One aspect of institutionalized racism has been termed petit apartheid. This concept includes daily informal or hidden interactions between police and minorities, such as stop-and-question and stop-and-search law enforcement practices, which may or may not result in an arrest and consequent entry into the criminal justice system (Zatz and Mann 1998: 4). The notion of petit apartheid has recently been explored both theoretically and in terms of those activities that might fall within its definitional scope (Milovanovic and Russell 2001). The focus of petit apartheid appears to be attitudinal factors that influence policing and other decisions within the system, that is, “culturally biased beliefs and actions” extending, in the view of Daniel Georges-Abeyie (2001: x), to insults, rough treatment, and lack of civility faced by black suspects, the quality and objectivity of judicial instructions to a jury when an African American is on trial, and other discretionary acts within the system. Petit apartheid contrasts with grand apartheid. The latter encompasses overt racism. Studies on racism within the criminal justice system have been critiqued for giving undue emphasis to overt racism and ignoring petit apartheid (Georges-Abeyie 2001: x). This chapter aims to explore overt racism within the criminal justice system. Issues such as racial profiling and racial slurs, which appear to constitute an aspect of petit apartheid as well as being discriminatory practices, have already been discussed in Chapter 2.
HISTORICAL CONTEXT.
Historical Context African Americans have suffered discrimination on grounds of race, initially through the system of slavery, and then through a pattern of exclusion and segregation, both informal and formal, in the shape of legislation and court decisions that have historically endorsed overt racial discrimination. From the time of the inception of slavery in the early 17th century until 1865, slaves were considered the property of their masters based on a view that they were naturally unequal and inferior people. They were subjected to slave codes, which prohibited the possession of any rights or freedoms enjoyed by whites; experienced brutal and inhumane treatment of an extralegal nature; and were exploited for their labor. Following the Civil War, amendments to the Bill of Rights prohibited slavery and granted all persons, regardless of race, a right to equal protection. However, despite these legal statements of freedom, patterns of discrimination persisted after the war because many states passed Jim Crow laws, which had the effect of maintaining forms of discrimination in legal, social, and economic forums. For example, African Americans were denied the right to vote or to enter into contracts, and the doctrine of separate but equal was applied to keep the races separate. The courts continued to enforce Jim Crow laws until the mid-1900s, and African Americans were also subjected to extralegal treatment in the form of physical assaults and practices such as lynching, where police were often present. About 3,000 African Americans were lynched between the mid-1800s and the early 1900s (B. Smith 2000: 75), and those performing the lynchings were seldom prosecuted. During the 20th century, legal rights were accorded to African Americans and have been protected by the courts. In the landmark case of Brown v. Board of Education in 1954, the Supreme Court struck down the “separate but equal” doctrine, and the civil rights acts passed in the mid-20th century attempted to restate and reinforce a policy against segregation. Today, the black community in the United States is diverse, comprising, for example, Jamaicans, Nigerians, Ethiopians, Somalis, and other African and West Indies nationalities, each with its own culture distinguishable from that of African Americans. Nevertheless, despite this heterogeneity, racist attitudes continue to be manifested based on skin color. The history of Latinos in the United States has been one of contention with the Anglo American culture. Spanish colonies were established in the United States in the late 16th century, predating the Anglo American presence; however, in 1847, Mexico lost approximately half of its territory to the United States. In recent times, it has been common to associate Latinos with the Chapter 3 Racial Discrimination in the Criminal Justice System 67 issue of immigration, and Mexicans in particular are constructed as an illegal immigrant group (De Uriarte in Alvarez 2000: 88). Racist stereotyping of Latinos depicts them as sneaky, lazy, and thieving (Levin in Alvarez 2000: 88), and law enforcement practices and the criminal justice system have been shown to collaborate in discrimination against Latinos in the form of police harassment of Mexican Americans (Turner in Alvarez 2000: 88). It is important to appreciate the heterogeneity of the Latino population in the United States, because issues affecting Mexican Americans may differ from those impacting Puerto Ricans, Cubans, or immigrants from Central America. For example, Puerto Ricans are the most economically disadvantaged group (Myers et al. in Alvarez 2000: 89), whereas Cuban immigrants to the United States have tended to come from the middle class, be well educated, and possess significant economic resources. Nevertheless, like African Americans and other black groups, the heterogeneous Latino population tends to be viewed as