National Academies Press: OpenBook

Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy (2023)

Chapter: 4 Criminal Justice Drivers of Racial Inequalities

« Previous: 3 Social Drivers of Racial Inequalities in Crime and Justice
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×

4

Criminal Justice Drivers of Racial Inequalities

Researchers find strong evidence of large racial differences in exposure to violence, serious offending, police contact, and incarceration (Chapter 2). They also find that violence and other crime is spatially concentrated in racially segregated neighborhoods that experience high rates of poverty (Chapter 3). This chapter brings these two lines of empirical evidence together to explain high levels of criminal justice contact and control in Black and other non-White communities.

Highly segregated low-income neighborhoods provide social environments in which crime and police contact are concentrated. Criminal processing—the sequence from police contact through arrest, conviction, and incarceration—can magnify these preexisting environmental disadvantages. Criminal processing is itself shaped by policies governing the deployment of police resources, procedures for arrest, prosecutorial procedures for charging and sentencing, and prison and parole administration. The criminal justice system does not simply reflect race differences in crime and social conditions; it also contributes to inequality in criminal justice outcomes.

Over the last two decades, researchers, policy makers, practitioners, and advocates have worked to reduce racial disparities, often within institutions of criminal legal processing. Reform efforts include developments in prisoner reentry policy from the early 2000s to address the collateral consequences of incarceration and more recent policy changes that abolish money bail, eliminate court-ordered fines and fees, reform sentencing policy, and end solitary confinement in prisons. For example, the combined effects of research, advocacy, and investigation through the U.S. Sentencing Commission helped reduce (but not eliminate) the crack-cocaine disparity

Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×

in federal sentencing in 2010; states and localities have ended arrests and incarcerations for cannabis possession; hundreds of people have been exonerated through DNA evidence; and the rate at which Black people have been imprisoned has declined over the last two decades. While these trends and reforms represent changes to a vast system consisting of thousands of agencies and departments, neighborhood segregation and concentrated poverty are enduring. Despite reform, police, courts, jails, and prisons remain a substantial presence in Black communities.

The sequential character of criminal processing can compound inequalities both within the criminal justice system and in social life more broadly. One way to understand how the criminal justice system itself affects inequalities is to focus on disparities at each stage of the system and key decisions at each stage. These decisions may divert a person out of the system, treat them more leniently, or treat them more harshly.

This chapter examines the evidence for racial disparities in criminal justice monitoring and processing at three key stages: entry into the system, primarily through policing; court processes, including pretrial detention; and post-conviction, including sentencing. Procedures and decision making at each stage suggest how disparities at one point are consequential for subsequent phases. If non-White people are treated relatively harshly, racial disparities grow larger across stages, resulting in high rates of incarceration of Black, Native, and Latino people.

To underscore why racial inequality in the criminal system is such a significant concern, this chapter also considers how people are harmed by involvement in the criminal system. Much of the research on racial disparities in the criminal justice system conceives of continued court and correctional control as the main outcome to be explained. However, greater racial disparities in ultimate outcomes—such as imprisonment or police killings—are not the only way inequality harms people. Since police contact, criminal conviction, and incarceration may negatively affect health, family structure, education, and employment, the inequalities produced by the criminal system may have a broader impact on socioeconomic inequality. Even early-stage criminal justice contact that does not result in continued correctional control can harm psychological and economic well-being. For example, a day or two spent in pretrial detention causes measurable damage even when the person is released and never tried or sentenced (Meares and Rizer, 2020; Dobbie et al., 2018). Similarly, racial disparities in incarceration are especially harmful in view of the prison experience, which increases vulnerability to violence, sexual abuse, solitary confinement, and poor health care.

Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×

CONCEPTUALIZING RACIAL INEQUALITY

A large research literature has wrestled with the complex relationship between racial disparities in crime and racial disparities in criminal justice involvement. The dominant approach aims to divide racial disparities in criminal justice involvement into two components: one for race differences in crime and a residual component that is often interpreted as discrimination by judges or other officials. While researchers often acknowledge the empirical limitations of interpreting a residual as a measure of discrimination, the underlying conceptual framework views disparity in criminal justice outcomes such as arrest or incarceration as the combined result of disparities in crime on the one hand and discrimination by officials on the other. In this review of research on racial disparity across stages of the system, we extend the crime-discrimination approach by considering the social and historical context of criminalization and the accumulation of disparities across stages.

Sentencing has been a longstanding focus of the analysis of racial inequality. Studies dating from the 1920s find Black defendants across a range of crimes were more likely to be convicted and given heavier sentences particularly compared to native-born White people (Sellin, 1935, 1928). In that wave of research, from the 1930s to the 1970s, severe court outcomes for Black defendants were taken by some researchers as evidence of discrimination. While researchers at the time often acknowledged racial differences in crime, the absence of controls for a prior criminal record, for example, clearly weakened the claim of discrimination (Kleck, 1981; Hagan, 1974).

A new line of research, beginning in the 1970s, incorporated information about crime into the analysis through statistical controls for a wide variety of case characteristics. Criminal history and offense severity are legally relevant considerations in sentencing and were found to explain much of the variation in sentence outcomes. Once these case characteristics were considered, evidence of racial discrimination became much weaker, and many concluded that Black overrepresentation in the criminal justice system was chiefly the result of serious criminal involvement within the Black population. Summarizing these studies, a National Research Council panel concluded in 1983 that “factors other [than] racial discrimination in sentencing account for most of the disproportionate representation of blacks in U.S. prisons” (NRC, 1983, p. 13).

Importantly, the research consensus at that time did not conclude that there was no race discrimination in U.S. courts, just that most of the observed disparity in sentencing outcomes was related to offense severity, prior record, and other legally relevant case characteristics. Subsequent research turned away from decomposing disparity into crime and discrimination components to instead make a more detailed study of discrimination.

Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×

This later wave of research found that, controlling for case characteristics, harsh sentencing outcomes were associated with the defendant’s race in combination with other attributes (e.g., age, education, or employment), or in certain kinds of social and institutional contexts. We review the main empirical findings from this research below.

The Explained versus Unexplained Racial Differences Framework

Parallel to the sentencing studies, another line of research examined racial disparities in incarceration. An early paper on imprisonment by Blumstein (1982) calculated the Black population’s share of arrests across 10 offense categories and estimated the expected share of Black prisoners given the racial disparity in arrests. Blumstein’s (1982, p. 1261) goal was to “explore the racial disproportionality of prison populations to discern… the degree to which it is likely to have emerged as a consequence of racial discrimination in the criminal justice system compared to the alternative explanation that the racial disproportionality might have emerged as a consequence of disproportionate involvement in criminal activity.” Data from the 1979 prison population showed that the Black share of arrests for murder and attempted murder was then 59 percent, and those offenses account for 14 percent of all people in state prison. Given the racial composition of arrests, the expected percentage of Black prisoners in the prison population who were incarcerated for murder or attempted murder is 0.59 × 0.14 = 0.081, or 8.1 percent. Summing across all offense categories, Blumstein (1982, p. 1266) calculated that the prison population would be 42.7 percent Black if it simply reproduced the racial distribution of arrests. The observed Black share of the prison population, Blumstein found, was 48.3 percent, suggesting that 80 percent (42.7 ÷ 48.3 = 0.8) of the total was accounted for by the differential involvement in arrests. The explanatory power of arrests varied across offense categories being larger for crimes of serious violence, like homicide, but smaller for less serious crime like drug offenses. A number of papers elaborated on this framework, replacing arrests with survey data on the race of offenders (Langan, 1985), updating the analysis from 1979 to 2004 (Tonry and Melewski, 2008), and then making further adjustments for the Hispanic population (Beck and Blumstein, 2018). The most recent estimates indicate that from 1979 to 2011, between 70 and 80 percent of the Black/White disparity in imprisonment is statistically accounted for by the racial disparity in arrests. Summarizing the research, Beck and Blumstein (2018, p. 863) write that “differential involvement in crime remains a significant factor that should be accounted for when considering racial disproportionality in prison.”

Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×

Criminalization

The explained and unexplained racial differences framework has dominated research on racial inequality in the criminal justice system, but the approach has been subject to two kinds of criticisms. First, in the crime-discrimination framework, discretionary decision making is often treated as the sole source of disparity for which authorities are responsible. The process of criminalization is excluded from the analysis. The term “criminalization” acknowledges that conduct treated as “crimes” by the state is necessarily a product of state-sponsored efforts of labeling, enforcement, surveillance, and punishment. This is true whether the conduct includes behaviors for which there may be wide agreement concerning the propriety of collective condemnation (homicide is the clearest case), or behaviors for which consensus may be less stable (such as sex work, drinking alcohol in public, or playing radios too loudly).

Criminalization thus describes how the law, police, and court officials classify and act upon some kinds of conduct, but not others, as criminal. Criminalization is a precondition for punishment, so treating some behaviors as criminal can magnify or attenuate the consequences of behavioral disparities across racial groups (Naidoo and Karels, 2012). Social norms, prejudices, electoral politics, and power relations at a given point in time can influence this process, potentially codifying and locking in definitions of crime that have a disproportionate impact (Lacey et al., 2018; Lacey and Zedner, 2017). Subsequent to this classification, how state officials carry out the identification and punishment of people who commit these enumerated offenses may also have disproportionate impact, compounding the biases created in the first instance by conduct categorization.

