1

Introduction

A vast body of research has documented large racial disparities at each stage of the criminal justice process. Black American, Hispanic, and Native American people have all been found to experience relatively high rates of arrest, pretrial detention, incarceration, and community supervision compared to White Americans. Over the past decade, 2010–2020, racial disparity in incarceration has declined for most racial and ethnic groups and the total prison population has shrunk, but large disparities remain in police contact, court involvement, and correctional supervision. At the same time, violence poses a significant risk to the health and well-being of those same communities. Since the COVID-19 pandemic began, there have been recent increases in violence nationally across communities of various sizes and locations—rural, suburban, and urban.¹ The weight of the increased violence has fallen disproportionately on racial and ethnic minorities, though White communities have experienced increases as well. The urgent need to address this recent violence is one of many aspects of reducing racial inequality in the criminal justice system, the main focus of this report, and begs the question of how to address public safety and increase community well-being while continuing to reduce racial disparities in the system.

Disproportionate contact with police, courts, and prisons indicates one way in which people of color have a distinctive relationship to the state that often involves being watched, incarcerated, or otherwise subject to

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¹ Provisional data from the Centers for Disease Control and Prevention indicate that the recent increase in gun violence extended into 2021, as firearm-related homicide and suicide rates increased by 8.3 percent from 2020 (Simon et al., 2022).

government oversight. (Chapter 2 provides a detailed discussion of racial disparities throughout the criminal justice system.) While racial inequality marked the founding of the republic and permeates American social life—from health care and housing to education and employment—this report takes aim at a specific question: By drawing on historical, legal, and social science research, how can racial inequality in the criminal justice system be meaningfully reduced?

The problem of racial inequality in the criminal justice system has gained great urgency and attention over the last few years. Criminal justice reforms, often motivated by the goal of racial justice and the reduction of disparities (Cox, 2015), have been wide-ranging. At the state level, the National Center for State Legislatures reports that in 2020 alone, 36 states and the District of Columbia introduced more than 700 bills on police accountability, of which almost 100 were passed into law (Mintz, 2021). Incarceration has been another key focus of reforms. States and localities have curtailed cash bail, ended mandatory minimum sentences, and capped periods of community supervision. At the federal level, in 2021 the administration identified racial equity and criminal justice reform as an immediate priority.²

At this writing, following the tumult of a global pandemic, a dramatic rise in homicides and gun violence, the killings by police of George Floyd, Breonna Taylor, and many others, and subsequent protests against racial injustice, the committee takes this moment to infuse research evidence into public discourse and inform the current wave of public policy reform to address racial inequality in the criminal justice system and to advance racial equity.

THE COMMITTEE’S CHARGE

To this end, the Committee on Law and Justice of the National Academies of Sciences, Engineering, and Medicine convened an expert ad hoc committee to review and assess the research evidence on how racial inequalities in criminal justice might be reduced through public policy (see Box 1-1 for the committee’s full statement of task). The Committee on Reducing Racial Inequalities in the Criminal Justice System was assembled to carry out this study and produce this consensus report. The committee included experts in the areas of criminology, criminal justice, law, sociology, public policy, political science, history, racial equity, and economics. Arnold Ventures, the Bill and Melinda Gates Foundation, The Joyce Foundation, the National Academy of Sciences Cecil and Ida Green Fund, the National Academy of Sciences W.K. Kellogg Fund, the Robert

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² See https://www.whitehouse.gov/priorities

Wood Johnson Foundation, the Russell Sage Foundation, and the William T. Grant Foundation provided support for the study.

In undertaking its charge, the committee was asked to inform “key criminal justice stakeholders,” a group defined broadly to include a wide network of policy makers, local elected officials, law enforcement officers, state legislatures, court officials, data scientists and researchers, community-based organizations, and individuals and communities directly involved in the criminal justice system. To speak to this broad audience, the committee enlisted a broad array of perspectives and aimed to be forward looking. The report provides key principles and concepts for policy makers, researchers, community representatives, and practitioners to address longstanding racial inequalities in the criminal justice system.

STUDY APPROACH

While racial equity and criminal justice reform are now pressing topics of policy and public conversation, this report builds on the work of

researchers, practitioners, and communities that have been striving in many ways to reduce racial inequalities in the criminal justice system for decades. Building on earlier work has meant reviewing and synthesizing diverse bodies of evidence to distil key findings concerning ways public policy can reduce these inequalities. The criminal justice system does not operate in a social vacuum. Criminal justice inequalities are produced in part by longstanding socioeconomic inequalities and cumulative, racially based disadvantages that emerge over the life course and across generations.

Given the complex and deeply rooted nature of racial inequality in the United States, the committee acknowledges the need to examine policy changes within the criminal justice system and to address broader social, economic, and environmental conditions that give rise to inequalities in criminal justice. Addressing racial inequalities will require examining changes in criminal justice policy and examining changes to social and economic policy as well. Given this context, the report encompasses reforms that can occur within the criminal justice system, as well as reforms to public policy that shape the social context in which law enforcement, courts, and prisons operate. The committee explores public policy topics that have a scientific evidentiary basis for addressing racial inequalities in crime and justice outcomes. For those areas in the broader social and economic policy domains, the committee synthesizes the available evidence but does not make recommendations (see Chapter 7).

COMMITTEE METHODOLOGY

The committee met and deliberated over the course of 18 months to address the questions presented in its charge and reach the conclusions and recommendations presented in this report. To augment its own expertise, the committee organized wide-ranging information-gathering activities to inform the consensus study process and address the statement of task.

The committee conducted an extensive critical review of the literature pertaining to racial inequalities in the criminal justice system. This review began with an English-language search of online databases, including ProQuest and HeinOnline. Committee members and project staff used online searches to identify additional literature and other resources. Attention was given to consensus and position statements issued by relevant experts and professional organizations. Research reports in peer-reviewed journals of the disciplines relevant to this study received priority. The report also builds on recent publications of the National Academies, including The Growth of Incarceration in the United States: Exploring Causes and Consequences; Proactive Policing: Effects on Crime and Communities; and Decarcerating Correctional Facilities during COVID-19:

Advancing Health, Equity, and Safety (the National Academies, 2020, 2018; NRC, 2014).

The committee also engaged perspectives from academic researchers, criminal justice system actors, community-based organizations and activists, and community members directly impacted by racial inequalities in the criminal justice system. To further its outreach, the committee received materials from the greater public for its consideration at meetings and public workshops and throughout the course of the study.³ Additionally, a website was created to provide information to the public about the committee’s work and to facilitate communication between the public and the committee.⁴

The committee undertook its work in two phases. Phase I consisted of six closed committee meetings, three public information-gathering sessions, three community listening sessions, and additional information-gathering calls with community members, experts, and stakeholders. The public information-gathering sessions were not intended to reflect the full range of expertise or approaches to reducing racial inequalities in the criminal justice system and were not a representative sample; rather, they were meant to augment the committee’s own expertise, solicit opinions from community representatives and key stakeholders, and facilitate exchanges among parties that otherwise might not have the opportunity to disseminate information and ideas. They were open to the public and live-streamed online.