homogeneous. American Indians and Alaska Natives are the only indigenous groups in the United States. The history of contact between American Indians and Anglo Americans is replete with acts of violence against American Indians and with the dispossession of their lands. Alaska Natives, as a colonized and marginalized people, have experienced and continue to experience severe trauma generated by social change, with high rates of suicide, alcohol abuse, and a disproportionate representation in the criminal justice system (see, e.g., Banks 2002; Brod 1975; Fienup-Riordan 1994; Kraus and Buffler 1979; Travis in Phillips and Inui 1986; Schafer, Curtis, and Atwell 1997). Similarly, American Indians continue to be disproportionately represented in arrest and incarceration data in those states where they are primarily located (see, e.g., Greenfeld and Smith 1999; Grobsmith 1994; Perry 2004; Ross 2000). Both groups suffer economic, educational, and social stereotyping, which is revealed in their treatment by the criminal justice system. In terms of criminal victimization, blacks disproportionately commit and are victimized by violent crime. They are almost 7 times as likely as whites to be murdered and about twice as likely to be robbed, raped, or sexually assaulted (Banks, Eberhardt, and Ross 2006: 1177). Although they make up less than 13% of the population, in 2004 blacks were arrested for 47.2% of murders, 53.3% of robberies, 31.9% of rapes, and 32.7% of assaults (p. 1178). Blacks represented 45% of the incarcerated population in state and federal prisons in 2002 (Harrison and Beck 2003) and more than 40% in 2004 (Harrison and Beck 2005). In 2001, American Indians represented 2.4% of all offenders entering federal prison and about 16% of all violent offenders in federal prisons (Perry 2004: 21), and they made up 0.9% of the total U.S. population in the 2000 Census (p.
IS THERE RACIAL DISCRIMINATION IN THE CRIMINAL JUSTICE SYSTEM?
Is There Racial Discrimination in the Criminal Justice System? One report suggests that racial discrimination does occur at some points in the criminal justice system. Following the Rodney King incident, the report of the Independent Commission on the Los Angeles Police Department (also called the Christopher Commission) (1991) found that there was excessive use of force by LAPD officers and that this was compounded by racism and bias. One quarter of the 960 LAPD officers surveyed by the commission agreed that officers held a racial bias toward minorities, and more than one quarter agreed that this racial bias could lead to the use of excessive force. The commission also reviewed radio transmissions within the LAPD, which revealed disturbing and recurrent racial remarks, often made in the context of discussing vehicle pursuits or beating suspects. Testimony from witnesses depicted the LAPD as an organization whose practices and procedures tolerated discriminatory treatment, and witnesses repeatedly testified about LAPD officers who verbally harassed minorities, detained African American and Latino men who fit generalized descriptions of subjects, and employed invasive and humiliating tactics against minorities in minority neighborhoods. As well as racism in relations with the public, racial bias was also reflected in conduct directed at fellow officers who were members of 68 Part I The Interaction Between Ethics and the Criminal Justice System racial or ethnic minority groups. These officers were subjected to racial slurs and comments in radio messages and to discriminatory treatment within the department. In another report, that of the New York State Judicial Commission on Minorities (1991), a panel of judges, attorneys, and law professors found that “there are two justice systems at work in the courts of New York State; one for whites, and a very different one for minorities and the poor” (p. 1). The panel found inequality, disparate treatment, and injustice based on race. It reported that many minorities received “basement justice” in that court facilities were infested with rats and cockroaches, family members of minorities were often treated with disrespect and lack of courtesy by court officers, and racist graffiti appeared on the walls of court facilities. The panel also concluded that minority cases often take only 4 or 5 minutes in court, suggesting a form of assembly line justice, and that black defendants outside of New York City frequently have their cases heard by an all-white jury. To determine whether racial discrimination exists within the criminal justice system, criminologists have conducted research studies that have examined the major decision points within criminal justice systems in the United States. Most researchers agree with William Wilbanks (1987) and Joan Petersilia (1983) that although there is racial discrimination within the criminal justice system, the system itself is not characterized by racial discrimination; that is, discrimination is not systematic (Blumstein 1993; DiIulio 1996; Russell-Brown 1998; Tonry 1995). There are, however, individual cases occurring within the system that appear to demonstrate racial discrimination at certain decision-making points (Wilbanks 1987). According to Petersilia (1983), racial disparities have come about because procedures were adopted within the criminal justice system prior to any real assessment about the effect of those procedures on minorities. For example, she found