Criminalization has been used to regulate and control racial groups. For example, the Bureau of Indian Affairs created criminal codes and reservation court systems as part of the federal government’s campaign to forcibly assimilate Indigenous people in the late 1800s to early 1900s. The codes criminalized traditional religious and cultural activities that the U.S. government sought to eradicate. Agency-run criminal courts imposed sanctions on American Indians who resisted assimilation, local officials were given wide discretion to punish Indigenous cultural practice, and the courts were viewed as educational instruments in the campaign to “civilize” Native communities (U.S. v. Clapox).1 In this context, the criminal law and its administration was used to control and change Indigenous people, not to ensure public safety or address violence or social harm (Ross, 2010). Criminal system involvement by Native people, in this example, followed

___________________

1 35 F. 575 (D. Or. 1888). See https://law.resource.org/pub/us/case/reporter/F/0035/0035.f.0575.pdf

Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×

from the government’s choice to criminalize new behaviors, not from a change in behavior.

Law is fundamental to the process of criminalization (Jenness, 2004). Vagrancy laws have long criminalized poverty by subjecting people who appear to be unemployed to surveillance, arrest, and/or sanction. These laws also allowed for the policing of space, limiting the right to move freely, congregate, or to otherwise occupy public streets and sidewalks. In the United States after slavery ended, vagrancy laws were commonly used to criminalize Black southerners and Black migrants in northern cities (Muhammad, 2010). The proliferation of drug felony laws and a broad array of newly defined possession offenses adopted in the 1980s and 1990s illustrate widening the net of criminalization through the enactment of new criminal offenses in state penal codes (Tonry and Melewski, 2008; Dubber, 2001). If drug dealing is more likely to take place in public places in primarily Black and Latino communities, such communities become more vulnerable to arrest and incarceration when drug laws become more punitive. A legal framework that places few constraints on police discretion, or sentencing guidelines that punish criminal history, might also foster disparities (Engel et al., 2019; Frase and Roberts, 2019; Reiter, 2015; NRC, 2004a).

A more expansive idea of criminalization includes the social and historical context in which the law, police, and prosecutors operate, acknowledging that the law and criminal justice operations punish some social contexts or conduct more harshly than others. For example, the law penalizes crack cocaine more heavily than powder cocaine, and because crack is disproportionately used in Black communities, so the law itself generates disparities in imprisonment that could be traced to differential offending in the crime-discrimination framework. Similarly, Chapter 3 showed that in cities and tribal communities, residential segregation and spatially concentrated poverty were associated with the concentration of crime and other social problems in small geographic areas. Police contacts—stops, calls for service, and arrests—are also spatially concentrated, so criminalization follows the contours of geographic and social space (Simes, 2021; Sampson, 2012). If police were deployed disproportionately to Black communities through proactive policing strategies, which can include targeted traffic enforcement to generate public revenue, this would likely produce large racial disparities in the volume and nature of police contacts (the National Academies of Sciences, Engineering, and Medicine, 2018, p. 301) that could again be attributed to differential offending in the crime-discrimination analysis. High rates of interpersonal violence and victimization in Black communities (see Chapters 2 and 3), for example, may intensify police suspicion or enforcement, magnifying racial disparity in criminal justice contact.

Second, but equally important, empirical studies in the crime-discrimination approach focus only on a single stage of the system and

Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×

neglect how inequality may accumulate across a sequence of stages. Analysis of a single stage of the process of criminalization may underestimate disparate treatment by neglecting how disparity might grow from policing, to sentencing, to incarceration, to parole release (Kurlychek and Johnson, 2019; Spohn, 2015a; Rehavi and Starr, 2014; Sutton, 2013). Hagan (1974, p. 379) describes this dynamic perspective, writing that racial disparities result from “transit through the criminal justice system” that operates “cumulatively to the disadvantage of minority group defendants.” Researchers have thus examined cumulative racial disadvantage in criminal court processing and sentencing (Wooldredge et al., 2015; Kutateladze et al., 2014; Baumer, 2013; Sutton, 2013; Ulmer, 2012; Brennan and Spohn, 2008; Schlesinger, 2005).

The crime-discrimination framework is particularly limited in its ability to capture the ways the criminal system harms Indigenous people. American Indian individuals may be subject to the criminal jurisdiction of tribal, federal, or state governments—and often to the concurrent jurisdiction of two or three governments (see Box 4-1 describing jurisdictional structure). While a race-comparison approach is helpful in assessing the experiences of Indigenous people in state systems, it is less useful in the federal system, where American Indians may be prosecuted based on the location of their crimes, and it is irrelevant to tribal systems, which (with very limited exceptions) exercise jurisdiction over only Indian people. Any assessment of criminal justice disparities affecting Indigenous people as a group needs to consider information from multiple jurisdictions—information that is not included in most datasets. Moreover, because definitions and counts of Native people vary across jurisdictions and stages of the system, it is difficult to determine the implications of single-stage disparities or to link those disparities to an assessment of cumulative disadvantage.

We examine racial inequality in the criminal justice system by considering each stage of criminal processing, how the stages operate together, and how they operate in poor and highly segregated communities, which account for a disproportionate share of serious crime, arrests, and incarceration. Two overall themes emerge through this analysis. First, policy decisions made at the early stages of criminal processing have increased the level of police contact, particularly in Black and Latino communities. High rates of arrest for low-level drug offenses, for example, put large numbers of people at risk of sustained criminal justice contact through continuing court obligations, pretrial supervision, violations of release conditions, diversion, or probation. Second, in cases of prosecution for serious violence, criminal justice contact is sustained through long sentences and a surveilling style of parole and supervision that leaves parolees vulnerable to re-incarceration. Both patterns of criminal justice involvement reflect policy

Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×

decisions to respond with incarceration to social problems that include drug use, delinquency, and violence. As described in Chapters 5 and 6, this accompanies a choice by policy makers not to proportionally invest in public health or social welfare.

THE FORMS AND EXPANSION OF RACIAL CRIMINALIZATION

Changes in criminal justice policy and the disproportionate impact on Black, Latino, and Native American communities since the early 1970s have been widely documented by political scientists, sociologists, and policy researchers (C. Muller, 2021; Beckett and Francis, 2020; Beckett, 2018; Gottschalk, 2014; NRC, 2014; Raphael and Stoll, 2013). In presidential races, from the Goldwater campaign of 1964, to the 1968 campaigns of Nixon and Wallace, through the Trump campaign of 2016, political language has long invoked images of Black communities as “jungles” (Murakawa, 2012), personified crime through the use of Black faces in

Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×

political advertising (Mendelberg, 2017), and conflated social protest with crime (Weaver, 2007).

“Law and order” became the dominant policy response to a racialized crime problem (Hinton, 2017; Miller, 2016; Campbell and Schoenfeld, 2013; Flamm, 2005). Black communities experiencing high rates of crime often supported law-and-order politics, along with the rest of the electorate (Enns, 2016; Fortner, 2015), but they also demanded greater investment in social services (Forman, 2017). While the currents of public opinion were often complex, the crime problem in political rhetoric was often cast as a problem of Black criminality that posed a broad threat to community order and safety. As the National Research Council panel on the growth of incarceration wrote, “A uniquely American combination of crime, race, and politics…shaped the adoption of more punitive criminal justice policies” (NRC, 2014, p. 104).

Researchers have discussed three policy changes developing out of the politics of law and order that have been important for how structural racism evolved in the criminal justice system. The first policy change, collectively known as the War on Drugs, intensively criminalized drug use and drug sales (Provine, 2011; Tonry and Melewski, 2008; Tonry, 1996). The War on Drugs encompassed a wide variety of policy changes that included the revision of state and federal penal codes and the development of new police tactics. Beginning in the early 1970s, mandatory prison sentences for the possession and sale of drugs were widely adopted in state penal codes. Federal statutes also established mandatory prison sentences for drug crimes. As penal codes criminalized a broad range of drug-related activities and intensified punishment, police increased both the number and racial disparity in drug arrests in the 1980s (NRC, 2014, pp. 60–61). The punitive effect of the War on Drugs can be seen in the increasing probability of imprisonment given a drug arrest and the growing share of people in prison convicted of drug crimes (Beck and Blumstein, 2018, 1999; Tonry and Melewski, 2008). Given the large racial disparity in drug arrests and prison admissions, the growth in drug incarceration also tended to increase the racial disparity in incarceration through the 1980s and 1990s.

