The United States has a prison population of 2.2 million people. People of color make up only 37% of the country’s population but 67% of this 2.2 million. In all, one out of every three black men will likely be incarcerated at some point in their lives as compared to one out of ever seventeen white men (The Facts). These facts point to two possible stories; the first is that people of color are committing a disproportionate amount of crime in the states. The second possibility is that the United States criminal justice system is in some way being unfair to minority races in one or all of the various steps of sending individuals to prison. This paper seeks to discover which of these two stories is the true one, or – if it be the case – if both are playing a role, as this too is entirely possible. The most extreme case of disproportionate imprisonment is that of black men, and because of this, this population will be the main focus of this paper.
In her research on crime and justice, Cassia Spohn points out three theories for studying racial discrimination within the criminal justice system: Critical Race theory, Conflict theory, and attribution theory. Throughout the analysis here, all three will be used at various times applied as the different situations call. Critical Race theory argues that the US criminal justice system has “deeply embedded” racism based on a hierarchy that serves whites (particularly males whites and punishes people of color (especially black males). Conflict theory focuses on cultural norms of various groups and the competition to uphold them. This theory posits that the criminal justice system is set up to maintain the norms of those in power, white people, and hold down the norms of racial minorities that threaten them. It should be noted that these first two theories are macro theories that look to explain phenomena by looking at the bigger picture and applying individual cases to that bigger picture.
The last theory, attribution theory, is a micro-level theory, and explains that the state of the criminal justice system is due to the perceptions of individuals working within it. Because so much of the outcome for individuals that end up in prison is the result of individual interactions with officers or judges, this theory is probably the most effective at explaining the results. This is why Cassia decides to use it exclusively in her research. This paper will mostly do the same, but there are a few instances where the others will come into play (Cassia 52, 53).
To answer the question poised earlier, the steps of the criminal justice system will be looked at individually. These steps are policing, sentencing, and punishment. Each step will have its own questions within that need to be answered if the whole picture is to show up. To work chronological, the analysis will begin with policing and end with how punishment is decided. The question of whether or not black men are committing a disproportionate amount of crime will be addressed after policing because that is the point at which the rubber meets the road for a person going to prison. The most likely outcome is that there is some mixture of disproportionate committing of crime and unfair policing, sentencing, and punishment. This will be the case if the amount of crime committed by black men is less than the amount that are in prison but still more than the population of black men in America.
To discover whether or not there is racism in the way America goes about policing minorities, a few questions will need to be answered. Are police more likely to use excessive force (lethal or non-lethal) on a black male than a white male? Are white males and black males equally likely to be in a situation where excessive/ deadly force may be used? What are sentiments that these two groups have towards the police? In the introduction it was established that black men are arrested at significantly higher rates than their white counterparts, so, use of force here is used to answer the question of whether or not there is racism in the way policing is done. How this reflects on the number of black men who end up in prison is not direct, but working under attribution theory it can be assumed that a racist police officers, more willing to use excessive force on a black man, would also be more willing to arrest that same black man, or treat him in a way he would not treat a white man.
A page dedicated to understanding law called find law describes excessive force as referring to “situations where government officials, legally entitled to us force, exceed the minimum amount necessary to diffuse an incident or to protect themselves or others from harm” (FindLaw). In the 43.9 million face to face encounters with police that occurred between 2002 and 2011, about 715, 000 or 1.6% of these encounters led to threat of force or force used. In all, around 535,300 cases of excessive force occurred during this period, about 1.2%. That number for white people alone was 1% and almost triple, 2.8%, for black Americans (Hyland, Langton and Davis). These number show that the answer to the first question is yes, black Americans are much more likely to have excessive force used on them than white Americans. This 2.8% is also brought down by the inclusion of force used on black women, so the percentage for African American males may be even higher.
Looking at these statistics, it would be easy to say already that there is in fact racism in the way African American men are policed. However, this would be based in the assumption that white men and black men are equally likely to be in situations where the possibility of excessive force exists. What exactly does this mean? According to an article published in “The Conversation”, an independent not-for-profit media outlet, comparisons using populations of races are not the right way to go about diagnosing this problem (Cesario).