that although the case processing system generally treated offenders similarly … we found racial differences at two key points: Minority suspects were more likely than whites to be released after arrest; however, after a felony conviction, minority offenders were more likely than whites to be given longer sentences and to be put in prison instead of jail (p. vi). Petersilia also suggested that “racial differences in plea bargaining and jury trials may explain some of the difference in length and type of sentence” (p. ix). The contention that there is no systematic bias in the criminal justice system based on race has been challenged by other researchers who dispute this conclusion on a number of grounds (Russell-Brown 1998: 28). These include the fact that prior studies have assessed discrimination at a single stage in the system and have therefore been ineffective in detecting discrimination that might exist at other stages. For example, the finding that there is no racial disparity in sentencing within a system does not exclude the possibility of discrimination in other parts of the system. As already discussed, Georges-Abeyie (in Russell-Brown 1998: 32) has drawn attention to how research on racial discrimination in the system focuses on formal, easily observed decisionmaking points and fails to take account of more informal law enforcement action. He argues that this informal decision making determines who will be arrested and who will enter the system and that these encounters should be included in any assessment of whether the system operates in a discriminatory manner. If such informal action were to be included, he suggests that a system of petit apartheid would be revealed that would demonstrate that African Americans are consistently treated in a discriminatory manner as compared to whites. Another criticism is that official statistics on race and crime do not provide a proper basis for research on discrimination in the justice system, because the data collection procedures make these statistics unreliable and distort analysis derived from them (Knepper 2000: 16). This argument points out that the primary classification scheme employed in crime statistics designates four official races — white, black, American Indian/Alaskan Native, and Asian and Pacific Islander — as well as two official ethnic groups, “Hispanic origin” and “not of Hispanic Chapter 3 Racial Discrimination in the Criminal Justice System 69 origin.” In contrast, the 1990 census includes 43 racial categories and subcategories. If race is made the focus of inquiry, there is an assumption that races constitute discrete groups, but in fact, the races in America are not monolithic. For example, the designation “black” fails to capture the most significant aspects of what it means to be black in the United States, because the designation “black” includes persons of Caribbean, African, and Central and South American origin, and within each of these groups are populations distinguished by culture, language, and shades of color (p. 19). Paul Knepper argues that no objective statements can be made based on these race categories, which are essentially political rather than social definitions of races derived from a legal ideology of separate races grounded in the institution of slavery (p. 23). In relation to the juvenile justice system, it has been argued that any discrimination within that system should be considered separately from the adult system for two basic reasons (Pope and Feyerherm 1990). First, a high level of discretion is permitted in the juvenile justice system, and this may tend to produce more discrimination. Second, because most adult offenders begin their contact with the adult system through the juvenile justice system, characteristics acquired in the juvenile system, such as a prior record, may influence their treatment in the adult system. As to whether racial discrimination exists within the juvenile justice system, after a review of the literature, Carl Pope and William Feyerherm (1990) conclude that two thirds of the studies reviewed suggested evidence of direct or indirect discrimination against minorities, or a mixed pattern of bias, especially in the processing of juveniles through the system. Their survey also suggests there is evidence that race differences in outcome may seem to be minor at a certain decision-making stage in the system but that these differences have more serious implications as earlier decisions in the system move toward a final disposition. Third, Pope and Feyerherm state that although the relationship between race and juvenile justice decision making is complex, their analysis suggests that various factors do interact to produce racial differences in juvenile justice dispositions. Certainly, race seems to continue as a factor in responses to juvenile crime. Information collected by the organization Building Blocks for Youth (2000) revealed that African Americans represent 15% of the population nationwide, 26% of juvenile arrests, 44% of youth who are detained, 46% of youth who are judicially waived to criminal court, and 58% of youth admitted to state prisons. In considering racial discrimination within the criminal justice system, researchers have isolated and examined various decision-making points, including arrest, bail, jury selection, conviction, and sentencing. These decision-making points will be considered in the following sections.