The second major policy change contributing to racially disparate criminalization was the War on Crime. Like the War on Drugs, the War on Crime was not a single policy reform but a variety of changes in sentencing policy at the state and federal levels that increased the duration of prison sentences, particularly for violent offenses. In many cases, sentences were simply increased in length by statute. In other cases, sentence enhancements were added that increased prison time for people with prior violent felony convictions, or sometimes just for having prior convictions of any kind. The most notable example is California’s Three Strikes enhancement, passed in 1994, which doubled the sentence for a second felony conviction given

Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×

one prior felony conviction for a residential burglary or violent offense. A felony conviction of any sort for someone with two prior serious or violent felony convictions carried a mandatory 25 years to life sentence (the law was modified in 2012 to apply only when the third strike was a serious or violent felony; Zimring et al., 2001; Tyler and Boeckmann, 1997).

Similar second-and-third strike enhancements were passed in nearly half of the remaining states, though few states enhanced as many people with these provisions as did California (Chen, 2008). At the same time, nearly half the states passed “truth-in-sentencing” provisions. These provisions, often focused on violent felonies, required that people serve 85 percent of their sentence. The resulting increase in the length of stay for violent crimes in the 1990s also increased racial disparity because Black men were more likely to be admitted for the violent crimes of murder, rape, and robbery. In this example, racial disparity in offending contributed to a racial disparity in incarceration that was amplified by an increase in the criminalization of violent offenses through the truth-in-sentencing provisions.

Third, policing strategies and organization changed in the final decades of the 20th century to focus more on crime prevention and to allocate resources more intensively to areas and people who were viewed as high risk. National Research Council panels described these changes in policing as “focused policing efforts” (NRC, 2004a) and “proactive policing” (the National Academies, 2018). Policy change took a variety of forms, but they commonly involved more police-initiated contacts with the public and the intensive allocation of police resources in low-income minority communities. Among these efforts, for example, “order maintenance” or “quality-of-life policing” cracked down on low-level violations for public order and drug offenses. Such efforts have been found to produce large numbers of racially disparate police stops and other police contacts (e.g., Howell, 2016; Fagan et al., 2010). The National Academies (2018) concluded that, although the causal pathway from proactive policing to racial disparity is not well understood, large racial disparities in police contacts and the nature of police contacts are likely to follow from proactive strategies.

Policy changes that propelled an increase in incarceration from 1972 to 2008 also tended to increase racial disparity at least until the end of the 1990s. As a result, very high levels of criminal justice contact, including imprisonment, were sustained in Black and Hispanic communities through the first decades of the 2000s. The degree of criminal justice contact and racial disparity is indicated by a variety of period prevalence estimates that shows the cumulative risk of different kinds of criminal justice contact over the life course. Period prevalence estimates are helpful for thinking about racial inequality by describing race differences in the exposure of specific birth cohorts to criminal justice contact and its consequences.

Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×

The Bureau of Justice Statistics has published estimates of the lifetime likelihood of imprisonment. Using 1991 data, it reported that 28.5 percent of Black men, 16 percent of Hispanic men, and 4.4 percent of White men would be imprisoned in their lifetime, if admission rates remained fixed at the level of the 1991 survey data (Bonczar and Beck, 1997). The early Bureau estimates have since been refined to measure the experience of specific birth cohorts and to reflect a variety of forms of criminal justice contact (Table 4-1). Work by Pettit and Western (Pettit, 2012; Western and Pettit, 2010; Pettit and Western, 2004) found that the cumulative risk of imprisonment more than doubled for Black men in a single generation, comparing birth cohorts born in the late 1940s to those in the late 1970s. They also reported a steep educational gradient, in which the cumulative

TABLE 4-1 Cumulative Risk Estimates of Criminal Justice Contact, by Race

Criminal Justice Contact Birth Cohort By Age Black Hispanic White Native American
Men
  1. Prison
1945–49 30–34 10.4 2.8 1.4
  1. Prison
1975 30–34 26.8 12.2 5.4
  1. Solitary confinement (prison)
1986–89 32 11.1 3.4 1.4
  1. Jail, New York City
Synthetic 38 26.8 16.2 3.4
Women
  1. Prison
1945–49 30–34 1.1 0.4 0.1
  1. Prison
1975–79 30–34 2.7 1.3 0.8
  1. Solitary confinement (prison)
1986–89 32 0.4 0.2 0.2
  1. Jail, New York City
Synthetic 38 4.9 2.3 0.7
Children
  1. Parent charged with felony
1999–2000 18 41.6 23.5 16.1 34.2
  1. Parent in prison
1999–2000 18 19.8 11.4 6.1 14.9

SOURCES: Prison risks are taken from Pettit (2012); solitary confinement risks are from Pullen-Blasnik and colleagues (2021) and are for Pennsylvania; jail risks are from Western and colleagues (2021); and parental felony and prison risks are from Finlay and colleagues (2022b).

Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×

risk of imprisonment is 68.0 percent for Black men with less than a high school education born between 1975 and 1979 (Western and Pettit, 2010).

Pullen-Blasnik and colleagues (2021) find that an extreme form of imprisonment, solitary confinement, had been experienced by 11.0 percent of Black men in Pennsylvania by age 32. Over a quarter of Black men in New York City had been incarcerated in jail by age 38 in the 2000s, a time when the jail population was less than half its peak in 1991 (Western et al., 2021).

Finally, greater exposure to incarceration means greater exposure of children to parental incarceration. Recent estimates indicate that more than 40 percent of all Black children have caregivers who have been charged with felonies, and nearly 20 percent have caregivers who have been imprisoned. Figures are similarly high for American Indians/Alaska Natives (Finlay et al., 2022a).

CRIMINAL JUSTICE CONTACT AS CUMULATIVE DISADVANTAGE

Racial inequality can increase through the sequential stages of criminal processing from police contact through arrest, sentencing, and incarceration. Racial inequality in the criminal justice system is not just a disparity occurring at a discrete stage that can be decomposed into components related to crime and discrimination. Racial inequality includes the spatial concentration of crime and poverty in low-income Black, Latino, and Native American communities, in which criminal justice resources are disproportionately deployed; it encompasses penal codes and police tactics that surveil and penalize those communities more intensively than White communities; and it encompasses the sequential character of criminal processing, in which disproportionate representation may increase from stage to stage.

In the framework of this report, therefore, the idea of “inequality” is conceptually distinct from that of “disparity.” Racial inequality within the criminal justice system in the current sense is rooted in structural racism, manifested in continued segregation and poverty, and sustained and magnified through the sequence of criminal justice processing (see Chapters 1 and 3).

Turney and Wakefield (2019) describe criminal justice contact as fitting into one of three categories: transitory contact (e.g., police stops, arrests, and tickets and fines); sustained contacts (which include felony conviction, pretrial detention, and correctional supervision); and spillover consequences of the criminal justice system (as in the foster care system for children with incarcerated parents). Research has also shown that vicarious contacts––for example, witnessing police stops, hearing stories of negative police encounters, and being exposed to media coverage of police brutality—also have significant impacts on people’s attitudes toward law

Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×

enforcement (Desmond et al., 2016; Brunson and Weitzer, 2009; compare to Zoorob, 2020). These forms of contact can be co-occurring and are often concentrated in Black and Hispanic communities (Jones, 2018). In the following sections, we document and explain how racial inequality is produced across system stages, and how criminal processing may amplify and concentrate the negative consequences of criminal justice contact among racial minority populations.

Early Exposure to the Criminal Justice System

Well before they experience police stops, arrests, or incarceration, Black and other non-White children are disproportionately in contact with the criminal justice system. The adult criminal justice system impacts the lives of children, adolescents, and young adults in Black and Latino communities, and while a number of aspects of growing up in densely poor areas may contribute to worse developmental outcomes for children and youth, the criminal justice system itself can also contribute to a distinct developmental experience qualitatively different from the life pathway for children and adolescents in White communities. In some cases, these contacts with the authorities can create direct and indirect pathways to the criminal justice system.

Under conditions of racial segregation, where crime and poverty are concentrated in minority neighborhoods, a pervasive police presence can cause adverse childhood experiences from police encounters (Geller, 2021). Surveys of children and parents indicate that African American youth are about twice as likely to have contact with the police as White youth (Turney, 2021), a difference that is only partially explained by difference in self-reported criminal conduct (Crutchfield et al., 2012). Police are more likely to treat Black children with suspicion and intervene more forcefully because they perceive children and adolescents as older than they really are (Goff et al., 2014; Rattan et al., 2012; Graham and Lowery, 2004). In regressions studies with controls for delinquency, police contact has been found to be associated with depressive symptoms and reduced future orientation among adolescents, and sleep problems and health limitations among mothers (Testa et al., 2022; Turney, 2021; Turney and Jackson, 2021). Moreover, researchers have documented that living in areas with a high level of police presence is associated with higher rates of preterm birth, stress, anxiety, and depression through correlational studies (Sewell et al., 2021; Hardeman et al., 2020; Boyd et al., 2016; Geller et al., 2014; Shedd, 2012). This is the case for both police presence and exposure to violence. Sharkey and colleagues (2012) found an association between decreased cognitive functioning and the ability to self-regulate behavior in children and homicides that occurred near their home. Additionally, surges in police contact through stop-and-frisk policing in New York, for example, were

Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×

associated with decline in test scores among Black boys ages nine to 15 (Legewie and Fagan, 2019). Exposure to police violence can be traumatic, which puts children at risk for later involvement in the juvenile and criminal justice systems (the National Academies, 2021a).

