H.R. 1412, the Justice and Integrity Act of 2009
H.R. 1412, the Justice and Integrity Act of 2009
A Report from Rep. Steve Cohen (d-tenn.), Discussing Racial Disparities in the Criminal Justice System That He Can Use To Move This Bill Forward in Congress
According to Research Advocacy for Reform (2013), male Americans of black descent are six times more likely to be imprisoned than white males. Additionally, they are 2.5 times more likely to be incarcerated that Hispanics. If this trend continues, it is clear that every black American born today should expect to go to prison during their lifetime. One out of every six Latinos should expect to go to prison in their lifetime and only one out of seventeen white males. Racial minorities are more likely to be arrested more than whites. Once arrested the minorities are more likely to be convicted. Once convicted, they are more likely to face stiff sentences compared to whites. The following paper aims at pointing to Rep. Steve Cohen a portrait of the current racial disparity in the United States criminal justice system. The criminal justice system should move from using biological perspectives in explaining crime rates among different races and adopt the use of constitutional factors like the ones depicted by Wilson and Herrnstein to explain crime (Mosher, & Hart. 2013).
Racial Disparity in Police Activity
The racial disparities in police activity are clearly a product of early sociological theories that explain the crime. These theories associated certain races with crime. For instance, Cesare Lombroso’s work the criminal man holds that criminals exist due to ethnic causes that make them be barbaric, criminal, inculpable and lazy (Mosher, & Hart. 2013). Additionally, the disparity arises out of the adoption of Rushton’s r/K selection theory of race and crime which hold that aggression, impulsive behavior, low intelligence, low self control and lack of rule was associated with blacks and hence the reason why they are more likely to be criminals (Mosher, & Hart. 2013).
According to Marc, (2011), the racial disparity in police activity in the U.S. shows that approximately twelve percent of the United Sates population is black, but black Americans constitute 30% of people arrested for crimes against property and thirty eight percent of people arrested for violent crime. Moreover, black American youth make up sixteen percent of the population of children and yet make up twenty eight percent of juvenile arrests. One contributing factor to this disparity is the biased view that racial minorities are more likely to commit property crimes and more violent crimes than other races (Gabbion, & Greene, 2013). This disparity arises due to racial bias that makes people associate racial minorities with terms such as violent, dangerous, aggressive and criminal. Moreover, this disparity arises out of the implicit racial bias evident in the United States society, which most humans make about racial groups. This has made police officers make biased snap judgments about minority groups through biased subconscious racial associations that lead to disparities in police activity. Data on traffic stops between the years 1980 to 2000 indicate racial disparity in police activity (Mark, 2005). For instance, a study done in New Jersey indicated racial minorities making up 15% of drivers on the New Jersey turnpike, however 42% of stops and 73% of arrests made by the police on the turnpike were of black drivers (Mark, 2005). Between the years 1980 to 2000, it was established that United States drug arrests for black people rose from 6.5% to 29.1 percent per 1000 people while the drug arrests for white roses from 3.5% to 4.6 percent per 1000 people (Gabbion, & Greene, 2013). Further investigations revealed the disparity increase in white and black arrests do not correspond to any significant disparity in black drug activity. The United States should know that crimes are more explained by socio- economic factors than race and disadvantaged neighborhood have been found to experience higher crime rates irrespective of race (Justice Integrity Act 5, 2009).
Racial Disparities in Trials
Research by Marc (2011) shows that contact with law enforcement in the United States has indicated that racial minorities confront racial bias at every stage of ligation. Racial bias is experienced everyday in defense counsel, prosecutors, judges and the jury. However, this is not comprehensive indictments of all the personnel involved in trial since some of them work diligently to ensure that justice is served to people of all races. Racial disparity exists in trials since racial bias influences most of the indigent defense and prosecutorial decision making contributing to the existence of racial disparity in the criminal justice system (Research Advocacy for Reform, 2013).
Racial Disparity in Indigent Defense Counsel
The Supreme Court decision in Gideon v. Wainwright held that indigent defendants have a right to a publicly appointed defense council (Gabbion, & Greene, 2013). However, the U.S. Attorney General Eric Holder affirmed that the American indigent defense method is in a crisis. This crippled state affects minorities more since research has proven that minorities are more likely to require the services of a public defender more than whites. Poverty rate among blacks and Hispanics is approximated around 25%, making most of them be unable to afford an attorney (Research Advocacy for Reform, 2013). This situation makes public defenders be overburdened hence creating an opportunity for implicit racial bias that generally contributes to racial disparity in the criminal justice system (Mark, 2005).
Public defenders have been found to be more aggressive in handling cases of whites more than minority cases. This is attributed to a process referred to as triage, owing to the increased number of cases that public defenders cannot manage with limited resources at their disposal. Racial bias affects public defenders initial appraisal of cases worth their time and energy contributing to racial disparity in the criminal justice system. This trend is attributed to the Biosocial thesis on race and offending which points to the biological and social influence on the behavior of criminals. This is also based on the early sociological explanation of crime that showed a relationship between race and crime (Mosher, & Hart, 2013).
