Explainer: Systemic Racism in the Criminal Justice System

The United States population is equivalent to 4.25 percent of the world’s population, and yet the United States jails roughly 20 percent of the world’s prisoners.


Why does the “land of the free” — a country whose Constitution places a premium on liberty — boast the highest incarceration rate in the world?

Could this be an accident? Or was this a purposeful response to the abolition of slavery? A carefully crafted design intended to alleviate the personal and economic anxieties of the white man following the Civil War?

A thorough accounting of our nation’s history would suggest it to be the latter, and it all dates back to the Thirteenth Amendment.

Passed by Congress in January of 1865 and ratified by 27 of 36 states in December of the same year, the Thirteenth Amendment acted to abolish slavery and involuntary servitude in the wake of the Civil War. As a result, the amendment was rightfully lauded by many. But the text of the Thirteenth Amendment included a key provision: an exception built into the language of the reform that allowed for slavery or involuntary servitude in cases of crime.

While perhaps well-meaning in its intent, this oft-exploited loophole served as a vehicle for continued segregation and free labor, first via the crimes of loitering and vagrancy and, later, via violations of Jim Crow laws and low-level drug offenses.

Consider, in the year 1970, the U.S. prison population was 357,292 — a mere 0.17 percent of the total population.

But something revolutionary was happening. In the late 1960s and early 1970s, the United States saw the emergence of the Black Panther Party and the Black Power movement, which came on the heels of the Civil Rights Act, the Voting Rights Act, and the slow dismantling of Jim Crow laws.

And the response was seismic.

The 1970s launched an era of mass incarceration, as political rhetoric rallying around “law and order” became a key feature of candidates’ campaigns. “Law and order,” you see, was a central tenet of the “Southern strategy” — an electoral action plan designed to increase political support amongst white voters by appealing to racist sentiment.

As John Ehrlichman, advisor to Richard Nixon, is quoted as saying, “The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and Black people. You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or Black, but by getting the public to associate the hippies with marijuana and Blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and villify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.” 

Now, it is true that Ehrlichman had reason to feel betrayed by Nixon, as Nixon declined to pardon him in the wake of the Watergate scandal (Ehrlichman had been convicted of conspiracy, obstruction of justice, and perjury). But we need not rely solely upon his word to conclude that the war on drugs was, at least in part, motivated by race.

Take discrepancies in mandatory sentencing, for example. It was not until the Fair Sentencing Act of 2010 that disparities between mandatory minimums for crack cocaine and mandatory minimums for powder cocaine were reduced. Prior to that, the Anti-Drug Abuse Act of 1986 was prevailing law. Under that law, possession of just five grams of crack cocaine would trigger a five-year mandatory prison sentence, while one would need to possess 500 grams of powder cocaine in order to trigger that same minimum.

Why was this problematic? Because statistics show that Black people were more likely to be convicted of crack cocaine offenses, while white people were more likely to be convicted of powder cocaine offenses — meaning Black people were being punished disproportionately. And even if we were to accept as valid the justifications proffered for the discrepancy, said justifications do not explain why, according to the United States Sentencing Commission, Black people constituted 84.5 percent of crack cocaine convictions, despite the fact that research shows that two-thirds of crack users are white or Hispanic.

And these discriminatory practices — and the racist sentiments that they breed — continue today, which is why it is imperative upon us to address and discuss them. Not because I believe my readers to be racist, but because we are all guilty of our own implicit biases, and even in the absence of bias, it is impossible to properly analyze a data set without the proper context or framework.

To that end, I am going to share and respond to two questions that I have personally encountered. These questions are likely to offend some of my readers, but that just makes them all the more important to address.

Take the below query posted to social media:

“Do you think committing 30% of all crimes while constituting 13.4% of the population bares [sic] any responsibility for how some view the African American community?”

Now, the above question is critically flawed. It makes the false assumption that the criminal justice system acts without bias, and we know that not to be true. Take subsequent reports on and analyses of “stop and frisk” in New York, for example, which found that minorities were disproportionately targeted by the practice — constituting roughly 90% of stops — despite the fact that those searches routinely revealed that they were actually less likely to possess contraband than their white counterparts. In fact, according to a report by Yale Law School professor William Townsend, during stops in Los Angeles, frisked Black Americans were 42.3% less likely to be found with a weapon than frisked white Americans, and consensual searches of Black Americans were “37.0% less likely to uncover weapons, 23.7% less likely to uncover drugs, and 25.4% less likely to uncover anything else.” And yet, Black people were 127 percent more likely to be stopped.

Holding that fact in mind, let’s engage in a thought experiment.

If there are 100 people that are stopped and frisked — 90 of them Black, 10 white — and 10 percent of both groups of individuals are prone to possessing contraband (meaning neither group is more predisposed to crime than the other), then nine Black people would ultimately be arrested, along with just one white person. Now, some would likely view those numbers and conclude that Black people are significantly more likely to commit crime, when, in actuality, that wouldn’t be the case at all. They just happened to be targeted far more often than white people, which subsequently skewed the statistics. And if that was happening in New York City and Los Angeles — two of the more progressive cities in the nation — it would be naive to think that it’s not happening elsewhere, especially in those regions with a more fraught racial past.