Routine interactions with police can also influence development more subtly, effectively preparing children to expect policing and contact with the criminal system as a regular part of life (Gardner, 2020; Jones, 2014). Some research thus suggests that police contact is itself criminogenic. Following a sample of Black and White juveniles in Seattle until they were 20 years old, McGlynn-Wright and colleagues (2022) found that those who had early childhood police contacts (by eighth grade) had profoundly different likelihood of arrests as young adults. Controlling for self-reported criminal behavior, they found that police encounters in childhood increased the risk of arrest in young adulthood for Black but not White students. Black young adults who had early contact with police were 11 times more likely to have been arrested than Black students who had not had an encounter with police.

Individual contact with the criminal justice system may also occur through the school disciplinary process and the presence of police in schools. In their review of research on disparities in school discipline, Welsh and Little (2018, p. 771) write that “the federal government has endorsed school resource officers (SROs) as a means of improving school climate, school safety, and student achievement,” but research provides mixed evidence of effectiveness. Schools that serve a greater share of nonWhite children are more likely to respond to student behavior issues with punitive discipline (Keels, 2021b; Losen et al., 2015; Welch and Payne, 2010). The presence of police in schools amplifies this response; schools with a greater police presence are more likely to impose exclusionary discipline and to criminalize violations of school rules (Keels, 2021b; Kupchik, 2016; Morris, 2015). While school security measures are commonplace, exclusionary discipline and criminal punishment are concentrated in schools that serve poor and non-White students (Kupchik and Ward, 2014; Welch and Payne, 2010). Research indicates that teachers who reduce suspensions and improve attendance can reduce the risk of later arrest and incarceration (Rose et al., 2021).

School policing is just one example of an approach to controlling youth misbehavior that brings children into the system instead of directing them out. Another example is status offenses: young people may be directed into the juvenile justice system for non-criminal infractions like skipping school or fighting with their parents. Consequences for status offenses vary along race, gender, and class lines. Normal adolescent misbehavior in Black children is more likely to be labeled as pre-criminal behavior (e.g., “willful defiance”) and to result in entry into the juvenile system (the National Academies, 2021a). Indigenous children and girls of all races are more

Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×

likely than others to be referred to the juvenile system and to be detained for status offenses (Tribal Law and Policy Institute, 2015; Chesney-Lind, 1988). For these youth, juvenile system involvement is the price of receiving intervention services.

In addition, while juvenile courts were created to prevent children from experiencing the consequences of involvement in the adult criminal courts (Tanenhaus, 2004), modern juvenile systems can feed directly into the adult criminal system. A number of studies and national data show that Black youth, and minority youth more generally, are 30–50 percent more likely to be transferred to the adult criminal court system (Hockenberry, 2021; Zane et al., 2016), but most of the raw disparity is related to legal factors such as the severity of the offense (Zane et al., 2016). Finally, under modern rules, prior juvenile system involvement may also be used as a mitigating or enhancing factor in later adult prosecutions, affecting the consequences of criminal justice involvement for youth later in their lives. Disparity in youth incarceration presents a mixed picture. Absolute disparity has declined as the overall number of youth in secure confinement has declined, but relative disparity has worsened: in 2013, Black youth were 4.3 times more likely to be incarcerated than White youth, up from 3.7 times as likely in 2003 (see, e.g., the National Academies, 2019a). By 2019, the Hispanic/White disparity in residential placement rates had shrunk, but the Black/White disparity persisted and the American Indian-White disparity had worsened (OJJDP, 2022).

These examples demonstrate both the direct and indirect consequences of early contact—whether formal or informal—with the criminal justice system. The decisions that place higher concentrations of police in particular neighborhoods or in particular schools, and the decisions that condition services on involvement in other systems of surveillance, pull people into the system and open them up to more formal contact and associated harms, and disparities in these initial experiences will be compounded as people move deeper into the system.

Policing

The police are the main entry point for the public’s interaction with the criminal justice system. People come into contact with police as victims of crime, as perpetrators, as those who call for service, as motorists, and as pedestrians going about their daily routines where proactive policing strategies have been deployed.

Policing in the United States has evolved in significant ways over the past 50 years. Police departments in large and mid-sized cities in the United States are among the most professionalized, well-funded, and well-armed police departments in history. The nation’s response to the urban unrest of

Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×

the 1960s and its later investments in criminal justice led to policy changes, innovations, and experiments in police tactics at the local, state, and federal levels. The expanding role of the federal government in funding state and local criminal justice initiatives from the 1960s provided successive administrations and the Department of Justice with growing influence over local policing policy. National trends in policing policy are described in a National Research Council (2004a) report on the fairness and effectiveness of police and in a National Academies (2018) report on proactive policing.

As the 20th century came to a close, and with the support of both popular and scholarly arguments for place- and person-based policing, spatially focused policing tactics came to be used routinely in historically disadvantaged neighborhoods. These tactics aimed to deter crime through elevated police presence at locations that were identified as at high risk of violence (Manski and Nagin, 2017; Meares, 2014), and evidence reviewed in the National Research Council (2004a) report finds evidence for the crime-reducing effect of these intensive policing tactics. These changes, however, also increased the likelihood of individuals’ exposure to police contacts and sometimes amplified the negative consequences of police contact among people living in low-income and racially segregated neighborhoods.

Racial Differences in Police Contacts

Racial differences in police-initiated contacts are associated with the pattern of stops, for which police are constitutionally required to have a “reasonable suspicion” that the person stopped has been or is involved in the commission of a crime. Most commonly reported by the public are motor vehicle stops for speeding, but police stops also arise in the context of stop-question-and-frisk policies in some departments, pretextual traffic stops in others, and in general officers’ practice of justifying stops by having a “reasonable suspicion” that a crime has been or is about to occur.

Figures on the relatively high rates of police interaction among Black and Hispanic members of the public are reported in Chapter 2. The most widely cited national statistics on racial differences in police stops come from the Police-Public Contact Survey, a Bureau of Justice Statistics data collection based on a nationally representative sample of roughly 50,000 people. Recent years of the survey, in 2015 and 2018, showed that around 11 percent of U.S. adults were stopped by police each year, about 10 percent in traffic stops and one percent in street stops. Data from 2015 showed that Black members of the public were more likely to be stopped than White people, although in 2018 rates of police stops were roughly equal for Black and White people. In both survey years, Black respondents reported police use of force at roughly twice the rate of White respondents (Harrell and Davis, 2020; Davis et al., 2018).

Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×

An alternative approach to studying racial differences in police contact analyzes police records. Police records indicate larger racial disparities in police-public contact than self-reports in social surveys. A research team at Stanford used public records requests to compile a dataset of approximately 95 million traffic stops conducted by 56 state police agencies and local police departments from 2011 to 2018 (Pierson et al., 2020). They found that the annual per capita stop rate for Black motorists was about 40 percent higher than for White motorists. Black and Hispanic motorists were also more likely to be searched than White people, given that they were stopped. Similar analyses of large data files of police records also report high rates of stops and searches among Black members of the public in California (Lofstrom et al., 2021), Connecticut and North Carolina (Shoub, 2022), and New York City (Gelman et al., 2007).

A longstanding line of research finds that Black survey respondents under-report arrests, compared to official arrest records, more than White respondents (Kirk, 2006; Huizinga and Elliott, 1986; Hindelang et al., 1981), and the mode of data collection may contribute to a divergence between administrative records and self-reports on police contacts. Whether such measurement errors in surveys apply to police contacts is an important question for further research.

Research from the field of social psychology has explored the role of stereotype threat with respect to racial differences in police encounters.2 This literature builds on a body of psychological research that has documented evidence of a cultural stereotype of Black criminality, which has been shown to have a biased effect on how individuals process information and form judgments, even when there is no conscious bias apparent (see, e.g., Eberhardt et al., 2004; Devine, 1989). Najdowski and colleagues (2015) conducted two studies where they investigated how Black and White participants experience and interpret police encounters. The first study used self-reported survey data to assess the presence of stereotype threat during police encounters, and the authors found that Black participants (in particular Black men) reported concern that police officers would stereotype them as criminals because of their race. The second study examined perceived consequences of stereotype threat and revealed that anticipated stereotype threat among Black participants was associated with anxiety, self-regulatory attempts, and behaviors that are often perceived as suspicious by officers. Kahn and colleagues (2018) further explore the consequences of stereotype threat by conducting a content analysis of police training videos and find that the pre-attack or danger indicators that police are trained to detect

___________________

2 Stereotype threat can be defined as the “concern one experiences when at risk of being perceived in light of a negative stereotype that applies to one’s group” (Najdowski et al., 2015, p. 464).

Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×

overlap significantly with stereotype threat indicators (e.g., anxiety, arousal, and reduced cognitive capacity). Theoretical research has also investigated the relationship between stereotype threat and racial differences in false confessions (Najdowski, 2011). Collectively, this body of research points to an important mechanism for racially disparate police encounters that requires further study and integration into police interventions.

