gov.

White,

non-Hispanic

53.5%

African

American,

non-Hispanic

30.3%

Hispanic

13.0%

Other racial groups,

non-Hispanic

3.2%

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439C O R R E C T I O N S I N A M E R I C A

the court system  . . . In the drug court,  . . . treatment is anchored in the author- ity of the judge who holds the defendant or offender personally and publicly accountable for treatment progress.” Essentially, local teams of judges, law enforce- ment officials, prosecuting attorneys, defense attorneys, probation officers, and treatment providers are using “the coercive powers of the court to force absti- nence and alter behavior with a combination of intensive judicial supervision, escalating sanctions, mandatory drug testing, and strong aftercare programs.”43

Starting in 1997, attempts have been made to adapt the drug court curric- ulum to tribal court settings. Currently, more than 120 programs exist to serve juvenile and adult offenders across the country. A number of adaptations need to be made to incorporate the drug court model to the tribal court setting, but the basic philosophy of therapeutic jurisprudence is a strong complement to many elements of indigenous justice philosophy. First, the naming of drug courts has undergone a transition to the title of “Tribal Healing to Wellness Courts.” This renaming and the subsequent adaptation of procedures are designed to meet the cultural needs of individual Native communities and the long-established tradi- tional Native concepts of justice and community healing resources.

The Tribal Law and Policy Institute (TLPI) notes that the “Tribal Healing to Wellness Courts return to a more traditional method of Justice for Indian peo- ple by (1) creating an environment that focuses on the problems underlying the criminal act rather than the acts itself and (2) stressing family, extended family, and community involvement in the healing process.” In short, advocates argue that the Tribal Healing to Wellness Courts are “a modern revitalization of Native principles of Justice—truth, honor, respect, harmony, balance, healing, wellness, apology or contrition, restitution, rehabilitation and an holistic approach.” The hope is that the court will function to “restore harmony and balance to individu- als, the families and the communities which have been devastated by alcohol and drug use.”44

TPLI established and published 10 key components of the Tribal Healing and Wellness Courts.45 In short, Wellness Courts are an innovative and collaborative process that involve a number of tribal members in the healing process, includ- ing tribal elders and medicine men, to accomplish the goals of treatment and community service. Usually, part of the treatment component is the mandatory attendance at community activities reflecting traditional, cultural heritage values. Such activities include “traditional healing ceremonies, talking circles, peacemak- ing, sweats, sweat lodge, visits with medicine men, sun dance and vision quest,” depending on the practices of the individual Native community. Beyond the typi- cal community service requirement of drug courts are the requirements of spend- ing time with elders, tribal storytellers, or both.

All of the methods and procedures adopted by Tribal Healing to Wellness Courts are firmly grounded in traditional dispute resolution mechanisms and tra- ditional spiritual components to promote healing to wellness. The most common issue dealt with in the Tribal Courts is the problem of alcohol abuse; however, methamphetamine use is a growing concern. Records indicate that more than 90 percent of the criminal cases that come before tribal courts have an alcohol or substance abuse component. The substance abuse issues are present not just for

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440 C H A P T E R 9

some adults but also for some children, so some tribes have adopted courts for both groups. Juveniles also have the problem of inhalant use.

The main component of the Wellness Court is treatment and rehabilitation, these actions are supplemented by intensive supervision (including drug testing) and incentives and sanctions.46 Incentives mark the successes of participants in tangible and meaningful ways to reinforce healthy pathways, while sanctions are recognized to have negative side effects and must be administered with adequate treatment resources. The best practices for sanctions include the traditional deter- rence elements of certainty and speed, but should reflect flexibility for each par- ticipant and be coupled with the principle of second chances.

The development of the Tribal Healing to Wellness Courts is often limited by the sentencing authority granted to the tribal courts. These courts have lim- ited jurisdiction to nonmajor crimes on tribal lands and limited influence in off-reservation crimes. The TLPI notes, however, that some Wellness Courts have agreements with state court systems to transfer jurisdiction to them when tribal members are involved in substance-abuse-related offenses.

FOCUS ON AN ISSUE

Collateral Consequences: Civil Rights of Convicted Felons

Individuals convicted of felonies and

misdemeanors in the United States may

experience a range of sentences from incar-

ceration to probation. Such sentences in

effect limit the civil rights of the convicted.

No longer do we live in a society that views

the convicted felon from the legal status of

civil death, literally a slave of the state, but

some civil rights restrictions endure after

the convicted offender serves a judicially

imposed sentence. Collateral consequences is a

term used to refer to the statutory restric-

tions imposed by state and federal legislative

bodies on a criminally convicted person’s

rights. Such restrictions vary by state but

include restrictions on employment, carry-

ing firearms, holding public office, access to

public benefits, and voting.

Disqualification from public benefits

includes public housing, welfare benefits

(such as food subsidies for children), and

job training. The 1996 Personal Respon-

sibility and Work Opportunity Act (Wel-

fare Reform Act) requires a lifetime ban

on welfare benefits for people convicted

of state or federal drug offenses.47 This

includes the Supplemental Nutritional

Assistance Program (SNAP) and Temporary

Need to Needy Families (TANF). Since its

enactment, many states have modified this

ban to alleviate this restriction; however,

37 states encore this ban in whole or in

part. Some states allow for restoration of

benefits with completion of drug treatment.

While these policies have an impact on

men and women, there is a disproportion-

ate impact on women of color (see discus-

sions on the War on Drugs disproportionate

impact on African-American women in

earlier chapters). While self-report drug use

surveys indicate few racial differences in

patterns of drug use, a substantially higher

proportion of African-American men and

women are in prison for drug crimes, com-

pared to whites and Hispanics.48

Convicted felons have reduced access

to federal loans as well. This includes fed-

eral student loans, mortgage assistance

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441C O R R E C T I O N S I N A M E R I C A

loans, and disaster assistance loans. (See

http://www.abacollateralconsequences.

org for more details.) Having a felony

conviction can also impact veteran’s bene-

fits; however, the rules are complicated, as

some incarcerated veterans may still have

access to funds to support their families.

The Sentencing Project highlights

the negative nature of restricting the rights

of convicted felons to vote.49 Nationally,

an estimated 5.8 million Americans are

denied the right to vote because of laws

that prohibit voting by people with felony

convictions. Across the country, felony dis-

enfranchisement is an obstacle to participa-

tion in democratic life that is exacerbated

by racial disparities in the criminal justice

system, resulting in an estimated 1 in every

13 African Americans have lost their voting

rights (the rate is 1 in 56 for nonblacks of

voting age). This percentage varies by state.

In Florida for example, nearly one in every

four African Americans is disenfranchised

from voting in every election from the

local school board to the presidency.

Forty-eight states and the District of

Columbia restrict the rights of imprisoned

people to vote. Conversely, Vermont and

Maine, however, allow incarcerated offend-

ers to vote. Roughly two-thirds of states

also restrict the voting rights for offenders

on parole and probation.50 In most states

the right to vote can be restored (auto-

matically or by petition) after completion

of the sentence (or within a fixed number

of years). Restoration procedures can vary

from state to state and seem cumbersome

to ex-offenders. In some states, the ex-

offender has his/her voting rights restored

automatically after two years, but in other

states the ex-offender has to apply to the

Pardons Board for reinstatement.51 In recent

years voting rights have been restored in

some states and then taken away again as

the Legislature or Executive branch elec-

toral changes (see Florida, Iowa, and Vir-

ginia). Maryland, however, has instituted an

automatic restoration policy after the com-

pletion of the original sentence. In 2003

the state of Alabama required ex-offenders

to provide a DNA sample to the Alabama

Department of Forensic Sciences as part of

the process of regaining the right to vote.52

Additional restrictions on convicted

felons were created with the passage of the

USA PATRIOT Act. Under these pro-

visions, ex-offenders are unable to attain

certain commercial driver’s licenses and

are banned from transporting materials

designated as hazardous waste. The federal

government also prevents convicted felons

from obtaining government contracts and

prevents businesses with government con-

tracts from hiring convicted felons (such as

fast-food franchises and moving companies

operating on military bases).

Do you support returning access to

welfare benefits, access to financial aid,

and voting rights to ex-offenders? Would

restoring such rights lead to more success-

ful offender reentry? Boost self-esteem?

Increase the ability to be a good parent?

Would restoring the right to vote to

Americans with criminal records impact

presidential elections? Should convicted

offenders be allowed to earn back their

right to vote as recognition of their efforts

at rehabilitation?

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442 C H A P T E R 9

B o x 9.4 Additional Explanations for the Racial Distribution of U.S. Prison Populations

Historically, some have argued that prison replaced the social control of slavery in the South after the end of the Civil War. Given the criminalization of vagrancy and the operation of the convict lease system, a de facto slavery system was invoked on those African Americans who did not leave the South and who refused to offer their labor to former plantation owners who needed it.53

Others have argued that prison has always been used to supplement the needs of capitalism as a mechanism to control surplus populations in times of high unem- ployment. Specifically, African-American males, who have the highest unemploy- ment rates, have been viewed as socially dangerous surplus populations.54

In a similar attempt to look past systematic racial discrimination in the crimi- nal justice system, researchers have begun to explore the intricacies of contextual discrimination. A review by Theodore G. Chiricos and Charles Crawford reveals that researchers have started to study the social context’s impact on the racial compo- sition of imprisonment rates by investigating such issues as the population’s racial composition, the percentage of unemployed African Americans, and the region.55

The first two issues reflect the theoretical argument that communities and thus decision makers will be apprehensive under certain conditions and become more punitive.

Specific conditions of apprehension (or threat) may be related to racial mass. For example, large concentrations of African Americans will be associated with a higher fear of crime and a need to be more punitive. Raymond J. Michalowski and Michael A. Pearson found that racial composition of African Americans in a state was positively associated with general incarceration rates. However, the impact of racial composition on race-specific incarceration rates is less clear.56 Hawkins and Hardy discovered that states with smaller percentages of African Americans were associated with more racial disparity in incarceration rates that could be accounted for by arrest rates.57 In contrast, Bridges and Crutchfield found that states with higher percentages of African Americans in the general population were associated with lower levels of racial disparity in incarceration rates.58 Miriam DeLone and Theodore Chiricos argue that this inconsistency is the result of an improper level of analysis. They argue that looking at state-level imprisonment and racial composition rates can be deceiving. The proper level of analysis is the level of the sentencing court. In their study of county-level incarceration rates, they found that higher levels of African Americans led to higher levels of general incarceration and African-Amer- ican incarceration rates.59

Race-specific unemployment rates reflect the idea that idle (or surplus) popu- lations are crime prone and in need of deterrence. This line of reasoning requires more punitive response, with higher incarceration rates when the perceived crime- prone population is idle. Generally, this “threat” is measured by the unemployment rate of the perceived crime-prone population—young, African-American males. DeLone and Chiricos have found that at the county level, high unemployment rates of young African-American males are not associated with higher general incarcera- tion rates but are predictive of higher incarceration rates of young African-American males.60

In the context of the war on drugs, some have argued that the increasing African- American male prison populations is a response to a moral panic about drugs that stems from the association of crime and drug use with this population almost exclusively.61 Data on drug use (from Chapter 2) indicate that all racial groups use and abuse drugs at very similar levels. What do you think?

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443C O R R E C T I O N S I N A M E R I C A

Adjustment to Prison

Research on the adjustment of men to life in prison has been available for many years, beginning with Donald Clemmer’s The Prison Community and including Gresham Sykes’s The Society of Captives and John Irwin and Donald Cressey’s “Thieves, Con- victs, and Inmate Culture.”62 James B. Jacobs argues that without exception these studies disregarded the issue of race, although the prison populations in the institu- tions under study were racially diverse.63 Consequently, according to Jacobs, the pre- vailing concept of the “prison subculture” needs to be revised. Jacobs further argues that race is the defining factor of the prison experience. Racial and ethnic identity defines the social groupings in prisons, the operation of informal economic systems, the organization of religious activities, and the reasons for inmate misconduct. In other words, white inmates tend to associate with white inmates, African-American inmates associate with African Americans, and so on. In this respect, the racial and ethnic segregation in prison mimics society on the outside.

Goodstein and MacKenzie support Jacob’s observations and argue that their own “exploratory study of race and inmate adjustment to prison demonstrates that the experience of imprisonment differs for African Americans and whites.”64

They report that although African Americans may develop more antiauthoritar- ian attitudes, and are more likely to challenge prison officials, they appear to have fewer conflicts with fellow inmates.

Kevin N. Wright explored the relationship between “race and economic marginality” to explain adjustment to prison.65 He explored the apparently common-sense assumption that African Americans, because of their experience in the “modern urban ghetto” (see information on the underclass in Chapter 3), will be more “resilient” to the pains of imprisonment. He found that “ghetto life supposedly socializes the individual to engage in self-protection against the hos- tile social environment of the slum and the cold and unpredictable prison setting.” Using multiple indicators of adaptation to the prison environment, Wright found that although economic marginality does appear to influence the ease of adjust- ment to prison, this appears to be the case regardless of race.

Other research on male prison populations also indicates that race may not always explain institutional behavior. Research on the effects of race on levels of institutional misconduct reveals an inconsistent picture. Although some research- ers find nonwhites overrepresented in inmate misconduct, Joan Petersilia, Paul Honig, and Charles Hubay’s study of three state prison systems found three dif- ferent patterns in relationships between race and rule infractions.66 In Michigan there was no relationship between race and rule infractions; in California whites had significantly higher rule infractions; and in Texas, African Americans had sig- nificantly higher rule infractions.

Timothy Flanagan finds similarly inconsistent results. He argues that inmates’ age at commitment, history of drug use, and current incarceration offense are most pre- dictive of general misconduct rates.67 He does, however, find that race is an import- ant predictor for older inmates with no drug history and sentenced for an offense other than homicide. Flanagan recommends that race (among other predictors) is a variable that is inappropriate to use in assisting with the security classification of inmates as a result of its low predictive power in relation to institutional misconduct.

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444 C H A P T E R 9

Research of federal prison inmates by Miles D. Harer and Darrell J. Steffens- meier offers support for the importation model of prison violence, indicating that African-American inmates are significantly more likely to receive disorderly conduct reports for violence than white inmates, but they are more likely to have lower levels of alcohol and drug misconduct reports than whites.68 This pic- ture reflects the differential levels of violence and drug behavior between African

FOCUS ON AN ISSUE

Mortality in Prisons and Jails

Inmate mortality rates are available for state

prison and local jail populations.69 For all

causes, regardless of race, the average annual

mortality rate, 2000–2013, was 137 per

100,000 inmates on average per year in jail

and 255 per 100,000 inmates die on average

in prison per year. The average annual fig-

ures from 2000 to 2013 indicate that there

are significant racial/ethnic differences for

all causes combined, as well as for suicide

rates, with few differences for homicide

rates. Both suicide and homicide rates have

declined steadily since the 1980s and are

stable over the past 10 years. Currently, the

rates for suicide are 41 and 16 per 100,000

inmates (jail and prison, respectively),

with the rates for homicide at 3 and 5 per

100,000 inmates (jail and prison, respec-

tively). These data also reveal that the high-

est average mortality rates among jail and

prison inmates are due to illness.

Suicide rates are substantially higher

on average for whites in jail and prison

than for African-American inmates (80 per

100,000 jail inmates and 16 per 100,000

prison inmates, respectively, compared

to 25 per 100,000 jail inmates and 8 per

100,000 state inmates, respectively). His-

panic inmates have on average a somewhat

lower suicide rate than whites (25 per

100,000 jail inmates and 16 per 100,000

prison inmates) but higher than for

African-American inmates.

The homicide rate average from 2000

to 2013 in local jails was reported at 3 per

100,000 population and does not vary

across racial/ethnic groups. However, the

homicide rates for state prison inmates

are higher than the average overall rate of

5 per 100,000 population for Hispanics

(6 per 100,000 inmates) and less than the

overall rate for African- American inmates

(3 per 100,000 inmates). The average over-

all homicide rate for Hispanic inmates is

equal to the overall rates of 5 per 100,000

population.

As noted above, mortality rates are

highest among the incarcerated popula-

tions examined for illness-related causes.

As jail populations differ from prison

populations in composition, specifically in

relation to length of stay, we see differences

in illness-related mortality rates by setting

and by race. Jails house suspected offenders

awaiting arraignment and trial, as well as

convicted offenders sentenced to less than

one year. Typically, prisons hold convicted

offenders with sentences longer than a

year. The highest average illness mortality

rate, in jails, is from heart disease for all

races, followed by AIDS-related deaths for

African Americans, and cancer and liver

disease related deaths as the next most

common causes for white inmates. In pris-

ons the highest average overall mortality

rate for inmates is from cancer. However,

this aggregate number obscures the fact

that this observation only holds for whites

and Hispanics. The highest average mor-

tality rate for African-American inmates in

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445C O R R E C T I O N S I N A M E R I C A

Americans and whites conveyed in arrest figures and assumed to characterize the general behavior patterns of these groups in American society (see Chapter 2).

Many correctional observers say that even with the numerical dominance of African Americans in correctional facilities, they are still at a disadvantage in terms of the allocation of resources. For example, Jim Thomas argues that race operates in prison culture to guide behavior, allocate resources, and elevate white groups to a privileged status even when they are not numerically dominant.71

Hostility among Released Inmates

Do the deprivations of prison have a lasting effect on the released inmate? Andy Hochstetler, Matt DeLisi, and Travis C. Pratt offer a contemporary look at the feelings of hostility among released male inmates in an effort to understand how the strains of imprisonment affect the mental health of the released offender and potentially the negative impact on his reintegration.72 Their results indicate that hostility among released prisoners can be explained well by the released inmate’s level of social support. They hypothesize that social support is the key mediating factor between race, age, self-control (control of temper, impulsivity, risk taking, self-centeredness), and perceptions of prison discomfort (sense of deprivation, loss of privacy, boredom, stress, and so on) in predicting low or high levels of hostility. They find that race does not have a directly predictive effect on hostility, but rather that the impact of race is conditioned by social support. These findings suggest that whatever strains exist in the nonwhite released inmate’s experiences, they can be mediated by strong social support from family and friends, resulting in less hostil- ity and arguably more chance at successful noncriminal reintegration into society. In a similar vein, the discomfort of prison as a source of post-release hostility can

prison is heart disease, followed by cancer,

and then AIDS-related causes.

How does the life expectancy of

incarcerated inmates compare to non-

incarcerated inmates? While whites have

on average the highest mortality rates of

any racial group examined in both jail

and prison, public health researchers have

found a seemingly counterintuitive obser-

vation when comparing mortality rates of

incarcerated and non-incarcerated popu-

lations by race. Specifically, Spaulding and

colleagues70 followed a population of over

23,000 inmates from Georgia for more

than 15 years and found that mortality

while incarcerated was lower than post-

release mortality (for causes of violence

and illness). This effect varied by race,

however. It was only African- American

men who experienced significantly

lower mortality rates while incarcerated

compared to non-incarcerated African-

American men in their study.

White men had higher mortality

rates while incarcerated compared to

non- incarcerated white males, when

examining causes such as self-inflicted

harm and major illnesses. What do these

findings suggest about the health chal-

lenges of minority populations in Amer-

ican society? Is social class a factor in

access to health care? Do these race-based

patterns extend to mental health treatment

for incarcerated and non-incarcerated

populations?

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446 C H A P T E R 9

be at least partially neutralized by the presence of social support. These findings support a long-standing push by criminologists to get policy makers to recognize the importance of social support mechanisms to successful prisoner reentry.73

Prisoner Visitation and Successful Reentry

William Bales and Daniel Mears74 have found that visitation while in prison can impact recidivism. Do such visits maintain social capital (see Chapter 3) or provide increased motivation to reoffend?75 Moreover, does the impact of visitation on recidivism vary by gender and race? Specifically, their analysis reveals that visitation has a greater impact on reducing recidivism for males than females and that visitation results in greater recidivism reduction for nonwhite prison inmates (predominantly African American in this study) than for white prison inmates.

Race and Religion

Religion often emerges as a source of solidarity among prison inmates and as a mechanism for inmates to adjust to the frustrations of the prison environment. Although religion may be seen as a benign force that increases inmate self-esteem and contributes positively to the chances of rehabilitation once reentering society, religious activities in prison have been met with criticism by correctional officials and accepted only with federal court intervention. Concern arises when religious tenants seem to espouse the supremacy of one racial group over another or seem to support terrorism.

Jacobs argues that the Black Muslim movement in the U.S. prisons was a response to active external proselytizing by the church.76 The most influential Muslim movement was the Nation of Islam, founded by Elijah Muhammad. Dar- lene Conley and Julius Debro point out that although the Nation of Islam was not particularly competitive with Christianity in the nonprison population, “it had special appeal to incarcerated Black males. In contrast to the various religious denominations, which preached religious repentance and submission and obe- dience to the U.S. justice system . . . the Nation of Islam preached Black pride and resistance to white oppression.”77 Prison administrators overtly resisted the movement for several years. The American Correctional Association issued a pol- icy statement in 1960 refusing to recognize the legitimacy of the Muslim religion, based on arguments that it was a “cult” that disrupted prison operations. Jacobs notes that “prison officials saw in the Muslims not only a threat to prison author- ity, but also a broader revolutionary challenge to American society”78 that led to challenges of the white correctional authority.

Consequently, prison officials tried to suppress Muslim religious activities by such actions as banning the Koran. This led to lawsuits asserting the Muslim’s right to the free exercise of religion. In 1962, however, the U.S. Supreme Court (Fulwood v. Clemmer) ordered the District of Columbia Department of Correc- tions to “stop treating the Muslims differently from other religious groups.”79

This decision paved the way for the Black Muslim movement to be seen as a

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447C O R R E C T I O N S I N A M E R I C A

legitimate religion and taken seriously as a vehicle of prison change through such avenues as litigation.

Native American religious groups have also been granted the right to practice their religions by the federal courts. Joel West Williams, author of “Walking the Red Road in the Iron House” asserts that even though religious rights have been recognized since the late 1970s, it is still hard.80 Native American tribes number in excess of 550 and there is no one Native American religion. However, some spiritual traditions are common and present challenges to correctional institutions such as length of hair, the use of fire for sweat lodges and tobacco pipes, and the need for sacred objects. One example of the rise and subsequent influence of Native American religious groups can be found in Nebraska. The Native Amer- ican Cultural and Spiritual Awareness group is composed of Native American inmates who seek to build solidarity and appreciation of Native American values. This group also pursues change in the prison environment through litigation. The element of inmate-on-inmate violence and guard assaults characteristic of other groups are not apparent here.81

As the direct result of litigation, Native American inmates won the right to have a sweat lodge on prison grounds and medicine men and women visit to per- form religious ceremonies. The significance of this concession is that it happened four years before federal legislation dictated the recognition and acceptance of Native American religions.

Other religious movements have come to concern prison officials and social commentators because of their apparent assertions of racial supremacy. The impact of such values in a closed environment like a prison is obvious, but concerns have surfaced that the impact of these subcultures may reach outside prison walls. Are groups emerging that promote tenets of racial hatred under the guise of religions?

The Five Percent and Asatru movements are two groups that have prison officials concerned. The former group is made up of African Americans, and the latter is made up of whites, each emphasizing tenets of racial purity. Currently, six states censor the teachings of the Five Percenters, whereas other states label all followers as gang members. The movement began in Harlem in 1964 and has spread across the country, claiming thousands of followers. Teachings include the rejection of “history, authority, and organized religion” while calling themselves a nation of Gods (men) and Earths (women). Although the group advocates peace and rejects drinking alcohol and using drugs, correctional officials have linked Five Percenters to violence in some state institutions. Similar to the Nation of Islam, their beliefs stress that “blacks were the original beings and must separate from white society.”82

The Asatru followers practice a form of pagan religion based on the princi- ples of pre-Christian Nordic traditions. This religion was officially recognized in Iceland in 1972 and professes nine noble virtues, including courage, honor, and perseverance. However, prison officials claim that as this group has grown in pop- ularity in American prisons, so has racial violence. Some critics charge that “while Asatru is a genuine religion to some followers, these modern pagan groups have been a breeding ground for right-wing extremists” and that they attract white supremacists. Some state prison systems have taken steps to ban Asatru groups,

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448 C H A P T E R 9

stating security concerns. Some Asatru followers have surfaced in connection with acts of racial violence. Most notably, perhaps, is the case of John William King, a white male convicted of the dragging death of an African-American man in Jasper, Texas. While serving a prison sentence prior to this crime, King is said to have joined an Odinist group, an Asatru variant. From this affiliation he has tattoos depicting an African-American man lynched on a cross and the words “Aryan Pride.”83

Given this example of the negative influence of religion on prison inmates, can U. S. prisons be used to radicalize inmates in the name of religion to perform acts of terrorism? Counterterrorism experts have long asked if inmates in U.S. prisons can be radicalized through Native American religions, Buddhism, Hin- duism, and “prison Islam” to serve the interests of international terrorist groups (as distinct from the groups discussed above). Mark S. Hamm has researched the issue of “prison radicalization” focusing on U.S. correctional institutions.84 In his published findings he discusses the effects of recruitment by charismatic figures of inmates who have little authentic foundation in religious teachings. He doc- uments a number of cases that have transitioned from inmate “radicalization” to “operational terrorism.” The first such documented example in the United States was the Sunni Muslims at New Folsom Prison, who were disrupted in 2005 by the FBI as they plotted to attack military installations and Jewish synagogues. Such plots have been found in other California institutions and in Florida. Hamm asserts that as a result of his two-year study that concluded in 2008, the worst examples of operational terrorism emerged from “the ‘bottom-up’ influ- ence of prisoners themselves, rather than from the ‘top-down’ influence of prison outsiders.”85

Moreover, Hamm finds that a charismatic Islam-influenced figure in New Folsom Prison radicalized a small group of former gang members, while at the same time another Muslim inmate headed an effective countermovement of pris- oner de-radicalization.

Prison Gangs

Prison gangs (also referred to as security threat groups) are an integral part of understanding the prison environment and the inmate social system. The U.S. Department of Justice describes prison gangs in the following way:

self-perpetuating criminal entities that can continue their operations outside the confines of the penal system. Typically, a prison gang consists of a select group of inmates who have an organized hierarchy and who are governed by an established code of conduct. Prison gangs vary in both organization and composition, from highly structured gangs such as the Aryan Brotherhood and Nuestra Familia to gangs with a less formal- ized structure such as the Mexican Mafia (La Eme). Prison gangs gener- ally have fewer members than street gangs and OMGs and are structured along racial or ethnic lines. Nationally, prison gangs pose a threat because of their role in the transportation and distribution of narcotics. Prison

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449C O R R E C T I O N S I N A M E R I C A

gangs are also an important link between drug-trafficking organizations (DTOs), street gangs and OMGs, often brokering the transfer of drugs from DTOs to gangs in many regions. Prison gangs typically are more powerful within state correctional facilities rather than within the federal penal system.86

In the 2013 National Gang Report, published by the National Gang Intelli- gence Center, law enforcement agencies surveyed report that prison gangs are a unique challenge, as they already exist in a confined setting; however, their influ- ence is noticeable in “outside” settings across the country.87 Criminal activities can occur in correctional facilities and on the street, committing any crime to further the group’s goals. Prison gang criminal activities are reported to include murder, assaults, witness intimidation, and drug trafficking. This activity can occur outside of the prison facility through alliances with street gangs. Com- munication between incarcerated inmates and street gangs can occur through coded communications, contraband cell phones, defense attorneys, and corrupt prison staff.

Prison gangs were first identified in prisons in the 1950s, in California and Washington states. By the 1960s, prison gangs began to take on the culture of racial supremacy. Within decades, the federal prison system and nearly all state depart- ments of correction could identify a wide range of racial supremacy prison gangs.

The Florida and Texas prison systems offer examples of the variety of prison gangs present in prisons today, many of whom are built on a foundation of racial supremacy. The Florida Department of Corrections documented six major prison gangs: one was white, two were African American, and three were Hispanic.88

The Texas prison system documented eight well-established prison gangs: two were white, two were African American, and four were Hispanic. Following are some representative examples.

Aryan Brotherhood

The Aryan Brotherhood is one of the largest prison gangs and is made up of white males. This group originated in 1967 in the San Quentin State Prison in California. They are present in numerous federal and state facilities. Their mem- bership is dominated by inmates with white supremacist and neo-Nazi ideologies. Identifying tattoos/marks include shamrocks, double-lightning bolts, and swasti- kas. The group is implicated in criminal enterprises in prison (both violence and contraband) and in illegal activities on the outside. This group is thought to be involved in a number of inmate and staff homicides. Although the group main- tains economic arrangements with the Mexican Mafia, they are long-time ene- mies with groups such as the La Nuestra Familia and African-American prison gangs such as the Black Guerilla Family.

The National Gang Intelligence Center identifies additional white suprem- acist groups under the names of the Arizona Aryan Brotherhood, the Aryan Brotherhood of Texas, Aryan Circle, Ohio Aryan Brotherhood, Soldiers of the Aryan Culture, Universal Aryan Brotherhood, and Dirty White Boys as emerging

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450 C H A P T E R 9

in various U.S. prisons and operating around the country. Further, the Anti- Defamation League released a report in 2016 on White Supremacist Gangs in the United States89 adding such groups to the white supremacist prison gang list as the Nazi Low Riders, Fourth Reich, White Aryan Resistance, Brotherhood of White Warriors, and Saxon Knights. They identify white supremacist groups in 42 state prison systems and in federal institutions. The ADL report documents actions of white supremacist prison gangs to include burglary rings, identity theft, as well as arson and violence-based hate crimes.

Black Guerilla Family

The Black Guerilla Family (BGF) is made up of African-American males. It was founded in the San Quentin Prison in California in 1966 by a former Black Panther. This group is distinguished by a predominant political ideology: Marx- ist/Maoist/Leninist communism. Its goals are to struggle to maintain dignity in prison, eradicate racism, and overthrow the U.S. government. Rival gangs are the Aryan Brotherhood, Texas Syndicate, and the Mexican Mafia. However, the group does form alliances with groups such as the Black Liberation Army and black street gangs.

The FBI has worked recently to dismantle the influence of this group with federal racketeering indictments. In 2013, the U.S. Attorney General prosecuted 25 BGF gang90 members in Maryland, including 13 Baltimore City Detention Center officers. Officers were part of a conspiracy to provide cell phones to facil- itate drug sale operations and money laundering.

Mexican Mafia

The Mexican Mafia (nickname La Eme) was formed in the late 1950s in the youth offenders’ facilities of California by former Los Angeles street gang mem- bers. The members are male and Mexican American. This group is often identi- fied as the most active gang in the federal prison system. They are described as having a philosophy of ethnic pride and act to control the drug trafficking in the institutions. They have active drug dealing relationships with the Aryan Brother- hood and urban Latino street gangs. They have intense rivalries with the BGF and black street gangs.91

The NGIC reports that this group influences street gangs by “establishing a code of conduct and requiring street gangs to pay taxes on illegal activities such as drug sales [in the territory they control it] . . . any street subordinate that violates (Le) Eme rules faces persecution while incarcerated.”92

Neta

Neta is a gang composed of Puerto Rican members, reportedly established in 1970 in the Rio Pedras Prison, Puerto Rico. Florida correctional personnel char- acterizes this group as the second largest prison gang in the state, and while it remains secretive, its actions as a cultural organization are a facade for criminal

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behavior.93 Members are characterized as strongly patriotic and revolutionary with a philosophy of Puerto Rican independence from American rule. Members usually wear beads that are red, white, and blue (the colors of the Puerto Rican flag). The gang emblem is a heart pierced by two crossing Puerto Rican flags with a shackled right hand with the middle and index fingers crossed. They have entrenched themselves in the drug trade and participate in extortion, and they have been suspected of performing “hits” for other prison gangs.94

Texas Syndicate

The Texas Syndicate originated in the California Department of Corrections over 40 years ago. Once released, these individuals returned to Texas and entered the Texas Department of Corrections as the result of continuing criminal activi- ties. The membership is predominately Hispanic, with the occasional acceptance of white inmates. This group is structured along paramilitary lines, has a docu- mented history of prison violence, and will enforce rule breaking with death. A spinoff associated with this group is the predominantly white gang Dirty White Boys.95 The State of Texas recently96 documented this group working with the Mexican cartel Los Zetas.

Although little information exists on Native American or Asian/Pacific Islander street gangs, criminal justice personnel remain cautious about their emergence as the presence of street gangs or organized crime is a known ave- nue of prison gang formation. News reports offer indications of Native American prison gangs that are found in Oklahoma and some Canadian prisons. Similarly, Asian/Pacific Islander prison gangs are raising concern in California and Wash- ington states.

One of the management issues associated with dealing with gangs in prison is the tension created by integrating prison populations that prefer to be racially segregated. While self-sought racial segregation is a dominant feature of most resi- dential areas in the United States, there are legal issues that structure such segrega- tion decisions in the prison and jail environment. See “In the Courts: Racial and Ethnic Segregation in Prison: By Law or by Choice?” (Box 9.5) for additional insight into this issue.

B o x 9.5 In the Courts: Racial and Ethnic Segregation in Prison: By Law or by Choice?

A series of court decisions have declared de jure racial segregation in prisons to be unconstitutional. As late as the 1970s, prisons in the South and even some in states such as Nebraska segregated prisoners according to race as a matter of official policy. Although such policies have been outlawed, inmates often self-segregate along racial and ethnic lines as a matter of choice. Most recently, the racial segregation policies of the California Department of Corrections (DOC) have been under judicial review.