The first public information-gathering session was held in January 2021 and focused on community safety and policing. The committee heard from academics, law enforcement officers, county officials, and community activists on the history and contemporary contexts of policing, police reform and accountability, and community-driven safety strategies. The second public information-gathering session was held in March 2021 and focused on the drivers of criminal justice involvement to advance racial equity, with an emphasis on health and well-being, opportunity contexts and neighborhood conditions, and education and youth-serving systems. The third public information-gathering session was held in April 2021 and focused on data, courts, and systems of supervision. Experts spoke about data gaps and research perspectives, policies and practices in the court system that drive racial inequalities, levers for change, and different systems of supervision and their impacts. Following each public information-gathering session, a “Proceedings of a Workshop—in Brief” was published.⁵ While

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³ Public access materials can be requested from claj@nas.edu

⁴ See https://www.nationalacademies.org/our-work/reducing-racial-inequalities-in-the-criminal-justice-system

⁵ See https://www.nationalacademies.org/our-work/reducing-racial-inequalities-in-the-criminal-justice-system#sectionPublications

Box 1-2 highlights themes that emerged from the public sessions, it should be noted that all communities are heterogeneous in their make-up and their needs, and one voice alone cannot fully represent the diversity of perspectives within a community of people.

In the committee’s information-gathering process, particular attention was given to those who have had contact with police, courts, and prisons, often as family members or neighbors, or through the direct experience of incarceration. Many communities—particularly those that have been historically marginalized—continue to feel disconnected from the research enterprise and often question the relevance of research to their lives (Barry et al., 2017). Those who would purportedly benefit from a study are rarely consulted for their diagnosis of the problem or for their assessments of what needs to be further understood and what interventions may be available. The committee’s approach reflects a growing understanding on the part of the research community that the individuals and communities that have been arrested and incarcerated, or those with close proximity as neighbors and kin, have a distinctive kind of expertise that can enhance understanding and widen the policy conversation (Smith and Kinzel, 2021; Epperson and Pettus-Davis, 2015). In some cases, widening the conversation moves beyond meetings and consultations to include partnerships among practitioners, community representatives, and researchers, where all parties work to identify gaps, discuss challenges, and together create strategies and solutions (Sturm and Tae, 2017).

People who have direct experience of racial inequality in the criminal justice system often have a unique understanding of the problems and avenues for solutions. However, their voices are regularly left out of the decision making process for reform. The committee sought to elevate direct experience and community voice through listening sessions, where committee members joined with community representatives who described how they worked toward racial equity, the challenges they faced, data and research gaps, and how the criminal justice system has affected them and their communities. These community listening sessions included tribal and Indigenous communities, LGBTQ2S+ communities, and immigrant and undocumented communities.⁶ Community listening session participants and their affiliations are listed in the Acknowledgments section of this report (see page vii). Additional information-gathering calls were held with criminal justice state officials, police executives working on criminal justice reform, and policy makers and groups, including the National Governors Association, the National Conference of State Legislatures, the National Association of Counties, and the National Center for State Courts.

Phase II of the committee’s work focused on committee deliberations and the production of this report. It consisted of seven additional closed committee meetings from May 2021 through May 2022, a review of the

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⁶ LGBTQ2S+ is an acronym that stands for lesbian, gay, bisexual, transgender, queer or questioning, two-spirit, and other identities.

existing scientific literature and information related to the study’s charge, and report writing.

KEY TERMS AND CONCEPTS

Since this report addresses disparities and inequalities based on racial status, it is important to clarify what is meant by race, inequality, disparity, and racism (see Box 1-3 for a list of brief definitions of these terms). Relatedly, the terms used to describe specific racial and ethnic groups in

this report defer to the data cited in the studies presented throughout the presentation of the evidence. The term “community” can refer to “any configuration of individuals, families, and groups whose values, characteristics, interests, geography, and/or social relations unite them in some way” (the National Academies, 2017, p. xxiii). For the purpose of this report, communities can refer to specific racial or ethnic groups or geographically defined communities, and the term is explicitly labeled as such when used. As language is constantly evolving, the key terms used throughout this report are offered with specificity, precision, and justice in mind.

Race

In the social science perspective, race is not a biological category but a social construct created through relations between groups (Haney López, 1994). Racial categories have shifted, historically, and racial identities have been the objects of political and legal conflicts. Nevertheless, while race is socially constructed, it is nonetheless real in the sense that it is a central principle of social organization and a central axis of inequality in the United States (Bonilla-Silva, 1999, 1997). This report therefore takes as its starting point the claim that racial categories are socially constructed but important in explaining the distribution of legal, material, social, and psychological advantage and disadvantage.

The theory of race as a social construction incorporates a rejection of earlier pseudo-scientific approaches that treated race as a biological category (Winant, 2000). In medicine and genetics, scientists continue to debate the validity and utility of race as a biological category. Researchers agree that there is greater genetic variation within racial groups than between them (American Anthropological Association, 1998). Some argue that race is still an important scientific category, pointing to genetic differences that correspond to socially constructed racial groups and potential implications of the difference for health and medicine (Akinyemi et al., 2021; Burchard et al., 2003). Others argue against the use of race as a scientific category because it reinforces the rejected notion that socially constructed racial categories are biologically real (Yudell et al., 2016; Yudell, 2014; Cooper et al., 2003). This debate has particular resonance in the criminal justice context because of research that seeks to identify genetic predispositions to behaviors that have been criminalized, from violence to addiction (Duster, 2004; Carey, 1994). Given the entrenched problem of racial inequality in the criminal justice system, scholars have argued persuasively that any potential benefit of adopting a biological model of race in behavioral genetics research is outweighed by the harm of entrenching racial stereotypes (Rothenberg and Wang, 2006). This report’s focus, therefore, is on race as a descriptive measure of inequality, not on race as a biological explanation for criminal justice involvement.

Racialization is a discursive process in which a group is categorized as non-White, individuals are mapped into those groups, social and legal meanings are attached at the group level, and those meanings regulate access to or undergird a hierarchical distribution of freedom, power, land, and wealth (Omi and Winant, 2014; Haney López, 2006). Although race itself is not a natural or biological fact, biological characteristics (such as eye shape, skin color, and hair texture) are frequently, but not exclusively, used to categorize groups and map individuals. Race is an unstable and evolving concept (Omi and Winant, 2014). Neither the categories nor the mapping rules are static, so racial inequality may operate differently over time or across place. Viewed this way, race is a category that gains meaning only as it is used to mark inclusion and exclusion (Goldberg, 1992).