Neighborhood Context

Interactions between police and the public can be thought of as nested encounters. Interactions take place within neighborhoods, which are located in cities or towns that are embedded in states. Due to high rates of residential segregation by race and income, these nested social contexts are important for understanding how policing contributes to racial inequality in the criminal justice system. Social context has been found to influence the likelihood of police contact and racial differences in police contacts. Researchers have studied social context in a number of ways in neighborhoods, based on police organizational and operational practices and based on wider law and policy regimes.

Patterns of policing vary greatly across neighborhoods (Smith, 1986), and adjusting for the fact that people of different races tend to be encountered in different places can account for large portions of observed racial disparities in stops and searches (e.g., Goel et al., 2016; Ridgeway, 2007). A long tradition of scholarship highlights the importance of neighborhood-level processes in influencing policing (e.g., Terrill and Reisig, 2003; Klinger, 1997; Herbert, 1996).

Much of the research on neighborhood influences on policing examines the role of the racial composition of residential populations. The fraction of residents who are Black has been found to be significantly associated with a variety of types of police contact—including stops, searches, and arrests—after conditioning on other neighborhood-level factors (e.g., Gaston et al., 2020; Hannon, 2020; Gaston, 2019; Lautenschlager and Omori, 2019; Morrow et al., 2018; Levchak, 2017; Fagan et al., 2016, 2010; Geller and Fagan, 2010; Kane, 2002). These research findings are sometimes interpreted through the prism of racial threat theory in which police are used instrumentally to control populations that pose a threat to the dominant racial order (Novak and Chamlin, 2012; Parker et al., 2004). Research also appeals to the idea of “neighborhood stigma” (Sampson and Raudenbush, 2004) to explain why racial context leads officers to perceive people as especially suspicious in certain areas, as has social disorganization theory to indicate that policing may be more aggressive in low-income, minority areas where there is weaker informal social control to respond to problems or to counteract police excesses.

Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×

In contrast to theories of racial composition, an alternative hypothesis argues that individual and neighborhood race interact such that minorities face elevated rates of policing in non-minority contexts, where they seem out of place (Carroll and Gonzalez, 2014; Novak and Chamlin, 2012; Rojek et al., 2012; Gelman et al., 2007; Meehan and Ponder, 2002). In contrast to the out-of-place theory, Neil’s (2021) analysis of the New York Police Department’s stop-and-frisk tactics finds strong main effects of individual race that existed in all contexts and that officers applied lower standards of suspicion in deciding to stop people of all races in minority neighborhoods, an effect that did not vary by race.

The neighborhood sources of disparities in police contact may not result from discrimination but may be associated with patterns of residential segregation, which shape police behavior. Most obviously, police deploy officers and resources in response to crime, and several types of crime are more common in minority neighborhoods than in others. This reflects the persistent consequences of structural racism, most especially in segregation and concentrated disadvantage. There is disagreement as to how important this “deployment hypothesis” is in explaining disparities (Gaston, 2019; Briggs and Keimig, 2017; Petrocelli et al., 2003). For example, Beckett and colleagues (2006) find that neighborhood crime does not explain racial disparities in drug delivery arrests in Seattle, but Engel and others (2012), using data slightly different from those used a few years later in Seattle, find that those disparities are overwhelmingly explained by calls for service.

Neighborhood violence was found to be the key driver of racial disparities in the New York Police Department’s stop-and-frisk practice (Neil, 2021). However, the effect of neighborhood crime reflects organizational decisions that may ultimately induce officers to stop large numbers of innocent minorities. Thus, finding a strong neighborhood crime effect on disparities could indicate a rational bureaucratic, proportional response to crime—a major function of policing—but it could also be that an organizational fixation on crime statistics, and of conceptualizing and responding to problems at the neighborhood level, influences unconstitutional policing of racialized minorities.3 Under the law, individuals who commit acts of

___________________

3Lum and Nagin (2017, p. 1) argue that 21st century efforts to reinvent American policing need to be guided by two principles: (1) crimes averted, not arrests made, should be the primary metric for judging police effectiveness; and (2) citizens’ views about the police and their tactics for preventing crime and disorder matter independently of police effectiveness. They go on to argue that “seven steps are essential to reinvention of democratic policing: Prioritize crime prevention over arrest. Create and install systems that monitor citizen reactions to the police and routinely report results back to the public and police supervisors and officers. Reform training and redefine the ‘craft of policing.’ Recalibrate organizational incentives. Strengthen accountability with greater transparency. Incorporate the analysis of crime and citizen reaction into managerial practice. Strengthen national-level research and evaluation.”

Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×

violence are subject to criminal sanctions, not individuals who happen to live in communities where violence occurs.

Many other neighborhood-level processes may also influence racial disparities. Parker and colleagues (2004) discuss how theories of neighborhood poverty and crime—involving social disorganization and concentrated disadvantage—may be associated with racial profiling. Other work has argued that neighborhood class context is an important determinant of police behavior (Neil, 2021; Weitzer and Tuch, 2002; Fagan and Davies, 2000; Sampson, 1986), that public housing projects may be policed in ways that are linked to race (Fagan et al., 2012), and that gentrification may influence policing patterns (Beck, 2020; Lanfear et al., 2018; Laniyonu, 2018). Typically, in such studies scholars discuss the relation of these topics to racial stratification without directly modeling racial disparities. Some research focuses on the notion of policing social marginality (Herring, 2019; Herbert et al., 2018; Stuart, 2016; Beckett and Herbert, 2009).

Little of such scholarship comes in the form of quantitative tests of racial disparities, but the research draws attention to the fact that it is not only the policing of poor, segregated communities that may drive disparities but also the high levels of enforcement in areas of extreme deprivation, such as Skid Row (Bittner, 1967), and against certain people—such as the homeless—in certain spaces.

These theories linking neighborhoods, race, and policing share two similar mechanisms. First, context influences officers’ cognition, such as their perceptions of people encountered in certain places, which in turn affects their behavior. In this way, racial differences in exposure to relevant contexts could yield racial disparities. For example, Werthman and Piliavin (1967) detail a process of “ecological contamination” where the police come to view all people encountered in “bad neighborhoods” with suspicion. More recently, Forman (2017) argues that the presumption of innocence is flipped in high-crime, segregated areas: guilty until proven otherwise. This form of collective guilt lowers the standard for police contact, surveillance, investigation, and arrest for individuals in these communities. Such arguments find support in historical patterns in the Jim Crow South and in northern and western cities during the decades of the Great Migration from 1920 to 1970 (Balto, 2019; Muhammad, 2010; Curtin, 2000; Oshinsky, 1997) as well as in social psychological research (Bonam et al., 2016; Correll et al., 2011), but the impact of context on cognition has received much less attention than that given to implicit bias based on individuals’ race.

Second, because the police are more present and active in certain areas, this will produce higher rates of police contact for whichever racial groups are in those areas. Some theories detailed above emphasize that this reflects racialized processes, whereas others portray it more as collateral damage

Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×

from police responses to other demands. Such accounts are not mutually exclusive, nor are they truly independent: how the police choose to respond to a given set of problems across space does not exist independent of—or a priori to—the racialized society in which policing occurs. The implication is that race might affect organizational decisions about how to police neighborhoods (Gordon, 2020), even if in turn there is actually a proportional enforcement concerning whatever problem the police are confronting with their strategy.

In racially segregated low-income and working-class neighborhoods like those described in the previous chapter, researchers have found that police are more likely to view community members as problematic, dangerous, or criminal. Residents of these neighborhoods report receiving less respect and higher levels of aggression in police encounters (Gaston and Brunson, 2020; Lanfear et al., 2018; Boyles, 2015; Brunson and Weitzer, 2009; Terrill and Reisig, 2003; Mastrofski et al., 2002; Klinger, 1997). In contrast, residents in whiter and wealthier neighborhoods typically receive a form of service-oriented policing. Bell (2020a,b) has written about how residents in the latter neighborhoods sometimes pay police departments directly to secure the resources of police protection. The delivery of (at least) two different types of policing across racial and spatial lines helps to reinforce racial inequality by maintaining the spatial and psychic boundaries of racially segregated space. Moreover, as argued by Braga and colleagues (2019, p. 536),

inappropriate police focus on ambiguous people and places—where the police, in isolation from the community, identify areas of focus and where entire neighborhoods are defined as trouble zones—can contribute to racial disparity and mass incarceration problems that further exacerbate disadvantaged neighborhoods.

Stops and Arrests

Beyond increased police presence in neighborhoods, entry into the formal criminal justice system most often comes through police in the form of an arrest or citation. The changes in law enforcement policies and practices noted above have affected the frequency, quality, and consequences of police encounters between the police and minority members of the public, especially minority young adults who live in settings most impacted by histories of racial and economic exclusion and exploitation. As Chapter 2 noted, police officers stop and search Black individuals at rates that are higher than those observed for other racial and ethnic groups, and they are more likely to use force when they stop Black individuals, even when the stop does not begin because police believe that a crime is in progress.

Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×

At the individual level, the decision of police officers to stop and question can reflect conscious and unconscious racial biases (Swencionis and Goff, 2017). While disparities vary across localities, Black and Latino individuals have been widely found to be more likely to be stopped by police (Fagan et al., 2010; Geller and Fagan, 2010); Gorsuch and Rho (2019) report similar evidence for searches of Native Americans in Minnesota. Racial disparities in police stops persist in part because the law permits stops as long as an officer can point to a non-racial reason for the stop, even if that reason is pretextual (Johnson, 2010; Carbado, 2002). Because not all stops result in further action recorded by law enforcement, available data may underestimate levels of racially biased policing (Knox et al., 2020).

The concentration of proactive policing tactics in poor and non-White neighborhoods suggests the need for further understanding of the collateral consequences of police-civilian contact. Current research assesses the consequences of imprisonment for health, employment and earnings, and families, communities, and society writ large (see, e.g., NRC, 2014). An emerging literature suggests that involuntary police contact may be harmful to health. The adverse health effects may arise from the physical nature of some stops, which present risks of physical injury. Contact with police may also cause trauma associated with unwarranted accusations of wrongdoing, and the stress and stigma of racism (see, e.g., Bylander, 2015; Jee-Lyn García and Sharif, 2015; Nordberg and Wrede, 2015; Shedd, 2015; Geller et al., 2014; Jones, 2014). Another emerging body of research considers the indirect effect of policing practices on civic and institutional engagement and political life. Scholars have analyzed and assessed the dynamics through which, and impact of the manner in which, criminal justice system involvement detracts from an individual’s civic engagement (see, e.g., Brayne, 2014; Justice and Meares, 2014; Lerman and Weaver, 2014a,b; Weaver and Lerman, 2010).

Pretrial Decision Making and Charging

Pretrial processes can also play a role in creating or worsening disparities. Initial decisions about how to proceed are made by prosecutors, with judges exercising final decision making authority. While judges exercise ultimate authority, the principle of prosecutorial discretion and the practical demands of an overloaded court system mean that the pretrial process is largely driven by prosecutors, who exercise tremendous power in the criminal justice system. Prosecutors decide whether and what to charge, whether to plea bargain, whether to ask for pretrial detention, and how much to request as bail. Prosecutors are also responsible for presenting charges to a grand jury, shaping the presentation of evidence, coordinating with law enforcement, managing the discovery process, and making sentencing

Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×

recommendations. Beginning in the pretrial phase, prosecutors are responsible for a series of decisions that can exacerbate or reduce racial inequality.

Discretion is an important feature of the criminal system as a whole, and prosecutorial discretion is protected by the constitutional principle of separation of powers: as part of the executive branch, prosecutors are tasked with making decisions about how to enforce laws; judges are required to approve their decisions at specific moments in the process (for example, a judge must review and decide whether to accept a guilty plea), but judges are not permitted to second-guess discretionary decisions that are within the legal bounds of a prosecutor’s authority. This feature of the system can make it difficult to address racial disparities. For example, a prosecutor’s decision to file charges against some people but not others is generally not reviewable by a court (Inmates of Attica v. Rockefeller, 1973). Selective prosecution based on race is illegal, but making such a claim requires evidence of a pattern of express race-based decision making that is rarely present in modern criminal courts (United States v. Armstrong, 1996).

A meta-analysis of 26 studies of prosecutorial decisions on charging and full prosecution that were published between 1960 and 2012 found that minority defendants were about nine percent more likely to be charged or fully prosecuted than White people (Wu, 2016). A quasi-experimental analysis of federal prosecutors also found that Black and Hispanic defendants were disproportionately charged at the mandatory-minimum threshold for crack cocaine following the introduction of a sentencing reform, conditional on criminal history and crime characteristics (Tuttle, 2019). A similar result was reported in the observational study of federal sentencing by Rehavi and Starr (2014), who trace most of the Black/White gap in sentence length to prosecutors’ charging decisions and charging mandatory minimum sentences in particular. Controlling for the arrest offense and criminal history, federal prosecutors were found to charge mandatory minimum sentences 65 percent more often against Black defendants compared to White defendants. Two decades earlier Berk and Campbell (1993) reported similar findings for federal mandatory minimums. They reported that Black people accounted for 58 percent of federal crack cocaine arrests in Los Angeles but 83 percent of federal crack cocaine charges, whereas White people accounted for three percent of arrests and were never federally prosecuted for crack related offenses over a two-year period. In contrast to these results, an experimental vignette study by Robertson and colleagues (2019) found that a sample of 467 prosecutors charged felonies at the same rate for minority defendants and White defendants when presented with identical fact situations. In short, there is relatively little research on prosecutorial discretion, but several studies find that Black and Latino defendants are charged more severely than White people, conditional on arrest.

Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×

A variety of policies that expanded police contact and low-level enforcement with misdemeanor arrests also exposed members of the public to the discretionary decision of prosecutors and judges (Kohler-Haussmann, 2018). While large racial disparities in the criminal courts are well documented, there is also moderate evidence that prosecutors treat minority defendants more harshly in charging decisions.

Pretrial Release and Detention

After charging but before trial, a criminal defendant may be either released (with or without conditions of release) or detained. In most jurisdictions, pretrial detention is legally appropriate only where the defendant poses a danger to others or is likely to flee the jurisdiction. However, commonly used money bail systems condition release on the ability to post a monetary bond. The bond amount is set by judges and reflects the relative danger and flight risk as well as the amount of money needed to ensure that a particular defendant will not risk losing it by fleeing. Facially equal bail systems will affect people differently depending on their ability to pay, leaving poor defendants (who are disproportionately non-White) to serve time in pretrial detention because they cannot make bail.

Some research suggests that judges set higher bail amounts for Black and Latino criminal defendants. Ayres and Waldfogel (1994) compared the flight risk assessments of judges and private bail bond companies and found differences suggesting that courts overestimate Black and Latino defendants’ flight risk, resulting in higher bail amounts.

A growing body of evidence suggests that pretrial detention leads to worse case outcomes for those who are held in jail as compared with similarly situated people who are able to secure pretrial release, and as discussed in Chapter 2, Black defendants are much more likely to remain in jail (Dobbie et al., 2018; Stevenson, 2018b). These effects may be attributed to a strengthening of bargaining positions before trial for people who are released—they are both less likely to plead guilty, and thus less likely to be convicted, and more likely to receive favorable deals when they do plead, as compared with people who are detained (Dobbie et al., 2018; Leslie and Pope, 2017). Pretrial detention, even for a relatively small number of days, may also have negative implications for future involvement with the criminal justice system and lead to more punitive treatment in juvenile settings (Zane et al., 2021), as well as negative implications for housing, employment, and access to health care. For example, under the Inmate Exclusion Policy, some states terminate Medicaid enrollment for individuals held in pretrial detention (see, e.g., the National Academies, 2020).

In summary, pretrial detention harms defendants in at least three ways. First, pretrial detention pulls a person further into the criminal

Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×

system, increasing the likelihood of continued involvement and worse outcomes at later decision points. Second, detention disrupts all aspects of life, including employment and family responsibilities, housing, and health care access. Where money bail is used, families suffer additional financial consequences to post bond and larger losses if bail is forfeited. These disruptions can compound existing inequalities for people and for the larger communities of Black, Latino, and Native American people. For example, Black defendants are more likely than others to have unaffordable bail amounts or be denied bail, and therefore are more likely to be detained. Since Black people are more likely than White people to enter the system from conditions of concentrated disadvantage (see Chapter 3), and are more likely to have more precarious finances, housing, employment, and childcare, they have less of a safety net to accommodate the disruption of a few days in detention.

Plea

Once a charge is filed, a defendant may choose to plead guilty, usually in exchange for a reduced charge or sentence, or to plead not guilty and proceed to trial. The vast majority of felony criminal cases are resolved through defendants pleading guilty, not by jury trial, and the rate of guilty pleas continues to increase. Between the 1960s and 1990s, about 80 percent of federal cases were resolved by guilty pleas. Since the 1990s, 90–95 percent of federal cases have been resolved by guilty pleas. State plea-bargaining rates are similar overall (Devers, 2011).

Prosecutors play an important role in this process by deciding whether to offer a plea deal or to accept a proposal from a defendant. Defense attorneys advise clients whether to accept a plea or proceed to trial. These decisions may be influenced by a variety of factors beyond guilt or innocence, including the strength of available evidence, witness cooperation, defense attorney caseload, and an assessment of how a judge or jury would perceive the defendant. In theory, plea bargaining has a judicial backstop; a judge must review and accept a guilty plea, determining whether it was knowing and voluntary. However, in practice, especially in large urban jurisdictions, arraignments may be brief and tightly scheduled, leaving the judge little time to carefully consider whether to accept a plea (Bogira, 2005). This practice can contribute to racial disparities by effectively rubber stamping the guilty pleas of non-White defendants who may have had little choice but to plead guilty (Van Cleve, 2016).