(Continued )

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In 2005, the U.S. Supreme Court in Johnson v. California ruled that the DOC could not use racial classifications in prison to assign mandatory segregated housing based on race. The DOC was using a race/ethnic-based classification that required mandatory residential segregation for an inmate’s stay in the reception center and for the initial pairing (60 days) of the two-inmate room assignment. The DOC argues that this policy prevents violence within facilities because of the extensive nature of race-based security threat groups (gangs such as the Aryan Brotherhood, Mexican Mafia, and BGF). In short, correctional administrators were arguing that “separate, but equal” treatment of inmates was justified to prevent violence among inmates. Administrators note that all racial/ethnic groups are segregated at the initial phases of admission; “the DOC policy further subdivided ethnic groups so that Chinese Americans were separated from Japanese Americans and Northern California Hispanics from Southern California Hispanics.” Administrators also noted that no other areas in the facilities were segregated, such as the dining hall and the recreation yards.

The U.S. Supreme Court’s opinion striking down this policy was written by Justice Sandra Day O’Connor, where she states for the majority that in the imple- mentation of policies such as these “there is simply no way of determining . . . what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics. We therefore apply strict scrutiny to all racial classifications to ‘smoke out’ illegitimate uses of race by assuring that [government] is pursuing a goal important enough to warrant use of a highly suspect tool.97”

Justice O’Connor also stated in her opinion that “when government officials are permitted to use race as a proxy for gang membership and violence without demonstrating compelling government interest . . . society as a whole suffers.” She further contends that the Federal Bureau of Prisons supports the assertion that “racial integration leads to less violence in institutions and better prepares inmates for reentry into society.” The courts’ recommendation is that “race- neutral” remedies be pursued to handle the problems associated with inmate violence. Correctional administrators should strive to avoid policies that may breed racial intolerance.

Despite this 2005 ruling, the state of California continued to use a race-based segregation policy in response to riots. Thompson (2014) reports that of the 600 lock- downs imposed by the institutions within the California Department of Corrections and Rehabilitation in typical year, 200 of them were based on the inmates’ race, rather than actual evidence of the inmates participating in the riots or even being affiliated with the prison gangs suspected in each situation.98 The CDCR argued that the practice of segregating inmates of a particular race after violent episodes in an institution was used to prevent future violence by prison gangs (typically racially homogenous). Inmates argued that it was unfair to segregate all inmates of a partic- ular race, regardless of their actual involvement in riotous behavior, thus, violating their rights under the Fourteenth Amendment. In 2014, as a result of pressure by the U.S. Department of Justice, California agreed to end this race-based segregation policy, replacing it with a point system that can be used to determining if specific individual inmates have committed a disturbance warranting lockdown. Prior par- ticipation in riotous behavior and known prison gang affiliation can be taken into account in this new procedure.

Given the clear judicial and executive branch messages that correctional admin- istrators cannot pursue “separate, but equal” policies of race/ethnic-based segrega- tion to reduce prison violence, the issue remains—to what extent should integration be required in work, housing, recreation, and education assignments? Should admin- istrators allow inmates to make decisions on the basis of personal preference, even

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Women in Prison

Studies addressing the imprisonment of women are less numerous than those for men, but they are increasing in number. Within this growing body of research, the issue of race is not routinely addressed either. When race is assessed the compari- sons are generally limited to African Americans and whites. The evidence is mixed on the issue of whether race effects the adjustment of women to prison life.

Doris L. MacKenzie explains the behaviors (conflicts and misconduct reports) of women in prison on the basis of age and attitudes (anxiety, fear of victimiza- tion).99 She comments that the four prisons she examined are similar in racial composition, but she does not comment on whether she explored differences by race in relation to attitudes and aggressive behavior. Such research ignores the possibility that race may influence one’s perception of prison life, tendencies toward aggression, age of inmate, or length of time in prison. MacKenzie and oth- ers do, in later works, address race in the demographic description of the incar- cerated women. In a study of one women’s prison in Louisiana, for example, they found that nonwhite women were severely overrepresented among all prisoners and even more likely to be serving long sentences. Their findings indicate unique adjustment problems for long-term inmates, but they fail to incorporate race into their explanatory observations about institutional misconduct. This omission seems contrary to the observation that nonwhite women are more likely to have longer sentences.100 Race has specifically been recognized as a factor in research addressing the issue of sexual deprivation among incarcerated women. Robert G. Leger identifies racial dimensions to several key explanatory factors in the participation of female prisoners in lesbianism.101 First, the demographic infor- mation reveals that most lesbian relationships are intraracial and that no distinc- tions emerged by race in participation in the gay or straight groups. Second, once dividing the group by the characteristics of previous confinements (yes or no) and age at first lesbian experience, the pattern of even representation of whites and African Americans changed. African-American females were overrepresented in the group indicating previous confinement, and the information about age at first arrest indicates that African-American females are more likely to have engaged in their first lesbian act prior to their first arrest.

if these decisions result in self-segregation? Racial tensions are a serious problem in most prisons; forcing white and African-American inmates to share cells, when they are actively hostile to each other, could bring these tensions to a boil. In one instance, a white inmate felt so threatened by the politicized racial atmosphere in his prison that he filed suit asking a federal court to reverse the integration requirement and return to segregation.

However, if correctional administrators bowed to the wishes of inmates on this matter they would create two problems. First, they would be actively promoting racial segregation, which is illegal. Second, they would undermine their own author- ity by acknowledging that inmates could veto policy they did not like.

What is the best strategy for administrators in this difficult situation? You decide.

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C O N C L U S I O N

The picture of the American correctional system is most vivid in the colors of black and white, but it also has prominent images of brown. Basic questions such as “Who is in prison?” and “How do individuals survive in prison?” cannot be divorced from the issues of race and ethnicity. The most salient observation about minorities and corrections is the striking overrepresentation of African Ameri- cans in prison populations. Explanations for this overrepresentation are complex. Prominent trends today include the decrease in correctional populations since 2007.

The most obvious possibility is that African Americans have higher rates of criminality than other groups, such as whites. This explanation has been chal- lenged by the change in the racial composition of incarcerated populations as seen in Figure 9.2. What explanations account for the increasing percentage of African Americans in the U.S. prison population? Michael Tonry challenges that the stability of African-American arrest rates since the mid-1970s to the explosive African-American incarceration rates of the same period, as a “malign neglect.” He argues that a better explanation may be the racial impact of the “War on Drugs,”102 while Michelle Alexander argues that prison is the New Jim Crow.103

D I S C U S S I O N Q U E S T I O N S

1. What is your position on allowing correctional inmates access to college courses while in prison? How about access to financial aid for college after the sentence is complete? Think of the cost of prison as about $30,000 a year and consider how education can lead to rehabilitation.

2. In what ways is the indigenous justice paradigm in conflict with the princi- ples of the traditional, adversarial American criminal justice system? In what ways do the principles of Native American justice complement more main- stream correctional initiatives? Are these values more compatible with some offenses than others? More appropriate for some types of offenders than others?

3. Learn more about the larger issue of radicalization of homegrown jihadist terrorist groups by exploring the content of the U.S. Violent Rehabilitation and Homegrown Terrorism Prevention Act 2007 (https://www.congress. gov/bill/110th-congress/house-bill/1955/text). Is this concern about prison inmates still relevant today? What research would you propose to more fully explore this issue in the wake of the newest international terrorist trends?

4. Should post-prison reintegration programs be race neutral? Were the factors that lead to offending and incarceration race neutral? In what ways should issues of race and ethnicity be considered when creating policies to facilitate inmate readjustment to society upon release?

5. Some cities are exploring paying criminals not to reoffend. Explore Rich- mond, California, and Washington, DC, as examples.

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6. Do you think prison gang formation is influenced mostly by external forces and the gang affiliation offenders bring to prison from the street or by the internal forces of the prison environment, such as racial composition? What arguments can you offer to support your position?

N O T E S

1. Danielle Kaeble, Lauren Glaze, Anastasios Tsoutis, and Todd Minton, Correctional Populations in the United States, 2014 (Washington, DC: U.S. Department of Justice, 2015).

2. U.S. Department of Education, Digest 2014. National Center for Education, Table 306.5. http://nces.ed.gov/programs/digest/d14/tables/dt14_306.50.asp.

3. Mark Mauer, “Addressing Racial Disparities in Incarceration,” The Prison Journal 91, no. 3 (2011), pp. 87–101.

4. U.S. Department of Education, National Center for Education Statistics, Integrated Postsecondary Education Data System (IPEDS), Spring 2014, Enrollment compo- nent. See Digest of Education Statistics 2014, table 306.50.

5. American, Civil Liberties Union, Locating the School to Prison Pipeline fact sheet. https://www.aclu.org/fact-sheet/what-school-prison-pipeline.

6. Simone Robers, Jihun Zhang, Jennifer Truman, and Thomas D. Snyder, Indicators of School Crime and Safety:2010 (Washington, DC: U.S. Department of Education, November 2010). http://nces.ed.gov/pubs2011/2011002.pdf.

7. Rebecca Gordon, Pina Libero Della, and Terry Keleher, “Facing the Consequences: An Examination of Racial Discrimination in U.S. Public Schools,” (New York: Applied Research Center, 2000), p. 1.

8. T. Mowen and J. Brent 2016, “School Discipline as a Turning Point: The Cumu- lative Effect of Suspension on Arrest,” Journal of Research in Crime and Delinquency (April 12, 2016). doi: 10.1177/0022427816643135.

9. K. A. Bailey, “Legal Knowledge Related to School Violence and School Safety,” in Handbook of School Violence and School Safety: From Research to Practice, M. R. Randa- zzo, S. R. Jimerson, and M. J. Furlong, eds. (Mahwah, NJ: Lawrence Erlbaum, 2006).

10. M. T. Theriot, “School Resource Officers and the Criminalization of Student Behav- ior,” Journal of Criminal Justice 37 (2009), pp. 280–287.

11. E. Ann Carson, Prisoners in 2014 (Washington, DC: Bureau of Justice Statistics, 2015). Todd Minton and Zhen Zeng, Jail Inmates at Midyear 2014 (Washington, DC: Bureau of Justice Statistics, 2015).

12. Ada Pecos Melton, “Crime and Punishment: Traditional and Contemporary Tribal Justice” in Images of Color, Images of Crime, Coramae Richey Mann and Marjorie S. Zatz, eds. (Los Angeles: Roxbury Publishing Company, 1998).

13. See Marjorie S. Zatz, Carol Chiago Lujan, and Zoann K. Snyder-Joy, “American Indians and Criminal Justice: Some Conceptual and Methodological Consider- ations,” in Race and Criminal Justice for a review of these issues.

14. E. Ann Carson, Prisoners in 2014 (Washington, DC: Bureau of Justice Statistics, 2015), Table 11.

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15. Ibid. Table 12.

16. Todd D. Minton, Jails in Indian Country, 2014 (Washington, DC: U.S. Bureau of Justice Statistics, 2015).

17. Todd D. Minton, Jails in Indian County, 2008 (Washington, DC: U.S. Bureau of Justice, 2009).

18. Ibid.

19. Heather West, Prison Inmates at Midyear, 2009—Statistical Tables (Washington, DC: U.S. Bureau of Justice Statistics, 2010).

20. Institute for Criminal Policy Research, World Prison Brief. http://www.prison- studies.org/world-prison-brief.

21. Marc Mauer, Americans Behind Bars: A Comparison of International Rates of Incarceration (Washington, DC: The Sentencing Project, 1990).

22. American Correctional Association, 1993 Directory of Juvenile and Adult Correctional Departments, Institutions, Agencies and Paroling Authorities (Laurel, MD: ACA, 1993).

23. John A. Arthur, “Correctional Ideology of Black Correctional Officers,” Federal Probation 58 (1994), pp. 57–65.

24. Michelle Alexander, “The New Jim Crow: Mass Incarceration in the Age of Color- blindness” (New York, NY: The New Press, 2012).

25. Angela Davis. http://www.colorlines.com/articles/masked-racism-reflections- prison-industrial-complex.

26. Matthew R. Durose, Alexia D. Cooper, and Howard N. Snyder, Recidivism of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010 (Washington, DC: U.S. Department of Justice, 2014).

27. Michael Tonry, Malign Neglect (New York: Oxford University Press, 1995).

28. Ibid.

29. http://nelp.org/publication/ban-the-box-fair-chance-hiring-state-and-local-guide/.

30. Geneva Brown, “The Intersectionality of Race, Gender and Reentry: Challenges for African American Women,” American Constitution Society, Issue Brief. pp. 7–8. https:// www.acslaw.org/publications/issue-briefs/the-intersectionality-of-race-gender-and- reentry-challenges-for-african--0.

31. http://www.rand.org/blog/rand-review/2016/01/course-correction-the-case- for-correctional-education.html.

32. Danielle Kaeble, Lauren Glaze, Anastasios Tsoutis, and Todd Minton, Correctional Populations in the United States, 2014 (Washington, DC: Bureau of Justice Statistics, 2015).

33. Timothy A. Hughes, Doris James Wilson, and Allen J. Beck, Trends in State Parole, 1990–2000 (Washington, DC: U.S. Department of Justice, 2001), p. 2. www.ojp. usdoj.gov/bjs/.

34. Kathryn D. Morgan and Brent Smith, “The Impact of Race on Parole Decision- Making,” Justice Quarterly 25 (2008), pp. 411–435.

35. Marjorie S. Zatz, “The Changing Form of Racial/Ethnic Biases in Sentencing,” Jour- nal of Research in Crime and Delinquency 25 (1987), pp. 69–92; Cassia Spohn, “Thirty Years of Sentencing Reform: A Quest for a Racially Neutral Sentencing Process,” in Policies, Processes, and Decisions of the Criminal Justice System, Vol. 3, Criminal Justice 2000 (Washington, DC: U.S. Department of Justice, 2000).

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36. Beth M. Huebner and Timothy S. Bynum, “The Role of Race and Ethnicity in Parole Decisions,” Criminology 46 (2008), pp. 907–937.

37. Danielle Kaible, Laura M. Maruschak, and Thomas Bonczar, “Probation and Parole in the United States,” 2014 (Washington, DC: Bureau of Justice Statistics, 2015).

38. Timothy A. Hughes, Doris James Wilson, and Allen J. Beck, Trends in State Parole, 1990–2000 (Washington, DC: U.S. Department of Justice, 2001), p. 2. www.ojp. usdoj.gov/bjs/.

39. The Sentencing Project, Facts about Prison and Prisoners (Washington, DC: The Sen- tencing Project, 2001). http://www.sentencingproject.org.

40. U.S. Bureau of Labor Statistics. Labor Force Statistics from the Current Population Survey (April 2016). http://www.bls.gov/web/empsit/cpsee_e16.htm.

41. Joan Petersilia, Racial Disparities in the Criminal Justice System (Santa Monica, CA: Rand, 1983), p. 28.

42. Kevin F. Steinmetz and Howard Henderson, “Inequality on Probation: An Examina- tion of Differential Probation Outcomes” Journal of Ethnicity in Criminal Justice 14, no. 1 (2016), pp. 1–20.

43. Tribal Law and Policy Institute, Healing to Wellness Courts: A Preliminary Overview of Tribal Drug Courts (Washington, DC: Office of Justice Programs, 1999).

44. Tribal Law and Policy Institute, Tribal Healing to Wellness Courts: The Key Components, 2nd ed. (2014). tlpi.org. TLPI. p. 11.

45. Ibid. TLPI.

46. Ibid. TLPI.

47. Marc Mauer and Virginia McCalmont, “A Lifetime of Punishment: The Impact of the Felony Drug Ban on Welfare Benefits” (2013). http://www.sentencingproject. org/publications/a-lifetime-of-punishment-the-impact-of-the-felony-drug-ban-on- welfare-benefits/.

48. Ibid.

49. Ibid.

50. The Sentencing Project, Felony Disenfranchisement: A Primer Laws in the United States, 2014 (Washington, DC: The Sentencing Project, 2016). http://www.sentencing project.org/publication.

51. Ibid.

52. The Sentencing Project, “Expanding the Vote: State Felony Disenfranchisement Laws in the United States” (2008). http://sentencingproject.org.

53. W. E. B. Du Bois, “The Spawn of Slavery: The Convict-Lease System in the South,” The Missionary Review of the World 14 (1901), pp. 737–745; Martha A. Myers, Race, Labor, and Punishment in the South (Columbus, OH: Ohio State University Press, 1999).

54. Raymond J. Michalowski and Michael A. Pearson, “Punishment and Social Struc- ture at the State Level: A Cross-Sectional Comparison of 1970 and 1980,” Journal of Research in Crime and Delinquency 27 (1990), pp. 52–78.

55. Theodore G. Chiricos and Charles Crawford, “Race and Imprisonment: A Contex- tual Assessment of the Evidence,” in Ethnicity, Race, and Crime, Darnell F. Hawkins, ed. (Albany: State University of New York Press, 1995).

56. Raymond J. Michalowski and Michael A. Pearson, “Punishment and Social Struc- ture at the State Level: A Cross-Sectional Comparison of 1970 and 1980,” Journal of Research in Crime and Delinquency 27 (1990), pp. 52–78.

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57. Darnell F. Hawkins and Kenneth A. Hardy, “Black–White Imprisonment Rates: A State-by-State Analysis,” Social Justice 16 (1989), pp. 75–94.

58. Robert D. Crutchfield, George S. Bridges, and Susan R. Pitchford, “Analytical and Aggregation Biases in Analyses of Imprisonment: Reconciling Discrepancies in Studies of Racial Disparity,” Journal of Research in Crime and Delinquency 31 (1994), pp. 166–182.

59. Miriam A. DeLone and Theodore G. Chiricos, “Young Black Males and Incarcera- tion: A Contextual Analysis of Racial Composition,” paper presented at the Annual Meetings of the American Society of Criminology, 1994.

60. Ibid.

61. Theodore G. Chiricos, “The Moral Panic of the Drug War,” in Race and Criminal Justice, Michael J. Lynch and E. Britt Patterson, eds. (New York: Harrow and Heston, 1995).

62. Donald Clemmer, The Prison Community (New York: Holt, Reinhart, and Winston, 1940); Gresham M. Sykes, The Society of Captives (Princeton: Princeton University Press, 1958); John Irwin and Donald Cressey, “Thieves, Convicts, and Inmate Cul- ture,” Social Problems 10 (1962), pp. 142–155.

63. James Jacobs, New Perspectives on Prison and Imprisonment (Ithaca, NY: Cornell Uni- versity Press, 1983).

64. Lynne Goldstein and Doris Layton MacKenzie, “Racial Differences in Adjustment Patterns of Prison Inmates—Prisonization, Conflict, Stress, and Control,” in The Criminal Justice System and Blacks, Daniel Georges-Abeyie, ed. (New York: Clark Boardman Company, Ltd, 1984).

65. Kevin N. Wright, “Race and Economic Marginality,” Journal of Research in Crime and Delinquency 26 (1989), pp. 67–89.

66. Joan Petersilia, Paul Honig, and Charles Hubay, The Prison Experiences of Career Crim- inals (Santa Monica, CA: Rand Corporation, 1980).

67. Timothy Flanagan, “Correlates of Institutional Misconduct Among Prisoners,” Crim- inology 21 (1983), pp. 29–39.

68. Miles D. Harer and Darrell J. Steffensmeier, “Race and Prison Violence,” Criminology 34 (1996), pp. 323–355.

69. Margaret Noonan, Harley Rohloff, and Scott Ginder, Mortality in Local Jails and State Prisons, 2000-2013—Statistical Tables (Washington, DC: Bureau of Justice Statistics, 2015).

70. Anne C. Spaulding, Ryan M. Seals, Victoria A. McCallum, Sebastian D. Perez, Amanda K. Brzozowski, and N. Kyle Steenland, “Prisoner Survival Inside and Out- side of the Institution: Implications for Health Planning,” American Journal of Epidemi- ology 173, no. 5 (2011), pp. 479–487.

71. Jim Thomas, “Racial Codes in Prison Culture: Snapshots in Black and White,” in Race and Criminal Justice, Michael Lynch and Britt Patterson, eds. (New York: Harrow and Heston, 1991).

72. Andy Hochstetler, Matt DeLisi, and Travis C. Pratt, “Social Support and Feel- ings of Hostility Among Released Inmates,” Crime and Delinquency 56 (2010), pp. 588–607.

73. Francis Cullen, “Social Support as an Organizing Concept for Criminology: Pres- idential Address to the Academy of Criminal Justice Sciences,” Justice Quarterly 11

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(1994), pp. 527–560; Melissa H. Barlow, “Sustainable Justice: 2012 Presidential Address to the Academy of Criminal Justice Sciences,” Justice Quarterly 30 (2013), pp. 1–17.

74. William D. Bales and Daniel P. Mears, “Inmate Social Ties and Transition to Society: Does Visitation Reduce Recidivism,” Journal of Research in Crime and Delinquency 45 (2008), pp. 287–321.

75. Daniel Glaser, The Effectiveness of a Prison and Parole System (Indianapolis, IN: Bobbs-Merrill, 1964).

76. Jacobs, New perspectives on Imprisonment.

77. Darlene Conley and Julius Debro, “Black Muslims in California Prisons: The Begin- ning of a Social Movement for Black Prisoners in the United States,” in Race, Class, Gender, and Justice in the United States, Charles E. Reasons, Darlene J. Conley, and Julius Debro, eds (Boston: Allyn and Bacon, 2002), p. 279.

78. Jacobs, New Perspectives on Imprisonment, p. 65.

79. Ibid.

80. Joel West Williams, “Walking the Red Road in the Iron House,” American Jails Magazine (May 2016). http://www.americanjail.org/walking-the-red-road- in-the-iron-house/.

81. Elizabeth S. Grobsmith, Indians in Prison (Lincoln, NE: University of Nebraska Press, 1994).

82. Omaha World Herald, Sunday, December 6, 1998, p. 19-A.

83. Omaha World Herald, Sunday February 29, 1999, p. 1-A.

84. Mark S. Hamm, “Prison Islam in the Age of Sacred Terror,” British Journal of Crimi- nology (2009) 49: 667–685.

85. Ibid. p. 269.

86. https://www.justice.gov/criminal-ocgs/gallery/prison-gangs accessed October 14, 2016

87. National Gang Intelligence Center, 2013 National Gang Report. https://www.fbi. gov/stats-services/publications/national-gang-report-2013/view.

88. Florida Department of Corrections, “Gang and Security Groups Awareness, 2005.” http://www.dc.state.fl.us/pub/gangs/.

89. ADL White Supremacist Prison Gangs in the United States. http://www.adl.org/ combating-hate/domestic-extremism-terrorism/c/white-supremacist-prison.html#. VxTmNfkrJhH.

90. Federal Bureau of Investigation, Thirteen Correctional Officers Among 25 Black Guerilla Family Gang Members and Associates Indicted on Federal Racketeering Charges. https://www.fbi.gov/baltimore/press-releases/2013/thirteen-correctional- officers-among-25-black-guerilla-family-gang-members-and-associates- indicted-on- federal-racketeering-charges.

91. Robert Fong, Ronald Vogel, and Salvador Buentello, “Prison Gang Dynamics: A Look Inside the Texas Department of Corrections,” in Corrections: Dilemmas and Directions, Peter J. Benekos and Alida V. Merlo, eds. (Cincinnati: Anderson Publishing Co. and Academy of Criminal Justice Sciences, 1992).

92. National Gang Intelligence Center, 2013 National Gang Report, p. 14. https://www. fbi.gov/stats-services/publications/national-gang-report-2013/view.

93. http://www.dc.state.fl.us/pub/gangs/prison.html.

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94. Robert Fong, Ronald Vogel, and Salvador Buentello, “Prison Gang Dynamics: A Look Inside the Texas Department of Corrections,” in Corrections: Dilemmas and Directions, Peter J. Benekos and Alida V. Merlo, eds. (Cincinnati: Anderson Publish- ing Co. and Academy of Criminal Justice Sciences, 1992).

95. Ibid.

96. Texas Department of Public Safety, Texas Gang Threat Assessment, 2014. https:// www.dps.texas.gov/director_staff/media_and_communications/2014/txGang ThreatAssessment.pdf.

97. Johnson v. California, 543 U.S. 499 (2005).

98. Don Thompson, “California Prisons to Take New Balance after Riots,” Associate Press, October 23, 2014. http://www.sandiegouniontribune.com/news/2014/ oct/23/california-prisons-to-take-new-balance-after-riots/.

99. Doris L. MacKenzie, “Age and Adjustment to Prison: Interactions with Attitudes and Anxiety,” Criminal Justice and Behavior 14 (1987), pp. 427–447.

100. Doris L. MacKenzie, James Robinson, and Carol Campbell, “Long-Term Incarcer- ation of Female Offenders: Prison Adjustment and Coping,” Criminal Justice and Behavior 16 (1989), pp. 223–238.

101. Robert G. Leger, “Lesbianism Among Women Prisoners: Participants and Non- participants,” Criminal Justice and Behavior 14 (1987), pp. 448–467.

102. Tonry, Malign Neglect.

103. Alexander, The New Jim Crow.

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10

MINORITY YOUTH AND CRIME:

Minority Youth in Court

Youth in general, and young minority males in particular, often are demonized by legislators, the media, scholars, and the public at large. These attacks reinforce stereotypes and place a particularly heavy burden on young Black and Latino males.

—LINDA S. BERES AND THOMAS D. GRIFFITH,

“DEMONIZING YOUTH”1

In June 2001, Lionel Tate, an African-American boy who was 12 years old when he killed a 6-year-old family friend while demonstrating a wrestling move he had seen on television, was sentenced to life in prison without the possibility of parole. Tate, who claimed that the death was an accident, was tried as an adult in Broward County, Florida; he was convicted of first-degree murder. One month later, Nathaniel Brazill, a 14-year-old African American, was sentenced by a Florida judge to 28 years in prison without the pos- sibility of parole. Brazill was 13 years old when he shot and killed Barry Grunow, a popular 30-year-old seventh-grade teacher at a middle school in Lake Worth, Florida. Although Brazill did not deny that he fired the shot that killed his teacher, he claimed that he had only meant to scare Grunow and that the shooting was an accident. Like Tate, Brazill was tried as an adult; he was convicted of second-degree murder.

Nathaniel Brazill is still incarcerated in a Florida correctional institution. Assuming that none of his pending appeals are successful, he will not be released until 2028, when he will be 41 years old.2 Lionel Tate’s conviction, on the other hand, was overturned by a Florida appellate court in 2003. The court ruled that Tate should be retried because his competency to stand trial was not evaluated before he went to trial. The state decided not to retry Tate

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and instead offered him a plea agreement—Tate pled guilty to second-degree murder in exchange for a sentence to time served (which was about 3 years), plus 1 year of house arrest and 10 years of probation.3 He was released from prison in January 2004. In May 2005, he was back in jail in Fort Lauderdale, Florida, after he allegedly robbed a pizza delivery man at gunpoint. Because he was on proba- tion at the time of the crime, Tate faced a potential life sentence on the robbery charge.4 In 2006, he was sentenced to 30 years in prison on a gun possession charge, and in 2008, he was sentenced to 10 years in prison for the robbery.

These two cases raised a storm of controversy regarding the prosecution of children as adults. Those on one side argue that children who commit adult crimes, such as murder, should be treated as adults; they should be prosecuted as adults and sentenced to adult correctional institutions. As Marc Shiner, the prosecutor in Brazill’s case, put it, “This was a heinous crime committed by a young man with a difficult personality who should be behind bars. Let us not forget a man’s life has been taken away.”5 Those on the other side contend that prosecuting children as adults is “unwarranted and misguided.” They assert that children who commit crimes of violence usually suffer from severe mental and emotional problems and that locking kids up in adult jails does not deter crime or rehabilitate juvenile offenders. Although they acknowledge that juvenile offenders should be punished for their actions, they claim that incarcerating them in adult prisons for the rest of their lives “is an outrage.”6 According to Vincent Schiraldi, president of the Justice Policy Institute, “In adult prisons, Brazill will never receive the treatment he needs to reform himself. Instead, he will spend his time trying to avoid being beaten, assaulted, or raped in a world where adults prey on, rather than protect, the young.”7

In 2012, the U.S. Supreme Court ruled that the imposition of mandatory life without parole sentences on offenders who were younger than 18 at the time of their crimes violated the Eighth Amendment’s prohibition against cruel and unusual punishments.8 At issue were the sentences imposed on two 14-year-old offenders who were tried as adults and who were convicted of murder and sen- tenced to prison with no possibility of parole. In each case, a life without parole sentence was mandatory. The court ruled, 5-4, that this sentencing scheme pre- vented judges and juries from considering either the characteristics of youths or the nature of their crimes; it prevented them from considering whether juveniles had lessened culpability and a greater capacity for change than adults found guilty of these crimes. As the Court noted, “By requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes, the man- datory sentencing schemes before us violate [the] principle of proportionality, and so the Eight Amendment’s ban on cruel and unusual punishment.”

In January 2016, the Supreme Court issued a ruling that expanded the 2012 decision. In Montgomery v. Louisiana,9 the Court ruled 6-3 that its decision in Miller v. Alabama must be applied retroactively to the estimated 1,200–1,500 cases involving juvenile offenders who were sentenced to life in prison with no pos- sibility of parole prior to 2012. The Court stated that these offenders must have an opportunity to be resentenced or to be argued for parole. According to Justice Kennedy, who wrote the majority opinion, “A penalty imposed pursuant to an

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unconstitutional law is no less void because the prisoner’s sentence became final before the law was held unconstitutional. There is no grandfather clause that per- mits states to enforce punishment the Constitution forbids.”

L E A R N I N G O B J E C T I V E S

The prosecution of children as adults, and the potential for racial bias in the deci- sion to “waive” youth to adult court, is one of the issues we address in this chap- ter. We also discuss the racial/ethnic patterns in victimization of juveniles and in offending by juveniles, the treatment of juveniles by the police, and the police use of gang databases. We end the chapter with a discussion of the treatment of minority youth by the juvenile justice system.

After you have read this chapter:

1. You will understand the myths and realities about victimization of and crime by minority youth.

2. You will be able to discuss the nuances of the relationship between the police and the racial and ethnic minority youth.

3. You will understand what recent research on racial disparities in the juvenile justice system tells us about the treatment of youth by the criminal justice system.

4. You will be able to discuss the findings of recent research examining the rea- sons for racial disparities in the juvenile justice system.

T H E J U V E N I L E P O P U L AT I O N I N T H E U N I T E D S TAT E S

According to the U.S. Census Bureau, in 2010 juveniles (i.e., those under the age of 18) made up about one-fourth of the U.S. population.10 Of these youth, 56 percent were white, 15 percent were African American, 5 percent were Asian, 1 percent were American Indian, and 23 percent were Hispanic.11 The Census Bureau estimates that Hispanics will constitute 30 percent of the juvenile popula- tion in 2030 and will make up 36 percent by 2050.

These overall figures mask significant differences among the states. In 2010, about 90 percent of all youth in Maine, New Hampshire, Vermont, and West Virginia were white. By contrast, more than half of the juvenile populations in California and New Mexico were Hispanic, and Hispanics made up 40 percent or more of the population in Arizona, Nevada, and Texas. States with the largest proportions of African American youth in their populations were concentrated in the South: Georgia, Louisiana, Mississippi, and South Carolina. African Americans made up about two-thirds of the juvenile population in the District of Columbia.12

Other relevant statistics regarding the juvenile population include the following13:

■ Twenty-two percent of the juvenile population, but only 14 percent of those 18–64 and 9 percent of those 65 and older, were living below the poverty

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threshold in 2010; the percentage of the juvenile population living below the poverty level was 39 percent for African Americans, 35 percent for Hispanics and American Indians, 14 percent for Asians, and 12 percent for whites.

■ The proportion of children living in single-parent households increased from 9 percent in 1960 to 27 percent in 2010. The rates were highest for African-American youth (54 percent) and were lowest for Asian (12 percent) and white youth (20 percent).

■ Although the proportion of youth who quit school without completing a high school degree was lower in the 2000s than in the 1990s, about 4 percent of all youth enrolled in high school in 2008 left without a degree; there were no statistically significant racial/ethnic differences in the  drop-out rate.

Y O U N G R A C I A L M I N O R I T I E S A S V I C T I M S O F C R I M E

In Chapter 2 we showed that, regardless of age, African Americans have higher personal theft and violent victimization rates than other racial/ethnic groups and that Hispanics generally have higher victimization rates than non-Hispanics. However, information concerning the racial and ethnic trends in victimization for juveniles is scarce. In this section, we examine National Crime Victimization Survey (NCVS) data, supplemented by National Incident-Based Reporting Sys- tem (NIBRS) data and Supplemental Homicide Reports (SHR) from the FBI. We first discuss property victimization, followed by violent victimization and homicide victimization.

Property Crime Victimization

Information on property crime victimization among juveniles is dated. Using information from the 1996 and 1997 NCVS, the Office of Juvenile Justice and Delinquency Prevention released a brief on “Juvenile Victims of Property Crime.”14 Their findings indicated that one of every six juveniles (defined as youth aged 12–17) had been the victim of property crime.15 This rate was 40 per- cent higher than the property crime victimization rate for adults.16

Table 10.1 offers a comparison of juvenile and adult property crime vic- timization rates for this time period by race and ethnicity. A ratio of juvenile to adult rates higher than 1:1 indicates that the juvenile victimization rate is higher than the adult rate. The ratio of 1:1.4 for whites, for example, indicates that the property crime victimization rate for white juveniles is higher than the property crime victimization rate for white adults; moreover, as indicated by the asterisk, the difference in the rates for adults and juveniles is statistically significant. This pattern is found for all three racial categories. Hispanic property crime victim- ization rates, however, do not vary significantly between juveniles and adults, but non-Hispanic rates do vary.