Given that nearly 85% of police shootings involve an armed citizen, they ask the question, “Are blacks shot more than whites given their presence in situations in which police shootings are likely to occur?” To better explain this the author gives cancer treatment as an example. If 13% of people being treated for cancer in the US were African American, using population comparison, we would assume there was no discrimination in the number of people getting cancer treatment. However, if African Americans made up, say 75%, of the number of people with cancer in the U.S. you would have to assume that there was discrimination in the number of people receiving treatment. (Cesario). In this way population comparisons can be misleading; crime statistics must also come into play if what is actually going on is to be uncovered.
To discover whether or not black men are more likely to be in situations where excessive force, once again including lethal force, is possible the question must first be answered of what these situations are. One example has already been given that 85% of all shootings by police occur when a citizen is armed, but what other situations might this include. Statistics show that shootings by police have a strong correlation with violent crime (Cesario). So, rather than looking at population comparisons, it may be more accurate to look at violent crime rates and death by assault rates to explain disparities in use of force on black men in America. Death by assault comes into play because some of the disparity in violent crime rates can be explained away due to possible over policing of minority communities.
FBI Summary reports show that, per 100,000 individuals, 35 white men are arrested for weapons violations, while that number for black men is 138. For violent crime, 5 white men and 32 black men will be arrested out of every 100,000. According to the CDC, black individuals are over 5 times more likely to die from assault than white individual. When it is considered that 90% of assault cases occur between individuals of the same race, this number is even more telling (Cesario). According to the US department of justice, 52% of all homicides in the United States, between the years 1980 and 2008, were committed by African Americans.
What do all these number mean then? While it can certainly be said that black men are disproportionately the victims of the use of excessive force and much more likely than white men, or anyone else really, to end up in prison, it also appears that they are committing a disproportionate amount of crime. Whether or not this crime adds up to the giant gap in the number that end up in prison is doubtful, but it can be said that at least some of the disproportion can be explained by a higher crime rate in the African American community.
Another question these statistics don’t answer is if white men and black men are arrested at the same rate for other types of crime, or even if the types of crime a white man is more likely to commit are investigated as much or as deeply. One reason for this is probably that white collar crimes like fraud and embezzlement are not in the jurisdiction of the average beat cop. Individuals taking part in these crimes also would have more resources to keep investigators off their backs as well as more resources to fight lawsuits and criminal allegations brought against them. Would equality here then look like more white-collar criminals being put away? Should the line in the sand for being put in prison or not really be a person’s ability to pay for quality legal defense? These questions bring us to next step in the legal process, convictions.
In the analysis of whether or not there is racism in the conviction process attribution theory will once again come into play when looking at individual judges. Additionally, critical race theory will be used to see whether or not the way juries are made up does not have some aspects that point towards structural racism in the criminal justice system.
In the United States there are two ways in which a person is convicted of a crime, bench trial and trial by jury. In a Bench Trial a judge gets to decide on the procedural and evidentiary items that come up. Additionally, they (the judge) decides which witnesses can testify and what they can testify about. The judge then makes the final decision about whether or not the defendant is guilty and to what extent the punishment will be. On the other hand, in a trial by jury, a jury of six to twelve people gets to decide on whether or not the defendant is guilty and what the punishment will be. In a jury trial a judge maintains those other powers explained above. Another note is that the punishments allotted have set guidelines; for example, a jury or judge cannot decide a person is guilty and then give them a punishment that is much less or much more than the committed crime allows (Baldwin).
Given these facts, the questions that must be answered to determine whether or not there is discrimination occurring in the conviction process is whether or not black men are being convicted at higher rates than white men for similar crimes. Factors that come into play here are individual judges’ preconceived notions of black men as well as whether or not black men are actually getting a “jury of their peers”. Whereas quantitative data played a large role in the analysis of policing in the US, here case studies or looking at individual cases will work better to show if and how racism is at work in the conviction process.
In his book, “Just Mercy”, Bryan Stevenson gives a prime example of how the manner in which jury members are chosen reflects structural racism in the American legal system. Walter McMillan was an African American man from Alabama who, among other injustices placed upon him, was put on death row even before he had a trial. When he finally was brought to trial, his lawyer requested that the trial be held in a court other than the one in town where the murder McMillan was accused of because of the high-profile nature of the case. This is because the lawyer thought that any of the jurors from the hometown of the victim may come into the trial with minds already made up about it. The judge granted this motion but decided to move the case to a court room where the population of white people was astronomically higher than any other area in the vicinity. Because of this move, the jury that decided the case was made up mostly of white people and Walter McMillan was found guilty regardless the fact that all of the evidence pointed to him being innocent.