POLICE ENCOUNTERS WITH CITIZENS AND POLICE ARRESTS:
Racial origin may sometimes influence police decisions about making an arrest. In the case of suspected juvenile offenses, research has shown that for minor offenses, police officers may take into account the demeanor of a juvenile in deciding whether to make an arrest (Black and Reiss 1970; Piliavin and Briar 1964). If the police perceive the suspected offender as showing them disrespect, this may increase the likelihood of an arrest. Along with racial origin, Douglas Smith (1986) found that the context of a particular neighborhood also influenced police decisions about arrest or use of force, because police were more likely to arrest, threaten, or use force against suspects in racially mixed or minority neighborhoods. Research into how police use their powers against minorities, whatever may be the race of the officer, has been an important issue in policing research, and the approach has been to explore whether white officers treat black citizens differently than nonblack citizens (R. Brown and Frank 2006: 104). In one study of police employed by the Cincinnati Police Division between 1997 and 1998, where about 65% of the population was white and 35% black, researchers examined 614 police – suspect encounters during which 104 citizens were arrested. They discovered that about 18% of the white officer – suspect encounters ended in arrest compared to 15% of the black officer – suspect interactions. Further, male and juvenile suspects were 70 Part I The Interaction Between Ethics and the Criminal Justice System significantly more likely to be arrested than females or adults, and police were significantly more likely to arrest black suspects than white suspects (p. 118). They also found that citizens who show disrespect to the police increase their likelihood of arrest. Interactions involving black officers and black suspects were significantly more likely to result in arrest than interactions involving black officers and white suspects (p. 119). Thus, the authors suggest that black officers are more likely to use coercion with black citizens than white citizens. The authors are unable to offer any explanation for this differential arresting behavior other than that race seems to make a difference and that more research is required (pp. 120 – 121). In considering the proportion of blacks involved in police shootings of criminal suspects, James Fyfe (1982) demonstrated that in New York City, blacks were more likely than whites to be shot by police, because they were disproportionately involved in armed incidents that involved shooting. In contrast, research in Memphis showed that blacks were no more likely than whites to be involved in armed incidents, but nevertheless, police shot disproportionately more blacks when they were fleeing. Fyfe concludes that police use of deadly force in Memphis is influenced by the race of a suspect. In Seattle, a study of race and drug-delivery arrests revealed that most drugs, including powder cocaine and heroin, are delivered by whites, and that blacks are the majority delivering only one drug, namely, crack cocaine (Beckett, Nyrop, and Pfingst 2006: 129). However, 64% of those arrested for delivering drugs other than crack cocaine are black. The explanation suggested for this disparity is the law enforcement focus on crack cocaine and also the fact that the white drug markets in Seattle receive less attention from law enforcement than the more racially diverse markets in the city (p. 129). Thus, the researchers conclude, “Race shapes perceptions of who and what constitute Seattle’s drug problem” (p. 105). Why have police in many states prioritized drug enforcement as a police function and engaged in repeated traffic stops to conduct drug searches? Some commentators have argued that the Comprehensive Crime Act of 1984 has been the cause of this high ranking enjoyed by drug enforcement. The reason is that this act permitted local police agencies to retain the proceeds from assets seized in drug-enforcement activity where federal and local police cooperated in the investigation (Mast, Benson, and Rasmussen 2000: 287). As Brent Mast, Bruce Benson, and David Rasmussen put it, “Entrepreneurial local police shift[ed] production efforts into drug control in order to expand their revenues” (p. 287). In fact, the Department of Justice went further than the act’s provisions, because it decided that local police could arrange for federal authorities to “adopt” local police forces’ drug seizures, even when federal agents were not involved in the investigation. Interestingly, drug arrests per 100,000 population in states with limits on the assets that local police could retain averaged 363 during 1989, while the arrest rate in such cases where police were able to keep seized assets averaged 606 per 100,000 (p. 289). Mast et al., after conducting an empirical study, found that where legislation permits police to keep assets seized in drug investigations raises the drug arrest rate as a proportion of total arrests by about 20% and drug arrest rates themselves by about 18% (p. 285).