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Looking at the victimization rates for juveniles only in Table 10.1, we see that African-American youth have the highest property crime victimization rate, followed by white youth, and then “other race” (American Indian/Alaska Native and Asian/Pacific Islander) youth. With regard to ethnicity, non-Hispanic juve- niles report a higher rate of property crime victimization than Hispanic juve- niles. The racial pattern of property crime victimization among juveniles, in other words, mirrors the overall pattern for all ages combined (see Chapter 2); both comparisons show the highest rates for African Americans. The victimization rates of Hispanic and non-Hispanic juveniles (higher rates for non-Hispanics), on the other hand, differ from the rates for all age groups combined (higher rates for Hispanics).17

The FBI also collects information about crime victims through the NIBRS. These data do not represent the entire U.S. population, but they do provide sub- stantial information on the victims of crime in the jurisdictions covered. Using this information, researchers estimate that juveniles with the following charac- teristics have a relatively high risk for property crime victimization: “African American juveniles, juveniles in urban areas, and juveniles in the West.”18 In short, these victimization patterns closely mirror “the higher risk for adults in these categories.”19

Violent Crime Victimization

In general, violent victimization rates (which include the crimes of rape, robbery, aggravated assault, and simple assault) are somewhat higher for younger age groups than for older age groups. For example, in 2013 the violent victimization rate for youth from 12 to 17 years old was 30.1 victimizations for every 1,000 persons in

T A B L E 10.1 Juvenile and Adult Property Victimization Rates by Race and Ethnicity (1996 and 1997 Combined)

Property Crime Rate (Per 1,000 Population)

Property Crime Ratio (Juvenile/

Adults)Juvenile Adult

Victim Race

White 162 114 1:1.4*

African American 194 151 1:1.3*

Other 155 108 1:1.4*

Victim Ethnicity

Hispanic 143 133 1:1.1

Non-Hispanic 170 117 1:1.5*

*Juvenile rate divided by adult rate; significant difference at the 0.05 level or below.

SOURCE: Office of Juvenile Justice and Delinquency Prevention, “Juvenile Victims of Property Crimes” (Washington, DC: U.S. Department of Justice, 2000).

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that age group, and the rate for those from 18 to 24 years old was 26.8 victimiza- tions for every 1,000 persons in that age group. By contrast, the rate for individ- uals who were 25–34 years old was 28.5 per 1,000 persons and the rate for those who were 35–49 years old was 21.6. The rates for serious violence, which exclude simple assault, were somewhat lower for those in the 12–17 age group (8.8 per 1,000 persons) than for those in the 20–24 age group (13.6 per 1,000 persons).20

The most recent data on violent victimization by age, race, and gender are for 2007. These data reveal that the overall violent victimization rate, which in years past was higher for African Americans than for whites, was very similar for these two groups in 2007. For example, in 2000 the violent victimization rates for youth ages 12–15 were 66.7 for African Americans and 58.7 for whites; in 2007, the rates were 46.1 for African Americans and 42.1 for whites.21 Thus, the victim- ization rates for both groups declined from 2000 to 2007, but the rate for African Americans fell more sharply than did the rate for whites. However, a report focus- ing on serious violence in 2010 showed that the rate for African-American youth (25.4) was twice the rates of white (11.7) and Hispanic (11.3) youth. The 2010 simple assault rates for African-American youth (29.9) also were higher than that for white (21.5) or Hispanic (19.0) youth.22

Data on violent victimization rates for 2007 broken down by age, race, and gender reveal that young African-American males have a greater likelihood than other offenders of being victims of robbery, but the rates for overall violence are very similar for young African-American males and for offenders other than white females.23 These data reveal that in 2007 the violent victimization rate for youth between the ages of 12 and 15 was 46.1 for African-American males, 47.9 for white males, 46.2 for African-American females, and 36.1 for white females. For violent crime in general, then, the rates for African-American males, African-American females, and white males differed by less than two percentage points. By contrast, the robbery victimization rate for African-American males (9.1) was considerably larger than the rate for white males (5.4) and was more than 10 times the rate for white females (0.9) and African-American females (0.0).

A 2003 report by the Bureau of Justice Statistics revealed that African- American and Hispanic youth were more likely than white youth to be victims of crimes committed with weapons.24 This was true for crimes committed with any weapon and for crimes committed with a firearm, and it was true for youth between the ages of 12 and 14 as well as youth between the ages of 15 and 17. Among the 15- to 17-year-olds, for example, the rate of violent victimizations with a firearm for Hispanic youth was twice the rate for white youth; the rate for African-American youth was even higher than the rate for Hispanic youth.

Explaining Racial Differences in Violent Victimization The question, of course, is why African-American and Hispanic youth are more likely than whites to be the victims of violent crime. To answer this question, Janet L. Lauritsen used 1995 data from the National Crime Victimization Survey to explore the effects of individual, family, and community characteristics on the risk for non- lethal violence among youth.25 She disaggregated violent incidents into inci- dents perpetrated by strangers and those perpetrated by non-strangers, and she

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distinguished incidents that occurred in the youth’s own neighborhood from those that occurred elsewhere. She found that youth living in single-parent fami- lies had higher risks for violence than those living in two-parent families and that the risk for violence was much higher for youth living in the most disadvantaged communities.26

According to Lauritsen, “because family and community characteristics vary among racial and ethnic groups in the United States, it is important to consider differences in victimization risk across racial and ethnic groups.”27 As shown in Table 10.2, when she examined the risk for violence by race and gender, she found that young males faced a substantially higher risk of violence than young females; this was true for both stranger and non-stranger violence and for all vio- lence as well as violence that took place in the youth’s own neighborhood. She also found that,

■ Young white, African-American, and Hispanic males had roughly equal risks of non-stranger violence, but young white males had a lower risk of victimization for stranger violence in their own neighborhoods than African-American and Hispanic young males; and

■ Young African-American females faced much higher risks of non- stranger violence than either Hispanic or white young females, and both African-American and Hispanic females were more likely than white females to be victimized by a stranger in their neighborhoods.

To determine whether these patterns could be explained by other factors, Lauritsen used analytical techniques that simultaneously controlled for individual, family, and community characteristics. She found that the amount of time the youth spent at home and the length of time the youth had lived in his/her cur- rent home had a negative effect on risk of violent victimization, and that youths

T A B L E 10.2 Risk for Stranger and Non-Stranger Violence for African-American, Hispanic, and White Youth

Stranger Violence Non-Stranger Violence

All Violence

Neighborhood Violence

All Violence

Neighborhood Violence

Males 34.9 20.2 25.0 14.4

African American 35.8 27.1 25.5 17.1

Hispanic 43.4 31.2 24.4 13.1

White 33.2 16.6 25.0 14.0

Females 19.8 10.1 23.1 12.8

African American 24.3 14.2 30.1 22.7

Hispanic 22.7 14.1 16.3 10.3

White 18.2 8.5 22.7 11.0

SOURCE: Janet L. Lauritsen, “How Families and Communities Influence Youth Victimization” (Washington, DC: U.S Department of Justice, 2003). Adapted from Table 5.

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who lived in single-parent families faced a greater risk than those who lived in two-parent families. She also found that youth who lived in communities with higher percentages of female-headed families and higher percentages of residents under the age of 18 had higher likelihoods of violent victimization.28

The most interesting finding from this analysis was that the racial and ethnic differences in risk for violent victimization disappeared when the characteristics of the youth’s family and community were taken into account. The racial and ethnic differences discussed earlier, in other words, “are primarily a reflection of community and family differences rather than the result of being part of a partic- ular racial or ethnic group.”29 Thus, African-American and Hispanic youth have greater risks for violent victimization than white youth because they are more likely than white youth to spend time away from home, to live in single-parent families, to have less-stable living arrangements, and to live in disadvantaged com- munities. As Lauritsen noted, “the sources of risk are similar for all adolescents, regardless of their race or ethnicity.”30

Victimization of Young African-American Girls

In Getting Played: African American Girls, Urban Inequality, and Gendered Violence, Jody Miller examined the victimization experiences of African-American girls living in disadvantaged neighborhoods in St. Louis, Missouri. She used in-depth interviews with young African-American women and men to investigate “the social contexts in which violence against young women in disadvantaged com- munities emerges, with an emphasis on the situations that produce and shape such events.”31

Miller focused on young girls’ victimization experiences in their neighbor- hoods, their schools, and their relationships. Noting that most of the youth inter- viewed for her study lived in extremely disadvantaged neighborhoods in which drug dealing, street gangs, and violence were commonplace, Miller demonstrated that young girls faced particular risks in these male-dominated neighborhoods. They witnessed violence against other women that occurred in public view, were subjected to sexual come-ons by young men and sexual harassment by adult men, and faced an ongoing risk of sexual assault and sexual coercion. In response to these dangers, girls adopted gendered risk-avoidance strategies: they avoided public places, especially at night, and they relied on others, especially male rela- tives and friends, for protection. They also criticized girls who engaged in risky behavior or wore provocative clothing, arguing that doing so heightened girls’ risk of victimization. According to Miller, “the public nature of violence against women . . . created a heightened vigilance and awareness among girls of their own vulnerability, but it also resulted in coping strategies that included victim-blaming as a means of psychologically distancing themselves from such events.”32

Miller also discussed sexual harassment of girls at school, noting that a major- ity of the girls she interviewed reported experiencing inappropriate sexual com- ments or being grabbed or touched in ways that made them feel uncomfortable. She stated that these types of harassment were “an everyday feature of the cul- tural milieu at school” and were not taken seriously by school personnel.33 Miller

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also noted that the girls who were subjected to this type of treatment had a lim- ited arsenal of effective responses. Avoidance was not an option in schools where youths were constantly in contact with one another and standing up for oneself carried significant risks. As she put it, “Their attempts to defend themselves were read by young men as disrespect, and the incidents quickly escalated into hostile confrontations when young women challenged young men’s sexual and gender entitlements. Thus, young women were in a lose–lose situation.”34

One of the most troubling findings of Miller’s study is the high rate of sex- ual violence experienced by the girls. She found that half of the girls, whose mean age was only 16, had experienced some form of sexual coercion or sexual assault and that a third reported multiple experiences with sexual victimization. By contrast, the boys who were interviewed did not see their behaviors as sexual violence but as persuasion. Miller noted that much of the sexual violence, includ- ing gang rape, took place at unsupervised parties, where drugs and alcohol were readily available. As she explained, “Such social contexts not only made young women more vulnerable to sexual mistreatment but also enhanced the likelihood that girls would be viewed as either willing participants or deserving victims.”35

Miller concluded that her research “points to the clear need to address violence against girls in disadvantaged communities in a systematic fashion.”36 Although she acknowledged that “there are no simple answers or easy solutions,” she none- theless suggested that the problem can be ameliorated by “remedies that attend to the root causes of urban disadvantage” and by “improving institutional support for challenging gender inequalities and strengthening young women’s efficacy.”37 She recommended that policy makers consider ways to make disadvantaged neighbor- hoods safer, that police adopt community policing strategies designed to engender trust and confidence in the police, that school personnel take a more proactive approach to addressing sexual harassment, and that community service agencies develop ways of providing stable adult role models and mentors for youth at risk.

Homicide Victimization

In 2010, 1 in every 10 murder victims was under the age of 18; of these juve- nile victims, 30 percent were female, 42 percent were under age 6, 6 percent were aged 6–11, 7 percent were aged 12–14, and 45 percent were aged 15–17. The Supplemental Homicide Reports (SHR) collected by the FBI indicate that there are important racial patterns to be found in homicide trends. In fact, in 2010, 49 percent of all homicide victims were African American, 47 percent were white, and 3 percent were either American Indian or Asian. Given that whites constituted 76 percent of the juvenile population in 2010 and that African Amer- icans accounted for only 17 percent, the homicide rate for African-American youth was nearly five times the white rate. Among those in the 15–17 age group, the homicide rate for African-American youth was 8.6 times the rate for white youth.38 This report also documented that of the 58,900 juveniles who were mur- dered between 1980 and 2010, more than half of the victims under age 6 were killed by a parent; by contrast, only 6 percent of those who were 12–14 and only 2 percent of those who were 15–17 were killed by a parent.39

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Longitudinal data on homicide victimization rates for 14- to 17-year-olds, which are presented in Table 10.3, indicate that homicide rates declined dramati- cally from 1990 to 2005. For each of the four groups—white males, white females, African-American males, and African-American females—the rates peaked in 1995, declined substantially by 2000, and remained relatively steady from 2000 to 2005. Aside from the changes over time, the most startling finding revealed by the data presented in Table 10.3 concerns the differences in homicide victimization rates by race. Regardless of gender, African-American juveniles have substantially higher victimization rates than white juveniles. Throughout the time period, the rate for African-American females was approximately four times greater than the rate for white females, and the rate for African-American males was six to seven times greater than the rate for white males. In fact until 2005, the homicide victimization rates for African-American females were higher than the rates for white males.

Racial Differences in Victimization: A Summary As the data presented above make clear, African-American youth are overrepresented as crime victims in the United States. African-American juveniles have the highest property crime victimization rates of any group, and African-American males and females are substantially more likely than white males and females to be homicide victims. As the study conducted by Lauritsen revealed, these racial and ethnic differences can be attributed primarily to race-ethnicity-linked differences in the characteristics of the families and the communities in which the youth live.

Y O U N G R A C I A L M I N O R I T I E S A S O F F E N D E R S

Creating a profile of the juvenile offender is not an easy task. Much of the avail- able data relies on arrest statistics and/or the perceptions of crime victims. Some critics argue that the portrait of the offender based on these data is biased (because of racial differences in reporting and racial bias in decisions to arrest) and suggest that the picture of the typical offender should be taken from a population of adju- dicated offenders. We discuss this alternative picture of the juvenile offender in the section on juveniles in the correctional system, which appears later in this chapter.

T A B L E 10.3 Juvenile Homicide Victimization Rates (per 100,000 population, ages 14–17) by Race and Gender

1990 1995 2000 2005

White male 7.5 8.6 4.1 4.4

White female 2.5 2.7 1.4 1.1

African-American male 59.0 63.2 25.8 26.4

African-American female 10.3 11.9 4.5 4.0

SOURCE: James Allen Fox and Marianne W. Zawitz, Homicide Trends in the United States, (Washington, DC: U.S. Depart- ment of Justice, 2010). http://bjs.ojp.usdoj.gov/content/homicide/homtrnd.cfm.

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Juvenile Arrests

One way to describe juvenile offending patterns is to focus on those who are arrested. Table 10.4 presents UCR arrest data for persons under the age of 18. The racial differences in these arrest statistics are similar to those for offenders in all age groups. The overrepresentation of African-American youth for violent

T A B L E 10.4 Percent Distribution of Arrests by Race, under 18 Years of Age, 2014

% White % African American

% American Indian % Asian

Total 63.0 34.5 1.4 1.0

Part 1 / Index crimes

Murder and nonnegligent manslaughter 41.2 57.0 0.9 0.7

Forcible rape 65.6 33.2 0.7 0.4

Robbery 27.5 71.0 0.6 0.7

Aggravated assault 55.3 42.4 1.1 1.1

Burglary 56.4 41.6 0.9 1.0

Larceny-theft 60.8 36.2 1.5 1.3

Motor vehicle theft 51.1 46.8 1.1 0.8

Arson 72.3 24.9 1.3 1.3

Violent crime 45.6 52.4 0.9 0.9

Property crime 59.6 37.6 1.4 1.2

Part 2 crimes

Other assaults 57.0 40.9 1.2 0.8

Forgery and counterfeiting 61.6 39.6 1.1 1.6

Fraud 58.3 38.8 1.9 0.9

Embezzlement 59.6 37.6 1.1 1.6

Stolen property; buying, receiving, possessing 43.5 52.5 0.9 1.0

Vandalism 72.5 25.2 1.4 0.7

Weapons: carrying, possessing, etc. 58.0 39.8 0.7 1.3

Prostitution and commercialized vice 45.4 52.3 1.0 1.0

Sex offenses (except forcible rape and prostitution) 73.1 24.5 1.0 1.2

Drug abuse violations 74.4 22.9 1.4 1.0

Gambling 19.8 77.7 0.4 1.8

Offenses against family and children 63.9 32.4 3.0 0.6

DUI 90.5 5.9 1.9 1.5

Liquor laws 88.3 7.3 3.1 1.1

Drunkenness 86.3 9.7 2.5 1.3

Disorderly conduct 53.9 44.1 1.3 0.5

Vagrancy 65.8 32.4 1.1 0.4

All other offenses (except traffic) 67.1 30.5 1.3 0.9

SOURCE: Federal Bureau of Investigation. Crime in the United States, 2014: Persons Arrested, Table 43A. https://www. fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2014/crime-in-the-u.s.-2014/tables/table-43.

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crimes is notable. In 2014, African Americans, who comprised 15 percent of the juvenile population, made up 52.4 percent of all arrests of youth for violent Index crimes (homicide, rape, robbery, and aggravated assault). Among young offend- ers arrested for homicide and robbery, African Americans constituted 57 percent and 71 percent, respectively, of all arrestees. African-American juveniles also were overrepresented among arrests for serious property (Part 1/Index) crimes, but the proportions are smaller than for violent crimes (37.6 percent for serious property crime versus 52.4 percent for violent crime).

Native American youth make up less than 1 percent of the juvenile popula- tion; they were slightly overrepresented in juvenile arrest figures for all offenses (1.4 percent of all arrestees) and, for Part 1/Index offenses, larceny theft (1.5 per- cent of all arrestees). Asian/Pacific Islander youth, who make up about 5 percent of the U.S. juvenile population, were not overrepresented for any Part 1/Index offenses.

The data presented in Table 10.4 reveal more variability in the race of juve- niles arrested for the less serious Part 2 offenses. White juveniles were overrep- resented for driving under the influence, liquor law violations, and drunkenness; they represented more than 85 percent of arrestees in each category. African Americans made up fewer than 10 percent of juveniles arrested for these offenses. African-American juveniles were overrepresented among arrestees for many of these less serious offenses, with the largest disparities being found for gambling (77.7 percent), offenses involving stolen property (52.5 percent), prostitution (52.3 percent), disorderly conduct (44.1 percent), other assaults (40.9 percent), weapons offenses (39.8 percent), forgery and counterfeiting (39.6 percent), fraud (38.8 percent), embezzlement (37.6 percent), and drug abuse violations (22.9 percent).

Native American/American Indian youth were overrepresented for three of the liquor-related Part 2 offenses: DUI, liquor law violations, and drunkenness. They made up 3.1 percent of all arrests for liquor law violations, 2.5 percent of all arrests for drunkenness, and 1.9 percent of all arrests for driving under the influence. Asian/Pacific Islander youth were significantly underrepresented for offenses such as liquor and drug abuse violations.

Self-Reported Violent Behavior Data on juvenile offending also come from surveys in which youth are asked to self-report delinquent acts. The National Longitudinal Survey of Adolescent Health, for example, gathered data from stu- dents attending 132 schools throughout the United States.40 Youth between the ages 11 and 20 were asked to indicate the number of times in the past 12 months they engaged in four types of serious violent behavior: getting into a serious fight, hurting someone badly enough to need bandages or care from a doctor or nurse, pulling a knife or gun on someone, and shooting or stabbing someone.

Thomas McNulty and Paul E. Bellair used these data to examine racial and ethnic differences in violent behavior. As shown in Table 10.5, there were signifi- cant differences between white adolescents and each of the four other groups on the first two items. Asians were less likely than whites to have been in a serious fight or to have injured someone else; African Americans, Hispanics, and Native

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473M I N O R I T Y Y O U T H A N D C R I M E

Americans, on the other hand, were more likely than whites to have engaged in these types of violent behavior. Asians also were less likely than whites to have pulled a knife or gun on someone else, but African Americans and Hispanics were more likely than whites to have pulled a gun or knife on someone or to have shot or stabbed another person.41 McNulty and Bellair used these data to create a serious violence scale, which focused on the breadth of violent activity (i.e., whether the respondent engaged in the activity or not). The scale ranged from zero (respondent had not engaged in any of the types of violent behavior) to four (respondent had engaged in all four types of violence).42 They found that Native American adolescents were the most likely to have engaged in violent behavior (mean 5 0.66), followed by Hispanics (0.45), African Americans (0.43), whites (0.30), and Asians (0.17). Overall, then, there were large and statistically significant differences between white youth and youth in each of the other four groups. Asians were less likely than whites to have engaged in violent behav- ior; Native Americans, Hispanics, and African Americans were more likely than whites to have participated in violence.

Somewhat different results emerged from a study of violent offending among eighth-grade students in 11 cities throughout the United States.43 Dana Peterson and her coauthors used self-report data to examine the prevalence of violent offending, and, for active offenders, their levels of offending (i.e., the aver- age number of offenses committed by offenders who reported engaging in the behavior). When they examined annual prevalence rates (i.e., the percentage of youth who reported engaging in the behavior during the previous 12 months), they found that Afr ican-Amer ican youth were more likely than white or Asian youth to have engaged in serious violence but that the percentages of African-American, Hispanic, and Native American youth who reported involve- ment in serious violence were very similar (32 percent for African Americans, 30 percent for Hispanics, and 35 percent for Native Americans). Moreover, the authors also found that there were “no statistically significant race differences in levels of offending once offending begins.”44

T A B L E 10.5 Self-Reported Violent Behavior, by Race and Ethnicity: Mean Percent Who Reported Engaging in Each Type of Violence

Serious Fighting

Caused Injury

Pulled Knife or Gun

Shot or Stabbed

Serious Violence Scale

Asian 0.115* 0.032* 0.014* 0.013 0.17*

African American 0.210* 0.102* 0.086* 0.031* 0.43*

Hispanic 0.236* 0.119* 0.066* 0.030* 0.45*

Native American 0.402* 0.166* 0.079 0.009 0.66*

White 0.179 0.074 0.032 0.012 0.30

*Group mean is significantly different from mean for white adolescents (P # .05).

SOURCE: Thomas L. McNulty and Paul E. Bellair, “Explaining Racial and Ethnic Differences in Serious Adolescent Violent Behavior,” Criminology 41 (2003), pp. 709–748, Appendix 1 and Table 1.

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474 C H A P T E R 1 0

Peterson and her colleagues concluded that the results of their study “call into question the extent to which violent juvenile offending can be characterized as a minority male problem.”45 These researchers did find that males and racial minorities were overrepresented among violent offenders, but the differences were not as great as arrest data from the Uniform Crime Reports would suggest. As they put it, “Although there may be a ‘racial gap’ in terms of self-reported vio- lence prevalence, no racial gap appears in frequency of violent offending among active offenders.”46

Homicide Offenders Data on homicide offenders reveal that offending peaks at around age 18, that males are overrepresented as offenders, that roughly 50 percent of all homicides are committed by offenders known to the victim (non-strangers), and that the victim and the offender come from the same age group and racial category. The Supplemental Homicide Reports (SHR) collected by the FBI can be used to calculate approximate rates of homicide offending by age, race, and gender. We consider these approximate rates because the data come from reports filled out by police agencies investigating homicides, rather than from convicted offenders. As a consequence, these data may reflect a number of biases and should be viewed with caution.

The SHR data indicate that offending rates vary by age group and that the pat- tern is similar to that found for victimization rates: the 18- to 24-year-old group has the highest offending rate, followed by the 14- to 17-year-old group, with those 25 and older having the lowest offending rates.47 Figure 10.1 displays homicide offend- ing rates from 1980 to 2005 for white males, white females, African-American males, and African-American females aged 14–17.48 Two trends are apparent. First, over time, the homicide offending rate for African-American males has been substantially

0

50

100

150

200

250

1980 1985 1990 1995 2000 2005

African-American Males White Males

African-American Females White Females

F I G U R E 10.1 Homicide Offending Rates for Youth Age 14–17 by Race and Gender SOURCE: James Allen Fox and Marianne W. Zawitz, Homicide Trends in the United States, (Washington, DC: U.S. Department of Justice, 2010). http://bjs.ojp.usdoj.gov/content/homicide/homtrnd.cfm.

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475M I N O R I T Y Y O U T H A N D C R I M E

higher than the rates for the other three groups. In 2005, for example, the rate for young African-American males (64.1) was 8 times the rate for young white males (7.9), 16 times the rate for young African-American females (4.0), and more than 60 times the rate for young white females (0.7). The second trend revealed by the data is that the homicide offending rates for each group peaked in either 1990 or 1995 and declined dramatically after 1995. The rate for African-American males, for example, was 194.0 in 1990, 178.6 in 1995, 63.2 in 2000, and 64.1 in 2005. For white males, the rates fell from 22.0 (1990 and 1995) to 7.9 (2005).

The intraracial pattern identified in Chapter 2 for all homicides—that is, most homicides involve victims and offenders of the same race—is found for juvenile homicides as well. However, interracial homicides are more common among young perpetrators.49

Explaining Racial and Ethnic Differences in Violent Behavior The data discussed thus far reveal that there are racial and ethnic differences in violent behavior among juveniles. Data on homicide indicate that African-American males have the highest offending rate, and self-report data on other types of vio- lence reveal that Asians and whites have lower rates of offending than Native Americans, Hispanics, and African Americans.

Researchers have advanced a number of explanations for these racial and eth- nic differences. Although a detailed discussion of these explanations is beyond the scope of this book, they generally focus on the effects of community social dis- organization,50 individual and family level risk factors,51 weakened family attach- ments and weak bonds to school and work,52 and involvement with delinquent peers and gangs.53 Most studies focus on either individual/family influences or community level risk factors such as social disorganization. There are very few studies that examine the causes of violent crime across these levels of analysis.

An exception to this is the study by McNulty and Bellair (discussed earlier); this study found that Asians were significantly less likely than whites to engage in serious violent behavior and that Native Americans, Hispanics, and African Americans were more likely than whites to report they had committed violent acts.54 To explain these differences, McNulty and Bellair controlled for individ- ual factors (e.g., gender, age, use of alcohol/drugs, easy access to a gun, and prior violent behavior), family characteristics (e.g., type of family structure, parents’ education and income), social bonds indicators (e.g., family attachment, school bonding, grades in school), involvement in gangs, exposure to violence, and com- munity characteristics (e.g., social disorganization and residential stability). They found that the racial/ethnic differences in violent behavior disappeared when they included these explanatory factors in a single model. As they noted, “statisti- cal differences between whites and minority groups are explained by variation in community disadvantage (for blacks), involvement in gangs (for Hispanics), social bonds (for Native Americans), and situational variables (for Asians).”55

The authors of this study concluded that their results had important implica- tions for implementing policies designed to reduce youth violence. They noted, however, that “the implementation of social programs is unlikely to alter con- temporary patterns of racial and ethnic group involvement in violent behavior

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476 C H A P T E R 1 0

without amelioration of the fundamental social and economic inequalities faced by minority group members.”56

Similar results were found by Paula J. Fite, Porche Wynn, and Dustin A. Pardini,57 who used data from the Pittsburgh youth survey to examine discrepan- cies in violent arrest rates between African-American and white male juveniles. They found that 38.4 percent of the African-American boys, but only 24.6 per- cent of the white boys, were arrested for a violent offense as juveniles. They also found, however, that race was significantly correlated with 10 of the 14 risk fac- tors they were examining, including conduct problems, low academic achieve- ment, family socioeconomic status, poor parent–child communication, peer delinquency, neighborhood disadvantage, and neighborhood problems.

The authors used statistical techniques that allowed them to determine whether these risk factors could explain the relationship between race and like- lihood of arrest as a juvenile. As they noted, “If race is no longer a significant predictor of arrests after the inclusion of the risk factors in the model, then it sug- gests that race only indirectly affects arrest through its relation with one or more risk factors in the model.”58 In fact, their results were consistent with this: once the risk factors were added to the model, race was no longer a predictor of arrest for a violent crime.

Further analysis revealed that several of the risk factors had a significant effect on the likelihood of a violence-related arrest. The odds of arrest were higher for youth with conduct problems, low academic achievement, problems in commu- nicating with parents, delinquent peers, and neighborhood problems. These five risk factors accounted for 70 percent of the relationship between race and arrest for a violent offense.59

In terms of policy implications, the authors of this study concluded that inter- ventions designed to reduce juvenile arrests should focus on young boys exhibiting early signs of conduct problems such as fighting, stealing, and vandalizing prop- erty. Noting that low academic achievement also was associated with an increased risk of arrest, they suggested that “programs designed for children exhibiting co- occurring conduct disorder symptoms and academic problems will likely have the greatest impact on disproportionate minority arrest rates.”60 (See Box 10.1 for a discussion of how the media portrays racial differences in juvenile offending.)

B o x 10.1 Race, Crime, and the Media

In a 2001 review of over 70 studies focusing on crime in the news, Lori Dorfman and Vincent Schiraldi, of the Berkeley Media Studies Group, asked the following questions: Does news coverage reflect actual crime trends? How does news coverage depict minority crime? Does news coverage disproportionately depict youth of color as perpetrators of crime?61

The authors of the report concluded that “the studies taken together indicate that depictions of crime in the news are not reflective of the rate of crime generally, the proportion of crime that is violent, the proportion of crime committed by people of color, or the proportion of crime that is committed by youth. The problem is not

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477M I N O R I T Y Y O U T H A N D C R I M E

J U V E N I L E S O F C O L O R A N D T H E P O L I C E

The racial/ethnic patterns found in data on arrests of juveniles raise questions about the general pattern of relations between the police and juveniles. We dis- cussed this subject in Chapter 4. It is useful to review the major points here.

First, juveniles have a high level of contact with the police, and juveniles of color have particularly high rates of contact. Several factors explain this pattern. Most importantly, young people tend to be out on the street more than adults. This is simply a matter of lifestyle related to the life cycle. Low-income juveniles are even more likely to be out in public than middle-class youth. (See Box 10.2

the inaccuracy of individual stories, but the cumulative choices of what is included in the news—or not included—presents the public with a false picture of higher fre- quency and severity of crime than is actually the case.”62

Dorfman and Schiraldi noted that although crime dropped 20 percent from 1990 to 1998, crime news coverage increased by over 80 percent.63 Moreover, 75 percent of the studies found that minorities were overrepresented as perpetrators;64 over 80 percent of the studies found that more attention was paid to white victims than to minority victims.65 The authors concluded that the studies revealed that a “misinformation synergy” occurs in the way crime news is presented in the media.66 The result is a message that crime is constantly on the increase, the offenders are young, minority males, and their victims are white.

B o x 10.2 Police Use of Deadly Force Against Juveniles: The Case of Tamir Rice

Although accurate and complete data on the race of those killed by the police are difficult to come by, most commentators agree that young African-American men face substantially higher odds than do young white men. One of the most highly publicized and controversial cases occurred in November of 2014 in Cleveland, where Officer Timothy Loehmann shot and killed Tamir Rice, a 12-year-old African-Ameri- can boy who was playing with a pellet gun in a Cleveland Park.

The case began when a 911 caller notified police that a man—“probably a juve- nile”—was pointing a gun—“probably fake”—at people in the park. Unfortunately, the 911 operator did not relay these caveats to Loehmann or his partner. Officer Loehmann, who stated that Rice was drawing the pellet gun from his waistband as he arrived on the scene, shot Rice within seconds of arriving at the park. Video from the scene confirmed that Rice did reach for the gun, but it was not known whether he intended to fire at the officer, hand the gun to him, or show him that it was not a real firearm.

One year later, a Cuyahoga County grand jury declined to charge Officer Loehmann in the killing of Tamir Rice. Timothy J. McGinty, the county prosecu- tor, said that he recommended that the grand jury not bring any charges, not- ing that the shooting reflected a “perfect storm of human error, mistakes, and miscommunication.”

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478 C H A P T E R 1 0

for a discussion of a police shooting involving a 12-year-old African-American boy in Chicago.) Middle-class and wealthy people have more opportunities for indoor recreation: family rooms, large back yards, and so on. A study of juve- nile gangs in the 1960s found that gang members regarded the street corner as, in effect, their private space.67 At the same time, juveniles are more likely to be criminal offenders than middle-age people. Criminal activity peaks between ages 14 and 24. For this reason, the police are likely to pay closer attention to juveniles—and to stop and question them on the street—than to older peo- ple (for further discussion of this, see Focus on An Issue: The Use of Gang Databases).