Race can overlap and become entangled with other concepts, such as ethnicity, ancestry, religion, and indigeneity. In sociology, race and ethnicity are distinct but related concepts. Race refers to social meanings attached to physical or biological characteristics and is often associated with ascribed identity. Ethnicity refers to cultural differences and is often associated with self-identification (Cornell and Hartmann, 2006). Ethnicity is also used to refer to subcategories within racial groups (Clair and Denis, 2015). This distinction between race and ethnicity can easily collapse once the shifting, flexible nature of racial categories is acknowledged (Eipper, 1983). For example, the number and description of racial and ethnic categories on the census have shifted over time, reflecting political, academic, and ideological changes (Hochschild and Powell, 2008). Cultural, linguistic, or religious differences have also been used to map people into racial categories and define the boundaries of those categories (Beydoun, 2014; Rolnick, 2011; Tehranian, 2000). The committee’s broad understanding of race as a social construction encompasses the experiences of these groups, even if they may be described elsewhere in terms of ethnicity, culture, or nationality. On the other hand, some groups, such as Black Americans, are commonly labeled as racial groups and rarely categorized in any other way. The “race” label is no less socially constructed for those groups.

Data used to measure racial disparities in criminal justice reflect the racial categories created by decision makers, including U.S. Census categories and classifications created by local officials. This report relies heavily on federal criminal justice data, which employ the five census racial categories (American Indian/Alaska Native, Black or African American, Asian, Native Hawaiian and other Pacific Islander, and White). Some federal data sources rely on reports from local officials, who may use other classification systems or define categories in different ways.⁷

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⁷ In this report, we predominantly use the following terms: Black American, Latino, Native American, and White. However, where reporting demographic categories used in particular data sources, we use the terms used in the corresponding data source.

Due to the shifting nature of racial categories, the overlap between race and other concepts, and the practice by decision makers of ascribing race to a person based on visual cues, the data are often an imperfect reflection of how racial inequality actually operates. For example, Pacific Islanders have been classified in a variety of ways, potentially masking significant criminal justice disparities (Office of Hawaiian Affairs, 2010). Hispanic or Latino people may not be counted as a racial group at all because the census considers “Hispanic or Latino” an ethnicity, making it difficult to measure criminal justice disparities (Subramanian et al., 2018). Where the population of a particular group is relatively small, as happens with Native Americans in many states, they may not be included in the data at all. When the Native American population is counted, it is defined in different ways, presenting additional difficulties for measuring disparities (see Chapters 2 and 10; National Congress of American Indians, 2021).

Acknowledging and addressing racial inequality requires attention to variations within racial groups. Race interacts with gender, sexual orientation, socioeconomic status, and disability in a way that compounds inequality (Nanda, 2019; Crenshaw et al., 2015; Harris, 2000). Some groups experience racial inequality while also experiencing inequality along another axis, such as class, religion, or citizenship status. Capturing how these other categories intersect with race is difficult because datasets do not always measure other variables or do not capture how they overlap with race. Measuring disparities by race also obscures the problem of skin tone inequality, or colorism. Researchers have documented differences in stops, arrests, incarceration, sentence length, and imposition of the death penalty between darker phenotype Black Americans compared to lighter skinned Black Americans (Monk, 2022; Kizer, 2017; King and Johnson, 2016; Eberhardt et al., 2006). This is consistent with research documenting color discrimination in other areas, such an employment, school discipline, and jury selection (Harpalani, 2020; Norwood, 2014; Banks, 1999).

Racial Disparities and Inequality in Criminal Justice

Involvement in crime, victimization, and contact with the criminal justice system varies greatly from person to person, from place to place, and across demographic groups in the population. Differences, between men and women for example, usually tell us about group averages. Since individual experience varies—often greatly—around the average, group averages by themselves tell us little about specific characteristics of individuals. Instead, averages offer a way of describing the status of one group compared to another.

Racial differences in crime, victimization, and criminal justice contact have been a longstanding interest of policy makers, researchers, and the general public. For example, Black men are more likely to be arrested and

incarcerated than White men relative to their representation in the population. This example rests on a benchmark comparison. In general, for any measurable outcome where information pertaining to race is recorded (e.g., arrest, pretrial detention conditional on arrest, jail and prison incarceration, police stops), researchers commonly measure group disparities against chosen benchmarks. Most often these benchmarks are population totals (for example, arrests per 100,000 and incarcerated per 100,000) for racial groups, sometimes cross-classified with demographic characteristics such as age and gender.

Racial disparities like these are descriptive statistics that are uninformative about their underlying causes. They are a kind of “warning light,” an indicator that life conditions in the population may have diverged or perhaps that authorities are treating or responding differently to different groups. Group-based disparities, in other words, are merely a starting point for multifaceted investigation. In the view of the committee, research to date on racial disparities in the criminal justice system has often narrowly focused on just one institutional component, such as the courts or prisons. In the next section, we focus on the various ways disparities have been defined and interpreted. That is followed by a discussion of racial inequality, which we argue is a more general framework that encompasses and expands the explanation of racial disparities in criminal justice.

Disparity Definitions and Their Limitations

A comprehensive assessment of average racial disparities (or more generally, differences in underlying distributions of key outcomes conditional on race) requires consistent definitions and strategies, which to date have not commanded widespread consensus. Empirical research often focuses on the details of criminal justice practice with an eye toward understanding whether otherwise similar individuals experience differential treatment based on race. Such research also focuses on the extent to which certain practices disparately impact one group relative to another.

As noted above, for the purposes of this report, we define racial disparity in general terms as follows:

Racial disparity refers to group-based differences in average criminal justice outcomes (often called absolute disparity) or group-based ratios of average criminal justice outcomes (often called relative disparity).⁸

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⁸ The term disparity is often used in the research literature to refer to what the committee has called “relative disparity,” and the committee follows that general usage in the report. The committee refers to absolute disparity specifically to refer to a difference in rates, unless it is clear from the context. This is an important distinction because criminal justice reforms that decrease the overall reach of the system will have disproportionately positive impacts on affected populations even when relative disparities are not reduced.

The literature on racial disparities has focused largely on comparisons of Black and White Americans and outcomes measured at the various stages of criminal justice processing—including police stops, arrests, charges, bail decisions, prosecutions, findings of guilt, sentencing, incarceration, or parole. The dominant conceptual framework for studying racial disparity in specific kinds of criminal justice involvement seeks to divide disparity into two components: one component related to race differences in legally relevant factors including crime, and another component related to differential treatment by line officials (e.g., Beck and Blumstein, 2018; Tonry, 1997; and Blumstein, 1982, discuss this framework; Chapter 4 provides a more detailed account). Although there are significant practical challenges to estimating these quantities in empirical analysis, racial disparity attributable to crime is often described as legally justifiable or warranted, and the residual disparity, which may be due to racial discrimination by officials, has been described as unjustifiable or unwarranted (Spohn, 2015a).