“But how do you account for the fact that Black men account for nearly 50% of the violent crime in this country? If you’re suggesting that it’s because of implicit bias within the justice system, then you’re also suggesting that tens of millions of Black men have been convicted for murders they didn’t commit.”

First, 40 percent of murders and 55 percent of violent crimes go unsolved, so it is impossible to know what the true statistical breakdown is, as the race of a large percentage of perpetrators is still unknown.

And yes, not only are Black people more likely to be disproportionately targeted, studies have consistently shown that they are more likely to be framed and/or wrongfully convicted, as well. “African Americans are only 13% of the American population but a majority of innocent defendants wrongfully convicted of crimes and later exonerated. They constitute 47% of the 1,900 exonerations listed in the National Registry of Exonerations (as of October 2016), and the great majority of more than 1,800 additional innocent defendants who were framed and convicted of crimes in 15 large-scale police scandals and later cleared in group exonerations.”

Further, studies have shown that prosecutors are more likely to bring charges against Black defendants than white defendants, such that offices around the country are starting to implement what they call “blind charging” in an attempt to eliminate some of the effects of that bias. And juries are more likely to convict Black defendants than they are white defendants when there are no Black jurors in their ranks — a seemingly all-too-common event. These factors combine to create an environment where Black people are more likely to be charged and convicted than their white counterparts — an unfortunate reality that is, at least in part, responsible for the disparity.

Another factor responsible is poverty. According to the policy and research arm of the U.S. Department of Housing and Urban Development, “Neighborhoods with more concentrated disadvantage tend to experience higher levels of violent crime,” “racially and ethnically segregated neighborhoods also tend to have higher rates of violent crime,” and “violent crime rates in predominantly African-American and Latino neighborhoods differ little from predominantly white neighborhoods after controlling for segregation and disadvantage.” Thus, since — as of the most recent available Census — Black people are more than twice as likely to experience poverty as their non-Hispanic white counterparts (18.8 percent to 7.3 percent, respectively), it is unsurprising that they account for a larger percentage of crime than their population size alone might predict.

Because, ultimately, Black people in America suffer from enormous economic inequality stemming from centuries of oppression, and due to deliberate public policies engineered to ensure residential segregation, this opportunity gap continues to persist.

Combine that with the fact that Black people are also more likely to be targeted, to be arrested, to face harsher booking decisions, to be charged with offenses carrying mandatory minimums, and to receive longer sentences for the same crimes, and you get a criminal justice system and prison-industrial complex that effectively serves as a de facto extension of Jim Crow.

Now, remember that number I gave you earlier? The 1970 U.S. prison population of 357,292? Today, that number is 2.3 million, roughly 0.7 percent of our current population. Six times higher if you go by sheer numbers; four times higher if you go by percentage of population.

34 percent of those individuals are Black men, despite the fact that Black men make up just 6.5 percent of the population. And the lifetime likelihood of imprisonment for Black men is one in three — significantly higher than the one in 17 for white males.

Which brings us back to that all-important question: Why?

For starters, many of our early legislators suffered from either overt racism or implicit bias, and that often translated into the laws they drafted. And even when a law isn’t racist on its face, it is often exploited by malevolent actors who are.

What’s more, many in the United States stand to profit from the continued incarceration of our peers.

Privatized prison systems generate billions in revenue each year.

Governments and corporations benefit from the free or reduced costs of prison labor.

Remember the free labor that was stripped from America’s slaveowners following the Civil War? With the prison-industrial complex, some have been able to reclaim it. The Texas Department of Criminal Justice, for example, offers no salary or monetary renumeration for their prison labor. Nor do the states of Georgia, Alabama, or Arkansas. In other states, the minimum wage for prison labor is as low as $0.05 per hour for industry jobs and $0.04 per hour for non-industry jobs. This, despite their enormous economic impact. A 2004 economic analysis of state and federal prison labor, for example, estimated that inmates had produced more than $2 billion worth of goods and services in the previous year.

So how do we fix this?

The solution is going to require large-scale criminal justice reform.

We will need to address problems in policing by employing better screening measures, offering implicit bias training, increasing the use of special prosecutors in misconduct investigations, investing in community policing, ensuring true race-neutrality in department policies, and increasing oversight and strengthening accountability.

We must end the war on drugs, abolish private prisons, incentivize states to reduce their prison populations, explore “blind charging,” and advance comprehensive sentencing reform.

And, equally as important, we will need to address the structural inequities that exist, which lead to lower levels of opportunity for Black Americans and make them more susceptible to crime.

If you would like to join the effort to advocate for criminal justice reform, consider getting involved with a local or national organization, such as the ACLU, The Sentencing Project, Vera Institute of Justice, Prison Policy Initiative, The Marshall Project, Families Against Mandatory Minimums, Equal Justice Initiative, or the Ella Baker Center for Human Rights.

And if you would like to learn more about racism in the criminal justice system, consider picking up a copy of “The New Jim Crow” by Michelle Alexander.

A list of black-owned independent bookstores can be found here.

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Patrick Sullivan


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