As one of the most powerful positions in the United States criminal justice system, the office of the prosecutor has the discretion to decide which cases to investigate, the charges to bring upon suspects and the penalties that should be pursued upon conviction. Studies on racial disparity in the prosecution indicate that the probability of a black person being indicted for killing a white person is more that the probability of a white man being indicted for killing a black man (Justice Integrity Act, 2009). Moreover, racial disparity in the prosecution is evidenced by the substantial assistance departure that allows the prosecution to request a judge to depart from the minimum sentence for a crime. An analysis conducted in 2001 of 77,000 cases heard from the years 1991 to 1994 showed that minority races specifically male black and Hispanic were less likely to get a substantial assistance departure than white male defendants. This disparity was evident even after the data was controlled for prior criminal history, the severity of the offense and specific sentencing tendencies (Research Advocacy for Reform, 2013). This indicates an increased racial disparity in the criminal justice system.
Racial disparity in Juries, Trial Judges, and Presumptions of Innocence
The final determination of innocence or guilt in the American justice system solely rests with the jury or the trial judge. Presumption of innocence implies defendants should be treated as innocent until they proven guilty in a court of law. As much as the Supreme Court in Batson v. Kentucky held that it was unconstitutional to strike a juror off from a criminal trial on the basis of race, all-white jury remains a very common phenomenon in the United States criminal justice system. A study in 2001 revealed that 25% of the investigated juries had no black person on board and 70% of the juries had two or less black jurors in capital offense cases (Marc, 2011). This increased the likelihood of convicting a black person for a capital offense and increased the chances of imposing a death sentence on black defendants. This indicates a racial disparity that can be attributed to crime theories of explaining the likelihood of a white person seeing minorities and black people as criminal and dangerous, complementing Du Bois’s findings that black people are more likely to be convicted of offenses and to serve longer sentences that their white counterparts (Mosher, & Hart, 2013). Moreover, this racial disparity in the criminal justice system can be attributed to racial bias and activation of subconscious racial stereotypes propagated by biological theories of explaining crime.
Racial Disparity in Sentencing
As much as sentencing decisions have been found to be based on the seriousness of crimes in the American justice system, a study by Professor Cassia Spohn in 2000 found out that race remains a significant factor in sentencing decisions across the United States (Mark, 2005). Moreover, as at January 2013, out of 3100 defendants awaiting execution for capital offenses, 425 were black Americans and minorities. Two racial variables are found to contribute to racial disparity in the criminal justice system, the race of the offender and the race of the perpetrator in capital offenses.
At the outset defendants convicted of murder of a white victim have been found to be more likely to face death penalty that defendants convicted of murdering a non-white victim (Gabbion, .& Greene, 2013). According to Marc (2011), white people constitute half of the victims of murder in the United States, while black people also constitute half the victims of murder in the United States. However, statistics show that since 1976, 77% of people executed were convicted of killing a white person while only 13% of people executed were convicted of killing black people. This shows that the race of a person influences the likelihood of defendants receiving death penalty when defendants are convicted of murdering white victims and are more likely to be given the death sentence than defendants sentenced of killing a minority. This shows a big racial disparity in the United States criminal justice system in sentencing.
Additionally, statistics from a 1990 Government Accountability Survey indicated that the U.S. has executed 13 times more black defendants who are suspected of killing white victims than white defendants convicted of killing black victims (Research Advocacy for Reform, 2013). Additionally, the war on drugs has been cited as one the largest contributor of racial disparities in the criminal justice system. From the year 1999 to 2005, black Americans made up approximately 13% of drug users in the U.S. but make up 46% of the people convicted of drug offenses and 36% of the people arrested for drug offenses (Research Advocacy for Reform, 2013).
Gabbion, S. & Greene, H. (2013). Race and Crime, 3rd ed .New York: Sage
Justice Integrity Act 5 of 2009’’. 111th congress 1st Session H. R. 1412
Mark B. (2005). Unraveling the Gordian Knot of Implicit Bias in Jury Selection: The Problems of Judge-Dominated Voir Dire, the Failed Promise of Batson, and Proposed Solutions. Harvard. Law. & Policy Review, 149, 169
Marc M. (2011) Addressing Racial Disparities in Incarceration. The Prison Journal 87, (88),
Mosher, M., & Hart. T. (2013). Theoretical Perspectives on Race and Crime. New York: SAGE. Publications
Research Advocacy for Reform (2013). Report of the Sentencing Project to the United Nations
Human Rights Committee. Regarding Racial Disparities in the United States Criminal Justice System. Retrieved from http://www.macdl.com/Resources/Documents/rd_ICCPR%20Race%20and%20Justice%20Shadow%20Report.pdf