Policies and Practices
The criminal justice system is held together by policies and practices, both formal and informal, which influence the degree to which an individual penetrates the system. At multiple points in the system, race may play a role. Disparities mount as individuals progress through the system, from the initial point of arrest to the final point of imprisonment.26) Harsh punishment policies adopted in recent decades, some of which were put into effect even after the crime decline began, are the main cause of the historic rise in imprisonment that has occurred over the past 40 years.27)
The rise in incarceration that has come to be known as mass imprisonment began in 1973 and can be attributed to three major eras of policymaking, all of which had a disparate impact on people of color, especially African Americans. Until 1986, a series of policies was enacted to expand the use of imprisonment for a variety of felonies. After this point, the focus moved to greater levels of imprisonment for drug and sex offenses. There was a particularly sharp growth in state imprisonment for drug offenses between 1987 and 1991. In the final stage, beginning around 1995, the emphasis was on increasing both prison likelihood and significantly lengthening prison sentences.28)
Harsh drug laws are clearly an important factor in the persistent racial and ethnic disparities observed in state prisons. For drug crimes disparities are especially severe, due largely to the fact that blacks are nearly four times as likely as whites to be arrested for drug offenses and 2.5 times as likely to be arrested for drug possession.29) This is despite the evidence that whites and blacks use drugs at roughly the same rate. From 1995 to 2005, African Americans comprised approximately 13 percent of drug users but 36% of drug arrests and 46% of those convicted for drug offenses.30)
Disparities are evident at the initial point of contact with police, especially through policies that target specific areas and/or people. A popular example of this is “stop, question, and frisk.” Broad discretion allowed to law enforcement can aggravate disparities. Though police stops alone are unlikely to result in a conviction that would lead to a prison sentence, the presence of a criminal record is associated with the decision to incarcerate for subsequent offenses, a sequence of events that disadvantages African Americans. Jeffrey Fagan’s work in this area found that police officers’ selection of who to stop in New York City’s high-profile policing program was dictated more by racial composition of the neighborhood than by actual crime in the area.31) The process of stopping, questioning and frisking individuals based on little more than suspicion (or on nebulous terms such as “furtive behavior,” which were the justification for many stops) has led to unnecessary criminal records for thousands. New York’s policy was ruled unconstitutional in 2013 with a court ruling in Floyd v. City of New York.
Other stages of the system contribute to the racial composition of state prisons as well. Factors such as pre-trial detention—more likely to be imposed on black defendants because of income inequality—contributes to disparities because those who are detained pre-trial are more likely to be convicted and sentenced to longer prison terms.32) Cassia Spohn’s analysis of 40 states’ sentencing processes finds that, though crime seriousness and prior record are key determinants at sentencing, the non-legal factors of race and ethnicity also influence sentencing decisions. She notes that “black and Hispanic offenders—particularly those who are young, male, and unemployed—are more likely than their white counterparts to be sentenced to prison than similarly situated white offenders. Other categories of racial minorities—those convicted of drug offenses, those who victimize whites, those who accumulate more serious prior criminal records, or those who refuse to plead guilty or are unable to secure pretrial release—also may be singled out for more punitive treatment.”33)
Still other research finds that prosecutorial charging decisions play out unequally when viewed by race, placing blacks at a disadvantage to whites. Prosecutors are more likely to charge black defendants under state habitual offender laws than similarly situated white defendants.34) Researchers in Florida found evidence for this relationship, and also observed that the relationship between race and use of the state habitual offender law was stronger for less serious crimes than it was for more serious crimes.35) California’s three strikes law has been accused of widening disparities because of the greater likelihood of prior convictions for African Americans.
Implicit Bias
The role of perceptions about people of different races or ethnicities is also influential in criminal justice outcomes. An abundance of research finds that beliefs about dangerousness and threats to public safety overlap with individual perceptions about people of color. There is evidence that racial prejudice exerts a large, negative impact on punishment preferences among whites but much less so for blacks.36) Other research finds that assumptions by key decision makers in the justice system influence outcomes in a biased manner. In research on presentence reports, for example, scholars have found that people of color are frequently given harsher sanctions because they are perceived as imposing a greater threat to public safety and are therefore deserving of greater social control and punishment.37) And survey data has found that, regardless of respondents’ race, respondents associated African Americans with terms such as “dangerous,” “aggressive,” “violent,” and “criminal.”38)
Media portrayals about crime have a tendency to distort crime by disproportionately focusing on news stories to those involving serious crimes and those committed by people of color, especially black-on-white violent crime.39) Since three-quarters of the public say that they form their opinions about crime from the news,40) this misrepresentation feeds directly into the public’s crime policy preferences.
Reforms to media reporting that more carefully and accurately represent the true incidence of specific crimes and their perpetrators, and victims, would change perceptions about crime, but in themselves would not necessarily impact how these perceptions translate into policy preferences. A 2013 study by Stanford University scholars found that public awareness of racial disparities in prisons actually increases support for harsher punishments.41) Using an experimental research design, researchers exposed subjects to facts about racial compositions. When prisons were described as “more black,” respondents were more supportive of harsh crime policies that contribute to those disparities. On the other hand, some find that when individuals—practitioners in particular—are made consciously aware of their bias through implicit bias training, diversification of the workforce, and education on the important differences between implicit and explicit bias, this can mitigate or even erase the actions they would otherwise take based on unexplored assumptions.42)
Structural Disadvantage
A third explanation for persistent racial disparities in state prisons lies in the structural disadvantages that impact people of color long before they encounter the criminal justice system. In this view, disparities observed in imprisonment are partially a function of disproportionate social factors in African American communities that are associated with poverty, employment, housing, and family differences.43) Other factors, not simply race, account for differences in crime across place. Criminologists Ruth Peterson and Lauren Krivo note that African Americans comprise a disproportionate share of those living in poverty-stricken neighborhoods and communities where a range of socio-economic vulnerabilities contribute to higher rates of crime, particularly violent crime.44) In fact, 62% of African Americans reside in highly segregated, inner city neighborhoods that experience a high degree of violent crime, while the majority of whites live in “highly advantaged” neighborhoods that experience little violent crime.45) Their work builds on earlier research focused on the harms done to the African American community by disparate living environments, and extends this knowledge to evidence that this actually produces social problems including crime.
The impact of structural disadvantage begins early in life. When looking at juvenile crime, it is not necessarily the case that youth of color have a greater tendency to engage in delinquency, but that the uneven playing field from the start, a part of larger American society, creates inequalities which are related to who goes on to commit crime and who is equipped to desist from crime.46) More specifically, as a result of structural differences by race and class, youth of color are more likely to experience unstable family systems, exposure to family and/or community violence, elevated rates of unemployment, and more school dropout.47) All of these factors are more likely to exist in communities of color and play a role in one’s proclivity toward crime.