From Disparity to Racial Inequality

Researchers have described race differences in criminal justice contact variously as “racial disproportionality” (Blumstein, 1982), “racial disproportion” (Tonry, 1994), “racial disparity” (Muller, 2012; Mauer, 2011a), and “disproportionate minority contact” (Piquero, 2008), but the statement of task asks the committee to address “racial inequalities in the criminal justice system.” In the committee’s view, “racial inequality” encompasses a broader range of processes than the research on racial disparity alone can identify. Racial inequality includes differences in criminal justice involvement that may be rooted in social structures of racial stratification outside the criminal justice system. Racial differences in criminal justice contact that are closely linked to the social structure of stratification may be sustained and amplified across the stages of criminal processing.

Racial stratification—including historic patterns of neighborhood segregation and differences in socioeconomic well-being—can be a cause of both involvement in crime and involvement in the criminal justice system. Individual experiences in the system can drive further racial inequalities. Racial inequalities in the criminal justice system are thus related to racial inequalities in society and may be produced cumulatively across the stages of criminal processing (see Chapters 3 and 4). From the perspective of understanding racial inequality, research on disparity should be complemented by examining the links among socioeconomic inequality, structural racism, crime, and criminal justice and by examining disparities across stages of criminal processing.

A vast body of research examines racial inequality that lies beyond crime and justice. Racial inequality in housing, education, the labor market,

income, wealth, health, politics, and other areas is a documented fact of social life in the United States (see Chapter 3). A large literature also examines the criminogenic effects of socioeconomic inequality (see Burt et al., 2017; Peterson and Krivo, 2010; Sampson, 2009; Sampson and Wilson, 1995; Massey and Denton, 1993; Wilson, 1987). By these accounts, racial inequality outside the criminal justice system can lead to racial inequality in crime and system involvement. Furthermore, criminal justice involvement has been shown to lead to both increased inequality (see Pager, 2003; Western et al., 2001) and ongoing racial differences in criminal justice involvement (see McGlynn-Wright et al., 2022; Geller et al., 2014).

This report therefore uses the following definition and orienting framework:

Racial inequality refers to the combination of race-based differential treatment and unequal access to valued resources rooted in law, public policy, individual behavior, institutional practice, and social structures of segregation. Racial inequality is often the product of a number of mutually reinforcing social processes, including both historic and contemporary oppression, structural racism, and prejudice, whether or not intended.

Racial inequality, in this framework, can lead to racial differences in criminal behavior, which may in turn contribute to legally justified disparities in criminal justice outcomes, such as incarceration. Racial inequality can also lead to a racially differentiated criminal justice response that includes differential treatment of the public both by line officers and by policy design. For example, command decisions about police deployment and tactics, prosecutorial policy, and the design of penal codes have all concentrated criminal justice attention on Black, Latino, and Native American communities.

Racial disparity in criminal justice involvement can also further contribute to social and economic racial inequality. Racial inequality also exists in a wide variety of domains, in addition to the criminal justice system, including neighborhoods, schools, and governmental agencies. A focus on racial inequality can help explain the racially varied relationships between the public and the criminal justice system that go beyond a focus on racial disparity in, say, incarceration or sentencing. Including racial inequality in the conceptual framework for examining the criminal justice system helps to move the analysis beyond a focus on racial disparity to include the following, for example:

• Burdensome policing (sometimes referred to as “over-policing”)—police action whose costs in terms of community experience and

• resources exceed any improvements in community safety; over-policing is a form of inequality measured by the lack of political efficacy, the abuse of civil rights and civil liberties, and harmful incentives;
• Lack of police responsiveness —a failure to act by police in a way that would improve community safety more than any costs to the community experience or resources; under-protection is a form of inequality reflecting police indifference, discrimination, inefficiency, and lack of political accountability; and
• The War on Drugs —a multipronged policy agenda dating from the 1960s and 1970s, which combined sentencing policy, enforcement, and prosecution for drug-related offenses concentrated in low-income Black and Latino neighborhoods, that confronted widespread and poorly treated problems of drug addiction.

There are several advantages to studying race and the criminal justice system within this larger framework on inequality. First, the decomposition of racial disparities into differential offending and differential treatment is placed in a larger social context in which the social structure outside the criminal justice system may influence offending, differential treatment within the system, and criminal justice policy design.

Second, in the inequality framework, a reduction in disparity at a particular point may not reduce racial inequality in the broader community. Large racial inequalities in housing, jobs, and quality education can persist even if racial disparities in criminal justice contact are reduced. For example, while absolute racial disparity in imprisonment is highest in southern states compared to those in the Northeast, relative disparities are sometimes lower due to harsher sentencing in the South for both Black and White people not because of less overall racial inequality in socio-economic outcomes (C. Muller, 2021, 2012; Crutchfield et al.,1994). In short, the task of reducing racial inequality is distinct from that of reducing racial disparity at a particular stage of the criminal justice system. Understanding racial inequality may also involve multiple levels of analysis and a variety of data sources including historical, anthropological, and qualitative evidence. The analysis of racial inequality may also motivate new systems of data collection for monitoring racial inequalities in criminal justice and assessing efforts at ameliorating those inequalities.

Structural Racism

The term “racism” has often been reserved to describe individual dispositions linked to a belief in racial stereotypes and anti-Black sentiment. Thus, survey researchers have designed scales to measure racism among

individual respondents (NRC, 2004b), and psychologists have designed experiments to detect racial bias among research subjects, including members of law enforcement (see, for example, Geller et al., 2021; Eberhardt et al., 2004). For this research, belief, sentiment, and cognition operate at the individual level to drive decision making and other behavior in a direction that is harmful to non-White people. The discussion of racial inequality indicates that social organization (in neighborhoods, families, or markets, for example) and institutions are often patterned in a way that is harmful to non-White people, even in the absence of widespread individual-level racism. Scholars have described this configuration of social relations as “structural racism.” While quantitative social science has traditionally focused on understanding these situational levels of racism, an examination of broader notions of structural racism is also critical to inform policymaking (Prowse and Goff, 2022).

“Structure” in this context conveys a set of social processes in which “causation is understood as cumulative within and across domains. It is a product of reciprocal and mutual interactions within and between institutions” (Powell, 2008, p. 796). Some scholars emphasize the historical character of structural racism in which “whiteness, a privileged racial category justified by negative racist stereotypes, [is] passed down from generation to generation, so as to become acceptable, normal, and part of the public common sense” (Marable, 2001, p. 13; see also Rucker and Richeson, 2021).

Whereas racial inequality describes (perhaps enduring and multidimensional) group-based differences, structural racism attributes such inequality to social organization and institutions. Against this background, structural racism is defined as the operation of race as an organizing social force to enact, codify, or enable the oppression of one or more groups. Once a society becomes racialized, invidious racial distinctions affect “social relations and practices” at “all societal levels” (Bonilla-Silva, 1997). Structural racism is not defined by individual bigotry, prejudice, or discrimination but rather is based on how social, economic, and political institutions of government and civil society are organized by law, policy, practice, and norms. In this way, the argument that posits structural racism as a force contends that the inequalities by race occur specifically because of social and institutional factors that perpetuate racial inequality.