Second, in large part because of the higher levels of contact, juveniles con- sistently have less favorable attitudes toward the police. Age and race, in fact, are the two most important determinants of public attitudes, with both young people and African Americans having the most negative view of the police. As Chapter 4 explains, the attitudes of Hispanics are less favorable than non-Hispanic whites but not as negative as those of African Americans. When age and race are com- bined, the result is that young African Americans have the most negative attitudes toward the police.68

Attitudes—and behavior that reflects negative attitudes—can have a signif- icant impact on arrest rates. In his pioneering study of arrest patterns, Donald Black found that the demeanor of the suspect was one of the important determi- nants of officers’ decision to make an arrest. With other factors held constant, indi- viduals who were less respectful or more hostile were more likely to be arrested. Black then found that African Americans were more likely to be less respectful of the police, and consequently were more likely to be arrested. Thus, the general state of poor relations leads to hostility in individual encounters with the police, which in turn results in higher arrest rates.69

A study published in 2003 used data from the National Incident-Based Reporting System (NIBRS) to assess whether the likelihood of arrest varied by the race of the juvenile in incidents involving murder, a violent sex offense, robbery, aggravated assault, simple assault, or intimidation.70 (These incidents were selected because they were the ones in which there was interaction between the offender and the victim, and victims were asked to describe the characteristics of the offender.) Carl E. Pope and Howard N. Snyder found that white juveniles were significantly more likely than African-American juveniles to be arrested: whites made up 69.2 percent of all juvenile offenders (based on victim’s perceptions) but 72.7 percent of all juvenile offenders who were arrested. The results of a multivariate analysis that controlled for other incident characteristics (e.g., the number of victims; the age, sex, and race of the victim; the relationship between the victim and the offender; and the offender’s sex) revealed that the likelihood of arrest did not vary for white and nonwhite juve- niles. This was true for each state and for each of the types of offenses examined. According to Pope and Snyder, “Overall, the NIBRS data offer no evidence to support the hypothesis that police are more likely to arrest nonwhite juvenile offenders than white juvenile offenders, once other incident attributes are taken into consideration.”71

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479M I N O R I T Y Y O U T H A N D C R I M E

FOCUS ON AN ISSUE

The Use of Gang Databases

In the late 1980s, California became the

first state to create a computerized data-

base of suspected gang members. Origi-

nally known as GREAT (Gang Reporting,

Evaluation, and Trafficking System), by

2000 CalGang contained the names of

over 300,000 suspected gang members. In

fact the CalGang database included more

names than there were students in the

University of California system.72

As concerns about youth violence

mounted during the early 1990s, other

jurisdictions followed California’s example.

Laws authorizing law enforcement agen-

cies to compile databases of gang members

were enacted in Colorado, Florida, Illinois,

Georgia, Tennessee, Texas, Minnesota,

Ohio, and Virginia. The FBI also maintains

a database, the Violent Gang and Terrorist

Organization File, which became opera-

tional in 1995.73

The criteria for inclusion in a gang

database—which typically includes infor-

mation about the individual (name, address,

physical description and/or photograph,

tattoos, gang moniker), the gang (type

and racial makeup), and a record of all

police encounters with the individual—

are vague. The Texas statute, for example,

states that an individual can be included

in the gang database if two or more of the

following conditions are met: (1) self-ad-

mission by the individual of criminal street

gang membership; (2) an identification

of the individual as a criminal street gang

member by an informant or other individ-

ual of unknown reliability; (3) a corrobo-

rated identification of the individual by an

informant or other individual of unknown

reliability; (4) evidence that the individual

frequents a documented area of a criminal

street gang, associates with known crimi-

nal street gang members, and uses criminal

street gang dress, hand signals, tattoos, or

symbols; or (5) evidence that the individual

has been arrested or taken into custody

with known criminal street gang members

for an offense or conduct consistent with

criminal street gang activity.74 Critics of

the use of gang databases point to the third

criterion, which allows entry of “associ-

ates” of gang members without evidence

of actual gang membership, as especially

problematic. According to a former Cal-

ifornia attorney general, the CalGang

database mixes “verified criminal history

and gang affiliations with unverified intel-

ligence and hearsay evidence, including

reports on persons who have committed

no crime.”75

Other critics suggest that the gang

databases, which are racially neutral on

their face, are racially biased. One observer,

for example, stated that “it’s not a crack-

down on gangs; it’s a crackdown on

blacks.”76 Statistics on the composition of

gang databases confirm this. In 1997 in

Orange County, California, for example,

Hispanics, who made up only 27 percent

of the county population, made up 74

percent of the youth in the database; in

fact 93 percent of those included in the

database were people of color. In 1993

African Americans made up 5 percent of

Denver’s population but 47 percent of

those in the gang database; Hispanics made

up 12 percent of the population but 33

percent of the gang database.77 In Schaum-

burg, Illinois (a suburb of Chicago), Afri-

can Americans made up 3.7 percent of the

village’s population but 22 percent of gang

members in the database.78

(Continued )

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480 C H A P T E R 1 0

Gang database supporters counter

that these statistics simply reflect the com-

position of criminal street gangs. The fact

that most of the individuals whose names

appear on gang databases are African

American, Hispanic, and Asian, in other

words, is due not to racially discrimina-

tory policing but to the fact that most of

those who belong to street gangs are racial

minorities. Critics, however, maintain that

the vagueness of the criteria for inclusion

in the database, coupled with accounts by

youth of color of repeated stops and fre-

quent questions about gang membership

and the extremely high percentages of

African Americans and Hispanics in gang

databases in cities like Los Angeles and

Denver, “support claims that the number

of racial minorities who are not gang

members but are included in the database

is disproportionate.”79

THE USE OF GANG DATABASES:

POLICE HARASSMENT AND SENTENCE

ENHANCEMENTS

Critics’ concerns about racial and ethnic

disparities in gang databases focus on the

potential for police harassment, as well as

the fact that in many states inclusion in a

gang database may result in harsher sen-

tences. Two incidents in California illus-

trate the potential for police harassment.

The first took place in Garden Grove. In

1993, three Asian teens were stopped by

Garden Grove police officers at a strip mall

that the officers claimed was frequented

by gang members. The officers questioned

the youths, took down information on

them that was later entered into the gang

database, and took photographs of them

without their permission.80 The second

incident took place in Union City. In

2002, Union City police officers called a

“gang intervention meeting” at a local high

school. They rounded up 60 students, most

of whom were Hispanic and Asian, and

sent them to separate classrooms based on

their race/ethnicity. The students were then

searched, interrogated, and photographed;

the information was collected; and the

photographs of the students were entered

into the gang database.81 Both of these

cases resulted in suits filed by the ACLU

of Northern California. In the first case, a

settlement was reached in which the police

department agreed to take photographs

only if they had reasonable suspicion of

criminal activity and written consent. The

settlement in the second case is similar; it

required police to destroy the photographs

and other material collected during the

sweep and prohibits further photographing

of students for the gang database.

There also is evidence that inclusion

in a gang database may lead to harsher

treatment for youth convicted of crimes.

In Arizona, for example, the prosecutor

may increase the charges from a mis-

demeanor to a felony if the offense was

committed for the benefit of a gang; if the

youth is adjudicated delinquent, the pros-

ecutor may request a sentence enhance-

ment for gang-related activity.82 In 2000,

60 percent of California voters approved

Proposition 21, The Gang Violence and

Juvenile Crime Prevention Act, which

increased the sentence enhancements for

gang-related crimes. If the crime is serious,

5 years are added to the sentence; if the

crime is violent, 10 years are added. Prop-

osition 21 also makes it easier to prosecute

juveniles who are alleged gang members

as adults, allows the police to use wiretaps

against known or suspected gang members,

and adds gang-related murder to the list of

special circumstances that make offenders

eligible for the death penalty.”

If, as critics contend, inclusion in a

gang database is more likely for youth

of color, these gang-related sentence

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481M I N O R I T Y Y O U T H A N D C R I M E

R A C E / E T H N I C I T Y A N D T H E J U V E N I L E

J U S T I C E S Y S T E M

One particularly troubling aspect of juvenile justice as it has been constructed throughout the twentieth century is its disproportionate involvement, in an aggregate social sense, with youths from the lowest socioeconomic strata, who at least in the latter half of the twentieth cen- tury overwhelmingly have been children of color.84

Although most research on the effect of race on the processing of criminal defendants has focused on adults, researchers also have examined the juvenile jus- tice system for evidence of racial discrimination. Noting that the juvenile system, with its philosophy of parens patriae,85 is more discretionary and less formal than the adult system, researchers suggest that there is greater potential for racial dis- crimination in the processing of juveniles than in the processing of adults. In cases involving juveniles, in other words, criminal justice officials are more concerned about rehabilitation than retribution, and they have discretion to decide whether to handle the case formally or informally. As a result, they have more opportuni- ties than those who handle cases involving adults to take extralegal factors such as race/ethnicity and gender into consideration during the decision-making process.

enhancements, which are racially neutral

on their face, may have racially discrim-

inatory effects. As Marjorie S. Zatz and

Richard P. Krecker noted, “if ascriptions of

gang membership did not carry penalties,

defining gang membership in racialized

ways might be innocuous. . . . But allega-

tions of gang membership do carry added

penalties, at least in Arizona.” Noting that

Hispanic boys and girls were more likely

than whites to be identified as gang mem-

bers, and thus more likely to be subject

to the penalty enhancements, they asked,

how does this differ “in effect even if not

in intent, from saying that the severity of

sanctions is increased for Latinos?”83

FOCUS ON AN ISSUE

The Past, Present, and Future of the Juvenile Court

The traditional view of the emergence

of the juvenile court in America pictures

the “child savers” as a liberal movement

of the late nineteenth century, made up

of benevolent, civic-minded, middle-class

Americans who worked to help delin-

quent, abused, and neglected children

who were suffering due to the negative

impact of the rapid growth of industrial-

ization. Although the emergence of the

(Continued )

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482 C H A P T E R 1 0

juvenile court is most often described as

the creation of a welfare agency for the

humane treatment of children,86 Anthony

Platt highlighted the movement’s social

control agenda as well. According to Platt,

the “child saving movement” did little to

humanize the justice system for children,

but rather “helped create a system that

subjected more and more juveniles to arbi-

trary and degrading punishments.”87

Platt contended that the attention of

the juvenile court was originally focused

on a select group of at-risk youth: court

personnel originally focused on the chil-

dren of urban, foreign-born, poor families

for their moral reclamation projects.88

Barry Feld argued that in modern times

the juvenile court continues to intervene

disproportionately in the lives of minority

youth.89 He asserted that the persistent

overrepresentation of minority youth at

all stages of the system is largely the con-

sequence of the juvenile court’s unstable

foundation of trying to reconcile social

welfare and social control agendas. This

conceptual contradiction allows “public

officials to couch their get-tough policy

changes in terms of ‘public safety’ rather

than racial oppression.”90

Feld argued that the social welfare

and social control aims of the juvenile

court are irreconcilable and that attempts

to pursue and reconcile these two com-

peting agendas have left the contemporary

juvenile court in crisis. He called it “a

conceptually and administratively bankrupt

institution with neither a rationale nor a

justification.”91 He also contended that the

juvenile court today offers a “second-class

criminal court for young people” and does

not function as a welfare agency.92 Feld

suggested that the distinction between

adult and juvenile courts should be elim-

inated and that social welfare agencies

should be used to address the needs of

youth. His suggestion would make age

a mitigating factor in our traditional,

adjudicatory (adult) court system.

Would this policy suggestion ease the

oppressive element of the juvenile court’s

intervention in the lives of racial and

ethnic minorities? Why or why not?

There is compelling evidence that racial minorities are overrepresented in the juvenile justice system. In 2013, for example, African Americans made up about 16 percent of the U.S. population aged 10–17 but 35 percent of all youth under juvenile court jurisdiction. Whites constituted approximately 76 percent of the youth population but only 62 percent of all offenders in juvenile court. African-American juveniles were involved in 42 percent of person offense cases (murder, rape, robbery, and assault), 36 percent of property offense cases, 21 percent of drug offense cases, and 36 percent of public-order offenses.93 Stated another way, the total delinquency case rate for African-American juveniles (74.3) in 2013 was more than twice the rate for white juveniles (27.4) and for Native American juveniles (29.6); the delinquency case rate for Asian juveniles was only 7.3.94

There also is evidence of racial disparity in the treatment of juvenile offend- ers. As shown in Table 10.6, which presents nationwide data on juvenile court outcomes in 2013, African Americans were treated more harshly than whites at several stages in the juvenile justice process. African Americans were more likely than whites to be detained prior to juvenile court disposition and to be petitioned to juvenile court for further processing. Among those adjudicated delinquent,

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African Americans were more likely than whites to be placed in a juvenile facility but somewhat less likely than whites to be placed on probation. White youth, on the other hand, were more likely than African-American youth to be adjudicated delinquent. The data presented in Table 10.6 also reveal that Native Americans are treated more harshly than whites at all stages of the process; in fact, Native Amer- icans are more likely than African Americans to be adjudicated delinquent and waived to adult court. Asian Americans were the least likely of the four groups to be waived to adult court or placed in a juvenile facility; they were the most likely to be placed on probation.

Much of the criticism of the treatment of racial minorities by the juvenile justice system focuses on the fact that racial minorities are more likely than whites to be detained in secure facilities prior to adjudication and sentenced to secure confinement following adjudication. Since 1988 the Juvenile Justice and Delin- quency Prevention Act has required states to determine whether the proportion of minorities in confinement exceeds their proportion of the population. If there is disproportionate minority confinement, the state must develop and implement policies to reduce it. As shown in Table 10.6, 27 percent of African-American and 24 percent of Native American youth who were adjudicated delinquent received an out-of-home placement disposition; for white youth, the figure was 23 percent. Among youth adjudicated delinquent for drug offenses, 21 percent of African-American youth received an out-of-home placement, compared with 18 percent of Native American youth, and 15 percent of white youth.95

Although most of the statistics on disproportionate minority confinement compare African-American and white youth, there is some state-level evidence that Hispanic and Native American youth are overrepresented in juvenile deten- tion facilities. In Santa Cruz County, California, for example, Hispanics comprised 33 percent of the population ages 10 through 17 but made up 64 percent of the youths incarcerated in the Juvenile Hall on any given day in 1997 and 1998.96

T A B L E 10.6 Juvenile Court Case Outcomes, 2013

Whites African

Americans Native

Americans Asians

Delinquent Cases

Detained prior to juvenile court disposition 19% 25% 24% 21%

Petitioned to juvenile court 52% 61% 54% 58%

Petitioned Cases

Adjudicated delinquent 58% 51% 65% 57%

Waived to adult court 0.7% 0.8% 0.9% 0.3%

Adjudicated Cases

Placed out of home 23% 27% 24% 18%

Placed on probation 65% 61% 61% 74%

SOURCE: National Center for Juvenile Justice, Juvenile Court Statistics 2013 (Washington, DC: Office of Juvenile Justice and Delinquency Prevention, 2015).

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A study in Colorado revealed that Hispanic youths were overrepresented at all stages in the juvenile justice system, and a study in North Dakota found that Native American youth made up 8 percent of the juvenile population but 21 percent of secure detention placements and 33 percent of secure correctional placements.97

A report by the Building Blocks for Youth initiative, a national project to address unfairness in the juvenile justice system and to promote nondiscrimi- natory and effective policies, also addressed this issue.98 The authors of the report, And Justice for Some, concluded that minority youth—and especially African-American youth—receive harsher treatment than white youth through- out the juvenile justice system. The differences were particularly pronounced at the beginning stages of involvement with the juvenile justice system (i.e., in terms of decisions regarding intake and detention) and at the end of the process (i.e., in terms of decisions regarding out-of-home placement in a secure facility). With respect to detention prior to adjudication, the report found that minority youth were overrepresented, especially for drug offenses. White youth made up 66 per- cent of all youth referred to juvenile courts for drug offenses but only 44 per- cent of those detained. African-American youth made up 32 percent of the drug offenders referred to juvenile court but 55 percent of those detained.99 There was a similar pattern for out-of-home placement: in every offense category, and espe- cially for drug offenses, minority youth were more likely than white youth to be committed to a locked institution.100 Mark Soler, head of the Building Blocks for Youth initiative, stated that the report painted “a devastating picture of a system that has totally failed to uphold the American promise of ‘equal justice for all.’”

The figures presented in Table 10.6 and the statistics on disproportionate minority confinement do not take racial differences in crime seriousness, prior juvenile record, or other legally relevant criteria into consideration. If racial minorities are referred to juvenile court for more serious offenses or have more serious criminal histories than whites, the observed racial disparities in case pro- cessing might diminish or disappear once these factors were taken into con- sideration. Like research on sentencing in adult court, studies of juvenile court outcomes consistently reveal that judges base their decisions primarily on the seriousness of the offense and the offender’s prior record.101 Thus, “real differ- ences in rates of criminal behavior by black youths account for part of the dispar- ities in justice administration.”102

Research conducted during the past 20 years reveals that racial differences in past and current involvement in crime do not account for all of the differential treatment of racial minorities in juvenile court. Carl Pope and William H. Fey- erherm, for example, reviewed 46 studies published in the 1970s and 1980s.103

They found that two-thirds of the studies they examined found evidence that racial minorities were treated more harshly, even after offense seriousness, prior record, and other legally relevant factors were taken into account. A recent review of 34 studies published from 1989 to 2001 found a similar pattern of results.104

Eight of the 34 studies found that race and/or ethnicity had direct effects on juvenile court outcomes; 17 reported that the effects of race/ethnicity were con- textual (i.e., present at only some decision points or for some types of offenders); only one study reported no race effects.105 An analysis that focused explicitly on

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disproportionate minority confinement reached the same conclusion. According to David Huizinga and Delbert S. Elliot, “Even if the slightly higher rates for more serious offenses among minorities were given more importance than is statistically indicated, the relative proportions of whites and minorities involved in delinquent behavior could not account for the observed differences in incarceration rates.”106

The studies conducted to date also find evidence of what is referred to as “cumulative disadvantage”107 or “compound risk.”108 That is, they reveal that small racial differences in outcomes at the initial stages of the process “accumu- late and become more pronounced as minority youths are processed further into the juvenile justice system.”109 The Panel on Juvenile Crime, for example, cal- culated the likelihood that a youth at one stage in the juvenile justice process would reach the next stage (the transitional probability), as well as the propor- tion of the total population under age 18 that reached each stage in the juvenile justice process (the compound probability).110 The panel did this separately for African-American and white youth and then used these probabilities to calculate the African American-to-white relative risk and the African American-to-white compound risk. As shown in Table 10.7, 7.2 percent of the African-American population under age 18, but only 3.6 percent of the white population under age 18, was arrested. African Americans, in other words, were twice as likely as whites to be arrested. Of those arrested, 69 percent of the African Americans and 58 percent of the whites were referred to juvenile court. Taking these differ- ences into account resulted in a compound probability—that is, the proportion of the total youth population referred to juvenile court—of 5.0 percent for African American youth and 2.1 percent for white youth. Thus, African Americans were 2.38 times more likely than whites to be referred to juvenile court. These dif- ferences in outcomes, as Table 10.7 shows, meant that at the end of the process

T A B L E 10.7 Juvenile Justice Outcomes for African Americans and Whites: Compound Risk

Transitional Probabilitya

Compound Probabilityb

Black to White Risk

Outcome African

Americans Whites African

Americans Whites Relative

Riskc Compound

Riskd

Arrested 0.072 0.036 0.072 0.036 2.00:1.00 2.00:1.00

Referred to juvenile 0.690 0.580 0.050 0.021 1.19:1.00 2.38:1.00

Case handled formally 0.620 0.540 0.031 0.011 1.15:1.00 2.82:1.00

Adjudicated delinquent/ found guilty 0.550 0.590 0.0168 0.0067 0.93:1.00 2.51:1.00

Residential placement 0.320 0.260 0.0053 0.0017 1.23:1.00 3.12:1.00

aThe transitional probability = the proportion of youth at one stage who proceed to the next stage. bThe compound probability = the proportion of the population under age 18 that reach each stage in the process. cThe relative risk = the ratio of the black transitional probability to the white transitional probability. dThe compound risk = the ratio of the black compound probability to the white compound probability.

SOURCE: Adapted from The Panel on Juvenile Justice, Juvenile Crime Juvenile Justice (Washington, DC: National Academy Press, 2001), Figure 6.3 and Table 6.5.

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African Americans were more than three times as likely as whites to be adjudi- cated delinquent and confined in a residential facility. As the panel pointed out, “at almost every stage in the juvenile justice process the racial disparity is clear, but not extreme. However, because the system operates cumulatively the risk is compounded and the end result is that black juveniles are three times as likely as white juveniles to end up in residential placement.”111

In the sections that follow, we summarize the findings of five methodologically sophisticated studies examining the effects of race and ethnicity on juvenile court outcomes. The first is a comparison of outcomes for African Americans and whites in Florida. The second is an analysis of outcomes for African-American, Hispanic, and white youth in Pennsylvania. The third, which also examines the treatment of juve- niles in Pennsylvania, is an exploration of the degree to which decisions are affected by the urbanization of the jurisdiction and the youth’s family situation. The fourth study is an examination of outcomes for white and African-American youth in Georgia, which analyzes the degree to which admitting guilt affects adjudication and disposition. The fifth study uses data from Nebraska to explore the extent to which African-American males aged 16–17 are treated differently than other youth. We also discuss evidence concerning racial disparities in waivers to adult criminal court.

Race/Ethnicity and Juvenile Court Outcomes in Five Jurisdictions Process-

ing Juveniles in Florida Donna M. Bishop and Charles S. Frazier examined the processing of African-American and white juveniles in Florida.112 In contrast to previous researchers, most of whom focused on a single stage of the juvenile justice process, these researchers followed a cohort of 54,266 youth through the system from intake through disposition. They examined the effect of race on five stages in the process: (1) the decision to refer the case to juvenile court for formal processing (rather than close the case without further action or handle the case informally); (2) the decision to place the youth in detention prior to disposition; (3) the decision to petition the youth to juvenile court; (4) the decision to adjudi- cate the youth delinquent (or hold a waiver hearing in anticipation of transferring the case to criminal court); and (5) the decision to commit the youth to a resi- dential facility or transfer the case to criminal court.

Table 10.8 displays the outcomes for African-American and white youth, as well as the proportion of African Americans in the cohort at each stage in the process. These data indicate that African Americans were substantially more likely than whites to be recommended for formal processing (59.1 percent versus 45.6 percent), petitioned to juvenile court (47.3 percent versus 37.8 percent), and either incarcerated in a residential facility or transferred to criminal court (29.6 percent versus 19.5 percent). As the cohort of offenders proceeded through the juvenile justice system, the proportion of African American increased from 34.0 percent (among those recommended for formal processing) to 43.1 percent (among those committed to a residential facility or transferred to criminal court). As Bishop and Frazier pointed out, however, these differences could reflect the fact that the Afri- can-American youths in their sample were arrested for more serious crimes and had more serious prior criminal records than white youths. If this were the case, the differences would reflect racial disparity but not racial discrimination.

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When the authors controlled for crime seriousness, prior record, and other predictors of juvenile justice outcomes, they found that the racial differences did not disappear. Rather, African Americans were more likely than whites to be recommended for formal processing, referred to juvenile court, and adjudicated delinquent. They also received harsher sentences than whites. These findings led Bishop and Frazier to conclude that “ . . . race is a far more pervasive influence in processing than much previous research has indicated.”113

A follow-up study using more recent (1985–1987) Florida data produced sim- ilar results.114 As shown in Figure 10.2, Frazier and Bishop found that outcomes

T A B L E 10.8 Race and Juvenile Justice Processing in Florida, 1979–1981

Recommended for Formal Processing Detained

Petitioned to Juvenile

Court Adjudicated Delinquent

Incarcerated/ Transferred

African Americans 59.1% 11.0% 47.3% 82.5% 29.6%

Whites 45.6% 10.2% 37.8% 80.0% 19.5%

Proportion

African American 34.0% 30.0% 32.4% 33.3% 43.1%

SOURCE: Adapted from Donna M. Bishop and Charles E. Frazier, “The Influence of Race in Juvenile Justice Processing,” Journal of Research in Crime and Delinquency 25 (1988), pp. 242–263, 250.

47

12

32

54

16

34

16

P e rc

e n ta

g e

Referred for

Processing

Detained Referred to Court Committed/

Transferred

0

10

20

30

40

50

60

9

White Nonwhite

F I G U R E 10.2 Juvenile Court Outcomes for “Typical” Florida Youth, 1985–1987 SOURCE: Adapted from Charles E. Frazier and Donna M. Bishop, “Reflections on Race Effects in Juvenile Justice,” in Minorities in Juvenile Justice, Kimberly Kempf Leonard, Carl E. Pope, and William H. Feyerherm, eds. (Thousand Oaks, CA: Sage, 1995).

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for “typical” white and nonwhite youth varied significantly. They defined a typical youth as “a 15-year-old male arrested for a misdemeanor against person (e.g., simple battery), with a prior record score consistent with having one prior referral for a misdemeanor against property (e.g., criminal mischief).”115 Compared to his white counterpart, the typical nonwhite youth was substantially more likely to be recom- mended for formal processing, held in secure detention prior to disposition, and committed to a residential facility or transferred to criminal court. They also found that being detained had a significant effect on subsequent outcomes; youth who were detained were significantly more likely than those who were released to be referred to juvenile court and, if adjudicated delinquent, to be committed to a residential facility or transferred to criminal court. Thus, nonwhite youth, who were more likely than white youth to be detained, were sentenced more harshly both because of their race (a direct effect) and because of their custody status (an indirect effect).

Frazier and Bishop also conducted interviews with criminal justice officials. During the interview, the respondent was asked whether the findings of harsher treatment of nonwhites “were consistent with their experiences in Florida’s juve- nile justice system between 1985 and 1987.”116 Most of the intake supervisors and public defenders stated that they believed juvenile justice dispositions were influenced by the race of the youth. In contrast, only 25 percent of the prose- cutors and 33 percent of the judges believed that nonwhites were treated more harshly than similarly situated whites.

Although some of the racial differentials in treatment were attributed to racial bias—that is, to prejudiced individuals or a biased system of juvenile justice—a number of respondents suggested that the race effects actually reflected differ- ences in economic circumstances or family situations. As one prosecutor observed, “The biggest problem is the lack of money and resources. Blacks don’t have the resources. Whites are more likely to have insurance to pay for treatment. The poor I saw were always poor, but the black poor were poorer yet.” Other respondents cited the fact that white parents were more likely than African-American parents to be able to hire a private attorney and, as a result, got more favorable plea bar- gains. Other officials mentioned the role played by family considerations, noting that youth from single-parent families or families perceived to be incapable of providing adequate supervision were treated more harshly than those from intact families. Although they acknowledged that this practice had a disparate effect on minority youth, most officials defended it as “fair and appropriate.” As one judge stated, “Inadequate family and bad neighborhood correlate with race and ethnic- ity. It makes sense to put kids from these circumstances in residential facilities.”117

Frazier and Bishop concluded that the results of their study “leave little doubt that juvenile justice officials believe race is a factor in juvenile justice process- ing.”118 They noted that the fact that some officials believed that race directly affected juvenile justice outcomes, whereas others thought that the effect of race was subtle and indirect, meant that “policies aimed at eradicating discrimination must focus both on individual racism and on racism in its most subtle institutional forms.”119 They offered the following recommendations:120

■ States should establish procedures for all the agencies comprising the juvenile justice system to require reporting, investigating, and responding

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to professionals whose decisions appear to have been influenced by racial or ethnic bias.

■ State legislatures should mandate the development of a race, ethnic, and cul- tural diversity curriculum that personnel at every level of the juvenile justice system should be required to complete.

■ Intake policies and practices should be altered so that youths referred for screening are not rendered ineligible for diversion and other front-end pro- grams if their parents or guardians (a) cannot be contacted, (b) are contacted but are unable to be present for an intake interview, or (c) are unable to par- ticipate in family-centered programs.

■ In any situation in which persons with economic resources (e.g., income or insurance benefits) are allowed to arrange for private care as a means of diversion from the juvenile justice system or less harsh formal dispositions, precisely the same treatment services should be made avail- able at state expense to serve the poor—whether minority or majority race youths.

Frazier and Bishop acknowledged that these “fairly modest proposals” were unlikely to eliminate racial discrimination that had “survived for generations in a legal environment that expressly forbids it.” Nonetheless, they were “cautiously optimistic” that their recommendations would have some effect. As they stated, “if implemented with a genuine interest in their success, such policies will both help reduce discriminatory actions and promote equal justice.”121

Processing Juveniles in Pennsylvania Kimberly Kempf Leonard and Henry Sontheimer122 explored the effect of race and ethnicity on juvenile justice case outcomes in Pennsylvania. Although African Americans and Hispanics accounted for only 19 percent and 4 percent, respectively, of the general youth population in the 14 counties included in the study, they comprised 46 percent (African Americans) and 7 percent (Hispanics) of all referrals to juvenile court.123

Like the two studies discussed earlier, this study used a multivariate model to examine the effect of race/ethnicity on a series of juvenile justice outcomes. Leonard and Sontheimer found that both African-American and Hispanic youth “were more likely than whites with similar offenses, prior records, and school problems to have their cases formally processed, especially in nonrural court set- tings.”124 They also found that minority youth were significantly more likely than whites to be detained prior to adjudication and that detention was a strong pre- dictor of subsequent outcomes. African-American and Hispanic youth, in other words, were detained more frequently than whites and, as a result, were more likely than whites to be adjudicated delinquent and placed in a residential facility following adjudication.

Leonard and Sontheimer suggest that their findings have important policy implications. In particular, they recommend that

[The] criteria used by individual intake officers should be evaluated to determine whether factors that may more often negatively affect minori- ties are accorded importance. Racially neutral criteria in detention

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decisions should be established . . . Cultural bias, including value judg- ments not based on fact (such as notions that minority parents may not provide adequate supervision for their children or that certain neigh- borhoods are not conducive to growing up well), must not influence detention.125

Intake and Disposition Decisions in Pennsylvania A second study of juve- nile justice decision making in Pennsylvania focused on two stages in the process: the decision to formally refer a youth to the juvenile court rather than handle the case informally and the decision to place the youth in a secure detention facility following adjudication.126 As shown in Table 10.9, which displays the bivariate relationships between the two outcomes and the legal and extralegal variables that may affect those outcomes, Christina DeJong and Kenneth C. Jackson found that African-American and Hispanic youth were more likely than white youth to be referred to juvenile court; they also were more likely to be committed to a deten- tion facility. The likelihood of a formal referral also was greater for youth with the following characteristics: male, aged 15 and older, living in a single-parent (mother only) family, not in school, charged with a drug offense, charged with a felony, and with two or more prior arrests. A similar pattern of results was found for the decision to place the youth in a secure facility.

Further analysis of the data using multivariate techniques led DeJong and Jackson to conclude that race/ethnicity did not have a significant effect on either outcome once the other variables were taken into consideration. Although His- panics were significantly more likely than whites and African Americans to be formally referred to juvenile court, the referral rates for African-American and white youth did not differ. And neither Hispanics nor African Americans faced greater odds than whites of commitment to a secure facility. The race of the youth, however, did affect these outcomes indirectly. In particular, white youth who lived with both parents were less likely than those who lived in single-parent families to be formally referred to juvenile court or placed in secure confinement following disposition. Among African-American youth, on the other hand, living with both parents rather than in a single-parent household did not have these positive effects. As DeJong and Jackson pointed out, “Black youths are treated the same whether they are living with parents or with their mothers only; for these youths, family status does not protect against [formal referral or] incarceration.”127

In addition, African-American youth, but not white youth, were treated more harshly in rural counties than in urban or suburban counties.

DeJong and Jackson speculated that the fact that family status did not affect outcomes for African-American youth might be due to juvenile justice officials’ stereotyped beliefs about African-American families. That is, officials “may view all black fathers as absentee” or “may view the black family structure as weak.”128

If this is the case, African-American youth who live in two-parent families would not be regarded as better candidates for diversion or for treatment within the community than those who live in single-parent families. This type of subtle dis- crimination may be more common than the overt discrimination that character- ized the system in earlier eras.129

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T A B L E 10.9 The Characteristics of Youth Formally Referred to Juvenile Court and Placed in Secure Confinement Following Disposition

Formally Referred (%) Placed in Secure Facility (%)

Race/ethnicity

White 49.5 14.9

Black 61.4 17.8

Hispanic 59.4 22.9

Gender

Male 57.5 17.1

Female 38.4 12.9

Age

12 and below 43.7 11.8

13 50.0 14.3

14 51.9 17.5

15 56.9 12.7

16 58.6 21.0

17 and above 54.7 17.1

Living with mother only 65.9 17.8

Living with both parents 55.1 10.7

In school 61.0 15.8

Not in school 68.2 22.6

Charge type

Property 66.2 16.1

Violent 61.2 15.9

Drug 71.6 23.7

Other 29.6 15.6

Charge seriousness

Felony 78.5 19.5

Misdemeanor 35.8 12.5

Number of prior arrests

None 48.7 10.5

One 64.7 22.9

Two 70.1 32.2

Three or more 76.4 35.8

SOURCE: Adapted from Christina DeJong and Kenneth C. Jackson, “Putting Race Into Context: Race, Juvenile Justice Processing, and Urbanization,” Justice Quarterly 15 (1998), pp. 487–504, Table 2. Reprinted with permission of the publisher (Taylor & Francis Ltd, http://www.tandf.co.uk/journals).

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Adjudication and Disposition Decisions in Georgia A study of juvenile court outcomes in Georgia focused on the interaction between the race of the juvenile and admitting or denying the crime.130 R. Barry Ruback and Paula J. Vardaman posited two opposing effects for admitting/denying guilt, one based on the youth’s potential for rehabilitation and the other based on due process consid- erations. They asserted that if the primary goal of the juvenile justice system was rehabilitation, then indicators of amenability to rehabilitation should be important predictors of case disposition. Since admitting guilt signals that the youth accepts responsibility for his or her actions and feels remorse and also indicates that the youth may be a good candidate for treatment rather than punishment, an admis- sion of guilt should—again, if rehabilitation is the goal—lead to more lenient treatment. On the other hand, if the goal of the court is to punish the guilty, denial of guilt might lead to more lenient treatment. This might be particularly true, according to Ruback and Vardaman, in large urban jurisdictions with heavy caseloads. If the youth denies that he is guilty, the court must hold an evidentiary hearing and prove the charges. Prosecutors might prefer to dismiss the case rather than use their limited resources to secure a conviction.

