Between the Lines

Perspectives on race, culture, and community.

Ladies and Gentlemen: The U.S. (in)Justice System

The racial bias in criminal justice is undeniable...and devastating.

The more I learn about our criminal justice system, the more evident it is that it isn't meeting our needs. What we want, I think, is a justice system that produces not just rehabilitation, but redemption. Is it any wonder that Shawshank speaks to us the way it does?

Redemption does happen in the real world. Consider the case of Wilbert Rideau, who in 1961 killed a bank teller during a botched robbery and served 44 years in prison (decades longer than others who had committed similar crimes) before finally being released. While in prison, Rideau not only "became rehabilitated" but started an all-Black magazine in the prison and, after mandatory desegregation laws were finally implemented (Rideau is Black), took over as the editor of the main prison publication, The Angolite. NPR summarized his next 25 years:

For 25 years, Rideau reported on events that were taking place within Angola's walls — covering topics such as the mishandling of AIDS funds for prisoners, the brutality of electrocutions and the pervasive sexual violence inside the prison. During Rideau's years as editor, The Angolite won the George Polk Award and the Robert F. Kennedy Journalism Award — and Rideau became a correspondent for Fresh Air, reporting on what it was like to live in solitary confinement and how prisoners feared for their safety on a daily basis.

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Remarkably, considering the violence and inhumane treatment he describes, Rideau says that prison saved him by introducing him to reading and writing, which in turn gave his life meaning.

Rideau's story is as inspiring as anything produced by Hollywood. Yet, had it not been for a fortuitous court ruling having nothing to do with him, Rideau's redemption would not have happened at all. Rideau was sentenced to death for his crime and lived on death row until 1972, when the U.S. Supreme Court abolished the death penalty (temporarily, it turned out), giving Rideau the second chance he needed.

Stories of redemption are, unfortunately, all too rare. However, despite the anti-segregation laws, much of the racial bias Rideau experienced continues to pervade the entire criminal justice system.

It starts with law enforcement

In the wake of Arizona's new legislation permitting law enforcement officials to stop anyone suspected of being undocumented and to demand documentation of legal status, racial profiling is suddenly getting front page coverage.  But though it might be a relatively new approach to controlling the border, perceptions of racially biased policing practices have been around for a long time.

For example, data from a national sample of 7,034 people stopped by police in previous 12 months indicate that
Black men are 35 percent more likely than white men to report being stopped by police for a traffic violation. (Lundman & Kaufman, 2003). 

racial profiling

Though this particular study examined perceptions rather than actual "objective" data, where available (not all states require police departments to report or even track racial information during stops), such data consistently support the perception of bias.

Consider some recent racial profiling data from my home state of Illinois, where the Illinois Department of Transportation (IDOT) has been compiling racial profiling data for almost 10 years.  According to the 2008 data (the most recent available at the time of this writing), "minority drivers" were 13% more likely to be be stopped (after controlling for demographic differences in population) and more than twice as likely to have their car searched (this requires consent but consent is given more than 90% of the time). 

When confronted with such data, police officers (and chiefs) usually respond that they are merely doing their job -- that the racial discrepancy in stops and searches merely reflects group differences in criminal behavior. Yet, the city's own data suggest otherwise. Those consensual searches? They yielded contraband (either weapons or drugs) for 15% of the "minority drivers" compared to almost 25% of "caucasian drivers (see arrows at bottom of table below). If there were true probable cause, that kind of difference wouldn't happen.

Illinois profiling data

Of course, law enforcement is just one half of the justice system. There is also the criminal trial and the appeals that often follow.  Unfortunately, this part of the process is no less biased.