BAIL
For most offenses charged, prosecutors and judges have a wide discretion about whether defendants should be released on bail, and the courts may use factors such as dangerousness to the community and the possibility of flight in making bail decisions. Generally, the court looks at the employment, marital status, and length of residence in an area of the accused as an illustration of community ties, which may allow the court to conclude that the accused is unlikely to flee (Albonetti, Hauser, Hagan, and Nagel 1989). Studies tend to show that race is not a factor in bail applications once an accused’s dangerousness to the community and prior history of appearance at trial are controlled for. However, race does relate to the decision to grant bail in other ways. For example, in a study of more than 5,000 male defendants, Albonetti et al. (1989) reveal that defendants with lower levels Chapter 3 Racial Discrimination in the Criminal Justice System 71 of education and income were less likely to get bail and more likely to receive onerous bail terms. They also found that white defendants with the same education, background, and income as black defendants were more likely to be granted bail, and that in considering bail applications, a prior criminal record counted against blacks more than whites. However, in assessing the criteria for bail, dangerousness and seriousness of the offense were of greater weight for whites than for blacks. Overall, the study shows that under certain conditions, whites are treated more severely on bail applications but that, generally, white defendants receive better treatment. Samuel Walker, Cassia Spohn, and Miriam DeLone (2000: 135) note that it is impossible to guarantee that judges will refrain from taking race into account in determining applications for bail, and that the simple stereotyping of minorities as less reliable and more prone to violence than whites will likely result in a higher rate of bail denial regardless of any other assessed factors.
JURY SELECTION
Is there any evidence of racial discrimination in the jury selection process? Historically, laws have tried to entrench racial discrimination into the process of jury selection. In Strauder v. West Virginia (1880), the court struck down a statute that limited jury service to white men on the grounds that it violated the Fourteenth Amendment to the Constitution. However, this ruling did not prevent some states from attempting to preserve the lawfulness of an all-white jury by other means. For example, in Delaware, jury selection was drawn from lists of taxpayers, and jury members were required to be “sober and judicious.” Although African Americans were eligible for selection under this rule, they were seldom if ever selected, because the state authorities argued that few African Americans in the state were intelligent, experienced, or moral enough to serve as jurors (Walker et al. 2000: 156). The Supreme Court subsequently ruled this practice in Delaware as unconstitutional. Since the mid-1930s, the Supreme Court has ruled on jury selection issues in a way that has made it difficult for court systems to practice racial discrimination in jury selection. For example, the Court has ruled it unconstitutional to put the names of white potential jurors on white cards and the names of African American potential jurors on yellow cards and then to supposedly make a random draw of cards to determine who would be summoned for jury duty (Walker et al. 2000: 157). Walker et al. argue that many states still practice discriminatory procedures in selecting jury pools. For example, obtaining the names of potential jurors from registered voters, the Department of Motor Vehicles, or property tax rolls seems to be an objective process, but in some jurisdictions, racial minorities are less likely to be registered voters, own automobiles, or own taxable property (p. 157). The effect, therefore, is to stack the jury pool with middle-class white persons and to marginalize minorities. Prosecutors and defense lawyers are able to use peremptory challenges to excuse potential jurors without identifying any cause or explanation and without any accountability to the court, so it is therefore possible to employ peremptory challenges in the practice of racial discrimination in jury selection. According to Samuel R. Sommers and Michael I. Norton, such is the force of stereotypes concerning jurors of different races, especially in relation to judgments that are made on the basis of limited knowledge, under “cognitive load,” and under pressure of time (all factors present in a voir dire), that “the discretionary nature of the peremptory challenge renders it precisely the type of judgment most likely to be biased by race” (2008: 527). Initially, the Supreme Court was unwilling to restrict a prosecutor’s right to use peremptory challenges to excuse potential jurors on racial grounds, preferring to rely on the presumption that the prosecutor was always acting in good faith in making such challenges. However, the Court determined that it would intervene if a defendant could establish a case of deliberate discrimination by showing that eliminating African Americans from a particular jury was part of a pattern of discrimination in a jurisdiction. Not surprisingly, this stringent test has proved difficult to satisfy, because few defense lawyers possess information proving a pattern of discrimination. In 1986, the Supreme Court rejected this test, ruling that it was not necessary to establish a pattern to show discrimination and that a defendant need only bring evidence showing the prosecutor 72 Part I The Interaction Between Ethics and the Criminal Justice System had exercised his or her peremptory challenges on racial grounds. Once a prima facie case of discrimination has been made out, the state must explain why an African American has been excluded from the jury pool. Even so, Walker et al. (2000: 160) contend that judges have given the benefit of the doubt to prosecutors and have shown themselves willing to accept the prosecutor’s explanations rather than make a finding of deliberate discrimination. Case Study 3.1, derived from a New York Times report, illustrates an alleged case of racial discrimination in jury selection.
