Recent years in American legislation has focused on reducing discrimination and disparities in the Criminal Justice field. News accounts sensationalize the issue, blurring the line between the two concepts to such an extent that many believe that the existing disparities are proof of discrimination. The issue is further compounded by numerous studies that seem to both prove and disprove discrimination (Crutchfield, Fernandez, & Martinez, 2010). The reason for the failure of these studies is twofold: First, most studies rely primarily on statistical analysis and second, most studies fail to consider the role of motive.
Disparities in Criminal Justice
Disparities in the justice system in America have always existed, but until the 1950s, little research was conducted to understand the reasons and ramifications (Crutchfield, Fernandez, & Martinez, 2010). In recent decades, this issue has escalated to the extent that many states and the Federal Government have considered legislation aimed at correcting the problem, if such exists (Toth, Crews, & Burton, 2008).
Clearly to those who study the phenomena males and African Americans are overrepresented in the prison populations, but the reasons elude researchers (MacNamara & Burns, 2009). One reason is that much of the focus has been on African-Americans often resulting in emotionally charged news features that do little to solve the problem if one exists. Another reason is presumption and faulty logic as illustrated by Kamalu, Coulson-Clark, and Kamalu who stated,
“Aggregate data and statistics compiled supports the assumption that African Americans are disproportionately subjected to conditions such as racial profiling, traffic stops leading to searches and seizures yielding minor offenses that lead to incarceration, rather than probation or rehabilitation” (2010, p. 2).
Indeed, the incarceration figures for African American males are 13 times that of White males (Toth, Crews, & Burton, 2008). Although the data do support disproportionate rates of incarceration, the reasoning used by these researchers is faulty logic known as cherry picking (Klass, 2008). As noted by Garland, Spohn, and Wodahl, “disparity is not necessarily tantamount to discrimination. Disparity only denotes a difference in outcomes, indicating that discrimination might be present” (2008, p. 5).
Discrimination and Criminal Justice
There can be little doubt that discrimination does exist within criminal justice because the field is composed of individuals who have their own beliefs and attitudes. However, of interest to researchers is whether or not discrimination occurs as a result of faulty practices and procedures. If the fault is with individuals, the issue must be handled on an individual basis as it occurs, but if the fault is systematic, overhauls would be needed (Roberts, 2007).
Judges hold considerable discretion when sentencing that may contribute to discrimination against males and African Americans (Kamalu, Coulson-Clark, & Kamalu, 2010). Davis suggested that Prosecutors could unwittingly encourage and advance discriminatory practices through their use of discretion (2007). In addition, police officers hold considerable discretion in their roles, which could also inadvertently advance discriminatory practices. Finally, even the arrestees can behave in ways that can encourage discrimination against them, as noted by Crutchfield, Fernandez, and Martinez:
“In 1964, Cross published ‘Negro, Prejudice, and the Police’ calling for police officers to recognize the social circumstances of blacks and for the fair treatment of individuals. That same year, Piliavin and Briar published their now classic paper, reporting that demeanor, which is related to race, was an important factor determining when police exercised the discretion to formally arrest.22 Black and Reiss followed with their report that demeanor was important, but less so than the wishes of victims, and that there are racial differences in the preferences of those victims; black victims more frequently demanded arrest” (2010, p. 906).
Hence, at virtually every level of the Criminal Justice system, there is considerable latitude that could result in discrimination. The challenge for researchers is to determine first if the problem is systematic and if so how to combat the situation.
A Need to Understand Motives
As suggested by Reiss, demeanor or attitude can play a significant role in causing disparities; this applies to both the arresting officer and the suspect. Anecdotal evidence likewise suggests this is the case; one Louisiana State Trooper interviewed stated that smiling in driver’s license photos will benefit people who have been pulled over because it can put the officer in a calmer state of mind (Oakes, 1984).
Motivation is the foundation of a new theory of human behavior that suggests that all behavior, criminal or otherwise is driven by internal need. This theory states that “needs are motivating factors in human behavior” and “abberant behavior is nothing more than a clash of values” (Oakes, 2011, p. 4). In addition, values developed by groups of people often create the circumstances that lead to supression by other groups. When this suppression involves the implementation of justice it can appear to be or in reality be discriminatory. For example, the national Drug War has contributed significantly to prison populations, especially for African Americans; 80% of all those in prison on drug charges are African American (Toth, Crews, & Burton, 2008). The prisoners of war in this theater tend to be dealers, the majority of which are African American for various reasons.