Incarceration

It's relatively common knowledge that the U.S. prisons are filled primarily by people of color. What is less commonly known is how our prison population has skyrocketed in the past 30 years and that the growth is a direct function of the government's War on Drugs.  Michelle Alexander explains in the introduction of her provocative new book, The New Jim Crow:

The impact of the drug war has been astounding. In less than thirty years, the U.S. penal population exploded from around 300,000 to more than 2 million, with drug convictions accounting for the majority of the increase (Mauer, 2006). The United States now has the highest rate of incarceration in the world, dwarfing the rates of nearly every developed country, even surpassing those in highly repressive regimes like Russia, China, and Iran. In Germany, 93 people are in prison for every 100,000 adults and children. In the United States, the number is eight times that, or 750 per 100,000 (PEW Center, 2008). 

Alexander goes on to point out that "the racial dimension of incarceration is its most striking feature" and that "in Washington, D.C....it is estimated that three out of four young black men (and nearly all those in the poorest neighborhoods) can expect to serve time in prison." (Braman, 2004, citing D.C. Department of Corrections data from 2000). The racial comparisons are indeed striking, as evident in the national statistics below.

incarceration

Even more remarkable than the racial discrepancy itself is that it cannot be explained by actual rates of drug crimes.  Studies consistently show that people use and sell illegal drugs at highly similar rates (Alexander cites a dozen different studies).  If anything, when race group differences in drug crimes emerge, it is white males who tend to be the highest perpetrators. Despite this, Alexander reports that in some states, black men have been incarcerated on drug charges at rates 20 to 50 times greater than white men.

drug use

The greatest crime of all

It gets worse. Seventy five percent of those convicted of participating in a Federal drug enterprise under the general provisions of SS 848 have been white and only about 24% of the defendants have been black. Yet, 78% of the defendants chosen for capital prosecution have been Black.

The same racial bias can be seen in other capital crimes.  For example, according to the U.S. Department of Justice, since 1930 nearly 90% of those executed for the crime of rape in this country were African-Americans.

The racial discrepancy in the application of the death penalty was so severe and so clearly biased that in 1972, the U.S. Supreme Court placed a moratorium on the death penalty and converted the death sentences of hundreds of death row inmates to life in prison. Wilbert Rideau was among this lucky group. As part of the 5-4 majority, Justice William Douglas explained his reasoning:

"The discretion of judges and juries in imposing the death penalty enables the penalty to be selectively applied, feeding prejudices against the accused if he is poor and despised, and lacking political clout, or if he is a member of a suspect and unpopular minority, and saving those who, by social position, may be in a more protected position." Justice Douglas (1972, Furman v. Georgia).

The moratorium lasted a mere four years, ending in 1976 with Gregg v. Georgia. At that time, the Court was apparently convinced that the states had enacted legislation that would remove the bias and arbitrary imposition. Unfortunately, despite the Court's conviction, the racial discrepancy began to emerge almost immediately upon reinstatement.

death row

At the moment, it only seems to be getting worse. The U.S. Department of Justice reports that about 50% of those currently on the nation's death rows are from racial minority populations, which represent about 20% of the country's population. 

Put another way: If he were on death row today, Wilbert Rideau would likely remain there until his execution. And the numbers in the prisons are still on the rise, even as violent crime has dropped off. It may not be coincidence.

In The New Jim Crow, Michelle Alexander asserts that the U.S. criminal justice system is currently functioning as a contemporary system of racial control, much like slavery and Jim Crow laws have in the past.  She points out that though racial discrimination is no longer legal or socially acceptable, "discrimination in employment, housing, education, and public benefits; denial of the right to vote; and exclusion from jury service -- are suddenly legal once you're labeled a felon."

New Jim Crow

Alexander argues that the fact that over 50% of the young black men in any large U.S. city are either under the control of the state or saddled with a criminal record is not just a function of poverty or poor choices but "evidence of a new racial caste system at work." 

If she is right, and the data certainly don't contradict her, there is no choice (for those interested in justice), but to mobilize for a new (and hopefully, final) civil rights movement.

For all the injustice we have wrought, there is still the opportunity for redemption.

Mikhail Lyubansky, Ph.D., is a member of the teaching faculty in the department of psychology at the University of Illinois at Urbana-Champaign.

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