Racism in the Criminal Justice System

As compared to constituents of the socially dominant faction, ethnic minorities are much more liable to be detained, questioned, and searched by law enforcement officials. Once they have been arrested, minority members are also more likely to suffer police brutality and are more likely to be held in jail while waiting for their trial date instead of having an opportunity to post bond. When tried for a crime, they face a higher probability to be found guilty and are less apt to serve their sentences outside of prison such as serving community service. In addition, they face a disproportionate probability of serving longer prison sentences for like crimes, will less likely be approved for early release and will more likely be executed if convicted of a capital crime and when convicted of capital offenses, especially if the victim is one of the dominant ethnicity (white). This discussion will provide evidence of a racist justice system. It will also briefly review the psychological and societal explanations for this unfortunate circumstance.

The racist justice system is simply a reflection of the society it serves. People are inclined to respond on the basis of their own experience when it comes to social interactions and social biases such as racism. Therefore, people who have never experienced racism in a real sense have a tendency to downplay a condition of racism or discrimination. Minorities are more easily affected by racism as it is a more aggravated offense to them.

Where you stand racially in a society determines your perspective on the issue. People of the majority in a social context have a propensity to feel that the world is, for the most part, a pretty fair place where people normally get what they deserve and deserve what they get. The virtuous are rewarded and evil doers are reprimanded, a conception of a just world resulting from our training as children. The inherent conclusion that can be drawn from that kind of reasoning is that those who are rewarded must be good, and those who suffer, if even from our own discrimination and prejudice, must deserve their fate (Rosado, 1998). If people do not see a situation as threatening to them they may conclude that it is not foreboding to others as well, often because they see the social system as fair, with liberty and justice for all. Racism is an immoral and a social sickness that is difficult to eradicate, because of the selfish predispositions of human nature.

Minority members whether racial or ethnic are vulnerable groups who too often face persecution, subjective imprisonment, offensive treatment by law enforcement, and unequal treatment in the court system. “Ostensibly race or descent-neutral laws can have a disparate impact on vulnerable minorities or even majorities as a consequence of prosecutorial discretion, or sentencing policies, or the nature of the law itself” (Human Rights Watch, 1981). At the national and local policing level, ethnic inequities arise from practices such as racial profiling where an individual’s presumed race is the determining factor in placing them under suspicion. The criminal justice system has the vast potential for implementing an unjustified discriminatory outcome even when there is no obvious racist intention. “Discriminatory impact can be shown in patterns of police abuse, arbitrary arrest, incarceration, prosecution, and sentencing” (Human Rights Watch, 2001).

Racial profiling begins cycle of discrimination within the criminal justice system. Police departments use offender profiles, which is described as a series of behavioral and personal characteristics related with specific offenses, to make predictions regarding the type of person that may commit future crimes. Other reasons why offender profiles might be used are to identify the type of individual that might have already committed a crime for which they have identified no credible suspect or as yet not located an eye-witness to the event. The term criminal profiling progresses to racial profiling when the defining characteristics used comprises ethnicity, religion or race.

The popularly stated position is that racial profiling is a necessary law enforcement tool. Not using it would compromise the effort against terrorism thus sacrificing national security. This argument is fundamentally flawed because it erroneously presupposes that racial profiling is an essential element of this emotion-evoking endeavor. However, the reverse is accurate. Profiling, as a tactic employed by law enforcement, redirects important assets, estranges and enrages prospective allies and, most importantly, is contradictory with the uniquely American concept of equality and freedom.

Prior to the attacks of September 11, when most people heard the term ‘racial profiling’ the first image that came to mind was the practice of police officers stopping and harassing young, black drivers by a much higher percentage than they did other drivers. African-Americans of all ages rightly complained that they were being disproportionately detained and asked non-pertinent questions by the police. The practice is commonly referred to as ‘driving while black.’ This is a procedure used by police because statistics have shown that African Americans, especially young males, are more likely than are whites to be involved in the commission of a crime. Racial profiling is illegal but police are allowed to stop and search drivers if they have reason to believe that person may be in possession of drugs or weapons so therefore, this practice continues. (Leadership Conferences, 2002: 203).

Since September 11, law enforcement agencies around the country are practicing a new type of racial profiling which has the approval of most all citizens. It is referred to as ‘flying while Arab.’ “In the post-September 11 climate, ‘driving while black’ has become ‘flying while brown…” (Leadership Conferences, 2002: 204). Many cases have been reported where Arab, or ‘Arab looking’ Americans have been ordered to depart airplanes simply because their appearance was making some of the other passengers uneasy.

While most would have agreed prior to September 11 that racial discrimination is morally wrong and cannot be justified for any reason, those following the tragic events which killed more than 3000 Americans and the continued threat of terrorism has made this practice more palatable and even desirable. Had the terrorists that committed these acts not been of Arab descent, then the profiling of airplane passengers and the widespread fear of this particular ethnic group would not be a matter of discussion. Profiling Arabs is an easy sell to a country made up principally of non-Arabs. (McDonald, 2001).