Understanding the historical roots of structural racism is crucial to recognizing its effects today and how it has evolved over time (Glenn, 2015; Harris, 1993). Structural racism is reflected in the distribution of political power, economic wealth, material conditions, and equal access to, or fair treatment by, social systems over time, from housing to health care and, in particular, the criminal justice system (see below; Feagin and Elias, 2013). These impacts are, however, neither linear nor constant. Since laws

change and social forces are dynamic, shifting with politics, demographics, economics, and social movements, structural racism has evolved over time.

Structural racism is built into policies and practices and does not depend on individual racial animus or discrimination, though racial animus or discrimination may also be intended. A classic example of structural racism is the passage of voter disenfranchisement laws after the passage of the Fifteenth Amendment. Laws establishing poll taxes, literacy tests, and grandfather clauses disproportionately excluded Black men from registering and casting a vote (Manza and Uggen, 2006). Though written in race-neutral language, these laws produced large racial disparities in voter participation between White men and Black men.

These disparities, as we understand today, were the evidence and mechanism for the problem of racial inequality resulting, for Black people, in second-class citizenship and an extremely low level of democratic participation for much of the 20th century. The Voting Rights Act of 1965 was a second attempt to address the structural racism of racially neutral disenfranchisement laws. Later policies, such as partisan redistricting or voter identification restrictions, continued to entrench the status quo of Black disenfranchisement. Thus, structural racism encompasses both those neutral policies that are motivated by racist intent and those that reinforce racial hierarchies resulting from past intentional racism, regardless of motivation (Roithmayr, 2014).

Contemporary scholars view racial inequality as largely structural, cumulatively generated through the mutual and reciprocal interaction of institutions (Ray, 2019; Sampson, 2012; Powell, 2008; Williams and Collins, 2001; Wilson, 1987). The mechanisms of structural racism today can be (although they are not always) found in an array of public policies such as zoning laws, the pricing of goods and service, as well as credit risk scoring to limit access to loans or rental housing (using income, zip codes, and arrest records). Still, it is often the case that contemporary forms of structural racism can be traced back to racially exclusive or racially targeted policies and practices of earlier moments in history. The National Academies noted the following in a 2017 report on racial health disparities:

For the purpose of this report, the primary populations of focus with respect to racial inequalities in crime and justice are Black, Latino, and Native American populations. These are the racial and ethnic groups where the committee finds the most evidence connecting mechanisms of structural racism and history to racially disparate outcomes in crime and criminal justice system involvement. Where applicable, other populations or distinct subgroups, such as Asian Americans or immigrants, are discussed in subsequent chapters.

HISTORICAL ROOTS OF RACIAL INEQUALITY IN CRIME AND JUSTICE

To elaborate on structural racism in the criminal justice system, the persistent racial and ethnic disparities in crime and justice that are documented in this report can be better understood when placed in historical context. This section briefly recounts the historical evidence of U.S. policies that created and maintained surveillance, policing, and punitive incapacitation of various racialized populations. Indian wars, removal, and dispossession were the foundations of early American policies of land acquisition as European colonizers and later settlers moved westward people of Mexican ancestry and Indigenous tribes, whose presence on or possession of land and property lay in the path of White people, and who were often defined as savages or bandits by nature and criminal by law or custom (Hernández, 2017).

Colonial and Antebellum America

Since the origins of modern American policing and imprisonment, Indigenous people and Black people—free, enslaved, and self-emancipated—have consistently been the targets of unique forms of policing and confinement (Schrader, 2019; Hernández, 2017; Camp, 2016).

Historian John Grenier, in his study of the first wars against Native populations, found that colonial leaders empowered non-military White men as rangers to destroy Indigenous villages, fields, and food supplies. According to Grenier:

With violence came a culture of impunity such that even when settlers or military personnel murdered innocent people, as in the Sand Creek massacre near Fort Lyon in southeastern Colorado in the winter of 1864, no one was prosecuted. By the second half of the 19th century, after two million square miles of land had been taken from them, Indigenous populations increasingly faced incarceration on reservations and in boarding schools—where children were forcibly removed from parents. The first of the boarding schools was Carlisle Indian Industrial School in Pennsylvania, which opened in 1879 and was modeled on the Fort Marion military prison (Dunbar-Ortiz, 2014).

In the 17th and 18th centuries, slave codes emerged across the 13 colonies to regulate the lives and labor of Black and Indigenous people. A Massachusetts Act in 1703 imposed a curfew for Indian, Black, and Mulatto⁹ slaves and servants after 9:00 p.m. unless on special errand. A 1730 New York slave code prohibited any socializing of groups:

Many of these codes, such as the South Carolina Slave Act of 1722, authorized the deputization of all White male citizens to police Black people and Indians (Hadden, 2003, p. 21). “Controlling slaves was one of the major purposes of the criminal justice system,” as Samuel Walker wrote in his comprehensive history of American criminal justice (Walker, 1998, p. 24).

Jails and prisons in the southern United States also emerged as critical mechanisms to reinforce the institution of slavery, though few enslaved women and men interacted with the formal criminal justice system (Henderson, 2016; Johnson, 2013).

In colonial New England, settlers organized early law enforcement bodies known as Indian Constables to monitor Native Americans and protect White residents from their possible retaliation. By the early 19th century, police forces had emerged in St. Louis (MO) and other frontier cities for this purpose (Hadden, 2003; Rousey, 1996).

In the antebellum South, patrols made up of White citizens had legal authority over Black people (Hinton and Cook, 2021; Hadden, 2003). Armed White men of various socioeconomic backgrounds policed the areas

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⁹ Mulatto is defined by the Jim Crow Museum as “the first general offspring of a black and white parent; or, an individual with both white and black ancestors. Generally, mulattoes are light-skinned, though dark enough to be excluded from the white race.” For more context see https://www.ferris.edu/HTMLS/news/jimcrow/mulatto/homepage.htm

surrounding plantations and supplemented the general surveillance sustained by overseers, slaveholding families, and local officials. Any person of African descent in the slave states who appeared to be outside of the control of a White master and failed to otherwise prove their free status could be seized and imprisoned by nearly any capable White civilian (Hadden, 2003). Charged with the responsibilities of slave management, insurrection suppression, and the maintenance of White racial and social order, slave patrollers served as the pre-modern predecessors for law enforcement practices that have shaped American history.

