Race and Criminal Injustice

Is there credible, scientific evidence to support the existence of “race” among humans?  No.  Does that mean “race” does not matter in our society? 

“Race” matters in our society – despite its lack of biological basis in fact – because it is a human, social construct that influences how people perceive and treat each other.  It seems that in the United States we wish that we were beyond race; but the superstition lingers and affects us all.  How does it affect our human efforts at justice in the criminal courts?

Our sense of identity – who we believe ourselves to be, what and who we identify with – has a significant influence over how we perceive events, and other people.  Race, gender, and other socially defined demographic variables are among the ideas that influence our sense of identity, and our perception.

In the United States, our consensus seems to be that judging others based upon “race” is wrong.  People resist recognizing (perceiving) that they themselves could or would do something wrong.  As a result, we as a people tend to believe that attitudes about race do affect other people, but not us as individuals.  Ironically, this kind of projection of an unfavorable characteristic which we deny in ourselves and project onto “the other” is a the key aspect of racial stereotyping.  However we define ourselves and the groups with which we identify as members; we tend to think simplistically – “we” are good; “they” are bad.

Another problem here is fear of the unknown.  We feel that we know ourselves, and the cultural milieu from which we come.  “The other,” the outsider – who comes from a different culture, a different experience – we may lack understanding.  We may think that “they” are unknown to us.  They therefore may seem unpredictable to us, which can lead us to fear them.

The there is the problem social psychologists have called “the self-fulfilling prophecy phenomenon” – captured well in the aphorism “what a fool believes, he sees.”  If a person believes a theory about a member of a perceived “other” group, scientists have learned that the person will ignore all facts inconsistent with the theory and only perceive the facts consistent with the theory – even if 99% of the facts contradict the theory, and only 1% of the facts support it.  Because of this phenomenon, people generally will deem the theory proven true, even though 99% of the evidence disproved it!  If the theory is about people of a perceived “race,” then the result is a racial stereotype.  People who believe racial stereotype theories defend them based upon the argument that they are true, or partly true (because they believe them to be true).  But examined against all of the facts, they are not. 

police light bar

police light bar

One common racial stereotype involves the theory that minority-race people are more often committing crimes than majority-race people, and that is why there is a greater percentage of the minority race community being arrested, charged with crimes, convicted, and sentenced to prison; as compared to the majority-race community.

Of course – numerous studies have been done, by the American Bar Association and others, proving otherwise.  We know that African-Americans use illegal drugs at the same per capita rate as does the general population in the United States.  Yet, people socially defined as African-American are arrested, criminally charged, convicted, and incarcerated at a vastly higher rate than non-African-Americans.

The National Institute of Drug Abuse estimated that while 12 percent of drug users are black, they make up nearly 50 percent of all drug possession arrests in the U.S. (The Black and White of Justice, Freedom Magazine, Volume 128).

from article: the Truth About Black Crime, R. Jeneen Jones, Jan 16, 2000.

And the problem goes beyond illegal drug crime cases: 

Figure 1. Racial Disparity Matrix

Column A                Column B                   Column C                  Column D
Decision Point        % African-                % at preceding       Disparity
                                      American                  decision point         ratio
                                                                            African-
                                                                            American

 Total Population   15                                   N/A                               N/A

 Arrest                        30                                  15                                   2.00

Detention                  35                                  30                                   1.17

Prosecution             37                                  35                                   1.06

Conviction               45                                   37                                  1.22

   a. Probation          38                                  45                                   0.84

   b. Incarceration 50                                  45                                   1.11

source: chart from a 2000 report from the Sentencing Project at page 29.

Given the evidence that people are being treated differently by the criminal justice system based upon “race,” it is clear that the reason is not that minority-race people are committing criminal acts at a higher rate than majority-race people.  After all, the illegal drug use rates are the same, but African-Americans are being disproportionately arrested, charged, convicted, and incarcerated:

  • African-Americans are arrested at much higher rate than people the percentage of all races committing crimes;
  • Of those of all races arrested, a disproportionate percentage of African-Americans are being charged;
  • of those of all races charged, a disproportionate percentage of African-Americans are being convicted;
  • of those of all races convicted, a disproportionate percentage of African-Americans are being sentenced to prison.
  • At each of these significant stages of the exercise of human discretion – by police, by prosecutors, by jurors, by judges, African-Americans are being treated unfairly, and more harshly than the general population.   Yet we must assume that nearly every individual exercising that discretion sincerely believes their decison is not based upon race.  How can this conflict be reconciled?

Though few people view themselves as racist – few police, few prosecutors, few defense attorneys, few judges, few jurors – the aggregate result is one of a strong, unfair impact based upon a person’s “race.”

Putting to one side the racist origins in history of Drug Prohibition laws as well as the severe disparate impact of them on minorities today; the effect is seen across the board for every type of criminal case.  Space does not permit a serious discussion here of the solutions.  Still, here are a few thoghts about solutions.

Awareness of the problem may be a first step.  Be suspicious of any theory based upon race – or race-code words.  And when you hear one of those, challenge it.  When we develop our empathy for others, and get to know and love other cultures, we are on the path towards a solution.  In the end, society is made up of individual people.  We can change ourselves.  We can change our society.  We can make the world a better, and more fair place.  Liberty for one, is liberty for all.

by Thomas C Gallagher, Minneapolis Criminal Lawyer

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