Following the Oklahoma City federal building bombing in 1995, there was no public outcry to profile white men. Virtually all persons of Arab descent who are detained at airports, kicked-off airplanes, have their bags searched or are looked at with suspicion almost everywhere they go are not terrorists. Racial profiling contains racist overtones that send a clear message to the rank and file of a police department; racism is tolerated if used in the line of duty. Undoubtedly, if profiling in the name of terrorism has not been proved effective, the profiling of black citizens in the name of ‘getting tough on crime’ is not effective as well and causes more harm, ultimately, than whatever good may come of it. “Racial profiling in any manifestation is a flawed law enforcement tactic that is in direct conflict with constitutional values” (McDonald, 2001).

In addition, racism is an immoral and a social sickness that is difficult to eradicate because of the selfish predispositions of human nature and should not be allowed to proliferate in any police agency. A police department’s function in society is to reflect the values of that society. If it does not, it becomes despised by the public and eventually irrelevant therefore unsuited to perform its duties. All of these considerations should be of utmost importance to police management. Whatever the people of the U.S. decide on the question of racial profiling even during these fearful times of uncertainty and terror, generations that are yet to come may judge what we do now as reprehensible mimicking what those of us now think of past generations of Americans that thought it proper to imprison innocent Japanese-Americans in internment camps during the Second World War (Colb, 2001).

Decisions regarding what person to stop, question and detain based upon characteristic generalities that are either observable or perceived such as race is based on the inductive profiling method. However, even when generalizations are statistically legitimate, they can be very erroneous in particular cases. Racial profiling is, by anyone’s definition, a rational method of discrimination. Discrimination, no matter how it can be rationalized, causes the victimization of certain minority groups.

It leads to malicious stereotyping and generalizations regarding race, religion, gender, etc. which civil liberty loving Americans have decided is morally reprehensible. It does not matter if these generalizations are well-founded or if by not acting upon them results in a public safety concern. In many instances, police departments are under enormous pressure to solve cases, especially high profile cases. If they rely too heavily on the inductive profiling method, high profile mistakes can be made (Turvey, 1998).

If law enforcement agencies adopt profiling, it not only serves to mislead the investigative process, this method lends the factor of pseudo-credibility to the process. This method falsely accomplishes the objective for which it is intended. Moreover, the inductive process of accepting preliminary statistics and the resulting analysis cannot be compared, credibility-wise, to a methodical reconstruction of the crime scene including a victimological evaluation. This method is not deemed reliable in an investigation or in any court. Because of the evidence given that debunks the inductive method of profiling criminal offenders, it should not be employed by law enforcement agencies. It allows for an increased possibility that police departments will be held liable because of a faulty methodology. It also heightens the chance for the acquittal of a guilty offender because this less than reliable evidence is usually deemed inadmissible in court (Geberth, 1995).

The recent increased implementation of law enforcement measures which are exclusively aimed at minorities and immigrants has occurred not only in the U.S. but in European nations as well. A study that conducted research in both the U.S. and Europe showed that interactions between police agencies and interactions with immigrants are becoming increasingly tense as evidenced by a proliferation of physical and verbal abuse, a growing mutual distrust and an escalating threat of violence. In the U.S., “Discrimination against minorities occurs indirectly as a result of poor legal representation, language problems, high incidences of specific offenses (such as drug-related and immigration violations) and low level of employment status” (Marshall, 1997). Studies in European countries have uncovered similar outcomes of discriminatory practices.

There is an overrepresentation of immigrants and minorities at every phase of the criminal justice system in the Western world, considered the beacon of progressiveness and justice. An example is research conducted in France. It found an overrepresentation of foreigners among arrestees in large part because a majority of the crimes are related to immigration (Tournier, 1997). Likewise, research in Germany discovered that “foreign minorities face several problems at the entry-level of the criminal justice system (for instance, they have a higher chance of pre-trial detention), which may lead to a systematic discrimination of foreign nationals” (Albrecht, 1997).

Foreigners that breached the law were much more likely to incur prison sentences instead of probation or a suspended sentence. Not surprisingly, further evidence indicates that minorities experienced a disparity of humane treatment while incarcerated. In England, “the prison experience is particularly harsh for foreign nationals because of language difficulties and cultural isolation” (Richards et al, 1995).

Comparative criminal justice studies are dedicated to illustrating how ethnic minorities and immigrants are treated within the criminal justice system on a worldwide basis. Without exception, the incarceration rate in all countries studied demonstrates that the incarceration rates of minorities far exceed that of the particular majority ethnicity. In addition, minority members that experience a high crime or incarceration rate generally belong to economically and socially deprived social groups. Furthermore, minority groups experience heightened discriminatory bias in decisions regarding pretrial confinement and sentencing guidelines (Tonry, 1997). The observations in these findings are corroborated in the countries that have conducted similar studies. In the United States, for example, overt discriminatory practices during all phases of the criminal justice system concerning ethnic minorities, especially those of African-American or Hispanic descent have been well-documented throughout the history of the country (Sampson & Lauritsen, 1997).