From the early Republic to the Civil War, slave patrols enforced planters’ control over the personhood and labor of their slaves by maintaining three primary duties: raiding slave dwellings looking for weapons and educational contraband, dispersing slave gatherings, and patrolling the areas around plantations and towns to apprehend suspects for cruel and corporal punishment (Hadden, 2003). Patrollers tended to concentrate these tasks at the largest plantations, where it was easier to monitor slaves and where slaveholders’ power was concentrated at the county level. As a result, the wealthiest slaveholders single-handedly molded the legal and penal system of the slave South by giving civilian patrollers enforcement authority (Schwarz, 1988).

Although most law enforcement and criminal justice institutions were idiosyncratic and decentralized during the antebellum period, law-and-order systems in the southern, western, and northern free-state regions of the United States were all tightly bound to the enforcement of slavery, especially after the passage of the federal Fugitive Slave Act of 1850. County sheriffs and town constables in the North operated similarly to slave patrols and militiamen in the South in order to quell mob uprisings and enforce a rigid “community ethos” of law and order based on strict moral guidelines that largely embodied the religious views and social expectations of the majority (Walker, 1998).

The Civil War and Its Aftermath

The mass criminalization of Black Americans profoundly shaped new developments of structural racism within the criminal justice system in the century between the end of the Civil War and the enactment of the Civil Rights Act of 1965. The only exception to this was the brief decade of Reconstruction, when Black elected officials, alongside White Republicans and the Freedmen’s Bureau’s federal agents, provided a measure of civil protection.

Following the emancipation of four million slaves, in 1865 and 1866, the former Confederate legislatures quickly enacted a new set of laws known as the Black Codes to maintain racial hierarchy. The Black Codes

functioned to restore the power of former slaveholders to limit the economic independence of the formerly enslaved. Southern planters sought to reassert control over, and recapture the returns to, Black labor that they lost as a result of the Civil War. Although the Black Codes did recognize the new legal status of Black Americans under the provisions of the 13th Amendment, which extended the right to marry, enter contracts, and receive other basic legal entitlements, in most states these newly freedpeople could not vote, own arms, or testify in court without risk of racial violence. Local criminal systems enforced this racial hierarchy directly by criminalizing and punishing Black people and indirectly by failing to investigate or punish White civilians who committed violent crimes against Black victims (Hadden, 2003).

Across several former Confederate states, new vagrancy laws criminalized Black unemployment as well as the right to quit. When Black workers refused to work under abusive or exploitative conditions, their choice to pursue work elsewhere exposed them to arrest for vagrancy. In South Carolina, for example, Black Americans were prohibited from selling crops without permission from a White person. In Louisiana, newly freedpeople could publicly assemble only between sunrise and sunset. In Maryland, interracial marriage carried a penalty of seven years of servitude for both parties. In Florida, any person of color who “intruded” on a gathering of White citizens, or who even fell in the proximity of White residents in public, could be charged with a misdemeanor with a punishment of 39 lashes (Laws in Relation to Freedmen).

Moreover, criminal justice policies during this period disproportionately victimized Black youth, women, and families (Haley, 2016; Chatelain, 2015; Chavez-Garcia, 2012; Ward, 2012; Hicks, 2010; McGuire, 2010; Gross, 2006). Plantation owners turned to the Black Codes to reclaim the labor of Black youth, frequently accusing parents of being unfit. Vagrancy laws at the center of the Black Codes compelled newly freed men, women, and children to either enter into contracts with White employers as punishment or risk entering a system of incarceration administered by private industry, known as the convict lease system.

Congress repealed the Black Codes with the Civil Rights Act of 1866 and, later, with the citizenship, due process, and equal protection clauses of the 14th Amendment. However, southern slave states continued to implement statutes that gave rise to mass criminalization of Black Americans immediately after Reconstruction through convict leasing, which was allowed explicitly by the 13th Amendment. The convict lease system allowed planters to continue to control Black labor after slavery. Although a small percentage of Black southerners served as convict laborers, the southern criminal justice system functioned as a coercive regime to compel people to accept exploitative labor contracts and limited freedom as

citizens. As the titles of two seminal books on the subject suggest, for Black Americans during this period the New South’s punitive regime was “Worse Than Slavery” or could be called “Slavery by Another Name.”

Moreover, the gradual abolition of slavery in northern states during the first half of the 19th century coincided with the birth of the modern penitentiary (McLennan, 2008; Rothman, 1971). Black Americans have suffered disparate rates of confinement from the very beginnings of imprisonment in America. At Newgate, the first state prison in New York, 25 percent of those confined between 1797 and 1828 were of African descent, even though free Black people only accounted for roughly 12 percent of the state’s population. In Philadelphia (PA), home in 1816 to the largest community of free Black people in the nation at about 15 percent of the city’s total population, 43 percent of the men and women incarcerated in the city’s penitentiary at that time were identified as Negro or Mulatto (Mishler, 2016; Nash, 1988).

The Progressive Era to World War II

During the Progressive period of the early 20th century, criminal laws, policing practices, and legal-cultural customs increasingly targeted Black Americans. The entrenchment of Jim Crow laws before, during, and after Prohibition unleashed new mechanisms for spatial regulation and social control at the federal and local levels that subsequently compromised Black social and physical mobility, economic opportunity, and life prospects (Haley, 2016; Muhammad, 2010; Gross, 2006). Northern authorities frequently turned to jails and prisons as a means to control “undesirable” groups and, in the process, maintain public order as increasing numbers of Black Americans migrated from the rural south (Adler, 2019; Balto, 2019; Hernández, 2017; Gross, 2006).

The period also saw sustained collective violence leveled at Black communities throughout the South. Most vividly reflected in the statistics on lynching, a sustained campaign of terror was conducted through mob violence and a White criminal justice system. Estimates of anti-Black lynchings in the United States between Reconstruction and World War II range between four and five thousand, based on new archival discoveries and research efforts to revise the work of sociologists Stewart Tolnay and E.M. Beck (Tolnay and Beck, 1995). While the vast majority of documented lynchings against Black Americans occurred in southern states, recent research has found that such lynchings occurred in at least 33 states between 1883 and 1941, far surpassing the boundaries of the former Confederacy (Seguin and Rigby, 2019).

This form of racial violence and terror was directed not only at Black Americans but also at people of Mexican ancestry as well as Chinese

immigrants and Native Americans (see Pfeifer, 2021). Estimates of the number of known anti-Mexican lynchings range widely, from 71 to 600, and they occurred primarily in the southwestern states of Arizona, California, New Mexico, and Texas (Seguin and Rigby, 2019; Martinez, 2018; Carrigan and Webb, 2013). Nevertheless, the circumstances of vigilante violence directed at Mexicans were comparable to the violence directed toward Black Americans. In both cases there are no known cases of prosecution for what often amounted to mob killings committed in broad daylight, in public venues, or with community consent such that the perpetrators were known and often heralded. Additionally, criminal justice actors often abided the mob, or refused to protect the victim from impending violence, or were unwilling to identify, arrest, or prosecute the killers. In the case of Mexican nationals, many of whom were ranchers and prominent landowners, the Texas Rangers were directly involved in some unlawful killings (Martinez, 2018; Carrigan and Webb, 2013).