Ruback and Vardaman found that whereas African Americans were overrep- resented in juvenile court populations in the 16 Georgia counties they examined, white youth were treated more harshly than African-American youth.131 White juveniles (43 percent) were more likely than African-American juveniles (39 per- cent) to be adjudicated delinquent, and African-American juveniles (29 percent) were more likely than white juveniles (23 percent) to have their cases dismissed. The authors also found that white youth were substantially more likely to admit the crimes they were accused of committing: 66 percent of the whites, compared to only 51 percent of the African Americans, admitted their guilt.

When Ruback and Vardaman compared adjudication outcomes for African-American and white youth, controlling for crime seriousness, prior record, whether the case was heard in an urban or rural county, whether the youth admitted guilt, and the youth’s age and gender, they found that race had no effect. Admitting guilt, on the other hand, had a strong effect on the likelihood of being adjudicated delinquent. Youth who admitted their guilt were more likely to be adjudicated delinquent. The odds of being adjudicated delinquent also were higher in rural than in urban counties.

The authors of the study concluded that the harsher treatment of white youth could be attributed to two factors. First, whites were more likely than African Americans to admit guilt, and admitting guilt led to a higher likelihood of being adjudicated delinquent. Second, cases involving whites were more likely than those involving African Americans to be processed in rural courts, where the odds of being adjudicated delinquent were higher.132 They also suggested that their results might reflect judges’ beliefs that white youths would be more likely to benefit from the interventions and services available to the court. Thus,

an intervention by the court may be deemed more likely to affect the future behavior of white juveniles (who generally have shorter legal his- tories), while the same intervention with Black juveniles (who generally

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have longer legal histories) may be perceived as wasted effort. It may be . . . that only white juveniles are believed to be worth investing resources in so as to reduce the chances of their committing future crimes.133

Ruback and Vardaman maintained that this also might explain why white youth admitted their guilt at a higher rate than African-American youth. That is, juvenile justice officials might have urged whites to admit the crime so that they could receive an informal adjustment and court intervention.

Race/Ethnicity, Gender, and Age: Juvenile Justice in Nebraska

The studies discussed thus far all tested for the direct effects of race/ethnicity; that is, these studies examined whether African-American and Hispanic youth were treated more harshly than white youth. Dae-Hoon Kwak used Nebraska data to examine the interactions among age, gender, race/ethnicity, and four juve- nile court outcomes: detention, petition, adjudication, and disposition.134 He con- trolled for the seriousness of the offense, the youth’s prior delinquency referrals, whether the case was handled by a separate juvenile court or a regular county court, and the year of the referral. He found that each of the offender character- istics affected some or all of the outcomes: youth of color generally were treated more harshly than white youth, younger offenders were treated more leniently than offenders who were between the ages of 13 and 17, and males were more likely than females to be petitioned and transferred to legal custody.135

Kwak then compared outcomes for African-American males who were 16 or 17 years old with outcomes for other categories of offenders. Although he found differences for each of the four outcomes, the most consistent outcomes were found for the disposition decision, which was measured by a dichotomous variable that differentiated between decisions that transferred the legal custody of the youth (i.e., transferred the youth to a secure facility or into the custody of a public agency) and those that did not (i.e., probation, dismissal of charges with a warning from the judge, or a fine). As shown in Table 10.10, African-American males, aged 16 and 17, received substantially harsher dispositions than all of the other groups, except for Hispanic females aged 10–12, black males aged 13–15, Hispanic males aged 13–15, and Native American males aged 16 and 17. Of particular interest is the fact that white males, regardless of age, were substantially less likely than 16- and 17-year-old African-American males to have their legal custody transferred to a secure facility or a state agency. The probability differ- ences were 21.0 percent for white males aged 10–12, 13.9 percent for white males aged 13–15, and 17.7 percent for white males aged 16 and 17. Overall, then, male teenagers of color, and especially African-American male teenagers, were treated more harshly than other offenders.

In summary, the results of the studies reviewed here suggest that the effect of race/ethnicity on juvenile court outcomes is complex. Some researchers conclude that race and ethnicity have direct or overt effects on case outcomes. Research conducted in Florida and Pennsylvania, for example, found that racial minorities were treated more harshly than whites at several stages in the juvenile

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T A B L E 10.10 Differences in the Probabilities of Placement in a Secure Facility or Transfer to a State Agency

Probability Differences between African-American Males, Ages 16 and 17, and. . .

White Female

Age 10–12 218.7%

Age 13–15 217.2%

Age 16–17 218.8%

Black Female

Age 10–12 226.1%

Age 13–15 26.8%

Age 16–17 219.6%

Hispanic Female

Age 10–12 Not significant

Age 13–15 212.2%

Age 16–17 222.6%

Native American Female

Age 10–12 228.0%

Age 13–15 212.0%

Age 16–17 216.8%

White Male

Age 10–12 221.0%

Age 13–15 213.9%

Age 16–17 217.7%

African-American Male

Age 10–12 212.8%

Age 13–15 Not significant

Hispanic Male

Age 10–12 226.3%

Age 13–15 Not significant

Age 16–17 Not significant

Native American Male

Age 10–12 224.0%

Age 13–15 26.6%

Age 16–17 Not significant

SOURCE: Dae-Hoon Kwak, “The Interaction of Age, Gender, and Race/Ethnicity on Juvenile Justice Decision Making in Nebraska.” Unpublished master’s thesis, University of Nebraska at Omaha, 2004.

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justice process, including detention, and that detention had significant “spillover effects” on subsequent adjudication and disposition decisions. Other researchers conclude that the effect of race/ethnicity is indirect rather than direct. Research conducted in Pennsylvania, for instance, found that living in a two-parent family benefitted whites but not African Americans, while research in Georgia found that the harsher treatment of white youth reflected their higher rates of admit- ting guilt and a greater likelihood of being prosecuted in rural rather than urban jurisdictions. And a study conducted in Nebraska revealed that teenage boys were singled out for harsher treatment if they were racial minorities, especially if they were African Americans.

These studies also suggest that the effect of race on juvenile justice outcomes may vary from one jurisdiction to another and highlight the importance of con- ceptualizing decision making in the juvenile justice system as a process. According to Philip E. Secret and James B. Johnson,136 “in examining for racial bias in juve- nile justice system decisions, we must scrutinize each step of the process to see whether previous decisions create a racial effect by changing the pool of offend- ers at subsequent steps.” The importance of differentiating among racial and eth- nic groups is also clear. As one author noted, “Circumstances surrounding the case processing of minority youths not only may be different from those for whites, but also may vary among minority groups.”137

Transfer of Juveniles to Criminal Court

In 2014 juveniles (those under age 18) accounted for 7.1 percent of all arrests for murder/manslaughter, 15.6 percent of all arrests for rape, 20.6 percent of all arrests for robbery, and 8.1 percent of all arrests for aggravated assault.138 The number of juveniles arrested increased 100 percent between 1985 and 1994139 but declined by 18 percent from 1994 to 2003.140 Juvenile arrests for violent crimes increased from 66,976 in 1985 to 117,200 in 1994 (an increase of 75 percent) but declined to 92,300 (a decrease of 32 percent) in 2003 and to 42,123 (a further decline of 54 percent) in 2014.

The increase in juvenile crime during the 1980s and early 1990s, coupled with highly publicized cases of very young children accused of murder and other violent crimes, prompted a number of states to alter procedures for handling cer- tain types of juvenile offenders. In 1995, for example, Illinois lowered the age of admission to prison from 13 to 10. This change was enacted after two boys, ages 10 and 11, dropped a 5-year-old boy out of a fourteenth-floor window of a Chicago public housing development. In 1996, a juvenile court judge ordered that both boys, who were then 12 and 13, be sent to a high-security juvenile penitentiary; her decision made the 12-year-old the nation’s youngest inmate at a high-security prison.141

Other states responded to the increase in serious juvenile crime by either lowering the age when children can be transferred from juvenile court to crimi- nal court and/or expanding the list of offenses for which juveniles can be waived to criminal court. A report by the U.S. General Accounting Office indicated that between 1978 and 1995, 44 states passed new laws regarding the waiver of juveniles

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to criminal court; in 24 of these states the new laws increased the population of juveniles that potentially could be sent to criminal court.142 California, for exam- ple, changed the age at which juveniles could be waived to criminal court from 16 to 14 (for specified offenses); Missouri reduced the age at which children could be certified to stand trial as adults from 14 to 12. By 2004, there were 15 states with mandatory waiver in cases that met certain age, offense, or other criteria and 15 states with a rebuttable presumption in favor of waiver in certain kinds of cases. Currently, all but four states give juvenile court judges the power to waive jurisdiction over juvenile cases that meet certain criteria—generally, a minimum age, a specified type or level of offense, and/or a sufficiently serious record of prior delinquency.143 And 15 states have direct file waiver provisions, which allow the prosecutor to file certain types of juvenile cases directly in criminal court. (See Box 10.3 for the criteria that courts can use in making the waiver decision.)

A 2013 report by the National Center for Juvenile Justice noted that the number of delinquency cases judicially waived to criminal court increased by 124 percent from 1985 to 1994 but declined by 50 percent between 1994 and 2001. The number waived to criminal court was relatively stable from 2001 to 2007

B o x 10.3 Kent v. United States [383 U.S. 541 (1966)]: Criteria Concerning Waiver of Jurisdiction from Juvenile Court to Adult Court

In 1996, the United States Supreme Court ruled in Kent v. United States that waiver hearings must measure up to “the essentials of due process and fair treatment.” The court held that juveniles facing waiver are entitled to representation by coun- sel, access to social services records, and a written statement of the reasons for the waiver. In an appendix to its opinion, the court also laid out the “criteria and princi- ples concerning waiver of jurisdiction.” The criteria that courts are to use in making the decision are:

■ The seriousness of the alleged offense and whether protection of the commu- nity requires waiver.

■ Whether the alleged offense was committed in an aggressive, violent, premedi- tated, or willful manner.

■ Whether the alleged offense was against persons or against property.

■ Whether there is evidence upon which a Grand Jury may be expected to return an indictment.

■ The desirability of trial and disposition of the entire offense in one court when the juvenile’s associates are adults who will be charged with a crime in criminal court.

■ The sophistication and maturity of the juvenile as determined by consideration of his home, environmental situation, emotional attitude, and pattern of living.

■ The record and previous history of the juvenile.

■ The prospects for adequate protection of the public and the likelihood of rea- sonable rehabilitation of the juvenile by the use of procedures, services, and facilities currently available to the Juvenile Court.

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but declined by 41 percent between 2007 and 2013.144 (The report attributed the decline in the number of cases waived to criminal court after 1994 in part to statutory changes that excluded certain cases from juvenile court or allowed prosecutors to file serious cases directly in criminal court.) During most of this time period, the waiver rate was highest for person offenses. Not surprisingly, cases involving older youth were more likely than those involving youths 15 and younger to be waived, and cases involving males were substantially more likely than those involving females to be waived.145

There also is evidence that cases involving racial minorities are more likely than those involving whites to be transferred to criminal court. For example,

■ In 2013, the percentage of delinquency cases waived to criminal court nationwide was 0.6 percent for white youth, 0.8 percent for African- American youth, 0.8 percent for Native American youth, and 0.3 percent for Asian youth. Among youth charged with drug offenses, the rate was 0.6 for whites, 0.8 percent for African Americans, 1.2 percent for Native Americans, and 0.2 percent for Asians.146

■ In 1996, youth of color accounted for 75 percent of Los Angeles County’s population between the ages 10 and 17 but 95 percent of the youths whose cases were waived to adult court; Asian Americans were three times more likely than white youth, Hispanics were 6 times more likely than white youth, and African Americans were 12 times more likely than white youth to be waived to adult court.147

■ African-American youth comprised 60 percent and Hispanics made up 10 percent of juveniles waived to adult court in Pennsylvania in 1994; white youth made up only 28 percent of these cases.148

■ African Americans made up 80 percent of all waiver request cases in South Carolina from 1985 through 1994. Eighty-one percent of the cases involving African-American youth were approved for waiver to adult court, compared to only 74 percent of the cases involving white youth.149

Decisions to transfer juveniles to adult cr iminal courts are important because of the sentencing consequences of being convicted in criminal rather than juvenile court. Although there is some evidence that transferred youth are treated more leniently in criminal court than they would have been in juvenile court150—in large part because they appear in criminal court at a younger age and with shorter criminal histories than other offenders—most studies reveal just the opposite. Jeffrey Fagan, for example, compared juvenile and criminal court outcomes for 15- and 16-year-old felony offenders in New York (where they were excluded from juvenile court) and New Jersey (where they were not).151

He found that youth processed in criminal courts were twice as likely as those processed in juvenile courts to be incarcerated.

Another study compared sentencing outcomes of juveniles (those under age 18) and young adults (those ages 18–24) processed in Pennsylvania’s adult criminal courts from 1997 to 1999.152 When they examined the raw data, Megan C. Kurlycheck and Brian D. Johnson found that the mean sentence imposed on

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juvenile offenders was 18 months, compared to only 6 months for young adult offenders. These differences did not disappear when the authors controlled for the seriousness of the offense, the offender’s criminal history, the offense type, whether the case was settled by plea or trial, and the offender’s gender. Once these factors were taken into consideration, juveniles still received sentences that were 83 percent harsher than those imposed on young adults.153 Further analysis revealed that “‘being juvenile’ resulted in a 10-percent greater likelihood of incar- ceration and a 29-percent increase in sentence length.”154

These findings led Kurlychek and Johnson to suggest that “the transfer deci- sion itself is used as an indicator of incorrigibility, threat to the community, and/ or lack of potential for rehabilitation, resulting in a considerable ‘juvenile pen- alty.’”155 Evidence that African-American and Hispanic youth face higher odds of being transferred to adult court than do white youth suggests that this “juvenile penalty” is not applied in a racially neutral manner.

Explaining Disparate Treatment of Juvenile Offenders

The studies discussed above provide compelling evidence that African-American and Hispanic juveniles are treated more harshly than similarly situated white juveniles. The question, of course, is why this occurs. Secret and Johnson156 sug- gest that juvenile court judges may attribute positive or negative characteristics to offenders based on their race/ethnicity. Judges, in other words, may use extralegal characteristics like race to create “a mental map of the accused person’s underlying character” and to predict his/her future behavior.157 As Coramae Richey Mann notes, officials’ attitudes “mirror the stereotype of minorities as typically violent, dangerous, or threatening.”158 Alternatively, according to Secret and Johnson, the harsher treatment of African-American and Hispanic juveniles might reflect both class and race biases on the part of juvenile court judges. As conflict theory posits, “the individual’s economic and social class and the color of his skin . . . determine his relationship to the legal system.”159

These speculations regarding court officials’ perceptions of minority and white youth have not been systematically tested. Researchers assume that findings of differential treatment of racial minorities signal the presence of race-linked stereotypes or racially prejudiced attitudes, but there have been few attempts to empirically verify either the existence of differing perceptions of white and minority youth or the degree to which these perceptions can account for racial disparities in the juvenile justice system.

A study by George S. Bridges and Sara Steen160 addressed this issue by exam- ining 233 narrative reports written by juvenile probation officers in three counties in the state of Washington during 1990–1991. The narratives, which were used by the court in determining the appropriate disposition of the case, were based on interviews with the youth and his/her family and on written documents such as school records and juvenile court files. Each narrative included the probation offi- cer’s description of the youth’s crime and assessment of the factors that motivated the crime, as well as an evaluation of the youth’s background and assessment of his/her likelihood of recidivism. The information gleaned from these narratives

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499M I N O R I T Y Y O U T H A N D C R I M E

was used “to explore the relationship between race: officials’ characterizations of youths, their crimes, and the causes of their crimes; officials’ assessments of the threat of future crime by youths; and officials’ sentence recommendations.”161

Bridges and Steen’s review of the narratives revealed that probation offi- cers described African-American and white youth and their crimes differently. They tended to attribute crimes committed by whites to negative environmen- tal factors (poor school performance, delinquent peers, dysfunctional family, use of drugs or alcohol), but to attribute crimes committed by African Americans to negative personality traits and “bad attitudes” (refusal to admit guilt, lack of remorse, failure to take offense seriously, lack of cooperation with court officials). They also found that probation officers judged African-American youth to have a significantly higher risk of re-offending than white youth.

Further analysis, which controlled for the juvenile’s age, gender, prior criminal history, and for the seriousness of the current offense, confirmed these findings. As the authors note, “Being black significantly reduces the likelihood of negative external attributions by probation officers and significantly increases the likelihood of negative internal attributions, even after adjusting for severity of the presenting offense and the youth’s prior involvement in criminal behavior.”162 To illustrate these differences, the authors discuss the narratives written for two very similar cases of armed robbery, one involving an African-American youth and one involving a white youth. The African-American youth’s crime was described as “very danger- ous” and as “premeditated and willful,” and his criminal behavior was attributed to an amoral character, lack of remorse, and no desire to change. In contrast, the white youth was portrayed as an “emaciated little boy” whose crime was attributed to a broken home, association with delinquent peers, and substance abuse.

Bridges and Steen’s examination of the factors related to probation officers’ assessments of the risk of re-offending revealed that youth who committed more serious crimes or had more serious criminal histories were judged to be at higher risk of future offending. Although none of the offender’s demographic charac- teristics, including race, was significantly related to assessments of risk, probation officers’ attributions of delinquency did affect these predictions. Youth whose delinquency was attributed to negative internal causes were judged to be at higher risk of future delinquency than youth whose crimes were attributed to nega- tive external factors. According to Bridges and Steen, “This suggests that youths whose crimes are attributed to internal causes are more likely to be viewed as ‘responsible’ for their crimes, engulfed in a delinquent personality and lifestyle, and prone to committing crimes in the future.”163

The authors of this study concluded that race influenced juvenile court out- comes indirectly. Probation officers were substantially more likely to attribute negative internal characteristics and attitudes to African-American youth than to white youth; these attributions, in turn, shaped their assessments of dangerousness and their predictions of future offending. As Bridges and Steen state, “Insofar as officials judge black youths to be more dangerous than white youths, they do so because they attribute crime by blacks to negative personalities or their attitudinal traits and because black offenders are more likely than white offenders to have committed serious offenses and have histories of prior involvement in crime.”164

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The results of this study illustrate the “mechanisms by which officials’ per- ceptions of the offender as threatening develop or influence the process of legal decision-making.”165 They suggest that perceptions of threat and, consequently, predictions about future delinquency are influenced by criminal justice officials’ assessments of the causes of criminal behavior. Thus, “officials may perceive blacks as more culpable and dangerous than whites in part because they believe the eti- ology of their crimes is linked to personal traits” that are “not as amenable to the correctional treatments the courts typically administer.”166

J U V E N I L E S U N D E R C O R R E C T I O N A L S U P E R V I S I O N

As the previous section illustrates, the racial makeup of juveniles at key stages of the juvenile justice system varies by decision type. Generally, nonwhite youth (the majority of whom are African American) are overrepresented at every stage of decision making. Nonwhite youth also are at greater risk of receiving harsher sanctions than white youth. For example, nonwhite youth are detained in secure custody prior to their juvenile court hearing at rates that exceed those for white youth, regardless of the seriousness of the delinquency offense. Recently, there has been a decline in the proportion of white youth detained but an increase in the proportion of African-American youth in custody.167

Table 10.11 presents data on the racial and ethnic makeup of juvenile offend- ers who were placed in a secure public or private residential facility in 2010 after being adjudicated delinquent.168 White and Asian youth are underrepresented

T A B L E 10.11 Racial and Ethnic Profile of Juvenile Offenders in Residential Placement, 2010

Percentage of Youth in Residential Placement in Each Racial/Ethnic Group

Most Serious Offense White African

American Hispanic American

Indian Asian

Total 32 41 22 2 1

Delinquency Cases 32 41 22 2 1

Homicide

Sexual Assault

Robbery

Aggravated Assault

Drug Trafficking

Other Drug Offenses

Weapons Offenses

16

53

9

22

28

43

16

45

27

66

43

47

33

52

32

16

22

30

23

20

28

2

1

1

1

1

3

1

2

1

1

2

0

1

1

Status Offenses 44 34 11 5 2

SOURCE: Melissa Sickmund and Charles Puzzanchera (eds.), Juvenile Offenders and Victims: 2014 National Report. Pittsburgh, PA: National Center for Juvenile Justice (2014), p. 196.

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among youth in residential placement, while African American, Hispanic, and Native American/Alaskan Native youth generally are overrepresented. For all of the criminal offense types, with the exception of sexual assault, youth of color made up at least two-thirds of all youth in secure residential facilities. The dispar- ities are especially stark for African-American youth, who make up 45 percent of all youth in secure residential facilities for homicide, 66 percent for robbery, 47 percent for drug trafficking, and 52 percent for weapons offenses. For status offenses (running away from home and truancy), on the other hand, whites com- prised the largest proportion of offenders placed in secure confinement.169 There also is evidence that African-American males are incarcerated in state prisons at disproportionately high rates. In 1999 youth under the age of 18 accounted for only 2 percent of all new court commitments to adult prisons; in the 37 states that provided data to the National Corrections Reporting Program, there were 5,600 new court commitments involving youth younger than 18 at the time of admis- sion.170 Almost all of these youth (96 percent) were male and more than half of them (57 percent) were African-American males. African-American males made up 57 percent of new admissions for homicide, 75 percent of new admissions for robbery, and 84 percent of new admissions for drug offenses.171

C O N C L U S I O N

The victimization and offending patterns for juveniles mirror those for adults. Juveniles of color, and particularly African-American males, face a higher risk of victimization than white juveniles. This pattern is found for property crime, violent crime, and homicide. In fact, the homicide victimization rate for young African-American females is higher than the rate for young white males.

Although the common perception of the juvenile offender is that he/she is a person of color,172 the data discussed above indicate that whites constitute the majority of juvenile offenders for most crimes. The notable exceptions (among the more serious index offenses) are robbery, where over half of those arrested are African American, and murder and non-negligent manslaughter, where African-American youth comprise nearly half of all arrestees. The overrepresen- tation of African-American juveniles in arrest statistics is not a constant, how- ever. The most pronounced disparities are found for violent crimes, where from one-third to one-half of all arrestees are African American. There is less racial dis- parity for property offenses; for these crimes, between one-fourth and one-third of those arrested are African American. Further, whites are overrepresented among arrestees for many of the drug and alcohol offenses.

Recent methodologically sophisticated research reveals that racial and eth- nic differences in juvenile victimization and offending rates can be attributed in large part to family and community characteristics. African-American and His- panic youth are more likely than white youth to be the victims of violent crime because they spend more time away from home and are more likely to live in sin- gle-parent households and disadvantaged communities. Similarly, the higher rates

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of violent offending found among minority youth, as compared to white youth, reflect the fact that minority youth are more likely to live in disadvantaged neigh- borhoods, to be members of gangs, and to have weak bonds to social institutions such as schools. The sources of risk of victimization and offending are similar for all teenagers, but the likelihood of experiencing these risk factors is higher for youth of color than for white youth.

The results of studies examining the effect of race/ethnicity on juvenile justice processing decisions suggest that the juvenile justice system, like the criminal justice system for adults, is not free of racial bias. There is compelling evidence that racial minorities are treated more harshly than whites at various points in the juvenile justice process. Most importantly, minority youth are substantially more likely than white youth to be detained pending disposition, adjudicated delinquent, and waived to adult court. They also are sentenced more harshly than their white counterparts, at least in part because of the tendency of criminal justice officials to attribute their crimes to internal (personality) rather than external (environmental) causes.

D I S C U S S I O N Q U E S T I O N S

1. The U.S. Supreme Court has recently ruled that mandatory life without the possibility of parole sentences violates the Eighth Amendment’s prohibition against cruel and unusual punishments. Read the court’s opinion in Miller v. Alabama (https://www.oyez.org/cases/2011/10-9646) and summarize the court’s rationale for its ruling. Do you agree or disagree with the court’s rationale in this case? Why?

2. Describe the characteristics of juvenile victims of crime. Are they similar to or different from the characteristics of adult victims of crime?

3. There is a common perception that the typical juvenile offender is a person of color. Is this an accurate perception?

4. The mayor of St. Louis has appointed you to a commission whose task it is to develop policy recommendations to ameliorate the high rate of violence against young girls in that city’s disadvantaged neighborhoods/schools. What would you propose?

5. Why is there greater potential for racial discrimination in the juvenile justice system than in the adult justice system?

6. What are the dangers inherent in allowing police to use gang databases in investigating crimes?

7. Studies of the juvenile justice system reveal that racial minorities are subject to “cumulative disadvantage” or “compound risk.” Explain what this means and why it is a cause for concern.

8. We suggest that preliminary evidence indicating that African-American juveniles are more likely than white juveniles to be waived to adult court should be confirmed by additional research that incorporates legally rele- vant criteria other than the seriousness of the offense. What other variables should be taken into consideration?

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9. Although studies reveal that African-American, Hispanic, and Native Amer- ican youth are treated more harshly than white youth at several stages of the juvenile justice process (even after the seriousness of the offense and the offender’s prior juvenile record are taken into consideration), they do not tell us why these disparities occur. How would you explain these differences? How do Bridges and Steen account for them?

N O T E S

1. Linda S. Beres and Thomas D. Griffith, “Demonizing Youth,” Loyola of Los Angeles Law Review 34 (2001), pp. 747–767, 747.

2. Susan Spencer-Wendel, “Nathaniel Brazill Would Have Graduated From High School This Week,” Palm Beach Post, May 22, 2005.

3. “Lionel Tate Released,” CNN.com, January 27, 2004. http://www .cnn.com/2004/ LAW/01/26/wrestling.death/.

4. Andrew Ryan, “Lionel Tate Accused of Firing Mother’s Handgun Randomly on Street,” Sun-Sentinel.com. http://www.sun-sentinel.com/news/local/broward.

5. Kate Randall, “Another Florida Teenager Receives Harsh Adult Prison Sentence.”

6. “Juvenile Justice Experts Decry Severity of Life in Adult Prison for Nathaniel Bra- zill.” http://www.cjcj.org.

7. Ibid.

8. Miller v. Alabama (companion case was Jackson v. Hobbs) 132 S. Ct. 2455 (2012).

9. 577 U.S. _____ (2016).

10. Sickmund, Melissa, and Chargles Puzzanchera (eds.), Juvenile Offenders and Victims: 2014 Report (Pittsburgh, PA: National Center for Juvenile Justice, 2014), p. 2.

11. Ibid.

12. Ibid., p. 3.

13. Ibid., pp. 7–15.

14. Office of Juvenile Justice and Delinquency Prevention, “Juvenile Victims of Property Crimes” (Washington, DC: U.S. Department of Justice, 2000).

15. Ibid.

16. Ibid.

17. Ibid., p. 5.

18. Ibid.

19. Ibid.

20. Bureau of Justice Statistics, Criminal Victimization, 2013. (Washington, DC: U.S. Department of Justice, 2014), Table 9.

21. Bureau of Justice Statistics, Criminal Victimization in the United States, 2007—Statistical Tables, Table 7. http://bjs.ojp.usdoj.gov/index.cfm? ty=pbdetail&iid=1743.

22. Sickmund and Puzzanchera, Juvenile Offenders and Victims: 2014 National Report, p. 40.

23. Bureau of Justice Statistics, Criminal Victimization in the United States, 2007—Statistical Tables, Table 10.

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24. Bureau of Justice Statistics, Weapon Use and Violent Crime (Washington, DC: U.S. Department of Justice, 2003), Figures 1 and 2.

25. Janet L. Lauritsen, “How Families and Communities Influence Youth Victimization,” OJJDP Juvenile Justice Bulletin (Washington, DC: U.S. Department of Justice, 2003).

26. Ibid., pp. 5–6.

27. Ibid., p. 7.

28. Ibid., pp. 8–9.

29. Ibid., p. 9.

30. Ibid.

31. Jody Miller, Getting Played: African American Girls, Urban Inequality, and Gendered Violence (New York: New York University Press, 2008), p. 9.

32. Ibid., p. 66.

33. Ibid., p. 73.

34. Ibid., p. 111.

35. Ibid., p. 149.

36. Ibid., p. 197.

37. Ibid.

38. Stickmund and Puzzanchera, Juvenile Offenders and Victims: 2014 National Report, p. 52.

39. Ibid.

40. Thomas McNulty and Paul E. Bellair, “Explaining Racial and Ethnic Differences in Serious Adolescent Violent Behavior,” Criminology 41 (2003), pp. 709–748.

41. Ibid., Appendix 1.

42. Ibid., p. 719.

43. Dana Peterson, Finn-Aage Esbenson, and Terrance J. Taylor, “Youth Violence in Context: The Roles of Sex, Race, and Community in Offending,” Youth Violence and Juvenile Justice 5 (2007), pp. 385–410.

44. Ibid., pp. 397–398.

45. Ibid., p. 404.

46. Ibid.

47. James Allen Fox and Marianne W. Zawitz, “Homicide Trends in the United States,” (Washington, DC: U.S. Department of Justice, 2010). http://bjs.ojp.usdoj.gov/ content/homicide/homtrnd.cfm.

48. Ibid.

49. Ibid.

50. See, for example, Robert J. Sampson, and William Julius Wilson, “Toward a Theory of Race, Crime, and Urban Inequality,” in Crime and Inequality, John Hagan and Ruth D. Peterson, eds. (Stanford, CA: Stanford University Press, 1995); and Clifford R. Shaw and Henry D. McKay, Juvenile Delinquency and Urban Areas (Chicago, IL: University of Chicago Press, 1942).

51. Michael R. Gottfredson and Travis Hirschi, A General Theory of Crime (Stanford, CA: Stanford University Press, 1985); Douglas S. Massey and Nancy A. Denton, Ameri- can Apartheid: Segregation and the Making of the Underclass (Cambridge, MA: Harvard

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University Press, 1993); and William Julius Wilson, When Work Disappears: The World of the New Urban Poor (New York: Knopf, 1996).

52. Stephen A. Cernkovich and Peggy C. Giordano, “School Bonding, Race, and Delin- quency,” Criminology 30 (1992), pp. 261–291; Travis Hirschi, Causes of Delinquency (Berkeley, CA: University of California Press, 1969).

53. Ronald L. Akers, Social Learning and Social Structure: A General Theory of Crime and Deviance (Boston, MA: Northeastern University Press, 1994); Malcom Klein, The American Street Gang (New York: Oxford University Press, 1995).

54. McNulty and Bellair, “Explaining Racial and Ethnic Differences in Serious Adoles- cent Violent Behavior.”

55. Ibid., p. 709.

56. Ibid., p. 736.

57. Paula J. Fite, Porche Wynn, and Dustin A. Pardini, “Explaining Discrepancies in Arrest Rates Between Black and White Male Juveniles,” Journal of Counseling and Clinical Psychology 77 (2009), pp. 916–927.

58. Ibid., p. 919.

59. Ibid., p. 922.

60. Ibid., p. 924

61. Lori Dorfman and Vincent Schiraldi, “Off Balance: Youth, Race, and Crime in the News,” Executive Summary, Berkeley Media Studies Group, 2001. http://www. justicepolicy.org/uploads/justicepolicy/documents/off_balance.pdf.

62. Ibid., p. 3

63. Ibid., p. 4.

64. Ibid.

65. Ibid.

66. Ibid., p. 8.

67. Carl Werthman and Irving Piliavin, “Gang Members and the Police,” in The Police: Six Sociological Essays, David J. Bordua, ed. (New York: Wiley, 1967), p. 58.

68. Gallup Poll data, reported in Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics 2000, online edition. http://www.albany.edu/sourcebook, Table 2.16.

69. Donald Black, “The Social Organization of Arrest,” in The Manners and Customs of the Police (New York: Academic Press, 1980).

70. Carl E. Pope and Howard N. Snyder, Race as a Factor in Juvenile Arrests (Washington, DC: Office of Juvenile Justice and Delinquency Prevention, 2003.)

71. Ibid., p. 6.

72. Ryan Pintado-Vertner, “How is Juvenile Justice Served? Racially Biased System Just Sweeps Troubled Youths Under the Rug,” San Francisco Chronicle, February 27, 2000.

73. Stacey Leyton, “The New Blacklists: The Threat to Civil Liberties Posed by Gang Databases,” in Crime Control and Social Justice: The Delicate Balance, Darnell F. Haw- kins, Samuel L. Meyers, Jr., and Randolph N. Stone, eds. (Westport, CT: Greenwood, 2003).

74. Texas Art. 61-02. http://www.iir.com/nygc/gang-legis/gang_data-bases.htm.

75. Leyton, “The New Blacklists,” p. 115.

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76. Reverand Oscar Tillman, senior official of the Denver NAACP, quoted in Dirk Johnson, “2 Out of 3 Young Black Men in Denver Are on Gang Suspect List,” New York Times, December 11, 1993, at A8.

77. Leyton, “The New Blacklists,” p. 120 and n. 114.

78. John Moreno Gonzales, “Response to Violence; Anti-Gang Bill Revived,” Newsday, November 12, 2004, at A18.

79. Leyton, “The New Blacklists,” p. 121.

80. Daniel C. Tsang, “Garden Grove’s Asian Mug File Settlement.”

81. Stella Richardson, “ACLU Wins Major Settlement for Union City Students,” ACLU News, Summer 2005.

82. Marjorie S. Zatz and Richard P. Krecker, Jr., “Anti-Gang Initiatives as Racial- ized Policy,” in Crime Control and Social Justice: The Delicate Balance, Darnell F. Hawkins, Samuel L. Meyers, Jr., and Randolph N. Stone, eds. (Westport, CT: Greenwood, 2003).

83. Ibid., p. 192.

84. Philip W. Harris, Wayne N. Welsh, and Frank Butler, “A Century of Juvenile Jus- tice,” in Volume 1, Criminal Justice 2000, The Nature of Crime: Continuity and Change (Washington, DC: National Institute of Justice, 2000), p. 360.