Johnson (2019) notes that what has been called a “trial tax” (for electing to decline a plea deal and take a case to trial) increases the likelihood of imprisonment two to six times compared to if a defendant accepts a plea deal.

Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×

It is not clear that the practicing of plea bargaining itself produces racial disparities, though there is some evidence that prosecutors make less favorable plea bargain offers to Black defendants (see Chapter 3 and Jordan, 2021). Plea bargaining, though, interacts with other decision points to increase disparities. The widespread use of plea bargaining contributes to the growth of incarceration by making it possible for prosecutors to charge more people and by making punishment more predictable, certain, and efficient (Hessick, 2021; Pfaff, 2017).

For example, Rehavi and Starr (2014) find that Black and Latino defendants are charged with more serious crimes than White defendants. Plea bargaining means those charges are more likely to be resolved with guilty pleas, which makes Black and Latino defendants more likely to face imprisonment even if the plea-bargaining process itself is not administered in a disparate manner. In a study of Delaware courts from 2012 to 2014, Donnelly and MacDonald (2018) found—after controlling for measured differences in a variety of case characteristics, including severity of charges and criminal histories—that cash-only bail and pretrial detention increase a defendant’s likelihood of conviction and pleading guilty, being incarcerated, and receiving a longer incarceration sentence, thus contributing to disparities as individuals proceed further in the system. Moreover, while Kutateladze and colleagues (2016) find that most race differences in plea bargaining are explained by legal factors and case characteristics, they also find that Black individuals are more likely to be offered custodial sentences in plea bargaining, even after controlling for legal and case specifics.

Sentencing and Incarceration

Shifts in sentencing and incarceration policies over the last 50 years have also affected racial inequality, both by increasing the incarceration of minority populations and by worsening its long-term effects. American sentencing policies, practices, and patterns have changed dramatically during the past 40 years, with three distinct discernable phases.

During the first phase, principally from 1975 to the mid-1980s, the reform movement aimed primarily to make sentencing procedures fairer and sentencing outcomes more predictable and consistent. The second phase, from the mid-1980s through 1996, aimed primarily to make sentences for drug and violent crimes harsher and their imposition more certain. The principal mechanisms to those ends were mandatory minimum sentences, three-strike laws, truth-in-sentencing laws, and guidelines for life without possibility of parole. As described in Chapter 2, these changes increased the number of people in prison overall, including a dramatic increase in the number of Black and Latino people in prisons. While the number of imprisoned White people also increased during this time, the growth

Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×

in incarceration disparately affected non-White people, with an especially heavy impact on Black Americans, especially on Black American males (see, e.g., NRC, 2014).

The third phase, since the mid-1990s, has seen many jurisdictions make policy changes intended to reduce the incarcerated population, including changes in drug policy and a retreat from inflexible sentencing schemes. According to annual reports issued by the National Conference of State Legislatures, several hundred state laws have been enacted since 2000 that in various ways make sentencing less rigid and less severe. Most of these laws are relatively minor and target less serious offenses. With overall reductions in imprisonment, racial disparities have also fallen in some states. However, policies intended to reduce incarceration overall have not always resulted in a decrease in the relative imprisonment rate of Black versus White populations. As noted in Chapter 2, while absolute disparities have narrowed, Black Americans of all ages and educational levels remain considerably more likely to be institutionalized relative to other racial groups.

Research on racial differences in sentencing in U.S. courts dates to the first decades of the 20th century (Spohn, 2015b; for reviews see also King and Light, 2019; Ulmer, 2012). For this research, “no issue has received more attention in the scholarly literature on sentencing than whether nonwhite defendants are treated more harshly than similarly situated whites,” write King and Light (2019). Early scholars concluded that observed differences resulted from discrimination, but later reviews observed that the older studies failed to take into account racial differences in criminal involvement and prior record. Indeed, as noted in the conceptual discussion of racial inequality above, the National Research Council’s (1983) review of sentencing research found that offense seriousness and prior record were key determinants of sentences, and the overrepresentation of Black men and women in prison was mostly explained by factors other than discrimination (see also Kleck, 1981; Hagan, 1974). Research over the last two decades continues to observe large race differences in the likelihood of prison sentence given a felony conviction and reports evidence of small but significant race differences in the likelihood of imprisonment when crime severity and prior record are accounted for (King and Light, 2019). Disparities of this kind have been reported for Black and Hispanic defendants compared to non-Hispanic White people (more modest evidence has also been found for race differences in sentence length). Two other themes also emerge from recent research: that the effects of race on sentencing outcomes may be indirect and lie upstream of the sentencing decision; and that discrimination may vary across other characteristics of respondents, such as demographics or neighborhood residence.

To study upstream or indirect racial effects, only a few studies have traced criminal processing from arrest through sentencing. Much of the

Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×

recent research on sentencing follows what Baumer (2013) has called the “modal approach” that seeks to estimate race differences in the likelihood of a prison sentence, say, in a sample of defendants with felony convictions. Usually, controls are introduced for offense severity, criminal history, and demographics. In this design, the prosecutor’s charging decision, the conviction itself, and the race of the victim are all typically uncontrolled but may be subject to racial disparities that are associated with racial disparities in sentencing outcomes. For example, if prosecutors charge Black defendants more severely than White defendants, and offense severity is controlled in an analysis of imprisonment decisions, racially differential treatment by prosecutors is missed in the analysis of racial disparity. King and Light (2019) suggest that research designs should encompass variability in penal policy, prosecutorial discretion, race of victim, and citizenship status that is missed in the “modal approach.” In an important example of an alternative approach, Rehavi and Starr (2014) analyze a linked dataset that traces federal criminal cases from arrest to charging to sentencing. They find that much of the racial disparity in sentencing outcomes can be explained by racial disparities in the prosecutor’s decision to charge a mandatory minimum offense. These results are consistent with other research showing that race differences at pre-sentencing points of discretion—at pretrial detention (Wooldredge et al., 2015; Sutton, 2013), plea offers (Kutateladze et al., 2014), and parole status (Hickert et al., 2022)—ultimately contribute to the relatively high probability of prison sentences among Black defendants.

Sentencing research has also examined variability in disparity across the dimensions of demography and socio-legal context. Studies focused on demography report on the “high cost of being black, young, and male” (Steffensmeier et al., 1998, p. 789). Several regression studies report on the relatively high likelihood of prison sentences among convicted male defendants who are Black or Hispanic and under age 30 (Wooldredge et al., 2015; Spohn and Holleran, 2000). Contextual studies have examined how disparity may vary with county-level characteristics and the characteristics of the court working group. Although theories of racial threat suggest that sentencing disparities are larger in localities with large Black or Hispanic populations, the evidence is inconsistent (King and Light, 2019). More proximate to the sentencing decision, greater racial diversity in the courtroom (more Black or Hispanic judges and counsel) has been found to be associated with less racial disparity in sentencing outcomes (King et al., 2010; Ward et al., 2009; Johnson, 2006).

Judicial discretion lies at the center of many analyses of racial disparity in sentencing, but another line of research examines how disparity varies with limitations on discretion through statute or sentencing guidelines. Tonry (2019) reports that states with presumptive sentencing guidelines, imposing

Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×

the greatest limitations on judicial discretion across a wide variety of offenses, reduced racial disparity. Thus, studies of federal sentencing guidelines find that disparities in sentence length are mostly explained by legally relevant factors prior to the point of judicial discretion at sentencing (Ulmer et al., 2016; Rehavi and Starr, 2014). Studies of presumptive state sentencing guidelines in Pennsylvania, however, find a larger role for the sentencing stage where, for example, Black and Hispanic defendants were less likely to receive downward departures to non-custodial sanctions (Painter-Davis and Ulmer, 2020; see also Ulmer et al., 2016). Research on sentencing structures remains relatively underdeveloped. Frase (2019, p. 112) observes that there are no national studies comparing racial disparity in states with and without guidelines. More generally, King and Light (2019) find that while racial disparities in sentencing, resulting in longer sentences for Black and Hispanic people, have declined in some jurisdictions, the actual level and source of disparities cannot be accurately known at this time (see also Light, 2022). To better understand the sources of declining disparity in sentencing they argue for data collection that tracks cases from point of arrest through case disposition.

Research on sentencing guidelines exemplifies a larger point that racial disparity can be built into the structure of sentencing itself. For example, Johnson and colleagues (2021) review seven years of federal sentencing data and find racial disparities in life without parole sentences, and the authors find these differences to be attributable to mechanisms built into the sentencing system (e.g., mode of conviction, mandatory minimums, and guideline departures). Moreover, Tonry (2019, pp. 11–12) observes that long and mandatory sentences were adopted in many jurisdictions that increased in incarceration disproportionately in Black communities: “Legislature enacted laws that mandated especially severe sentences for crimes of which disproportionately large numbers of minority offenders are convicted.” The mandatory minimum sentence, three-strikes, dangerous offender, truth in sentencing, and life without parole laws enacted in the 1980s and 1990s targeted violent and drug crimes. Rates of violence are higher in Black communities, though we saw evidence in Chapter 2 that disparity is declining, and Black communities face more intensive policing of drug offenses than White communities.