Hence, to fully understand whether the disparities within the Criminal Justice system are discriminatory or not would require a study to understand first the motives of all players, including the politicians who pass and perpetuate the laws affecting those arrested.
Although disparities do exist, current research is tenuous in proving a correlation between the disparities and discrimination. Because racial issues in America have an emotionally charged element, some research has fallen into the trap of beginning with false assumptions, thus delivering false conclusions. The issue is complex involving every player in the Criminal Justice arena including defendants and politicians; any attempt to determine if discrimination is systematic therefore must either encompass every possible element (which may be impossible) or focus on the dynamics of motives. To settle this issue with finality will require more than data analysis; empirical studies are needed.
I wrote this article for a Criminal Justice class a couple of years ago. Since that time, I have done additional research and although, as stated in the conclusion, the issue is far to complex to draw empirical conclusions (and will likely always be the case), I do believe after exhaustive research that there is a clear pattern of discrimination in the system.
This essay was written in such a way as to take a non-political position. Now for the political side…
The book I recently wrote is bringing many “good” Republicans out of the wood-works to decry my so-called “lack of intellectual honesty” among other claims. I find this both amusing and ironic for one of the major hurdles to creating a criminal justice system that is just is the fact that Republicans in Congress and the Media simply refuse to listen to facts when these ARE clear. In fact they simply disregard all evidence and do as they please, causing more damage in the process.
We can no longer afford as a people to allow such short-sighted, ignorant, racist foolishness. We need to admit the facts when present. Two glaring facts are that there ARE gross disparities in the Criminal Justice system and that these disparities are a direct result of the structure of the Drug War.
Another fact that cannot be ignored is that this disparity is falling squarely on the backs of people of color, most notably African-Americans. This is unacceptable and I fear I did not make this point strongly enough in my recent book. So allow me to make up for that now.
It is a supreme act of cowardice to NOT put an end to the Drug War that is destroying the lives of so many of our people. Blacks in our society have been put through enough. It is time that someone in Washington grow a set of balls and stop the senseless assault on the Black community. Enough is quite enough.
Now, for you racist pigs in the GOP…How’s that for “intellectual honesty?”
If you would like to read my new book, The Cowards in Charge: Exposing the GOP’s Racist Drug War Policy you can get it now on Amazon. Read an excerpt here.
Crutchfield, R. D., Fernandez, A., & Martinez, J. (2010). Racial and Ethnic Disparity and Criminal Justice: How Much is Too Much? Journal of Criminal Law and Criminology, 100(3), 903-32.
Garland, B. E., Spohn, C., & Wodahl, E. J. (2008, Fall). Racial Disproportionality in the American Prison Population: Using the Blumstein Method to Address the Critical Race and Justice Issue of the 21st Century. Justice Policy Journal, 5(2), 1-42.
Kamalu, N. C., Coulson-Clark, M., & Kamalu, K. M. (2010, Spring). Racial Disparities in Sentencing: Implications for the Criminal Justice System and the African American Community. African Journal of Criminology & Justice Studies, 4(1), 1-31.
Klass, G. (2008). Just Plain Data Analysis: Common Statistical Fallacies in Analyses of Socila Indicator Data. Retrieved from http://polmeth.wustl.edu/media/Paper/2008KlassASA2.pdf
MacNamara, R. H., & Burns, R. (2009). Multiculturalism in the criminal justice system. New York, NY: McGraw Hill.
Oakes, C. J. (1984). Interview With LouisianaState Trooper Daniel Daugherty. , LA: .
Oakes, C. J. (2011, September 9). Why We Do What We Do. Retrieved from http://jeffoakes.wordpress.com/2011/09/15/why-we-do-what-we-do/
Roberts, D. (2007, Fall). CONSTRUCTING A CRIMINAL JUSTICE SYSTEM FREE OF RACIAL BIAS: AN ABOLITIONIST FRAMEWORK. Columbia Human Rights Law Review, 39(1), 261-685.
Toth, R. C., Crews, G. A., & Burton, C. E. (2008). In The Margins: Special Populations and Criminal Justice. Upper Saddle River, NJ: Pearson Prentis Hall.
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