Economic hardship and a climate of violence and terror were potent forces for Black migration. Muller (2012) found that the non-White population of the South fell by 3.2 million from 1870 to 1950. Muller’s research shows that the migration of southern Black people to industrial centers in the Northeast and the Midwest was closely associated with a gradual widening of the racial disparity in imprisonment through the first half of the 20th century. In 1880, census data show that native-born non-White people were about 2.5 times more likely to be imprisoned than native-born White people. That racial disparity increased in each of the following decades, so that by 1950 the imprisonment rate of native-born non-White people exceeded that of White people by a ratio of 5:1. The largest increase in disparity was found in cities of the Northeast and Midwest.

Historians who have tracked the migration of racialized minorities in the 20th century have described how police regulated the boundaries of Black and Mexican-American citizenship, mobility, and political organizing (Balto, 2019; Thompson, 2010; Mumford, 2008; Biondi, 2003; Escobar, 1999). In a recent study of police contact among Black youth, for example, Carl Suddler (2019) details certain tactics found in New York City that date back to the 1930s that he calls “heightened surveillance.” These encounters both inflated crime rates and “triggered racial antagonisms,” which led Black youth to view police as a “repressive, unworthy authority” (Muhammad, n.d.).

As millions of Black Americans continued to migrate from southern farms and cities to northern and western cities, police surveillance, harassment, and violence intensified and often accompanied White vigilante violence. Blue-ribbon commissions studied racialized police brutality; for example, the Negro in Chicago riot report issued in 1922 found systemic evidence of discrimination by police and court officials. Additional commissions that covered discriminatory policing and violence were convened in

Harlem in 1935 and 1943, among others. These reports presented systemic evidence of structural racism in the criminal justice system before the War on Crime and the War on Drugs began in the 1960s and 1970s.

Given the importance of these latter developments, after the Civil Rights movement ended, to understanding the historical and social roots of structural racism in the criminal justice system and given the historically unprecedented use of incarceration beginning in the 1970s, these more recent historical forces will be discussed in greater detail in Chapters 4 and 5 of this report. Taken together, this historical context sets the stage for understanding the current state of the criminal justice system in the United States and its relationship to Black, Latino, and Native American communities.

THE CRIMINAL JUSTICE SYSTEM IN THE 21ST CENTURY

The criminal justice system is “not a monolithic, or even consistent, system”: “[e]very village, town, county, city, and State has its own criminal justice system, and there is a Federal one as well. All of them operate somewhat alike. No two of them operate precisely alike” (President’s Commission on Law Enforcement and Administration of Justice, 1967, p. 7). This description of the system appeared in the 1967 report The Challenge of Crime in a Free Society.¹⁰ Over a half-century later, elements of this description still hold true. At the same time, there are also important differences between the criminal justice systems of the 1960s and the criminal justice systems of today that help to explain how system responses to crimes and misdemeanors drive racial inequality in the 21st century.

As is discussed in Chapter 9, federal involvement in criminal justice systems is greater today than it was 50 years ago; the federal system has grown alongside the federal government’s increased investment in state and local systems; the reach of the state and local systems, where the bulk of what is described as “criminal justice” takes place, is more expansive; and even as concerns about the quality of data persist, criminal justice systems are far more integrated, collaborative, and technology-dependent than they were 50 years ago.

Today’s federal system includes approximately 132,000 full-time federal law enforcement officers employed by 83 federal agencies, not including the U.S. Armed Forces, the Central Intelligence Agency, or the Transportation Security Administration. This number is dwarfed by the number of law enforcement agencies and agents in states and on tribal lands. The Bureau of Justice Statistics reports that there are nearly 18,000 state, county, and local law enforcement agencies in the United States with over a million total

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¹⁰ See https://www.ojp.gov/ncjrs/virtual-library/abstracts/challenge-crime-free-society

full-time employees, two-thirds of whom are sworn officers (Banks et al., 2016). There are also over 570 American Indian/Alaska Native tribes, with roughly half having formal criminal court systems that are partially funded by federal allocations pursuant to the United States’ treaty and trust obligations and a greater number with traditional justice systems. In 2020, there were a reported “1,833 state prisons, 110 federal prisons, 1,772 juvenile correctional facilities, 3,134 local jails, 218 immigration detention facilities, and 80 Indian Country jails as well as military prisons, civil commitment centers, state psychiatric hospitals, and prisons in the U.S. territories” (Sawyer and Wagner, 2020, p. 1).

Criminal justice systems are also more deeply embedded in communities than they were 50 years ago. Criminal justice actors, including police officers and probation and parole officers, are entrenched in neighborhoods and schools (Shedd, 2015), and the use of new technologies like ankle monitors and on-the-spot drug testing has brought the system directly into the homes of people under correctional control. The concentrated visible presence of law enforcement along with the concentration of incarceration and community corrections among historically disadvantaged populations reinforces divisions between White and Black space in ways that are consequential for how people encounter and experience criminal justice in the 21st century (Anderson, 2022, 2015; Bell, 2020a).

Reuben Miller’s research on reentry draws our attention to how restrictions that bar returning citizens (i.e., those under community supervision) from housing, employment, educational opportunity, and other social supports disparately impact Black men and, in turn, widen racial inequality in outcomes (Miller, 2021).

Moreover, viral videos of incidents with law enforcement like the one experienced by Christopher Cooper bring attention to the ways law enforcement may be deployed in a biased manner and to the way anti-Black racism can be aligned with attitudes about belonging, the law, and citizenship that structure the criminal justice system today. Sociologist Elijah Anderson describes this as the “provisional status” of Black people, as Black people are burdened with proving that they are law-abiding citizens and belong in a “white space” (Anderson, 2015).

ADDRESSING RACIAL INEQUALITIES THROUGH PUBLIC POLICY

Given this history and contemporary context, the question of how to address racial inequalities in the criminal justice system looms large. The social determinants of health framework, widely accepted in the scientific literature today, is a framework used to combat racial inequalities in the unequal risk of poor health outcomes, the lack of access to health care, and differential treatment by health care providers. Public health researchers

understand that these are all to varying degrees outcomes of a racially stratified society rooted in historical and material conditions that remain imminently salient in the health care system itself (Jones, 2002). Change means fixing how the health care system works in relation to an unequal society. Identifying the mechanisms that drive racial inequality as a form of structural racism can help ensure that the policy or practice solutions are designed at an appropriate institutional or systemic level rather than at the individual level. It is this understanding that animates the committee’s interpretation of its task and informs its recommendations for reducing racial inequalities in the criminal justice system through public policy.