Case Study 3.1 In Dallas, Dismissal of Black Jurors Leads.
Case Study 3.1 In Dallas, Dismissal of Black Jurors Leads to Appeal by Death Row Inmate Thomas Miller-El is an African American charged with shooting two white hotel clerks during a robbery in 1985. One of the hotel clerks died, and Miller-El, age 50, is due to be executed by the State of Texas on February 21. He has asked the Texas Board of Pardons to commute his sentence and has appealed his case to the U.S. Supreme Court on the ground that the jury that convicted him was chosen using racial discriminatory standards that have been applied by the Dallas County district attorney’s office in many cases. The district attorney’s office opposes the appeal, arguing that there is no evidence of any racial discrimination. The jury in the trial comprised nine whites, one Filipino, one Hispanic, and one African American. Three other African Americans were excluded from the jury by prosecutors, as were seven of eight other African Americans interviewed as prospective jurors. Racial discrimination in jury selection is prohibited by the Constitution, and until 1986, to establish race discrimination, an accused had to meet a heavy burden of proof, because he or she had to show a pattern of discrimination. In 1986, in Batson v. Kentucky, the U.S. Supreme Court lowered the standard, determining that if the accused was able to show that the prosecution appeared to be using its peremptory challenges to jurors to exclude minorities, the trial judge could call for an explanation. Miller-El was convicted and sentenced 1 month before the Batson ruling, but the decision applies to his case retroactively. To date, both state and federal courts have upheld his death sentence, determining that no racial discrimination occurred during jury selection. Miller-El’s argument is that the courts considered only the number of challenges to jurors (10 out of 11 prospective African American jurors) and failed to consider other evidence showing that prosecutors in Dallas County had for years excluded blacks from juries as a matter of routine practice. This argument is supported by four former prosecutors whose terms of office cover the period from 1977 to 1989 and who confirmed that the Dallas County office did apply a policy of excluding blacks from juries. Further supporting this argument is a 1986 article in a local newspaper citing a 1963 internal memo in the district attorney’s office advising prosecutors not to include “Jews, negroes, Dagos, Mexicans or a member of any minority race” as a jury member. Further, in the early 1970s, the prosecutor’s office employed a training manual that contained advice on jury selection to the effect that a prosecutor should not include any member of a minority group because “they almost always empathize with the accused.” The Dallas Morning News has examined 15 capital murder trials from 1980 through 1986 and has revealed that prosecutors excluded 90% of African Americans qualified for jury selection. Nevertheless, the assistant district attorney in the Miller-El case disclaimed any notion that he had challenged the 10 African American jurors on grounds of race. He claimed that he was trying to assemble the best possible jury and that his office had no policy of racial discrimination. Despite these claims, at least three of the potential African American jurors challenged in the Miller-El case supported capital punishment and wanted to be on the jury. SOURCE: Rimer 2002.
Read more @ http://www.sagepub.com/upm-data/46946_CH_3.pdf