85. Literally translated as “father of the country,” this phrase refers to the government’s right and obligation to act on behalf of a child (or a person who is mentally ill).

86. Anthony M. Platt, The Child Saver: The Invention of Delinquency, 2nd ed. (Chicago: University of Chicago Press, 1977).

87. Ibid., p. xvii.

88. Ibid.

89. Barry C. Feld, Bad Kids: Race and the Transformation of the Juvenile Court (New York: Oxford University Press, 1999).

90. Ibid., p. 6.

91. Ibid., pp. 3–4.

92. Ibid., p. 4.

93. National Center for Juvenile Justice, Juvenile Court Statistics 2013 (Washington, DC: Office of Juvenile Justice and Delinquency Prevention, 2015), p. 18.

94. Ibid., p. 20.

95. Ibid., p. 48.

96. Judith A. Cox, “Addressing Disproportionate Minority Representation Within the Juvenile Justice System.” The author of this report noted that steps taken by the Santa Cruz County Probation Office led to a decrease in the percentage of those held who were Hispanic; it declined from 64 percent in 1997/1998 to 46 percent in 2000.

97. Office of Juvenile Justice and Delinquency Prevention, Disproportionate Minority Confinement, 2002 Update (Washington, DC: U.S. Department of Justice, 2004), p. 3.

98. Building Blocks for Youth, And Justice for Some (Washington, DC: Building Blocks for Youth, 2000).

99. Ibid., p. 9.

100. Ibid., p. 15.

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101. See, for example, Donna M. Bishop and Charles S. Frazier, “Race Effects in Juvenile Justice Decision-Making: Findings of a Statewide Analysis,” Journal of Criminal Law and Criminology 86 (1996), pp. 392–413.

102. Barry C. Feld, Bad Kids: Race and the Transformation of the Juvenile Court (London and New York: Oxford University Press, 1999), p. 266.

103. Carl E. Pope and William H. Feyerherm, “Minority Status and Juvenile Justice Processing: An Assessment of the Research Literature (Part I),” Criminal Justice Abstracts 22 (1990), pp. 327–335.

104. Carl E. Pope, Rich Lovell, and Heidi M. Hsia, “Disproportionate Minority Confinement: A Review of the Research Literature from 1989 through 2001” (Washington, DC: U.S. Department of Justice, 2004).

105. Ibid., p. 6.

106. David Huizinga and Delbert S. Elliot, “Juvenile Offenders: Prevalence, Offender Incidence, and Arrest Rates by Race,” Crime and Delinquency 33 (1987), pp. 206–223, 212.

107. Donna M. Bishop and Charles E. Frazier, “The Influence of Race in Juvenile Jus- tice Processing,” Journal of Research in Crime and Delinquency 25 (1988), pp. 242–263.

108. Panel on Juvenile Crime, Juvenile Crime Juvenile Justice, p. 254.

109. Pope and Feyerherm, “Minority Status and Juvenile Justice Processing,” p. 334.

110. Ibid., pp. 254–258.

111. Ibid., p. 257.

112. Bishop and Frazier, “The Influence of Race in Juvenile Justice Processing.”

113. Ibid., p. 258.

114. Charles E. Frazier and Donna M. Bishop, “Reflections on Race Effects in Juvenile Justice,” in Minorities in Juvenile Justice, Kimberly Kempf Leonard, Carl E. Pope, and William H. Feyerherm, eds. (Thousand Oaks, CA: Sage, 1995).

115. Ibid., p. 25.

116. Ibid., p. 28.

117. Ibid., p. 35.

118. Ibid., p. 40.

119. Ibid., p. 41.

120. Ibid., pp. 41–45.

121. Ibid., p. 45.

122. Kimberly Kempf Leonard and Henry Sontheimer, “The Role of Race in Juvenile Justice in Pennsylvania,” in Minorities in Juvenile Justice, Kimberly Kempf Leonard, Carl E. Pope, and William H. Feyerherm, eds. (Thousand Oaks, CA: Sage, 1995).

123. Ibid., p. 108.

124. Ibid., p. 119.

125. Ibid., pp. 122–123.

126. Christina DeJong and Kenneth C. Jackson, “Putting Race Into Context: Race, Juvenile Justice Processing, and Urbanization,” Justice Quarterly 15 (1998), pp. 487–504.

127. Ibid., p. 501.

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128. Ibid., p. 502.

129. A study of juvenile justice outcomes in Ohio also found evidence of indirect dis- crimination. This study revealed that African-American youth whose families were receiving welfare benefits were more likely than African-American youth whose families were not on welfare to be placed in secure confinement following adju- dication. The same pattern was not observed for whites. According to the authors, this suggests that “only minority families on welfare are regarded as unsuitable for supervising their delinquent children.” Bohsiu Wu and Angel Ilarraza Fuentes, “The Entangled Effects of Race and Urban Poverty,” Juvenile and Family Court Journal 49 (1998), pp. 41–53, p. 49.

130. R. Barry Ruback and Paula J. Vardaman, “Decision Making in Delinquency Cases: The Role of Race and Juveniles’ Admission/Denial of the Crime,” Law and Human Behavior 21 (1997), pp. 47–69.

131. Ibid., p. 52.

132. Ibid., p. 59.

133. Ibid., p. 67.

134. Dae-Hoon Kwak, “The Interaction of Age, Gender, and Race/Ethnicity on Juve- nile Justice Decision Making in Nebraska,” unpublished master’s thesis, University of Nebraska at Omaha, 2004.

135. Ibid., Table 5.

136. Philip E. Secret and James B. Johnson, “The Effect of Race on Juvenile Justice Decision Making in Nebraska: Detention, Adjudication, and Disposition, 1988– 1993,” Justice Quarterly 14 (1997), pp. 445–478.

137. Ibid., p. 274.

138. U.S. Department of Justice, Federal Bureau of Investigation, Crime in the United States, 2014 (Washington, DC: U.S. Government Printing Office, 2015).

139. U.S. Department of Justice, Federal Bureau of Investigation, Crime in the United States 1994 (Washington, DC: U.S. Government Printing Office, 1995), pp. 227–228.

140. Office of Juvenile Justice and Delinquency Prevention, Juvenile Arrests 2003 ( Washington, DC: Author, 2005), p. 3.

141. “Chicago Boy, 12, Will Be Youngest in U.S. Prison,” Omaha World Herald, January 31, 1996.

142. United States General Accounting Office, Juvenile Justice: Juveniles Processed in Criminal Court and Case Dispositions (Washington, DC: GAO, 1995), p. 2.

143. National Center for Juvenile Justice, Which States Waive Juveniles to Criminal Court? (Pittsburgh, PA: National Center for Juvenile Justice, 2004).

144. National Center for Juvenile Justice, Juvenile Court Statistics 2013, p. 38.

145. Ibid., p. 40.

146. Ibid.

147. Mike Males and Dan Macallair, The Color of Justice: An Analysis of Juvenile Justice Adult Court Transfers in California (Washington, DC: Justice Policy Institute, 2000).

148. Office of Juvenile Justice and Delinquency Prevention, Juvenile Transfers to Criminal Court in the 1990s: Lessons Learned from Four Studies (Washington, DC: Office of Juvenile Justice and Delinquency Prevention, 2000).

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149. Ibid., p. 13.

150. See, for example, Office of Juvenile Justice and Delinquency Prevention, Major Issues in Juvenile Justice Information and Training Youth in Adult Courts—Between Two Worlds (Washington, DC: Office of Juvenile Justice and Delinquency Prevention, 1982).

151. Jeffrey Fagan, The Comparative Impacts of Juvenile and Criminal Court Sanctions on Adolescent Offenders (Washington, DC: Office of Justice Programs, National Institute of Justice, 1991).

152. Megan C. Kurlychek and Brian D. Johnson, “The Juvenile Penalty: A Comparison of Juvenile and Young Adult Sentencing Outcomes in Criminal Court,” Criminology 42 (2004), pp. 485–515.

153. Ibid., p. 500.

154. Ibid., p. 502.

155. Ibid., p. 505.

156. Secret and Johnson, “The Effect of Race on Juvenile Justice Decision Making in Nebraska.”

157. Ibid., p. 450.

158. Coramae Richey Mann, Unequal Justice: A Question of Color (Bloomington, IN: Indiana University Press, 1993), p. 255.

159. R. Lefcourt, “The Administration of Criminal Law,” in Criminal Justice in America, Richard Quinney, ed. (Boston: Little Brown, 1974).

160. George S. Bridges and Sara Steen, “Racial Disparities in Official Assessments of Juvenile Offenders: Attributional Stereotypes as Mediating Mechanisms,” American Sociological Review 63, pp. 554–570.

161. Ibid., p. 558.

162. Ibid., pp. 563–564.

163. Ibid., p. 564.

164. Ibid., p. 567.

165. Ibid.

166. Ibid.

167. Office of Juvenile Justice and Delinquency Preventions, Juvenile Court Statistics 2013.

168. Sickmund and Puzzanchera, Juvenile Offenders and Victims, p. 196.

169. Office of Juvenile Justice and Delinquency Prevention, Juveniles in Corrections (Washington, DC: Office of Juvenile Justice and Delinquency Prevention, 2004), p. 10.

170. Ibid., p. 19.

171. Ibid., p. 21.

172. Jeffrey Reiman, The Rich Get Richer and the Poor Get Prison (Boston: Allyn & Bacon, 1995).

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11

THE COLOR OF JUSTICE

Two incidents in the Charleston, South Carolina, metropolitan area in 2015 dramatized the racial crisis in America.

On April 4, in North Charleston, a white police officer shot and killed Walter Scott, an unarmed African American, as he was running away. By chance, a bystander caught the shooting on his cell phone camera, and when the recording was broadcast across the country it shocked the nation.1 The shooting came eight months after the shooting death of Michael Brown in Ferguson, Missouri, which touched off a national police-community rela- tions crisis.

Two months later, on June 17 in downtown Charleston, Dylan Roof, an avowed white nationalist entered the Emanuel African Methodist Episcopal Church during prayer service, opened fire, and killed nine people, includ- ing the senior pastor and a state senator, both African Americans. Roof had embraced racist groups and their ideology and had said that he planned to start a “race war.” Dylan Roof ’s web site at one point contained a manifesto expressing his derogatory views of “Blacks,” “Jews,” “Hispanics,” and “East Asians.” In short, his prejudice extended to many groups.2

The two incidents dramatized the extent to which racial issues per- vade American society, including the criminal justice system. A public opin- ion poll in mid-2016 found “profound differences” between the attitudes of whites and African American on the state of race relations in the United States. With respect to criminal justice, 84 percent of African Americans believe they are treated “less fairly” than whites by the police (although 50 percent agreed with that statement). And the problem is not confined to the police. Among African Americans, 75 percent feel that they are treated “less fairly” by the courts (with 43 percent of whites agreeing with that statement).3

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In the wake of the Ferguson and North Charleston shootings and other police incidents, investigative reporters found that about 1,000 people are shot and killed by the police, 40 percent of whom are African Americans.4

The traumatic events of 2014–2015 made race and criminal justice a dom- inant national news story. They intensified that long-running debate over race, ethnicity, crime, and criminal justice. Old questions received new scrutiny and public discussion. Does systematic race and ethnic discrimination pervade the American criminal justice system? If it is not systematically racist, how do we explain the racial and ethnic disparities that exist in the patterns of police shoot- ings, arrests, plea bargains, sentences to prison, and the death penalty? Can be explained by other race-neutral and ethnic-neutral factors? If so, what are they, and how do they affect decisions in the criminal justice system?

The Color of Justice addressed these questions twenty years ago, in its first edition. They are addressed again in this, the Sixth edition. Much has changed in twenty years, in American society and in criminal justice. As we will explain, however, much remains the same, and racial and ethnic disparities continue to exist in the criminal justice system.

One major contribution of this book is our effort to disentangle the misun- derstandings that exist with regard to race, ethnicity, and the justice system and to gain a clearer understanding of the complex reality of both the American society and the criminal justice system. We think we have accomplished that. Chapter 4 presented a detailed discussion of policing, police use of force, and the impact of important police reforms. Chapter 5 explains the complex process of plea bar- gaining, and who gets better deals than others. Chapter 6 explains sentencing, and who goes to prison and who does not. Some things are clearer today than they were twenty years ago, and we have explained those issues in this edition.

One of the first issues addressed in The Color of Justice involved the basic concepts about “race,” “ethnicity,” and “minorities.” First, as we have explained, it is important to distinguish between race and ethnicity. They are not the same. The concept of “race” itself, as we have explained, is extremely complex. Anthro- pologists, as we explained in Chapter 1, do not believe that the traditional racial classifications of Caucasian, Negroid, and Mongoloid have any scientific basis. We continue to use them only because of long-standing tradition.

Second, there are serious problems with official criminal justice data on race and ethnicity. There are important things we do not know because the relevant data do not exist with regard to race and ethnicity, or are unreliable. The FBI’s Uniform Crime Reports (UCR) system still records arrests in terms of “white” and “black,” with no separate category for Hispanic people.5

Third, different racial and ethnic groups have very different experiences with the justice system. African Americans and Native Americans experience the highest crime rates in their communities and also the highest rates of victimiza- tion. Asian Americans have the lowest rates of crime and victimization. Hispanic Americans fall somewhere between non-Hispanic whites and African Americans, with lower rates of both criminal behavior and victimization. Thus, one of the most important things we know is that we cannot talk about “communities of color” or “minority groups” as a single homogenous entity. The United States is

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a highly diverse, multiracial, multiethnic, and multicultural society, and growing more diverse with each passing year.

Another contribution of this book is to highlight the great complexity of crime and justice in this country. We have done this for a very important rea- son. Debates over criminal justice are so often cast in oversimplified terms that distort reality. You hear sweeping statements such as “crime just keeps going up and up,” “dangerous criminals all get off easy,” or “immigrants are responsible for the crime increase.” Not one of these statements is true. If we know anything about criminal justice, it is that each and every topic—criminal behavior, policing, sentencing—is extremely complex. There are no simple answers.6

E X P L A I N I N G P E R S I S T E N T R A C I A L

A N D E T H N I C D I S PA R I T I E S

In the end, what can we say about race, ethnicity, and crime in America? Given all the complexities, can we make any generalizations? We believe that based on a fair assessment of the evidence we can confidently conclude that the criminal justice system is characterized by disparities based on race and ethnicity. It is impossible to ignore the disproportionate number of people of color arrested, imprisoned, and on death row. Some of the decisions that produce these results involve dis- crimination. Michael Tonry and Michael Malewski reviewed all the evidence and concluded that in the end, after all the evidence is considered, “race matters.”7

Not everyone agrees with our conclusion. As we discussed in Chapter 1, some people argue that the over-involvement of people of color in criminal activity, along with some other factors, explains the disparities in arrests, sentencing, and imprisonment. We cited Heather Macdonald as one proponent of this view.8

Our conclusion is a modulated one, however. We do not claim that race and ethnicity explain all of the disparities that exist, but they are important factors that cannot be ignored. The best research indicates persistent patterns of racial and ethnic disparities in the critical decision points of shootings, arrest and sen- tencing, especially the death penalty. This view is reinforced by the technique of meta-analysis, which systematically reviews all the research on a particular topic. Our conclusion is supported by others. A recent review of all the studies of police arrest decisions concluded that race is a factor: “We report with confidence that the results are not mixed. Race matters.” The evidence clearly indicates that “race does affect the likelihood of an arrest.” The chances of a person of color being arrested are 30 percent higher than for a white non-Hispanic person. A similar review of all the studies of sentencing, meanwhile, also found that race matters, although the effect was not as strong as in arrests.9

Patterns of crime and justice are continually changing (another important complexity). One of the most important developments of the past 20-plus years has been the great American crime drop, which began in the early 1990s and has continued for nearly a decade.10 (Homicides rose dramatically in many cit- ies in 2015, however, and that is an issue that needs continuing close attention.)

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Was 2015 a temporary aberration or the first stage in a new rise in crime?11 Afri- can Americans have been the primary beneficiaries of the great crime drop. The dramatic decline in homicides, particularly gun crimes among young men, has meant fewer deaths among primarily young African-American men. Nonetheless, the racial disparity in both offenders and victims continues.

E X P L A I N I N G T H E D I S PA R I T I E S :

S Y S T E M AT I C D I S C R I M I N AT I O N ?

Do the racial and ethnic disparities that researchers have identified constitute dis- crimination? This is a difficult question. Clearly, there are racial and ethnic dispari- ties at every stage of the criminal justice system. The term discrimination, however, has precise legal meaning, involving a conscious act to treat someone differently on the basis of race or ethnicity. One of the clearer patterns of disparities involves organizational policies that are officially not about race but about crime-fighting. In Chapter 4, we explained how traffic stops based on suspected criminal activity, rather than driving behavior, results in a racial disparity in persons stopped.

In Chapter 1, we presented our discrimination-disparity continuum to illu- minate the difference between systematic, individual, and contextual forms of discrimination. Based on the evidence, we conclude that the criminal justice sys- tem is primarily characterized by contextual discrimination. Racial minorities are treated more harshly than whites at some stages of the criminal justice process, for example, in police shootings and the decision to seek or impose the death pen- alty. The treatment accorded people of color is more punitive than that accorded whites in some regions or jurisdictions, but it is no different than that accorded whites in other regions or jurisdictions. For example, some police departments have much higher rates of use of deadly force than other departments. People of color who commit certain types of crimes (e.g., drug offenses or violent crimes against whites) or who have certain types of characteristics (e.g., they are young, male, and unemployed) are treated more harshly than whites who commit these crimes or have these characteristics. The death penalty is most heavily used in just a few states, while many states do not use it at all.

Precisely because the discrimination that exists is buried deep within the jus- tice system and is often confounded by other factors. Bail decisions, for example, are affected by a person’s ability to raise bail; this disadvantages poor people; and since African Americans experience higher unemployment rates (as we explained in Chapter 3), they will be more likely to remain in jail while awaiting trial. Bail decisions are also affected by community ties, family, and employment, all of which disfavor defendants who are poor, unemployed, are from broken homes, and have weak community ties.

History and collective memory on the part of citizens and criminal jus- tice officials alike play a role in perpetuating race-based actions in the criminal justice system. David M. Kennedy’s book, Don’t Shoot, has a chapter, “Across the Race Divide,” that illuminates how history and collective memory affects

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police-resident encounters on the street.12 Each side, the young African Amer- ican man and the police officer, Kennedy argues, br ings a “scr ipt” to the encounter. The young man brings a collective memory of past police abuse in the community. The officer brings a collective memory of hostility and overt resistance to the police on the part of young African-American men. Each side anticipates trouble before the encounter has really begun. And the beliefs of each side communicate hostility to the other side. All of this often has nothing to do with who each person is. Thus, the conflicts of the past directly affect the beliefs and actions of today.

Another important factor that affects disparate treatment on the basis of race and ethnicity is unconscious bias, where decisions reflect deeply held assump- tions and stereotypes about race and ethnicity. These attitudes are often so deeply ingrained that a person is not even aware that they represent bias. Many people, for example, equate young African-American men with “dangerousness.” When a police officer unconsciously acts on this, it will result in stopping and question- ing young African-American men in circumstances where they would not stop and question young white men. By the same token, many people unconsciously stereotype Hispanic Americans as “immigrants” or even “illegal immigrants,” and treat them differently than they would treat non-Hispanic whites.

The issue of unconscious bias has been most widely discussed with regard to policing. The Fair and Impartial Policing project offers training for police depart- ments to help rank and file officers, and supervisors recognize possible uncon- scious bias and develop procedures for curbing its effect.13 But other criminal justice officials are just as likely to be affected by unconscious bias: prosecutors, judges, probation and parole officers, and correctional officers.

In short, history and peoples’ collective memory mean that the past weighs heavily on contemporary criminal justice.

PA S T A N D P R E S E N T

Our argument for contextual discrimination does not mean that the U.S. crim- inal justice system has never been characterized by systematic racial discrimina- tion. In fact, it has been. The most obvious example involves the states in the southeast during slavery and then until the civil rights era (roughly 1954–1965). The entire criminal justice system was devoted to upholding a racial caste sys- tem. The treatment of Native Americans from the earliest period of European settlement, meanwhile, was characterized by systematic racism, including forced relocation onto reservations. Crimes among African Americans were almost com- pletely ignored by police in southeastern states. Among persons shot and killed by the police, the ratio in the 1960s was eight African Americans for every one white person, almost twice the ratio today. The overwhelming numbers of people given the death penalty for rape were African Americans. (The Supreme Court has declared capital punishment for rape to be unconstitutional.) Clearly, we have made some progress since the days of the segregation era. But that should not

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be our standard. The proper standard is found in the words engraved above the Supreme Court building: Equal Justice Under Law.

Many of the worst forms of discrimination have been substantially reduced through new laws, court decisions, and political pressure. For example:

■ Because of the 1964 Civil Rights Act, criminal justice agencies can no longer refuse to employ people of color (although underemployment does still exist).

■ Policy reforms and a major Supreme Court decision have placed controls over police use of deadly force, thereby reducing disparities in persons shot and killed.

■ Police no longer completely ignore crimes against African Americans, as was often the case in the segregation era.

■ The bail reform movement of the 1960s eliminated the worst discrimination against poor people, which disproportionately affected people of color.

■ African Americans can no longer be excluded from juries, as was the case in southern states in the segregation era.

■ Sentencing reforms since the 1970s have attempted to insure that sentences are based on acceptable legal factors (the seriousness of the offense and the offender’s prior record), thereby curbing the worst forms of sentencing discrimination.

■ Racial segregation in prisons has been declared unconstitutional and thereby eliminated.

■ Supreme Court decisions on the death penalty have eliminated the uncon- trolled discretion in death sentences that produced the most blatant forms of racial discrimination.

In short, the worst forms of discrimination against people of color have been reduced by a combination of laws, court decisions, and agency policies. Any yet, racial and ethnic disparities continue to exist.

T H E S T U B B O R N P E R S I S T E N C E O F R A C I A L

A N D E T H N I C D I S PA R I T I E S

Despite the progress made in many areas, racial and ethnic disparities persist in the criminal justice system. Michael Tonry and Matthew Melewski, put it bluntly, pointing out that the unjust effects of race and ethnicity “are well known, have been well known, [but] have changed little in recent decades.” We think he understates the change and progress that has occurred, but he is absolutely correct about the stubborn persistence of the inequities. He explains this in terms of public indiffer- ence. Much of the public and most policy makers do not “much notice or care.”14

As we already discussed, unconscious bias and collective memory play an important role in actions that perpetuate racial and ethnic misunderstanding, conflict, and actions that are disparate on the basis of race and ethnicity.

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Public indifference to racial and ethnic discrimination is also affected by the racial polarization of American politics in recent years. The 2016 Pew Research Center poll, which we cited at the beginning of this chapter, found that almost half (46 percent) of all white Americans think that race relations in this country are “generally good.”15 Many non-Hispanic Americans feel that immigration, and unauthorized immigration in particular, is a major problem in this country, while Hispanic Americans themselves feel there is discrimination against them. These feelings often lead to stereotyping of all immigrants and/or all Hispanic people. In this book, we have tried to provide objective evidence regarding immigration and crime (it is not a significant contributor to crime rates).16

Tonry and Melewski suggest several strategies for reducing racial and eth- nic disparities. First, they argue for “radical decarceration,” dramatically reducing the number of people the United States sends to prison. For the same reason our current incarceration policies disproportionately affect people of color, so a radical reduction in imprisonment would reduce that impact. Radical decarcer- ation is needed to correct what Michelle Alexander labeled the mass incarcera- tion that began in the 1970s and brought the U.S. prison and jail population to a staggering 2.2 million people by 2015. Beginning in 2009, however, a notable change occurred. The prison population actually began to decline, although only slightly.17

Second, Tonry and Melewski recommend the abolition of other “disparity- causing policies,” including capital punishment, mandatory minimum sentenc- ing laws, sentences of life without parole, and truth-in-sentencing laws. They should be replaced with what they describe as “principled” sentencing guide- lines designed to implement shorter sentences proportionate to the harm done by the crime. Finally, they recommend “race and ethnicity impact statements.” These would be similar to fiscal impact statements for new legislation. Such statements, based on good research evidence, would highlight likely disparate racial and eth- nic effects and therefore provide a warning against flawed proposed laws.18

Some progress has occurred in this area. Executions in the United States have declined significantly, from a high of 98 in 1999 to 28 in 2015.19 In policing, as we discussed in Chapter 4, de-escalation policies have been developed to reduce police- resident encounters from escalating into use of force (and possibly excessive force) incidents. Police-worn body cameras, meanwhile, hold the promise of reduc- ing aggressive behavior on the part of both police offices and people on the street.

To Tonry and Melewski’s list, we would add reorienting the war on drugs. The long-standing American focus on criminalizing drugs, and indiscriminately treating all drugs the same in terms of their harm, lies at the root of many crim- inal justice policies that adversely affect people of color, in policing, prosecution, and sentencing. The drug war is solidly supported by public opinion, however, and so ending it would require a major public education effort, the likes of which we have never seen.20

In the end, race and ethnicity remain a major factor in crime and criminal justice in America. We hope that this book has clarified the issues, provided read- ers with the best current evidence on all the important topics, and sorted fact from fiction. This country has a long and tragic history with regard to race and

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ethnicity. Much progress has been made in recent decades, but as the evidence in this book indicates, unacceptable disparities continue to exist, and much remains to be done if we are to achieve the ideal of Equal Justice Under Law.

N O T E S

1. “South Carolina Cop Shoots Unarmed Man: A Timeline,” CNN, April 9, 2015. http://www.cnn.com/2015/04/08/us/south-carolina-cop-shoots-black-man- timeline/.

2. Church Shooting Timeline: Before the Massacre and Beyond, The Huffington Post, June 19, 2015. http://www.huffingtonpost.com/2015/06/19/church-shooting- timeline_n_7621314.html.

3. Pew Research Center, On Views of Race and Inequality, Blacks and Whites Are Worlds Apart (Washington, DC: Pew Research Center, 2016). http://www.pewsocialtrends. org/2016/06/27/on-views-of-race-and-inequality-blacks-and-whites-are-worlds- apart/.

4. “Final Tally: Police Shot and Killed 986 People in 2015,” Washington Post, January 5, 2016. https://www.washingtonpost.com/national/final-tally-police-shot-and- killed- 984-people-in-2015/2016/01/05/3ec7a404-b3c5-11e5-a76a-0b5145e8679a_story. html.

5. FBI, Uniform Crime Reports, “Persons Arrested.” https://www.fbi.gov/about-us/ cjis/ucr/crime-in-the-u.s/2012/crime-in-the-u.s.-2012/persons-arrested/ persons-arrested.

6. For a discussion of popular myths about crime and justice, see Samuel Walker, Sense and Nonsense About Crime, Drugs, and Community, 9th ed. (Belmont: Cengage, 2015).

7. Michael Tonry and Matthew Melewski, “The Malign Effects of Drug and Crime Control Policies on Black Americans,” in Crime and Justice: A Review of Research, Tonry, ed. (Chicago: University of Chicago Press, 2008), pp. 1–44.

8. Heather MacDonald, “Is the Criminal-Justice System Racist?” City Journal 18 (Spring 2008). http://wwwcity-journal.org/printable.php?id=2563.

9. Tammy Rinehart Kochel, David B. Wilson, and Stephen D. Mastrofski, “Effects of Suspect Race on Officers’ Arrest Decisions,” Criminology (Forthcoming, 2011); Ojmarrh Mitchell, “A Meta-Analysis of Race and Sentencing Research: Explaining the Inconsistencies,” Journal of Quantitative Criminology 21 (2005), pp. 439–466.

10. Alfred Blumstein and Joel Wallman, The Crime Drop in America (New York: Cam- bridge University Press, 2006).

11. Richard Rosenfeld, Documenting and Explaining the 2015 Homicide Rise: Research Directions (Washington, DC: National Institute of Justice, 2016). https://www.ncjrs. gov/pdffiles1/nij/249895.pdf.

12. David M. Kennedy, Don’t Shoot: One Man, A Street Fellowship, and the End of Violence in Inner-City America (New York: Bloomsbury, 2011), “Across the Race Divide,” pp. 124–155.

13. Fair and Impartial Policing project: http://www.fairimpartialpolicing.com/.

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14. Michael Tonry and Matthew Melewski, “The Malign Effects of Drug and Crime Control Policies on Black Americans,” in Crime and Justice: A Review of Research, Tonry, ed. (Chicago: University of Chicago Press, 2008), pp. 1–44.

15. Pew Research Center, On Views of Race and Inequality: Blacks and Whites Are Worlds Apart.

16. Bradley Jones, Americans’ Views of Immigrants Marked by Widening Partisan, Generational Divides, (Washington, DC: Pew Research Center, 2016). http://www.pewresearch. org/fact-tank/2016/04/15/americans-views-of-immigrants-marked-by- widening- partisan-generational-divides/.

17. Ashley Nellis, The Color of Justice: Racial and Ethnic Disparity in State Prisons (Wash- ington, DC: The Sentencing Project, 2016).

18. Tonry and Melewski, “The Malign Effects of Drug and Crime Control Policies on Black Americans.”

19. “Facts About the Death Penalty,” Death Penalty Information Center. http://www. deathpenaltyinfo.org/documents/FactSheet.pdf.

20. ACLU, The War on Marijuana in Black and White (New York: ACLU, 2013). https:// www.aclu.org/sites/default/files/field_document/1114413-mj-report-rfs-rel1.pdf.