Along with the preceding discussions of the terms of racial analysis and the way history informs our definitions, the social science of racial bias provides additional insight and also helps to explain why any attempt to reduce racial inequalities in the criminal justice system by addressing structural racism or moving away from punishment approaches to delinquency (and crime) is exceedingly difficult. (See Box 1-4 for a more thorough discussion of the psychological science of bias.)

Social psychologists recognize the role of “sociostructural forces in creating and maintaining racial bias and biased outcomes” (Richeson, 2018; see also Richeson and Sommers, 2016). This means that commitments to egalitarian values are not necessarily inconsistent with behaviors that support structural racism. The body of research explaining these behaviors, known as Aversive Racism Theory, demonstrates that White people who do not hold explicitly racist views can nevertheless behave in ways that reinforce the racist systems they oppose (see, e.g., Dovidio and Gaertner, 2004; Dovidio et al., 2002; McConnell and Leibold, 2001). Another theory that seeks to explain the continued existence of commitments to hierarchy that support racial inequality is Social Dominance Theory, a comprehensive conceptual framework that seeks to explain how group-based social hierarchies (not exclusively race-based ones) are maintained through individual and institutional discrimination. This latter theory posits that members of socially dominant groups will legitimize and maintain their dominance by supporting policies that reinforce their group advantage, seeking out social roles where they can police the interests of their group status (including, importantly, working as police officers) and engage in both overt and discrete acts of discrimination against nondominant groups (Sidanius et al., 1994; Sidanius, 1993).

Taken together, the prevailing understanding of these theories today is that they are natural as opposed to pathological. That is, behaviors and policy choices are driven by ongoing socio-structural forces and, indeed, by the history of structural racism itself. This means that eradicating the formal indicia of discrimination and racism in law would not inherently be adequate to break down those forces built over time (as shown in

the previous section). Historian Khalil Muhammad offers an example of this phenomenon by demonstrating how, in the period spanning the post-Reconstruction period to the 1960s, growing racial disparity coincided with a “statistical discourse” about the idea of “black crime” in the popular and political imagination. Reinforced by social science data, this discourse cast Black people as a uniquely dangerous and law-breaking group and justified the expansion of the U.S. prison system, sustained harsh sentencing practices, informed decisions surrounding capital punishment, and sanctioned racial profiling in general. Scholars, policy makers, and reformers analyzed the disparate rates of arrests of Black Americans and incarceration

as empirical “proof” of the “criminal nature” of Black Americans. These statistical measures deeply informed ongoing national debates about racial differences and steered the politics of reform in the first half of the 20th century (Muhammad, 2010; Du Bois, 1899). While the problem of crime among poor White and immigrant communities was also concerning to elected officials and academics, accepted explanations of their deviance framed the problem as a socioeconomic issue, not a biological trait. By World War II, Irish, Italian, Polish, Jewish, and other European ethnic groups in the United States had shed these criminal associations, but the view of criminality as an inherent problem among citizens of African descent has long endured (Muhammad, 2010).

This history informs and contextualizes nearly 80 years of psychological research documenting stereotypical association in the United States between Black people and criminality well beyond the passage of legal structures designed to address formal discrimination. The advent of subconscious-processing research has taken this work a step further—even thinking about people who are Black can lead to thoughts of crime and to split-second misapprehensions of their behavior as more suspicious and more dangerous (Correll et al., 2007; Payne et al., 2002; Payne, 2001). Likewise, thinking about crime and violence (primed subconsciously with an image of a gun) can lead to thinking about Black people (Eberhardt et al., 2004). The research base on these associations for other groups is not as extensive, but, again, the long history of differential treatment of Latino and Native American groups, combined with conceptual frameworks such as Social Dominance Theory and Aversive Racism Theory, leads to the hypothesis that disrupting these dynamics would be extremely difficult without large policy investments.

The committee thus recognizes the historical antecedents that have created structures of inequality by race that may override personal and psychological orientations, but also that biases are examples of the enduring effects of racism that result in racial inequalities in criminal justice. It is necessary to address the structural factors that are endemic and driving forces behind differences in criminal behavior, criminal justice discretion, and policy choices on how to respond to crime. Racial inequalities in violence and lethal criminal justice contacts are tied to historical and social processes of racial exclusion that manifest today (see Chapter 3), and given this, remedies must include the social drivers of crime and criminal justice inequalities (see Chapter 7).

Relatedly, reducing racial inequality in the criminal justice system also holds the promise of improving safety from the harms of interpersonal violence and from the harms of policing and incarceration, which cycle to further reinforce social drivers of crime and criminal justice inequalities. In short, instead of a tradeoff between racial inequality and crime,

the committee finds that reducing racial inequality can reduce crime and improve safety. Minimizing the overall harms from crime, including harms that result from society’s responses to crime, expands the toolkit of criminal justice responses beyond retribution, deterrence, and incapacitation to include victim restoration, prevention through improved community relations, attention to unmet needs, and cross-system coordination beyond criminal justice agencies.

Given the large presence of the criminal justice system in minority communities, minimizing criminal and system harms would disproportionately impact Black, Latino, and Native American communities, and likely reduce disparities in system involvement and victimization. This understanding informs the committee’s approach—which is also framed by the constitutional idea of parsimony (the minimal use of the state’s power of coercion)—emphasizing two main strategies for reducing racial inequality in the criminal justice system: (1) by reducing the scope of criminal justice contact and (2) by reducing the disparate impacts of policy and differential treatment (see Chapter 8).

REPORT ORGANIZATION

The committee’s report is organized into two parts: Part I sets the stage by exploring the causes and the nature of racial inequalities in the criminal justice system (Chapters 1–4). Chapter 2 documents key trends in racial and ethnic disparities across criminal victimization, offending, police contact and arrest, charging and sentencing, and community supervision. Chapter 3 explores the social drivers of racial inequalities in the criminal justice system, and Chapter 4 discusses the drivers of inequalities at each major decision point within the criminal system. Together, these chapters describe the nature, magnitude, and drivers of racial inequality in the criminal justice system as well as the role of historical legacies of slavery and settler colonialism, social-political forces, and criminal justice policies and practices in creating and maintaining racial inequalities.

Part II discusses how to address racial inequalities through social and criminal justice policy (Chapters 5–10). Chapter 5 introduces Part II of the report with a case example of civil rights, socialization, and the federal response to crime. Chapter 6 identifies and examines community-driven approaches to enhance safety and reduce harm. Chapter 7 delves into noncriminal policy approaches, including interventions in ancillary institutions that can interact with the criminal justice system to either perpetuate or mitigate racial inequalities. Chapter 8 synthesizes the evidence on reforms to the current criminal system and assesses their potential to reduce racial and ethnic disparities. Chapter 9 highlights the role of the federal government in grant making and supporting communities to promote safety and

to reduce inequalities in crime and justice. Finally, Chapter 10 describes challenges and opportunities to enhance data systems to better identify and monitor racial disparities in criminal justice system involvement.