This story can be looked at from both the point of view of Attribution theory and that of Critical Race Theory. Attribution theory here points towards, first, the sentiments of the judge. It can hardly be thought that he was complicit or did not know what he was doing when he decided to send the case to the whitest area around. This act shows that the judge had already decided Walter was guilty or didn’t care if he was guilty or not and just wanted to see a black man put to death. Attribution theory also accounts for the jury. The individual sentiments of the jury led them to convict a black man of a heinous crime when there was little evidence and a rock-solid alibi, confirmed by multiple people.
Critical Race theory comes into play here when it is observed that once the judge had made this decision there was next to nothing Walter or his lawyer could do. The lack of preventative measure when it comes to individual racism, is a sign of the structural racism still present in the US legal system. Additionally, knowing that racism exists, a jury of peers should not be a jury that is completely made up of someone who is a different skin color than the defendant. Not having access to Jury with perspective similar to his own was an injustice in and of itself, and the lack more powerful vetting procedures in the hands of defense lawyers is another sign of structural racism in US courtrooms.
The next step in the criminal justice process is the allotment of punishment. It will be apparent that there is injustice afoot in this part of system if it is found that black men receive worse punishment for similar crimes as white men or if crimes that are similar but more likely to be committed by a black man than a white men have worse punishments attached to them. The first conditional just mentioned is drawn from attribution theory while the latter is drawn from Critical race theory. This is because the first is once again looking at individuals while the second is looking at the system as a whole or at least its written rules.
According to the United States Sentencing Commission, in the fiscal years 2012 to 2016 black men received sentences that that were 19.1 percent longer than white males who were “similarly situated”. The report does not specify what similarly situated means, but it can be assumed that this means for similar crimes, possibly in similar areas, and with similar incomes. The statistics may be skewed, the report says, because it does not account for the offender’s criminal history. So, while that 19.1 percent is may not be the exact number it is hard to think that the entire disparity can be explained away by this. Additionally, the report says part of this difference is due to the fact that white men are 21.2 percent more likely to receive “Non-government Sponsored Departure or variance” (Demographic Difference). Departure and Variance both refer to cases in which the defendant is given a sentence that is outside the written guidelines for the crime that he has be convicted of (Departures and Variance). In short, white men were much more likely to get a slap on the wrist for committing a crime that a black man would do hard time for. Even outside the departures and variance difference the report on sentencing found that black men would receive sentences that were on average 7.9 percent longer than that of a white man when the punishments were within the written guidelines.
Turning to the theories, the disparity in departure and variance falls within the Critical Race theory. Many of these instances are sought after by the prosecution looking to cut a deal, and – as found earlier – the structural and individual racism present in the conviction process makes cutting a deal for a black man less necessary than for a white man. Put simply, black men get deals less often because it is easier to convict them with less evidence. When the 7.9 percent disparity that falls within the punishment guidelines is put under the microscope, attribution theory is the better lens. This disparity comes down to the prejudice of judges and juries in the court.
Looking now to worse punishments attached to crimes more likely to be committed by a black man than a white man, this question can be answered with a look into the punishments attached to crack cocaine versus powder cocaine. In 1986 the Anti-drug Abuse Act was passed. This act created mandatory minimum sentencing for certain amounts of cocaine and established tougher sentences for crack cocaine than it did for powder cocaine. The ratio at the time was about one hundred to one for punishments of crack verses powder cocaine. This has more recently been reduced to about eighteen to one. Crack cocaine is much cheaper than powder cocaine and thus more easily attainable. This makes it much more likely to be used by African Americans. Powder cocaine, on the other hand, is used more often by the rich white people on Wallstreet. The passing of this made the disparity in drug sentences between black and white Americans rise for eleven percent in 1986 to forty-nine percent in 2000 (Vagins and McCurdy).
This arbitrary difference in punishment for almost identical crimes can be seen through Critical Race theory as a blatant sign of structural racism that still exists within the US justice system. Even with the disparity reduction from one hundred to one to eighteen to one, this difference does nothing but keep black men in prison longer and enable drug abuse by affluent whites.