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547

A ABA Journal, 214 Abraham, Lynne, 264 Ada Pecos Melton, 424 Adams, Bonney, 178 Adolescents. See delinquency; minority

youth Affirmative action, 214, 216–217 Affordable Care Act, 124, 139 African Americans

affirmative action, 214, 216–217 arrest rates, 70, 71–73, 82, 166–168 bail decision making, 218–223 case prioritization, 327 charging decisions, 225, 227–228,

229–230 collateral consequences, 440–441 conflict theory, 34, 137 correctional personnel, 429 crimes, reporting, 69 criminal record, 317 death penalty, 368–372, 373, 374–378,

379–386, 388–391 death penalty, attitudes about, 366–367 death penalty, gendered racism in, 378 as defendants and all-white juries, 163,

165–166, 270, 517 definition of, 11 disability and, 93 diversity within, 17

drug offenses and sentencing, 328–335, 337–339

drug use, 83–84 emergence of the term, 19 emergency assistance and inheritance,

121 environmental racism, 65 estimated probabilities of incarceration,

305 experiences with justice system, 512 felony arrests, 6 gangs, 97–98, 99 girls, victimization of, 468–469 historical treatment of, 515–516 homicide offenders, 74–75 homicide victimization, 62–64 incarceration rate, 3, 296, 306–307, 310 inmate mortality rates, 444–445 insurance coverage, 124 judges, 339–345 jury nullification, 284–287 jury service, 198, 255–257, 266 juvenile arrests, 472 juvenile homicide offenders, 475 juvenile homicide victimization,

469–470 juvenile offenders, 482–487, 489–495 juvenile population in the U.S., 463 juvenile property crime victimization,

465

Index

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548 I N D E X

juvenile violent behavior, 472–473 juvenile violent victimization, 466–468 juveniles under correctional

supervision, 500–501 labels, politics of, 18–19 in the legal profession, 213–215 mass incarceration, 432–433 median family income, 117–118 middle class, 130, 140–141 offender’s race, victim’s race,

relationship, and length of sentence, 321–322

parole population, 434–436 percentage of U.S. population, 9 perceptions of offenders, 77–80 plea bargaining decisions, 237–238 police, attitudes about, 154–156, 162,

164 police, citizen complaints against, 181 police employment, trends in, 183–184 police shootings, 157–158, 253–254 police-community relations, 151–152 poverty status, 124 prevalence of crime victimization, 61 prison, adjustment to, 443–445 prison and jail populations, 419–420,

423, 424–425, 430, 453 probation population, 437–438 public defenders, 206, 209–211 race bias crimes, 90–92 race relations, view of, 511 rape and misidentification, 278–279 recession of 2008–2009, 117 residential segregation, 128–129 Scottsboro boys, 198–200, 252–253 sentencing, 295, 297, 313–315 sentencing comparison by race of

judges, 339–345 sexual assault sentencing, 319–323 traffic enforcement data, 171–172 traffic stops, experience of, 172–173 unemployment and sentencing,

315–316 unemployment rate, 3, 122–123, 437,

442, 514 urban poverty, 127 victimization, 4, 5, 52–55, 61–62 victim–offender dyad, 88 waiver to criminal court, 497 war on drugs, 231

wealth, 119–120 women and violent victimization,

58–59 women in prison, 426–427

African immigrants, 17 Age. See also minority youth

attitudes about police, 155 death penalty, 363 in juvenile justice system, 493–495 prison and jail populations, 425–428 sentencing, 312–316 unemployment rate, 437

Alaska Natives arrest rates, 70, 71–73 diversity within, 17–18 drug use, 83 homicide victimization, 62 in prisons, 424 race bias crimes, 90–91 victim assistance, 63 violent crime and, 3

Albonetti, Celesta A., 237 Alexander, Michelle, 4, 167–168, 431, 517 All-white juries, 262, 265, 270, 276–277 Alschuler, Albert, 262 Amadeo, Tony, 257 America in Black and White: One Nation,

Indivisible (Thernstrom and Thernstrom), 140

American Anthropological Association (AAA), 15–16, 20

American Bar Association (ABA), 213, 400–401, 405

American Civil Liberties Union (ACLU), 168, 170, 204, 390

American Correctional Association, 446 An American Dilemma (Myrdal), 137, 140 American Indian, 11. See also Alaska

Natives; Native Americans American Law Institute, 401 American-Arab Defense Committee

(ADC), 153 Americans with Disabilities Act, 140 America’s Children (Urban Institute), 131 Amsterdam, Anthony, 382, 395 And Justice for Some, 484 Anderson, Elijah, 60, 82 Anderson, Philip S., 197 Anti-Defamation League, 450 Anti-Drug Abuse Act, 387

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549I N D E X

Antiterrorism and Effective Death Penalty Act of 1996, 387

Apel, Robert, 58–59 Arab American Institute, 12 Arab Americans, 12–13, 153–154 Arizona, 379 Arrest statistics, 67, 70–75, 82, 166–168 Arrests, 166–169 Arterton, Janet Bond, 263 Aryan Brotherhood, 448–451 Aryan Resistance, 102 Asatru movement, 447–448 Ashcroft, John, 389 Ashkinaze, Carole, 127 Asian Americans

arrest rates, 70, 71–74 death penalty, 384, 388, 390 diversity within, 18 drug offenses and sentencing, 338–339 drug use, 83–84 experiences with justice system, 512 gangs, 96, 100 homicide victimization, 62 incarceration rate, 310–311 juvenile arrests, 472 juvenile homicide victimization,

469–470 juvenile offenders, 482–483 juvenile population in the U.S., 463 juvenile violent behavior, 473 juveniles under correctional

supervision, 500–501 in the legal profession, 213–215 median family income, 117 percentage of U.S. population, 9 police shootings, patterns in, 158 police-community relations, 153 poverty status, 124 prevalence of crime victimization, 61 race bias crimes, 90–91 sentencing, 310–311 traffic enforcement data, 171 unemployment rate, 122–123, 437 victimization patterns, 89 victim–offender dyad, 88 violent crime and, 57 waiver to criminal court, 497

Association of MultiEthnic Americans (AMEA), 10, 13–14

“Audit strategy,” 317

Auerhahn, Kathleen, 326 Avery v. Georgia, 257

B Bachman, Ronette, 56 Bad Barbies (gang), 97 Bail decision making

bail reform, 212, 217, 516 case outcomes, 221–224 race, effect of, 218–221, 514

Bail policies, 32 Baker, David V., 378 Baldus, David, 380, 381–382, 391, 394 Bales, William, 221, 446 “Ban the Box,” 433 Barak, Gregg, 63 Barker, Justin, 233, 234 Barrow, Deborah J., 341 Barry, Marion, 265 Batson standard, 266–268 Batson v. Kentucky, 266–268, 271, 275 Baumer, Eric, 337, 368 Bayley, David H., 151 Beard, Jesse Ray, 233 Bedau, Hugo A., 403 Bell, Mycah, 233 The Bell Curve (Herrnstein and Murray),

15–16, 138 Bellair, Paul E., 472–473, 475 Beres, Linda S., 461 Berger, Vivian, 181 Berk, Richard, 232 Betsinger, Stephanie, 310–311 Between Two Worlds (Pew Hispanic Center),

24 Bias-motivated crimes. See hate crimes Birmingham Age-Herald, 199 Bishop, Donna M., 486–489 Bjerk, David, 229 Black, 17, 19 Black, Donald, 163, 167, 186, 478 Black Guerilla Family (BGF), 449, 450 Black Lives Matter, 2, 156 Black Muslim movement, 446–447 Black Panther Party, 252 Blackmun, Harry, 359–360, 395, 405 Black-on-black crime, politicizing, 89 Blair, Walter J., 280 Bloods, 96, 99, 100 Blowers, Anita N., 326–327

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550 I N D E X

Bourdieu, Pierre, 125 Bowers, William, 365, 378 Box, Steven, 316 Boyd, Todd, 46–47 Brandley, Clarence, 201–202 Brazill, Nathaniel, 461 Brennan, William, 265, 362, 395 Bridges, George S., 218–219, 442,

498–499 Bright, Stephen, 207, 380, 392, 395 Bronx Trinitarios gang, 97 Brooks, Jeffrey, 273 Brower, Sidney, 135 Brown, Geneva, 433 Brown, Michael, 1, 150, 167, 254, 511 Brown v. Board of Education, 140, 294–295 Brownmiller, Susan, 317, 319 Buckley, Stephen, 404 Building Blocks for Youth initiative, 484 Bulter, Anthea, 86 Bunton, Derwyn, 204 Bureau of Indian Affairs (BIA), 153 Bureau of Justice Statistics (BJS), 21, 49,

55–56, 207–208 Burger, Warren, 374 Bush, George H. W., 341 Bush, George W., 341, 399–400, 401, 402 Butler, Julius, 252 Butler, Paul, 284, 285 By the Numbers (Fridell), 171 Bynum, Timothy S., 435–436

C CalGang database, 479 California, 383–384 California Department of Corrections,

451–452 California Department of Corrections

and Rehabilitation, 452 Campbell, Alec, 232 Campbell, Anne, 97 Campbell v. Louisiana, 266 Capital Case Unit, 388 Capital punishment. See death penalty Carter, Ardena, 46 Carter, Jimmy, 341 Case prioritization, 326–327 Catholic immigrant groups, 136 Caudy, Michael S., 168–169 Cederblom, Jerry, 324–325

Central Park jogger case, 47–48, 94 Chafe, William, 226 Chambers, David L., 214 Charging decisions

race and, 224–228 race of offenders and victims, 229–234

Charleston, South Carolina, 511 Charleston News and Courier, 199 Chattanooga News, 282, 283 Chavis, Benjamin, 65 Cherokee tribe, 18 Chicago, 305–306, 313–314 Chicago Gang Ordinance, 169–170 Chicago School of Sociology, 128, 134 Chicago Tribune, 399–400 Chicago v. Morales, 169–170 Chicano, 19 Child savers movement, 481–482 Chin, K., 100 Chinese American gangs, 100 Chiricos, Theodore, 221, 300–301, 303,

442 Christian Arabs, 13 Christopher Commission, 181 Civil Rights Act, 31, 65–66, 140, 183, 516 Civil rights movement, 139, 140–142 Civil rights of convicted felons, 440–441 Civilian Complaint Review Board

(CCRB), 181 Civilian complaint review boards, 182 Clark, C. D., 283 Clemmer, Donald, 443 Clinton, Bill, 341, 333, 389 Clydesdale, Timothy T., 214 Cochran, Johnnie, Jr., 252, 279 “Code of silence,” 181 “Code of the Street” perspective, 82 Coerced confessions, 276–277 Cohen, Mickey, 201 Cold cases from civil rights era, 87 Cole, David, 255, 262 Collateral consequences, 440–441 Collective efficacy theory, 135 College students, 54, 83. See also minority

youth Collins, Todd, 341 The Color of Crime (Russell), 45 Combs, Michael, 343 Commercial sex acts, 67 Community corrections

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551I N D E X

civil rights of convicted felons, 440–441 Native American example, 438–440 parole, 434–436 probation, 437–438 supervision in the community, 437

Community policing movement, 126– 127, 130–131, 135

Community social structure, 128–131 Community well-being, 129 Compound risk, 485 Concentration of disadvantage, 118 Confederate flag, 2–3 Confessions, coerced, 276–277 Conflict theory, 33–35, 137, 391 Conley, Darlene, 446 Connecticut Law Review, 263 Contextual discrimination, 28, 32, 288,

298, 302, 442, 514 Convict lease system, 442 Cooper, Alexia, 74 Cooper, Roy, 226–227 “Co-production” of police services,

26–27 Correctional personnel, 429 Corrections

community corrections, 434–453 conclusions, 454 vs. education, 419–420 juveniles under correctional

supervision, 500–501 prison and jail populations, 423–434 school to prison pipeline, 421–422

Counsel, right to, 202–203. See also lawyers

The Counted, 157 Courts. See also lawyers

African Americans in, 198–202 bail decision making, 212–224 charging decisions, 224–228 plea bargaining decisions, 236–239 right to counsel, 202–203

Crack cocaine, 298, 335–337, 332–334 Crawford, Charles, 300–301, 303, 442 Cressey, Donald, 443 Crime

fear of, 4 immigration and, 24–25, 75 inequality and, 115–117 as interracial (hate) event, 88–94 as intraracial event, 87–88

neighborhood deterioration, 129–131 reporting, 68–69 theoretical perspectives, 33–35

Crime and the American Dream (Messner and Rosenfeld), 132

Crime in the United States, 2014, 67 Crime rates, factors in disparities,

115–117 Crime type, conflict theory and, 34 Criminal justice data, 20–22, 70. See also

arrest statistics; Uniform Crime Report (UCR)

Criminal Law Reform Project, 204 Criminal record, 317, 371 Criminal trials

conclusions, 287 jury nullification, 284–287 jury pool, selection of, 255–263 jury selection, 274–277 mistaken eyewitness identification,

277–279 peremptory challenge, 263–274 race and ethnicity in, 252–254 “race card,” 279–284

Criminalization of school misconduct, 421–422

Crips, 96, 99 Critical race theory, 80, 433 Crockett, George, 340 Cruel and unusual punishment, 361–362,

462 Crutchfield, Robert, 129, 134, 227, 442 Cruz, Rolando, 403–404 Cullen, Francis T., 367–368 Cultural capital, 125–128 Cultural customs, 11 Culture conflict theory, 81, 136 “Culture of poverty,” 139 Cumulative disadvantage, 337–339, 485 Currie, Elliot, 126

D D’Alessio, Stewart J., 79 Daudistel, Howard C., 209–210 Davies, Darryl, 261 Davis, Angela, 431 De Blasio, Bill, 48 Deadly force, 156–161

controlling, 159 against juveniles, 477

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552 I N D E X

Deadly force (continued ) lack of national data, 157 police shootings, patterns in, 157–159 skin tone, 160–161 unconscious bias, role of, 160

Death penalty, 8 in 21st century, 400–406 abolishment movement, 404–406 attitudes toward, 364–368 in California, 383–384 conclusions, 406 constitutionality of, 361–364 criminal record, 371 Dobbs case, 380 empirical evidence, 368–392 executions in the U.S., 1987-2004, 397 explanations for disparate treatment,

391–392 factors related to reduction in support

for, 366 federal capital sentencing process,

387–390 Furman v. Georgia, 361–362 gendered racism, 378 in Georgia, 381–382 Georgia’s guided discretion statute, 364 hypothetical example, 370 introduction to, 359–360 in Kentucky, 384–385 Martinsville Seven case, 393–394 McCleskey v. Kemp, 392–400 post-Furman decisions, 363–364 in post-Gregg era, 386 post-Gregg studies, 378–386 pre-Furman studies of, 374–378 race and probability of execution,

385–386 by race of offender and victim,

375–376 racial disparity, statistical evidence of,

368–374 Racial Justice Act, 398–399 rape, 363, 369–370, 374, 375–377 reform movement, 402–404 reform or abolition, calls for, 397–398 remedy, problem of, 396 state comparison, 382–383 Supreme Court, 392–400 in Texas, 399–400 victim race and gender, 387

white offenders and African American victims, 373

wrongful convictions, 403–404 Death Penalty Information Center, 366 Death penalty protocol, 388 Debro, Julius, 446 De-escalation, 163, 165–166, 517 Defender Association of Philadelphia, 208 Defense of life policy, 158, 159 DeFina, Robert, 338 DeJong, Christina, 490 Delinquency, 80, 82–83. See also minority

youth DeLisi, Matt, 445 DeLone, Miriam, 210–211, 221–222,

304–305, 311–312, 442 Demographics, 9 Demuth, Stephen, 219–220, 306–307, 330 Department of Justice, 388–390 Dickey, Everett, 252 Differential association theory, 133–134 Dirty White Boys, 451 Discouraged workers, 123 Discrimination

in arrests, 166–169 continuum, 28, 31–33 definition of, 29–30 vs. disparity, 28–33, 298 law of, 31 myth vs. reality, 4–6 in police assignment, 184–185

“Disney World Hoax Mom,” 45 Disparity

continuum, 28, 31–33 contributing factors, 5 definition of, 28–29 vs. discrimination, 28–33, 298 persistence of, 516–518 persistence of, explaining, 513–514

Disparity-Discrimination Continuum, 173

Distressed communities, 129 Distressed Communities Index, 129 DNA testing, 278, 402–403 Dobbs, Wilburn, 380 Domestic violence, 56 Don’t Shoot (Kennedy), 163, 514–515 Dorfman, Lori, 476–477 Dorsey v. United States, 334 Dotson, Gary, 278

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553I N D E X

Double jeopardy clause, 285 Douglas, William, 362 Driving while black, 170 “Drop of blood” principle, 10 Drug courts, 438–439 Drug Courts Program Office, 438–439 Drug Enforcement Administration (DEA),

170 Drug offenses

penalties for crack and powder cocaine, 332–334

sentencing, 297, 327–330 sentencing in federal courts, 335–337 sentencing in state courts, 330–332

Drug use, 5–6 crime and, 132–133 offenders, 83–84 pregnant women, prosecution of,

234–236 selective prosecution, 230–233

Drug-free school zones, 328 Du Bois, W. E. B., 3 Dugan, Brian, 403 Dugan, Laura, 58–59 Duke lacrosse case, 226–227 DuPage Seven, 404

E Economic capital, 125 Economic discrimination, 297–298 Economic inequality

emergency assistance and inheritance, 121

income, 117–118 income gap, 121–122 insurance coverage, 124–125 introduction to, 116–117 payday loans, 124 poverty status, 124 unemployment, 122–124 wealth, 118–120

Economic Opportunity Act, 141 Edgar, Jim, 201 Education, vs. corrections, 419–420 Effective assistance of counsel, 205 Eighth Amendment, 361–362, 363, 394,

462 Elem, Jimmy, 267 Elliot, Delbert, 80, 82, 485 Emergency assistance, 121

Emerson, Dennis, 201 Emmett Till Unsolved Civil Rights

Crime Act, 87 Employment practices of the police,

182–186 Employment status, and sentencing,

312–316. See also unemployment rate Engen, Rodney L., 330 Environmental racism, 65–66 Epp, Charles R., 155, 171–173, 177–178 Equal Employment Opportunity

Act, 183 Equal Justice Initiative, 274, 277 Equal Protection Clause, 30, 31, 32, 171,

216, 256, 258, 334, 362 Essence magazine, 45 Ethnic identity, 443 Ethnic youth gangs

African Americans, 99 Asian Americans, 100 Central Park jogger case, 47–48 geography of, 96–97 Hispanic Americans, 101 myths and new realities, 95–98 Native Americans, 99–100 overview of, 94–95 poverty and, 97 varieties of, 99 white, 101–102

Ethnicity. See also specific groups arrest rates by, 71–72 categories of, 11–19 criminal justice data, 20–22 diversity within, 17–18 household victimization by, 51 incarceration rate, 426–428 NCVS coding, 50 overview of, 3–4 parole population by, 435 prison, adjustment to, 443–445 probation population by, 438 property crime victimization by, 465 recidivism, 431–432 self-reported violent behavior, 473 theoretical perspectives, 33–35 uneven distribution of groups, 27 violent behavior, explaining differences

in, 475–476 Evans, Offie, 395 Evans, Paul, 183

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554 I N D E X

Excessive force, 161–162. See also deadly force; physical force

Exonerations, 277–279 Extralegal factors in criminal justice, 29

F Fagan, Jeffrey, 497 Fair and Impartial Policing project, 30,

515 Fair Sentencing Act, 332–334 Farnworth, Margaret, 221 Farrell, Jill, 229, 342 FBI Hate Crime Data Collection

Program, 90 FBI Hate Crime Reporting Program, 91 FBI Hate Crime Statistics, 93 Federal Bureau of Prisons, 428, 452 Federal capital sentencing process,

388–389 Federal courts, 335-337, 341-343 Federal Death Penalty Act of 1994, 387 Federal Drug-Free School Zones Act,

328 Federal sentencing guidelines, 8, 296, 332 Feld, Barry, 482 Felons, civil rights of, 440–441 Felson, Marcus, 137–138 Ferguson, Cheryl Dee, 201 Ferguson, Missouri, 1–2, 6, 150–151,

167–168, 254, 511 Feyerherm, William H., 484 Fifth Amendment, 285 Figueroa, LaToyia, 46 First Amendment, 346–347 Fischer, Michael, 65 Fisher v. University of Texas, 217 Fite, Paula J., 476 Five Percent movement, 447 Flanagan, Timothy, 443 Flavin, Jeanne M., 63 Fleeing felon rule, 158, 159 Flint, Michigan, 65 Floyd, Ruby, 393 Floyd v. New York City, 30 Formal social control, 138 Foster, Timothy Tyrone, 273–274 Foster v. Chatman, 273–274 Fourteenth Amendment, 30, 31, 32, 171,

198, 214, 216, 255–256, 257–258, 318, 333, 362, 363, 394, 452

Fourth Amendment, 159, 176, 177, 178 Franklin, John Hope, 19 Fraser, Donald, 68 Frazier, Charles S., 486–489 Fridell, Lorie, 30, 160, 171 From Slavery to Freedom (Franklin), 19 Fuhrman, Mark, 279 Furman v. Georgia, 361–362, 365, 368, 374 Furukai, Hiroshi, 261 Futterman, Craig, 155 Fyfe, James, 156, 159, 185

G Gainey, Randy R., 330 Gang Congregation Ordinance,

169–170 Gang databases, 479–481 Gang Reporting, Evaluation, and

Trafficking System (GREAT), 479 Gang Violence and Juvenile Crime

Prevention Act, 480 Gangs

African Americans, 99 Asian Americans, 100 Central Park jogger case, 47–48 Chicago Gang Ordinance, 169–170 gender and, 97 geography of, 96–97 Hispanic Americans, 101 history of, 95–96 myths and new realities, 95–98 Native Americans, 99–100 overview of, 94–95 poverty and, 97 in prisons, 448–451 social capital and, 126 varieties of, 99 white, 101–102

Gangster Disciples, 100 Garfinkel, Harold, 374–375 Garin, Patricia, 261 Garner, Edward, 158 Garner, Eric, 2, 150 Garrick, Talitha Renee, 235 Garza, Juan Raul, 389 Geller, William A., 158 Gender

charging decisions, 228 of crime victims, 45–47 death penalty, 378

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555I N D E X

gang membership, 97 homicide victimization, 64 incarceration rate, 426–428 juvenile homicide offenders, 474 juvenile homicide victimization, 470 juvenile justice system, 493–495 juvenile violent victimization, 466 lifetime likelihood of victimization, 61 prison and jail populations, 425–428 sentencing, 312–316 unemployment rate, 437

General Strain Theory, 80 Generations, 23 Georgia, 364, 380, 381–382, 492–493 Georgia Penal Code of 1816, 318 Gertner, Nancy, 261 Geter, Lenell, 200 Getting Played (Miller), 468 Gideon v. Wainwright, 203–204, 206 Globalization, 139 Goldman, Ronald, 279 Gottfredson, Stephen, 135 Gottschall, Jon, 341 Graham, Nanette, 178 Graham, Susan, 13–14 Grant, Oscar, 254 Graves, Joseph B., 209–210 Gray, Freddie, 2, 150 Graziano, Todd, 329 GREAT (Gang Reporting, Evaluation,

and Trafficking System), 479 Green, Paul, 399 Greenberg, David F., 307 Gregg v. Georgia, 363, 364–365, 368, 378,

401 Griffith, Thomas D., 461 Gringo Justice, 152 Gross, Samuel, 382–383, 391, 395, 396 Gruhl, John, 343 Grunow, Barry, 461 Grutter, Barbara, 214, 216 Grutter v. Bollinger, 216–217 The Guardian, 157 Guided discretion statutes, 378–379 Guidelines Manual, 237

H Habitual offender laws, 228–229 Hacker, Andrew, 116, 141 Hagan, John, 337

Haider-Markel, Donald, 155, 171–173, 177–178

Hale, Chris, 316 Hamm, Mark S., 448 Hampton, Aaron, 232 Hannon, Lance, 338 Harer, Miles D., 444 Harlan, John M., 283–284 Harvard Civil Rights-Civil Liberties Law

Review, 234 Harvard Law Review, 206 Hatch, Orrin, 398 Hate crimes, 88, 90–93, 346–347 Hawkins, Darnell, 137, 138–139 Health insurance, 124–125 Hell’s Angels, 96 Hernandez, Alex, 404 Hernandez, Evelyn, 46 Hernandez, Pete, 258–259 Hernandez v. State, 258–259 Herrnstein, Richard J., 15–16, 138 Higginbotham, A. Leon, Jr., 340 Hill, Bill, 272 Hindelang, Michael J., 69, 76, 78, 82 Hispanic Americans

arrest rates, 70, 71–74, 167 bail decision making, 218–223 charging decisions, 225, 227–228 correctional personnel, 429 in crime statistics, 21–22 crimes, reporting, 69 criminal record, 317 death penalty, 371, 384–386, 388–390,

399 definition of, 16 diversity within, 12, 17 drug offenses and sentencing, 330–332,

335–337, 338–339 drug use, 83–84 emergency assistance and inheritance,

121 environmental racism, 65 estimated probabilities of incarceration,

305 experiences with justice system, 512 gangs, 96, 97–98, 101 immigration enforcement, impact of,

26–27 incarceration rate, 3, 296, 306–307,

310–311

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556 I N D E X

Hispanic Americans (continued ) inmate mortality rates, 444–445 insurance coverage, 124 judges, 339–340, 345 juvenile homicide victimization,

469–470 juvenile offenders, 483–484, 489–490,

493–494 juvenile population in the U.S., 463 juvenile property crime victimization,

465 juvenile violent behavior, 472–473 juvenile violent victimization, 466–468 juveniles under correctional

supervision, 500–501 labels, racial and ethnic, 19 in the legal profession, 213–215 median family income, 117–118 middle class, 140 parole population, 435, 436 percentage of U.S. population, 9 perceptions of offenders, 78 plea bargaining decisions, 237–238 police, attitudes about, 154–156, 162,

164 police, citizen complaints against, 181 police employment, trends in, 183–184 police shootings, patterns in, 158 police-community relations, 152 poverty status, 124 prevalence of crime victimization, 59 in prisons, 420, 423, 424–425 probation population, 437–438 public defenders, 206, 209–211 race relations, view of, 517 rape and misidentification, 278 recession of 2008–2009, 117 sentencing, 295, 306–307, 314–315 sentencing comparison by race of

judges, 339–340, 345 traffic enforcement data, 171–172 unemployment and sentencing,

315–316 unemployment rate, 3, 122–123, 437 victimization rates, 52–55 waiver to criminal court, 497 war on drugs, 231 wealth, 119–120 women and violent victimization, 58–59 women in prison, 426–427

“History of Gangs in the United States,” 95

Hixson, Will, 282 Hmong people, 281 Hochstetler, Andy, 445 Hoffman, Morris B., 271 Holcomb, Jefferson E., 387 Holder, Eric, 254, 389 Holleran, David, 313–314, 316 Holloway, Natalee, 46 Holm, Malcolm D., 345 Holman, Barry, 21–22 Holmes, Malcolm D., 209–210 Homicide, 74–75, 88, 474–475 Homicide rate, 444 Homicide victimization, 62–64, 469–470 Homosexuality, 136 Honig, Paul, 443 Horan, Patrick, 221 Hosch, Harmon M., 209–210 “Hot spots” policing, 135 Household burglary rate, 129 Household victimization, 51–52 Howe, Scott W., 386 Hubay, Charles, 443 Hudgins, Edward W., 394 Huebner, Beth M., 435–436 Huizinga, David, 82, 485 Human Rights Watch, 328–329 Human trafficking, 66–67 Humanitarian migrants, 23 Hutchins, Styles, 283

I Identity theft, 54–55 Illegal Racial Discrimination in Jury Selection:

A Continuing Legacy, 274 Immigration

crime and, 24–25, 75 enforcement, 25–27 facts on, 23–24 police, relations with, 18 public attitudes, 24 sentencing and illegal immigrants,

307–309 Immigration Control and Enforcement

(ICE), 25 Implicit Association Test (IAT), 308 Incarceration rate, 3, 296, 306–307, 310,

426–428

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557I N D E X

Income, 117–118 Income gap, 121–122 Indian Civil Rights A, 56 Indian Self-Determination Act, 153 Indigenous justice paradigm, 424 Indigent capital defendants, 207 Indirect discrimination, 298 Individual acts of discrimination, 28, 32 Inequality

crime and, 115–117 economic inequality, 117–125 long-term trends, 116–117 social inequality, 114–115 social reform and, 139–142 theoretical perspectives, 131–139

Informal social control, 138 Inheritance, 121 Inmate mortality rates, 444–445 Innocence Project, 3 Innocence Protection Act, 402–403 Innovation, 133 Insecure communities, 26–27 Inspectors general, 182 Institute for Criminal Policy Research, 428 Institutional discrimination, 298 Institutionalized discrimination, 28, 31–32 Insurance coverage, 124–125 Internal benchmarking, 172 Investigatory stops, 172–173 Involuntary servitude, 67 IQ, race and, 15–16 Irwin, John, 443 Islam, 446–448 Isom, Deena, 81

J Jackson, Daniel, 276–277 Jackson, Darren, 399 Jackson, Kenneth C., 490 Jackson, Ricky, 202 Jacobs, David, 385–386 Jacobs, James, 92, 443, 446 “Jails in Indian Country, 2014,” 425 Jamison, Derrick, 404 Jenna Six prosecution, 233–234 Jim Crow, 431 Johnson, Brian, 225, 310–311, 497–498 Johnson, Ed, 282–284 Johnson, Guy, 372 Johnson, James B., 495, 498

Johnson, Jennifer Clarise, 234 Johnson, Sheri, 270 Johnson v. California, 452 Johnson v. Zerbst, 203 Joint Terrorism Task Forces (JTTF), 153 Jones, Louis, 390 Judges

racial representation, 342–343 sentencing comparison by race of

judges, 339–340 “Judges and the Politics of Death” (Bright

and Keenan), 207 Julian Samora Institute, 152 Jury nullification, 284–287 Jury pool, selection of

juror’s perspective, 263 jurymandering, 261 Massachusetts jury selection statute, 260 Mexican Americans, exclusion of,

257–259 peremptory challenge, 263–274 racial discrimination in, 255–257 racial diversity, increasing, 259–263

Jury selection, 274–277 Jurymandering, 261–262 Justice, geography of, 27–28 Justice Atlas, 433 Justice for All Act, 402 Justice Policy Institute, 328 Justice Quarterly, 238 Juvenile Justice and Delinquency

Prevention Act, 483 Juvenile justice system

adjudication and disposition decisions in Georgia, 492–493

characteristics of youth referred to, 491 conclusions, 501–502 correctional supervision, 500–501 disparate treatment, explaining, 498–500 gender and age, 493–495 intake and disposition decisions in

Pennsylvania, 490 mandatory life without parole

sentences, 462–463 outcomes and race/ethnicity, 486–489 past, present, and future of, 481–482 processing juveniles in Pennsylvania,

489–490 transfer of juveniles to criminal court,

495–498

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558 I N D E X

Juvenile violent victimization, 466–468 Juveniles. See minority youth

K Kalven, Harry, 270, 323–324 Kansas City, 305–306, 313–314 Kansas City Office of Citizen Complaints

(OCC), 182 Kansas Compilation of 1855, 318 Karales, Kevin J., 158 Keenan, Patrick, 207 Kelling, George, 130 Kempf-Leonard, Kimberly, 8, 168 Kennedy, Anthony M., 217, 293,

462–463 Kennedy, David, 152, 163, 167, 514–515 Kennedy, Randall, 235–236, 261–262,

267, 280, 286–287, 332, 395, 396 Kent v. United States, 496 Kentucky, 384–385, 398 Kerner Commission, 116–117, 183 Kidder, William C., 214 King, John William, 448 King, Rodney, 155, 253 King County, Washington, 218–219, 227 Kleck, Gary, 370–371, 377 Knight, Thomas, Jr., 199 Kochel, Tammy Rinehart, 166 Krecker, Richard P., 481 Krone, Ray, 404 Ku Klux Klan, 102 Kubrin, Charis E., 24–25 Kurlycheck, Megan C., 497–498 Kutateladze, Besiki, 338 Kwak, Dae-Hoon, 493–495

L La Nuestra Familia, 449 Labels, racial and ethnic, 14, 16, 18–19 Lafler v. Cooper, 205 LaFree, Gary, 22, 229, 320 Landolt, Patricia, 133 Latin Kings, 101 Latino Americans, 16, 19. See also Hispanic

Americans Lauritsen, Janet L., 58, 466–468 Lawson, Thomas, 199 Lawyers

affirmative action, 214 characteristics of a good lawyer, 209

effective assistance of counsel, 205 importance of in criminal cases,

203–212 indigent capital defendants, 207 perceptions of African American and

white lawyers, 214–215 public defenders’ office refusing new

cases, 204 quality of legal representation, 206–208 race, type of counsel, and case outcome,

209–212 racial minorities and legal profession,

213–215 Lead-contaminated drinking water,

65–66 Leahy, Patrick, 402–403 Lee, Barbara, 254 Lee, Harper, 251 Legal factors in criminal justice, 29 Legal profession, racial minorities and,

213–215 Legal representation, quality of, 206–208 Leger, Robert G., 453 Leiber, Michael J., 326–327 Leighton, Paul S., 63 Lempert, Richard O., 214 Leonard, Kimberly Kempf, 166, 489–490 Lethal injection, 363 Levy, Chandra, 46 Liberation hypothesis, 323–325 Loehmann, Timothy, 477 Lopez, Christy, 162–163, 167 Los Angeles Police Department (LAPD),

165, 181, 184 Losada, Davis, 400 Louisiana Public Defender Board, 204 Loving v. Virginia, 140 Lugo v. Texas, 258 Lujan, Carol Chiago, 311 Lyman School, 126 Lynching, 282–284 Lyons, Christopher, 92–93

M MacDonald, Heather, 4–5, 8, 33, 513 MacKenzie, Doris L., 453 Major Crimes Act, 56 Malcolm X, 13 Malewski, Michael, 513 Malign Neglect (Tonry), 230–231

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559I N D E X

Mandatory life without parole sentences, 462

Mandatory minimum sentences, 228–229 Maney, Mark, 267 Manhattan Bail Project, 212, 217 Mann, Coramae Richey, 7, 218, 498 Mapping Police Violence Project,

158–159 Marijuana offenses, 168–169, 238–239 Marshall, Consuelo, 232, 233 Marshall, Thurgood, 213, 271, 362, 365,

395, 397 Martin, Martin, 394 Martin, William E., 281 Martinsville Seven case, 392, 393–394 Marxist theory, 35 Mass incarceration, 431, 432–433, 517 Mass shooting offenders, 84–86 Mastrofski, Stephen D., 166 Mauer, Marc, 5, 115–116, 327, 334, 420 Mauro, Robert, 382–383, 391, 395, 396 May, David, 322–323 Maynard-Moody, Steven, 155, 171–173,

177–178 McCleskey, Warren, 392, 394–397 McCleskey v. Kemp, 363, 381, 392–400 McDade, Mary, 276–277 McGinty, Timothy J., 477 McMahon, Jack, 264 McMillian, Walter, 403 McNulty, Thomas, 472–473, 475 McReynolds, Sam D., 282–283 McVeigh, Timothy, 390 Mears, Daniel, 446 Media

bias in, 45–47 minority youth and crime, 476–477 racial hoaxes, 44–45

Median family income, 117–118 Mediation, 181–182 Meehan, Albert J., 171 Mehling, Ronald, 404 Mehserle, Johannes, 254 Melewski, Matthew, 516–517 Melton, Ada Pecos, 424 Memphis, police shootings in, 158, 159 Menard, Scott, 60 Mendelsohn, Harold, 151 Mental illness, 86 Merritt, Gilbert, 334

Merton, Robert, 132 Messner, Steven F., 132 Methamphetamine, 335 Mexican Americans, 257–259. See also

Hispanic Americans Mexican Mafia, 101, 449, 450 Meyer, Doug, 284 Miami, 305–306, 313–314 Michalowski, Raymond J., 442 Michigan Civil Rights Initiative (MCRI),

216–217 Microaggressions, 81 Middle Eastern Americans, 12–13 Miller, Jerome, 231 Miller, Jody, 468–469 Miller v. Alabama, 462 Miller-El, Thomas Joe, 271–273 Miller-El v. Dretke, 271–273 Minimum wage, 125 Minorities, definition of, 16–17 Minority youth. See also juvenile justice

system African American girls, victimization

of, 468–469 deadly force, use of by police, 477 drug use, 83–84 gang databases, 479–481 homicide victimization, 469–470 introduction to, 461–463 juvenile arrests, 471–476 juvenile justice system, 481–500 juvenile population in the U.S.,

463–464 media and, 476–477 as offenders, 470–477 police and, 477–481 property crime victimization, 464–465 as victims of crime, 464–470 violent victimization, 465–468

Mirandé, Alfredo, 8, 152 Misdemeanor offenders, 326–327 Missing persons, media coverage of,

45–47 Missouri v. Frye, 205 Mistaken eyewitness identification,

277–279 Mitchell, Ojmarrh, 168–169, 303 Mitchell, Todd, 346–347 Modal approach, 337 “Model minority,” 310

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560 I N D E X

Model Penal Code, 401–402 Mollen Commission, 161, 162, 179 Monitoring the Future, 82, 84, 168,