In more recent years, various U.S. criminal agencies have increased their efforts to control a new type of minority group, namely illegal immigrants from Mexico and Central America. The U.S. passed the Violent Crime Control and Law Enforcement Act of 1994 which contains provisions that specifically target these groups by deterring employment opportunities for illegal immigrants and has provided a great deal of funding to the Immigration and Naturalization Service so it could increase efforts to diminish illegal immigration by stiffening border control tactics (McDonald, 1997).

Wealthy, white criminals are less likely to be executed than underprivileged minority members of society and if the victim is white or wealthy, it is more likely to be imposed. The statistics provide evidence for their claim. Since 1976, 43 percent of executions in the U.S. have been black or Hispanic. This group accounts for 55 percent of those currently on death row. About half of those murdered in the U.S. are white but 80 percent of all murder cases involve white victims. From 1976 to 2002, 12 whites were executed for killing a black person while 178 blacks were executed for murdering a white person (“Race”, 2003).

It would seem that the ‘unusual’ aspect of the death penalty continues to be a valid argument but another aspect must be present for the practice to again be abolished. “There is ample evidence that the death penalty is applied with a discriminatory impact based on the race of the victim, but a constitutional challenge requires intentional discrimination” (Mello, 1995: 933). Opponents also believe a justice system that disproportionately executes its citizens cannot be considered anything but corrupt which devalues the entire system.

Anyone who has seen even a few minutes of a prison documentary is well aware that black men are disproportionately represented in the criminal justice system. Black men comprise about 6.5 percent of the U.S. population yet nearly half of this group is currently in prisons. Close to a third of black men have been arrested (Beck, Mumola, 1999). When categorized according to ethnicity, a wide disparity of justice is apparent. “At midyear 2003 there were 4,834 black male prisoners per 100,000 black males in the United States in prison or jail, compared to 1,778 Hispanic male inmates per 100,000 Hispanic males and 681 white male inmates per 100,000 white males” (“Prison Statistics” 2006)

Perhaps Americans of all ethnicities should endeavor to exercise the moral responsibility that paves the way for the rights and freedoms we enjoy. Civil rights should be extended equally to all and not merely to certain groups at certain times. Harassing, detaining or intruding on the liberty and privacy of individuals who are of a certain ethnic group will undoubtedly cause a certain amount of personal detriment to countless numbers of people who haven’t caused any reason to justify such an intrusion.

The reality of the situation will not totally convince those the majority of police department officials who presently argue that profiling is effective and helps keep the public safe. Racism is an immoral and a social sickness that is difficult to eradicate because of the selfish predispositions of human nature and should not be allowed to proliferate in any police agency. A police department’s function in society is to reflect the values of that society. If it does not, it becomes despised by the public and eventually irrelevant therefore unsuited to perform its duties. All of these considerations should be of utmost importance to police management.

When asked to identify the source of socially inappropriate behavior and social anguish, institutional entities including law enforcement, politics and psychiatry have a tendency to fault an individual’s failure to regulate their actions. This presumes, incorrectly, that they consciously chose to become oriented to criminal activity. This common misconception may serve to justify reasoning pertaining to the ruling majority which is, generally speaking, upper class, well-educated, white Christian males whose economic, political and social privileges are dependent on a dominated majority. This privileged class who has historically enjoyed judicial privileges, voting rights and has, and continues to write the laws slanted toward their own interests conceals the realities of a supposed democratic structure. These individuals want to maintain and increase their domination and wealth which suppresses minority rights thus the prosperity and overall growth of society.

Racism as an ideology is illogical in principle and diverse in practice thus difficult to explain by a single definition. It permeates the family tree of societies and is reflected in all its attitudes, behavior, and institutions. The concept of racism may be conscious or subconscious and is expressed in actions or attitudes initiated by individuals, groups, or institutions that treat human beings unjustly because of their skin pigmentation. Racism is rooted in dysfunctional belief systems resulting from distorted perceptions formed over a period of time. We cannot ignore the significant role of the socio-cultural environment in shaping perceptual patterns. Racism is rampant throughout the criminal justice system. It starts with racial profiling and continues through the court prison and parole system. Racism exists in the criminal justice system because it exists in society’s system.

References

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2. Beck, Allen J. Mumola, Christopher J. (1999). “Prisoners in 1998” Bureau of Justice Statistics, U.S. Department of Justice
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16. Turvey, B. (1998). “Deductive Criminal Profiling: Comparing Applied Methodologies Between Inductive and Deductive Criminal Profiling Techniques.” Knowledge Solutions Library.