The various processes of the criminal justice system were found to all have some type of discrimination against black men happening within them. It was hypothesized that there was some mixture of higher crime rates and police discrimination that was leading to disproportionate amounts of black men being arrested. While the violent crime rate was found to be higher among African American men it is doubtful that this fact makes up for the entire discrepancy within the prison system. Looking at the likelihood of police to use force on black men compared to white men, and making the assumption that this means they would also be more likely to arrest a black man than a white man under similar circumstances, showed that a certain amount of individual prejudice was indeed present within police.
The story of Walter McMillan offered a casual story for statistics that black men are more likely to be convicted of similar crimes than a white man. What is more, it showed exactly how structural racism is at work within the conviction process and individual racism is allowed to have its way through juries and judges. By looking at sentencing statistics it was learned that black men certainly get the short end of the stick when it comes to the amount of time that is spent in prison.
All of these facts have shown the original hypothesis to be not quite right. When I made this hypothesis originally, I was thinking that the crime discrepancy would probably make up for about half of the discrepancy in the number of black me in prison. Learning all that I have has made me see that, while there is a considerable discrepancy in violent crime, the vast majority of the disproportionate number of black men in prison is most likely due to the injustices that take place in the court room. When more innocent black men are convicted and harsher crimes are given arbitrarily, what else can be expected?
What to do?
The last and most important question to ask is what is to be done about all this injustice? One answer to this question comes through looking at Bryan Stevenson. He dedicated his life to learning about injustice in the courtroom and righting it one case at a time and through structural change as well. Not everybody can or wants to dedicate their entire selves to this cause though, so what can the everyday joe do? The first thing that comes to mind is learning the facts. Throughout the process of writing this paper my own position on this topic has shifted somewhat. I was always aware that there was a difference in the number of black men in prison, but I gave a lot of weight to the argument that the disproportionate amount of crime they commit explains it. As I learned more about what exactly is happening my desire to do something about it increased. So, maybe the first step is learning and raising awareness to what is happening.
Knowing what is happening is great, but unless something is done this knowing only makes one complicit in the wrongness that is occurring. Those who know must share what they know with others if greater change is going to come. Those who are not on the front lines in the fight against court room injustice must, at the very least, make the issue known to those around them so that the democratic tide can enact legislation and court room procedure which will alleviate the epidemic that is the mass imprisonment of the black male American.
Spohn, Cassia. “Race, Crime, and Punishment in the Twentieth and Twenty-First Centuries.” Crime and Justice 44, no. 1 (2015): 49-97. doi:10.1086/681550.
Cooper, Alexia and Erica Smith. “Homicide Trends in the United States, 1980 – 2008.” U.S. Department of Justice: Patterns & Trends. (2011): 3. https://www.bjs.gov/content/pub/pdf/htus8008.pdf
“The Facts: Criminal Justice Facts.” The Sentencing Project. (2019). https://www.sentencingproject.org/criminal-justice-facts/
“Excessive Force and Police Brutality.” Find Law. (2019). https://criminal.findlaw.com/criminal-procedure/excessive-force-and-police-brutality.html
Hyland, Shelley, Langton, Lynn and Elizabeth Davis. “Police Use of Nonfatal Force, 2002-11.” Bureau of Justice Statistics. (November 2015): 1-17. https://www.bjs.gov/content/pub/pdf/punf0211.pdf
Cesario, Joseph. “A New Look at Racial Disparities in Police Use of Deadly Force.” The Conversation. (2018). http://theconversation.com/a-new-look-at-racial-disparities-in-police-use-of-deadly-force-98681
Baldwin, Lauren. “What is a Bench Trial” Criminal Defense Lawyer. (2019). https://www.criminaldefenselawyer.com/legal-advice/criminal-defense/criminal-defense-case/what-the-bench-trial-process
Stevenson, Bryan. “Just Mercy”. Spiegel & Grau. New York. (2014): 35-67.
“Demographic Differences in Sentencing” United States Sentencing Commission. (2016). https://www.ussc.gov/research/research-reports/demographic-differences-sentencing
“Departures and Variance” United States Sentencing Commission. (February 2019): 1. https://www.ussc.gov/sites/default/files/pdf/training/primers/2019_Primer_Departure_VaVarian.pdf
Vagins, Deborah j, and Jesselyn McCurdy. “Cracks in the System”. American Civil Liberties Union. (October 2006). 6. https://www.aclu.org/other/cracks-system-20-years-unjust-federal-crack-cocaine-law