171–172 Montgomery, Olen, 199 Montgomery v. Louisiana, 462 Moral panic, 327 Morgan, Kathryn D., 435 Morris, Norval, 201 Mother Jones, 84–85 Moyer, Laura, 341 MS-13 (Mara Salvatrucha), 101 Muhammad, Elijah, 446 Multiracial Americans, 13–14 Murphy, Patrick V., 159 Murray, Charles, 15–16, 138 Muslim Americans, 12–13 Mydans, Seth, 96 Myers, Ralph, 403 Myrdal, Gunnar, 137, 140, 226, 257,

316–317

N NAACP Legal Defense Fund, 393–394 Nation of Islam, 446 National Academy of Sciences, 140, 295 National Alliance of Gang Investigators,

101 National Association for Citizen

Oversight of Law Enforcement (NACOLE), 182

National Association for the Advancement of Colored People (NAACP), 18–19, 87

National Bar Association Magazine, 214 National Center for Children in Poverty,

125 National Center for Juvenile Justice,

496–497 National Center for Missing Adults, 46 National Congress of American Indians,

22 National Council on Crime and

Delinquency, 18 National Crime Victimization Survey

(NCVS) college student victimization, 54 crime as interracial event, 87–88 hate crimes, 91–92 high crime neighborhoods, 120

household burglary rate, 129 juvenile property crime victimization,

464 limitation of, 51 offender data, problems with, 76 offenders, perceptions of, 76–79 overview of, 4, 5, 21, 49–51 prevalence of crime victimization, 59 victim–offender dyad, 87–88

National Death Penalty Moratorium Act, 405–406

National Gang Intelligence Center (NGIC), 94, 98, 99, 449

National Gang Report, 449 National Gang Survey, 96 National Household Survey on Drug

Abuse, 84 National Incident-Based Reporting

System (NIBRS), 70, 478 National Latino Elected Officials

Organization, 28 National Longitudinal Study of

Adolescent Health (ADD Health), 160, 472

National Longitudinal Survey of Youth (NLS), 168–169, 421

National Police-Public Contact Survey, 29 National Prisoner Statistics (NPS), 21 National race crisis, 2014-2016, 1–4 National Research Council, 120, 295, 300 National Socialist Movement, 102 National Survey on Drug Use and Health,

5, 83 National Urban League, 87 National Youth Gang Center, 96–97 National Youth Gang Survey, 96–97, 99 National Youth Survey, 60 Native American Cultural and Spiritual

Awareness group, 447 Native American Reservations, 22 Native Americans

arrest rates, 70, 71–74 bail decision making, 218–221 charging decisions, 227 community corrections, 438–440 in crime statistics, 22 death penalty, 384, 388, 390 diversity within, 17–18 domestic violence, 56 drug use, 83

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561I N D E X

environmental racism, 65 experiences with justice system, 512 gangs, 99–100 historical treatment of, 515 homicide victimization, 62 jails on tribal lands, 425 juvenile arrests, 472 juvenile homicide victimization,

469–470 juvenile offenders, 482–483, 493–494 juvenile population in the U.S., 463 juvenile violent behavior, 472–473 juveniles under correctional

supervision, 500–501 labels, racial and ethnic, 19 in the legal profession, 213–215 percentage of U.S. population, 9 peyote, 136 police shootings, patterns in, 158 police-community relations, 152–153 in prisons, 424 race bias crimes, 90–91 religious groups, 447 sentencing, 311–312 traffic enforcement data, 171 tribal justice, 424 unemployment rate, 123 victim assistance, 63 victimization patterns, 89 victim–offender dyad, 88 violent crime and, 3, 55–56 waiver to criminal court, 497 women of color and violent

victimization, 59 Native Hawaiians

arrest rates, 70, 71–74 drug use, 83–84 police-community relations, 153 victimization, 18 victim–offender dyad, 88 violent crime and, 57

Navajo nations, 99 Navajo Peacemaking system, 63 Neal v. Delaware, 256–257 Neighborhood deterioration, 129–131 Neo-Nazi movements, 101–102 Net worth, 119–120 Neta, 450–451 Neubauer, David, 206 “New Jim Crow,” 431

New Orleans, LA, 204 New York City, 238–239 New York City Civilian Complaint

Review Board (CCRB), 182 New York City Police Department

(NYPD), 32, 176–177, 182 New York Times, 48, 185, 199, 234 Newsome, James, 200–201 Nicarico, Jeanine, 403 Nielsen, Marianne O., 8 Nifong, Mike, 226–227 Nonwhite, 10 Norris, Clarence, 199 North Carolina, 398–399 Notre Dame Law Review, 308

O Obama, Barack, 2, 150, 333 O’Connor, Sandra Day, 452 Offenders

characteristics of, 80 drug offenders, 83–84 homicide offenders, 74–75, 474–475 juveniles, explaining disparate treatment

of, 498–500 mass shootings, 84–86 minority youth, 470–477 NCVS data, problems with, 76 overview of, 64, 67, 86 perceptions of, 76–79 popular images of, 43 race and ethnicity of, 34 race of, effect on charging decisions,

229–234 racial gap, community influence on,

81–83 racial gap, theoretical explanations,

80–81 reentry, 433, 446 victims’ perceptions of, 76

Oklahoma City bombing, 390 Olsen, Caroline, 252 Olsen, Kenneth, 252 Omnibus Crime Bill of 1994, 398 “Operation Pipeline,” 171 Orfield, Gary, 127 Ousey, Graham C., 24–25 Outlaw motorcycle gangs (OMGs), 95,

96, 98 Overt racial discrimination, 298–299

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562 I N D E X

P Pacific Islanders

arrest rates, 71–74 definition of, 11 diversity within, 18 drug use, 83–84 homicide victimization, 62 juvenile arrests, 472 police-community relations, 153 in prisons, 424 race bias crimes, 91 victim–offender dyad, 88 violent crime and, 57 women of color and violent

victimization, 59 Pager, Devah, 317 Panel on Juvenile Crime, 485 Panel on Sentencing Research, 295, 300 Parden, Noah, 283, 284 Pardini, Dustin A., 476 Parens patriae, 481 Parole, 434–436 Parole revocation, 436 Part-time employees, 123 Patterson, Haywood, 199 Payday loans, 124 Peak, K., 74 Pearson, Michael A., 442 Pedestrian stops, 163–164 Peer officer comparisons, 172 Pennsylvania, 489–490 Pennsylvania Code of 1700, 318 People of color, 17 Peremptory challenge

elimination of, 268–271 introduction to, 263–265 stereotypes, 264 Supreme Court, 265–268

Perez, Dolores A., 209–210 PERF Model Policy, 173, 174, 177 Personal Responsibility and Work

Opportunity Act (Welfare Reform Act), 440

Personal victimization, 53–55 Petersilia, Joan, 230, 437, 443 Peterson, Dana, 473–474 Peterson, Laci, 45–46 Peterson, Paul E., 139 Pew Hispanic Research Center, 12, 14, 16,

19, 24

Pew Research Center, 13–14, 517 Peyote, 136 Phillips, Leroy, 284 Physical force

controlling, 164–165 de-escalation, 165–166 police brutality, defining, 161 police-community relations, 162–163 prevalence of force and excessive force,

161–162 in traffic and pedestrian stops, 163–164

Pierce, Glenn L., 378 Pine Ridge Indian reservation, 99 Platt, Anthony, 482 Plea bargaining decisions, 236–239 Police

African American and Hispanic employment, trends in, 183–184

attitudes vs. institutional practices, 178 citizen complaints against, 180–182 citizen oversight, 182 community policing movement,

126–127, 130–131, 135 composition of departments, 185 conclusions, 186–187 conduct of, 156 contextual approach to policing

communities of color, 151–154 corruption and communities of color,

178–179 deadly force, 156–161 de-escalation, 163, 165–166, 517 discrimination in assignment, 184–185 disrespect for, 162–163 employment practices, 182–186 excessive force, 161–162 female officers, 186 immigrant communities, relations

with, 18 minority youth and, 477–481 national police crisis, 150–151 offender interactions, 69 officers of color, performance of, 185–186 physical force, 161–166 public attitudes, 154–156 racial profiling, 169–176 shootings by, 1–2, 20–21, 253–254,

511–512 stereotyping and routine police work,

177

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563I N D E X

stop and frisk controversy, 176–177 verbal disrespect and abuse, 177–178

Police auditors, 182 Police brutality, 161. See also deadly force;

physical force Police Chiefs Executive Research Forum

(PERF), 25 Police Executive Research Forum, 166,

174 Police harassment, 480–481 Police-citizen encounters, 162–163 Police-community relations

African American community, 151–152 Arab American community, 153–154 Asian, Native Hawaiian, and Pacific

Islanders, 153 disrespect for police, 162–163 Hispanic American community, 152 immigration enforcement and, 25 improving, 179–180 Native American community, 152–153

Police–community relations (PCR), 179–180

Police-Public Contact Survey (PPCS), 21, 156, 163–164, 171

Ponder, Michael J., 171 Pope, Carl, 478, 484 Portes, Alejandro, 126, 133 Poverty

gangs and, 97 minimum wage, 125 social disorganization theory, 134 status, 124 underclass debate, 127–128

Poverty paradox, 139 Powder cocaine, 298, 332–334, 346 Powell, Lewis, 374, 394 Powell, Ozie, 199 Powell v. Alabama, 198–199, 203 Powers v. Ohio, 266 Pratt, Geronimo, 252–253 Pratt, Travis C., 445 Preferred labels within groups, 14, 16 President’s Crime Commission, 154 President’s Task Force on 21st Century

Policing, 30, 150–151, 156, 166, 167, 177–178, 180

Pretrial detention, 298, 303, 305–306, 338 Prison and jail populations

adjustment to, 443–445

admissions to state and federal prisons by race, 430

correctional personnel, 429 education programs, 434 federal prisoners by race and security

level, 429 gangs, 448–451 gender and age intersectionality,

425–428 historical trends, 430 hostility among released inmates,

445–446 indigenous justice paradigm, 424 international comparisons, 428 mass incarceration, 431, 432–433 minority overrepresentation, 423–425 mortality in, 444–445 offender reentry, 433 prisoner visitation and successful

reentry, 446 race and religion, 446–448 racial and ethnic segregation, 451–453 racial distribution, explanations for, 442 racial/ethnic profiles by gender, 426 recidivism, 431–432 security level of facilities, 428–430 on tribal lands, 425 women in, 453

The Prison Community (Clemmer), 443 Prison gangs, 448–451 “Prison industrial complex,” 419, 431 Prison radicalization, 448 Prison subculture, 443 Prisoners in 2014 (BJS), 21 Probation, 437–438 Problem-oriented policing, 130–131, 135 Procedural justice, 156, 163 Prohibition, 136 Property crimes, 52, 464–465 Proposition 21, 480 Prosecutors, 224–229 Protestant Americans, 136 Public attitudes, 3–4

death penalty, 364–368 immigration, 24 police, 154–156

Public defenders, 204 Public Law 280, 153 Public transportation, 127–128 Pulled Over, 173

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564 I N D E X

Punishment and Prejudice (Human Rights Watch), 328–329

Pure justice, 28, 32 Purkett v. Elem, 267–268

Q Quinn, Patrick, 401 Quinney, Richard, 314

R Race. See also specific groups

admissions to state and federal prisons by race, 430

American Anthropological Association statement, 20

arrest rates by, 71–72 bail decision making, 218–221 categories of, 10–11, 13–19 charging decisions, 225–228 of crime victims, 45–47 criminal justice data, 20–22 diversity within, 17–18 household victimization by, 51 human trafficking, 66 incarceration rate, 426–428 IQ and, 15–16 juvenile arrests by, 471 juvenile homicide offenders, 474 juvenile justice processing in Florida,

487 lifetime likelihood of victimization, 61 NCVS coding, 50 of offenders and victims in charging

decisions, 229–234 overview of, 3–4 parole population by, 435 perceived race of offenders, 77 plea bargaining decisions, 236–239 prison, adjustment to, 443–445 probation population by, 438 property crime victimization by, 465 recidivism, 431–432 selective prosecution, 230–233 self-reported violent behavior, 473 theoretical perspectives, 33–35 uneven distribution of groups, 27 violent behavior, explaining differences

in, 475–476 Race bias crimes. See hate crimes “Race card,” 279–284

“Race neutral” policy, 5 Race-conscious jury selection, 261–262 Race-linked variables, 299 Racial gap, 80–83 Racial hoaxes, 43, 44–45 Racial identity, 443 Racial Justice Act, 398–399, 400 Racial mass, 442 Racial profiling. See also peremptory

challenge bias, eliminating in traffic enforcement,

174–175 introduction to, 169–170 PERF model policy, 173, 174 profiling contexts, 170–171 traffic enforcement data, 171–172 traffic stops, experience of, 172–173 U.S. Customs Bureau, 175

Racial supremacy, 447 Racially Biased Policing: A Principled

Response, 174 Radelet, Michael L., 372–373, 403 Ralph, Paige H., 377 RAND Corporation, 434 Rape. See also sexual assault

death penalty, 363, 369–370, 374, 375–377

Martinsville Seven, 392, 393–394 mistaken eyewitness identification,

277–279 Rape victimization, 61 Rebellion, 132 Recession of 2008–2009, 117, 120, 125 Recidivism, 431–432 Reddick, Gregory, 346–347 Redlining, 128 Reentry success, 433 Refugees, 23 Reidel, Marc, 376, 378 Reiss, Albert, 163, 184–185, 186 Relative social status, 373 Religion, 446–448 Reno, Janet, 231, 388–389 Residential segregation, 127, 128–129,

130 Retroactivity debate, 334 Rice, Tamir, 254, 477 Richmond Times-Dispatch, 199 Rideau, Walter, 253–254 Rio Pedras Prison, 450

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565I N D E X

Riots, 152, 165 Roberson, Willie, 199 Roberts, Dorothy, 235 Roof, Dylan, 511 Roosevelt, Theodore, 284 Root, Dylan, 2 Rosebud Sioux Tribe, 123 Rosenfeld, Richard, 132 Rouse, Kenneth Bernard, 399 Routine activity theory, 137–138 Ruback, R. Barry, 492–493 Russell, Katheryn K., 44–45, 69 Russian Federation, 428 Ryan, George, 359–360, 401, 404

S Saldano, Victor, 399 Sample, Lisa, 335–337 Sampson, Robert J., 134–135 San Francisco Office of Citizen

Complaints, 182 San Quentin State Prison, 449, 450 Sander, Richard, 214 The Sandman Ladies (gang), 97 Sante, L., 95 Sarat, Austin, 386, 405–406 Schanzenbach, Max, 342 Schiraldi, Vincent, 462, 476–477 School discipline, 421–422 School Resource Officers (SRO),

421–422 School to prison pipeline, 421–422 School-based victimizations, 60 “Schools and Prisons: Fifty Years after

Brown v. Board of Education,” 294–295 Schuette v. Coalition to Defend Affirmative

Action, 217 Scott, Walter, 2, 150, 511 Scottsboro boys, 198–200, 252–253 Seattle Police Department, 165 Secret, Philip E., 495, 498 Segregation, 127, 128–129, 130, 137 Selection bias, 76 Selective prosecution, 230–233 Self-identify, 9 Self-report surveys, 79–80 Self-report system, 9, 11 Self-reported violent behavior, 472–474 Sentencing

Asian Americans, 310–311

comparison of by race of judges, 339–342 conclusions, 347–348 contextual effects, 302 criminal record, 317 direct and indirect effects, 304–306 direct impact of race on, 301–302 discrimination and misdemeanor

offenders, 326–327 drug offenses, 328–330 drug offenses in federal courts, 335–337 drug offenses in state courts, 330–332 empirical research, 300–303 hate crime enhancements, 346–347 Hispanic Americans, 306–307 illegal immigrants, 307–309 interracial vs. intraracial sexual assault,

treatment of, 316–319 legally relevant variables in, 299 liberation hypothesis, 324–325 Native Americans, 311–312 overview of, 294–296 penalties for crack and powder cocaine,

332–334 perceptions of, 322–323 race, effect of and various types of

crime, 323–324 race/ethnicity, gender, age, and

employment, 312–316 racial disparity in, 296–300 racial minorities and cumulative

disadvantage, 337–339 racial stereotyping in homicide cases,

326 recent research, 338–339 retroactivity debate, 334 sexual assault, offender–victim race,

319–323 similarities in decision making, 345 unconscious bias, 308

Sentencing Commission, 237 Sentencing enhancements, 480–481 Sentencing Project, 6, 167, 294, 428, 441 Serr, Brian J., 267 The Sex Girls (gang), 97 Sexual assault. See also rape

interracial vs. intraracial sexual assault, sentencing and, 316–319

offender’s race, victim’s race, relationship, and length of sentence, 321–322

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566 I N D E X

Sexual assault (continued ) offender–victim race, 319–323 offender–victim race and sentencing,

319–323 pre-Civil War statutes, 318

Shapiro, Robert, 279 Shapiro, Thomas, 121 Shaw, Theodore M., 253–254 Shelley v. Kraemer, 128 Sheridan, Clare, 258 Shermer, Lauren, 225 Shiner, Marc, 462 Shipp, Joseph, 282–284 Silberman, Charles, 47 Simons, Ronald, 82–83 Simpson, Nicole Brown, 279 Simpson, O. J., 279 Sixth Amendment, 202, 207, 364 Skin tone, 160–161, 338–339 Skinhead gangs, 101–102 Sklansky, David, 183 Skogan, Wesley G., 130, 156, 179 Skolnick, Jerome, 177 Slavery, 373, 378, 442 Smith, Brent, 435 Smith, Douglas A., 178 Smith, Erica, 74 Smith, Michael David, 340 Smith, Susan, 44 Snyder, Allen, 273 Snyder, Howard N., 478 Snyder v. Louisiana, 273 Snyder-Joy, Zoann K., 22 Social bonds, 131 Social capital, 125–128 Social control, 138 Social disorganization theory, 81, 134–

135, 433 Social inequality, 114–115 Social learning theory, 433 Social reform, 139–142 Social strain theory, 132–133 Social structure, 128–131 Social welfare system, 139 The Society of Captives (Sykes), 443 Sociological perspective, 34 Soler, Mark, 484 Sontheimer, Henry, 489–490 Sotomayor, Sonia, 213 Souter, David H., 272

South Africa, 428 Southern Poverty Law Center (SPLC), 87 Southern Ute Indian Tribe, 56 Spears, Jeffrey, 229–230, 320–321, 344 Speech, freedom of, 346–347 Spencer, J., 74 Spitzer, Steven, 315–316 Spohn, Cassia, 210–211, 221–223, 229–

230, 301–303, 304–305, 313–314, 316, 320–321, 324–325, 335–337, 343–345, 379, 435, 437

Stanford Criminal Justice Center, 213 State courts, 330–332, 343–345 State v. Jackson, 267 Steen, Sara, 330–332, 498–499 Steffensmeier, Darrell, 219–220, 306–307,

313, 316, 330, 444 Steiker, Carole, 234 Stereotypes, 160, 177, 281, 326, 392, 422 Stevens, John Paul, 395, 396 Stevenson, Bryan A., 274 Stewart, Darrius, 254 Stewart, Eric, 82–83 Stewart, Potter, 362 Stolzenberg, Lisa, 79 “Stoner” gangs, 102 Stop and frisk controversy, 176–177 “Stop and frisk” policy, 32 Storro, Bethany, 43 Strauder, Taylor, 256 Strauder v. West Virginia, 256, 258 Street crimes, 64 Street gangs, 94–95 Strickland v. Washington, 205 Strom, Lyle, 332 “A Study of Active Shooter Incidents

Between 2000 and 2013,” 85 Subtle racial discrimination, 298 Suicide, 444 Sullivan, Thomas P., 404 Supplemental Homicide Reports (SHR),

62, 469, 474 Supplemental Nutritional Assistance

Program (SNAP), 440 Sur 13, 101 Sutherland, Edwin, 133 Sutton, John, 338 Swain, Robert, 265 Swain v. Alabama, 265–266 Sweeten, Bonnie, 45

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567I N D E X

Sykes, Gresham, 443 Systematic discrimination, 28, 31 Systemic discrimination, 514–515

T Taslitz, Andrew E., 234 Tate, Lionel, 461–462 Taylor, Nevada, 282–283 Taylor, Ralph, 135 Temporary Need to Needy Families

(TANF), 440 Tennessee v. Garner, 159 Terry v. Ohio, 176 Texas, 258–259, 399–400 Texas Civil Rights Project, 400, 401 Texas Syndicate, 451 Theoretical perspectives

conflict theory, 33–35, 137, 391 culture conflict theory, 81, 136 current theories, limits of, 138–139 differential association theory, 133–134 on inequality and crime, 131–139 on race, ethnicity, and crime, 33–35 routine activity theory, 137–138 social disorganization theory, 81, 134–

135, 433 social strain theory, 132–133

Theory of African American Offending, 80–81

Thernstrom, Abigail, 140–141 Thernstrom, Stephan, 140–141 “Thieves, Convicts, and Inmate Culture”

(Irwin and Cressey), 443 Thomas, Clarence, 213 Thomas, Jim, 445 Thompson, Peter N., 281 Till, Emmett, 226 Title VI of Civil Rights Act, 65–66, 214,

216 Title VII of Civil Rights Act, 31, 140 “Tong” societies, 100 Tonry, Michael, 230–231, 327, 432, 513,

516–517 Traffic stops, 163–164

bias, eliminating, 174–175 experience of, 172–173 by race and ethnicity, 172 racial profiling, 169–176 traffic enforcement data, 171–172

Trials. See criminal trials

Tribal Healing to Wellness Courts, 439–440

Tribal justice, 424 Tribal lands, jails on, 425 Tribal Law and Policy Institute (TLPI),

439–440 Tribal police, 153 Tuch, Stephen A., 162 Tucker, Samuel, 394 Two Nations: Black and White, Separate,

Hostile, Unequal (Hacker), 116

U Uhlman, Thomas M., 341–343 Umatilla Indian Reservation, 56 Unconscious bias, 30, 160, 263, 298–299,

307, 308, 515 Underclass, 97, 127–128 “Underground economy,” 123 Unemployment, 122–124, 315–316 Unemployment rate, 3, 117, 437, 442, 514 Uniform Crime Report (UCR)

hate crimes, 92 homicide reports, 88 human trafficking, 66–67 operationalization of race in, 70 overview of, 20, 21 problems with, 68–70, 512 proposal to eliminate race from, 68

Uniform Crime Reports (UCR) Program, 62

United States exrel. Haynes v. McKendrick, 281

United States Sentencing Commission, 342, 332–334

United States v. Nelson, 262 The University of Chicago Law Review, 209 University of Michigan Law School, 214,

216 Unnever, James D., 367–368 Urban Institute, 131 Urban poverty, 127 Urbanization, effect of, 52–53, 55–59 U.S. Attorney General, 231 U.S. Census, race and ethnicity categories,

9–10, 11, 12 U.S. Customs Bureau, 175 U.S. General Accounting Office (GAO),

379 U.S. Sentencing Commission, 228

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568 I N D E X

U.S. Supreme Court. See also specific cases death penalty, 361 effective assistance of counsel, 205 lynching, 282–284 non-whites on, 213 peremptory challenge, 265–268 racial discrimination in application of

death penalty, 392–400 victim-based racial discrimination,

392–393 U.S. v. Armstrong et al., 232–233 U.S. v. Blewett, 334 USA PATRIOT Act, 441

V Vagrancy, 33, 137, 442 Validity, 80 Vance, Cyrus R., 238 Vardaman, Paula J., 492–493 Vera Institute of Justice, 18, 238 Verbal disrespect and abuse, 177–178 Victim assistance, 63 Victim-based racial discrimination,

392–393 Victim–offender dyad, 87–88, 299–300,

303, 319–323, 391 Victims/victimization

broader picture of, 47–48 college students, 54 disability and, 93 homicide victimization, 62–64,

469–470 household victimization, 51–52 lifetime likelihood of victimization,

61–62 perceptions of offenders, 76 personal victimization, 53–55 popular images of, 43 prevalence of, 59–61 race and ethnicity of, 34 race and gender of, 45–47 race of, effect on charging decisions,

229–234 school-based victimizations, 60 urbanization, effect of, 52–53, 55–59 women of color, 58–59 young girls, 468–469

Vietnamese American gangs, 100 Viglione, Jill, 338 Violence

predictions of, 82–83 racial and ethnic differences in,

475–476 self-reported violent behavior,

472–474 “Violence Against American Indian and

Alaska Native Women,” 56 Violent victimization

Asian Americans, Native Hawaiian, and Pacific Islanders, 57

juvenile violent victimization, 466–468 minority youth, 465–468 Native Americans, 55–56 by race and ethnicity, 53 racial differences in, 466–468 school-based, 60 women of color, 58–59

Virginia Code of 1819, 318 Voting rights, 441 Voting Rights Act, 14, 140

W Wadsworth, Tim, 24 Walker, Samuel, 177–178, 217 Walker, Thomas G., 341 Walsh, Anthony, 320 Walters, Reed, 233–234 War on drugs, 167–169, 231–233, 327,

432–433, 440, 517 War on Poverty, 139, 141 Warren, Earl, 259 Washington Post, 7, 20, 157 Wealth, 118–120 Wealth gap, 121–122 Wealth inequality, 121–122 Weitzer, Ronald, 152, 155, 162, 206 Welch, Susan, 339–340, 343 Well-being, 131 West, Cornell, 139–140 Westjohn, Karla, 93 Wheels of Soul motorcycle gang, 96 White, Byron, 362 White, Karletta M., 160–161 White, Norman A., 58 White Americans

arrest rates, 70, 71–73 attitudes about death penalty, 367 attitudes about police, 154–156, 162,

164 bail decision making, 218–223

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569I N D E X

death penalty, 371–372, 373, 381, 383–386, 389, 390

as defendants and the exclusion of Black jurors, 266

drug offenses and sentencing, 330–332, 335–337, 338–339

drug use, 5, 83 emergency assistance and inheritance,

121 estimated probabilities of incarceration,

305 experiences with justice system, 512 gangs, 95, 96, 97 homicide offenders, 74 homicide victimization, 62–64 incarceration rate, 3, 296, 306–307, 310 insurance coverage, 124 judges, 339–345 juvenile arrests, 472 juvenile homicide victimization,

469–470 juvenile offenders, 482–483, 485–486,

492–494 juvenile population in the U.S., 463 juvenile violent victimization, 466–468 juveniles under correctional

supervision, 500–501 lifetime likelihood of victimization,

61–62 mass shootings, 85 median family income, 117–118 offender’s race, victim’s race,

relationship, and length of sentence, 321–322

perceptions of offenders, 77 poverty status, 124 prevalence of crime victimization,

59, 61 prison and jail populations, 430 in prisons, 423, 424–425 probation population, 437–438 public defenders, 206, 209–211 race bias crimes, 91 race relations, view of, 3–4, 511, 517 sentencing, 297 sentencing comparison by race of

judges, 339–345 sexual assault sentencing, 319 traffic enforcement data, 171–172 in UCR arrest information, 69–70

unemployment and sentencing, 315–316 unemployment rate, 3, 122–123, 437 use of the term, 19 victimization rates, 52–55 waiver to criminal court, 497 wealth, 119–120

White Aryan Resistance (WAR), 101–102 White racism, 367 “White Supremacist Gangs in the United

States,” 450 White-on-black crime, 89 White-on-white crime, 89 Whittle, Kennon Caithness, 393 Wice, Paul B., 206–207 Wilkins, Robert, 169–170 William Wilburforse Trafficking Victims

Protection Reauthorization Act of 2008, 66

Williams, Joel West, 447 Williams, Marian R., 387 Williams, Terry, 205 Williams v. Taylor, 205 Wilmot, Keith, 311–312 Wilson, Darren, 1 Wilson, David B., 166 Wilson, James, 373 Wilson, James Q., 130 Wilson, William Julius, 130 Wiltwyck School, 126 Wirth, Louis, 16 Wisconsin v. Mitchell, 346–347 Wishman, Seymour, 257, 265 Wolf, Eric R., 19 Wolfe, Scott, 309–310 Wolfgang, Marvin E., 376, 378 Women

pregnant women, prosecution of for drug use, 234–236

prison and jail populations, 425–428 in prisons, 453

Women of color African American girls, victimization

of, 422, 468–469 collateral consequences, 440 domestic violence, 56 media coverage of, 45–47 pregnant women, prosecution of for

drug use, 234–236 prison and jail populations, 453 violent victimization, 58–59

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570 I N D E X

Wood, Peter, 322–323 Woodworth, George, 380 World Bank, 126 Wriggins, Jennifer, 318 Wright, Kevin N., 443 Wrongful convictions, 403–404 Wynn, Porche, 476

Y Yaroshefsky, Ellen, 204 Yinger, J. Milton, 10

Young, Dematric, 328 Young, Iris Marion, 311 Youth gangs, 94

Z Zatz, Marjorie, 300, 312, 435, 481 Zeisel, Hans, 270, 323–324 Zero-tolerance disciplinary policies, 421 Zoot Suit Riot, 152 Zuni Pueblo Indian Tribe, 56

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  • Cover
  • About the Authors
  • Brief Contents
  • Contents
  • Preface
  • Ch 1: Race, Ethnicity, and Crime: American's Continuing Crisis
    • The National Race Crisis, 2014-2016
    • Is Discrimination Just a Myth?
    • Objectives of the Book
    • The Colors of America: Racial and Ethnic Categories
    • Problems with Criminal Justice Data on Race and Ethnicity
    • The Crime and Immigration Controversy
    • The Geography of Racial and Ethnic Justice
    • Disparity versus Discrimination
    • A Theoretical Perspective on Race, Ethnicity, and Crime
    • Conclusion
    • Discussion Questions
    • Notes
  • Ch 2: Victims and Offenders: Myths and Realities about Crime
    • Media and Crime
    • A Broader Picture of the Crime Victim
    • Picture of the Typical Offender
    • Crime as an Intraracial Event
    • Crime as an Interracial (Hate) Event
    • Ethnic Youth Gangs
    • Conclusion
    • Discussion Questions
    • Notes
  • Ch 3: Race, Ethnicity, Social Structure, and Crime
    • A Snapshot of Coming Home from Prison: Social Inequality and Criminal Justice
    • Inequality and Crime
    • Economic Inequality
    • Social Capital and Cultural Capital
    • Community Social Structure
    • Theoretical Perspectives on Inequality and Crime
    • Inequality and Social Reform
    • Conclusion
    • Discussion Questions
    • Notes
  • Ch 4: Justice on the Street? The Police and People of Color
    • Unequal Justice? The National Police Crisis
    • A Contextual Approach to Policing Communities of Color
    • Public Attitudes about the Police
    • Police Use of Deadly Force
    • "Police Brutality": Police Use of Physical Force
    • Discrimination in Arrests?
    • Traffic Stops: Racial Profiling
    • The Stop and Frisk Controversy
    • Verbal Disrespect and Abuse
    • Police Corruption and Communities of Color
    • Improving Police-Community Relations
    • Citizen Complaints against the Police
    • Police Employment Practices
    • Conclusion
    • Discussion Questions
    • Notes
  • Ch 5: The Courts: A Quest for Justice during the Pretrial Process
    • African Americans in Court: The Case of the Scottsboro Boys
    • The Situation Today
    • Decisions Regarding Counsel and Bail
    • Charging and Plea Bargaining Decisions
    • Conclusion
    • Discussion Questions
    • Notes
  • Ch 6: Justice on the Bench? Trial and Adjudication in Criminal Court
    • Race/Ethnicity and the Criminal Trial
    • Selection of the Jury Pool
    • The Peremptory Challenge: Racial Profiling in the Courtroom?
    • Race and Jury Selection in the Twenty-First Century
    • Exonerating the Innocent: Rape, Race, and Mistaken Eyewitness Identification
    • Playing the "Race Card" in a Criminal Trial
    • Race-Conscious Jury Nullification: Black Power in the Courtroom?
    • Conclusion
    • Discussion Questions
    • Notes
  • Ch 7: Race and Sentencing: In Search of Fairness and Justice
    • Race and Sentencing: Is the United States Moving Forward or Backward?
    • Racial Disparity in Sentencing
    • Empirical Research on Race and Sentencing
    • When Does Race/Ethnicity Matter?
    • Conclusion
    • Discussion Questions
    • Notes
  • Ch 8: The Color of Death: Race and the Death Penalty
    • The Constitutionality of the Death Penalty
    • Attitudes toward Capital Punishment
    • Race and the Death Penalty: The Empirical Evidence
    • McClesky v. Kemp: The Supreme Court and Racial Discrimination in the Application of the Death Penalty
    • The Death Penalty in the Twenty-First Century
    • Conclusion
    • Discussion Questions
    • Notes
  • Ch 9: Corrections in America: A Portrait in Color
    • The Incarcerated: Prison and Jail Populations
    • Community Corrections
    • Conclusion
    • Discussion Questions
    • Notes
  • Ch 10: Minority Youth and Crime: Minority Youth in Court
    • The Juvenile Population in the United States
    • Young Racial Minorities as Victims of Crime
    • Young Racial Minorities as Offenders
    • Juveniles of Color and the Police
    • Race/Ethnicity and the Juvenile Justice System
    • Juveniles under Correctional Supervision
    • Conclusion
    • Discussion Questions
    • Notes
  • Ch 11: The Color of Justice
    • Explaining Persistent Racial and Ethnic Disparities
    • Explaining the Disparities: Systematic Discrimination?
    • Past and Present
    • The Stubborn Persistence of Racial and Ethnic Disparities
    • Notes
  • Selected Bibliography
  • Index