Conditions of Imprisonment

Prisons in the United States are generally remote, highly segregated, and closed environments that are difficult to access and challenging to study. For the most part, prisons are categorized and run very differently on the basis of their security or custody levels. This is further explored in Box 4-2. But even among prisons at the same level of custody, conditions of confinement can vary widely along critical dimension, including physical layout, staffing

Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×

levels, resources, correctional philosophy, and administrative leadership, which may render one facility fundamentally different from another.

Along some dimensions—overcrowding, the availability of some rehabilitative programs—aspects of prison life changed in ways that adversely affected individual prisoners. For example, once legislatures and prison systems deemphasized the rehabilitative rationale, and as they struggled to deal with unprecedented overcrowding, they were under much less pressure to provide prison rehabilitative services, treatment, and programming (e.g., United States Government Accountability Office, 2012; California Department of Corrections and Rehabilitation Expert Panel on Adult Offender Reentry and Recidivism Reduction Programs, 2007).4 A variety of trends in the conditions of penal confinement have been documented indicating that the experience of incarceration has become more severe during the period

___________________

4 The rejection of rehabilitation is captured in figures on prison program participation. Data on program participation from the Survey of Inmates of State Correctional Facilities (renamed the Survey of Prison Inmates in 2016) show that participation rates in drug programs, education, job training, and work assignments were highest in the Northeast, and lower in the South and the West. The survey data shows broad reductions in program participation in U.S. prisons across the country and across program areas. Participation in drug treatment programs in the Northeast and the Midwest fell from highs of 30 to 50 percent in the 1980s to below 20 percent by 2016. Educational programming was also reduced in all regions except the West. Job training became less common.

Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×

of prison population growth. An increase in prison overcrowding from the 1980s to 1990s is indicated by national statistics on prison capacity. In the mid-1980s, state prisons operated on average at 105 percent of the most generous measure of capacity, compared to 115 percent in the mid-1990s.5 By another measure of crowding, under two percent of the prison population was held in local jails in 1980, compared to 4.6 percent by 2000. At the peak of the prison population in 2008, 5.2 percent of prisoners were held in local jails, and prison populations in 20 of the 50 states exceeded the maximum capacity. The California prison system, the site of landmark court rulings on overcrowding, operated at 204 percent of designed capacity in 2008.6

As the U.S. prison population grew, the availability of correctional programming declined. Participation in the system’s education, work, and job training programs fell from the 1980s to the 2000s. Researchers described the emergence of “warehouse” prisons that were stripped of recreation facilities and rehabilitation activities (Phelps, 2011; Lynch, 2009). Prison security levels also increased in the period of prison growth. According to the periodic census of prison facilities, about half of all prisons were minimum or low-security in both 1979 and 2005. However, there were no prisons at the super-maximum level of custody in 1979 compared to 22 of them in 2005.

The census also shows that the prison population in solitary confinement had nearly doubled between 1979 and 2005, from 3.0 percent to 5.7 percent. In the most recent data, from 2016, 4.4 percent of a national sample of the U.S. prison population were held in solitary confinement on any given day, and about 20 percent of the prison population were in solitary confinement at some point during a prison stay.

Although the severity of prison conditions increased on average during the period of the prison boom from 1972 to 2008, there has been substantial variation in conditions across jurisdictions and prison facilities. Thus, conditions of overcrowding and programming, for example, vary greatly. Despite this variation, the disproportionate incarceration of Black, Latino,

___________________

5 Overcrowding is measured as a percentage of the designed, rated, and operational capacity of the prison. Each of the capacity yields a different estimate of the number of prisoners that can safely be incarcerated. The Bureau of Justice Statistics regularly reports prison counts as a percentage of the maximum and minimum prison capacities.

6 Currently, California’s prison population is 58 percent of the peak level in 2008. This large reduction was achieved through a wave of reforms starting in 2011 that (1) eliminated most technical revocation back to custody for people on parole supervision, (2) limited the application of life sentences under the state’s three-strikes law to the most serious felonies, (3) redefined many drug offenses and theft offenses as misdemeanors, (4) increased ability to earn time off sentence for certain cases, and (5) eliminated some commonly imposed sentence enhancements. We discuss the case of California in greater detail in Chapter 8.

Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×

and Native segments of the population is found in all states, so the pains of incarceration are disproportionately experienced by people of color.

The deterioration of prison conditions on the dimensions of overcrowding, programming, and levels of secure custody is associated with reduced opportunities for challenging conditions in court. As part of the larger civil rights movement, a period of active prisoners’ rights litigation began in the late 1960s and continued through the 1970s, which resulted in many of the most important improvements in the quality of prison life. This continued through the 1980s and early 1990s with at least 49 reported court cases decided between 1979 and 1990 addressing jail and prison overcrowding, a majority of which resulted in court-ordered population “caps” or ceilings to remedy unconstitutional conditions (Cole and Call, 1992). In 1995, Congress passed the Prison Litigation Reform Act, which greatly limited prisoners’ access to the courts to challenge their conditions of confinement. As a result, by the late 1990s, the average person in prison could find much less recourse in the courts than the early years of prison litigation had appeared to promise (Schlanger and Shay, 2008, p. 140; Cohen, 2004).

Beyond the general pattern of prison conditions, researchers have consistently identified three key areas of racial inequality in which the experience of minority prisoners differs from the experience of White prisoners. First, people of color and Black prisoners in particular are incarcerated at higher levels of custody and are more likely to be locked in solitary confinement than White prisoners. Second, White prisoners are more likely to report violent victimization than non-White prisoners. Third, mortality risk is relatively high among White prisoners.

Solitary Confinement

Solitary confinement refers to a very high level of penal custody where prisoners are locked in their cells for 22 hours each day, with one or two hours out of the cell for showers or recreation. Conditions of solitary confinement often include heavily restricted opportunities for programming, visits, or phone calls (Frost and Monteiro, 2016). Solitary confinement is used for two purposes: for punishing misconduct, often known as disciplinary segregation, and for controlling and managing the prison population, often known as administrative segregation. Administrative segregation might be used to control conflicts such as gang rivalries, or for the protective custody of those who are unsafe in the general prison population—for example, due to their youth or gender identity (Kapoor and Trestman, 2016, p. 200). Solitary confinement is regularly found to be closely associated with a high level of psychological distress (Reiter et al., 2020; Haney, 2018).

Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×

Although the conditions and procedures for solitary confinement vary greatly, researchers consistently find relatively high rates of solitary confinement among Black prisoners. A study of Pennsylvania prisoners, using data from 2007–2018, found that Black men were 22 percent more likely to have been in disciplinary or administrative segregation than White men, and that Black women were more than 50 percent more likely to have been in solitary confinement than White women. Research on misconduct and disciplinary segregation finds that Black prisoners are more likely to experience solitary confinement than White prisoners (Pullen-Blasnik et al., 2021). Similar racial disparities have been reported in analyses of state prisoners in Florida (Cochran et al., 2018), and in Kansas (Sakoda and Simes, 2021), and in national survey data (Logan et al., 2017; Olson, 2016).

In analyses in the crime-discrimination framework, misconduct studies find that race differences are largely explained by the number and severity of prison infractions (Cochran et al., 2018; Logan et al., 2017). However, one regression discontinuity study using Kansas state prison records finds that when solitary confinement capacity is increased, the risk of solitary confinement disproportionately increased among young Black incarcerated men. This analysis suggests that race differences in prison isolation also depend on the punitive capacity of the state penal system.

Violence in Incarceration

Prisons and jails are violent settings, where the risks of assault and sexual violence are much higher than in free society. Prison researchers report that violence and the fear of violence are central concerns for incarcerated people and constitute one of the main “pains of imprisonment” (Haney, 2006; Bottoms, 1999; Toch, 1978; Sykes, 1958). Rates of violent infractions in prison have been found to be about five times higher than community-based rates of violent victimization (Western, 2021; Bottoms, 1999).

Sexual assault in prison is also much more prevalent than in free society, although estimates of sexual assault vary greatly with protocols for measurement. For example, a self-administered questionnaire sent to seven prisons in the Midwest in the mid-1990s yielded a rate of coerced sexual activity during the current incarceration of 210 per 1,000 (Struckman-Johnson and Struckman-Johnson, 2000). In the early 2000s, survey estimates of the six-month prevalence of nonconsensual sex acts ranged from 15–30 per 1,000 (Wolff et al., 2006). Despite the great variability, even the low-prevalence estimates in prison exceed by an order of magnitude the community estimates of rape or sexual assault where the 12-month prevalence is one to two per 1,000 (Morgan and Truman, 2020). Women prisoners are more likely to be the targets of sexual abuse by staff (e.g., Jenness et al., 2019; Buchanan, 2007).

Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×

The evidence concerning lethal violence paints a more complicated picture but still indicates the climate of violence in U.S. incarceration. Similar to community trends, the prison homicide rate declined significantly between 1980 (54 homicides per 100,000) and 2000 (three per 100,000). Since 2000, the rate has more than doubled, reaching eight per 100,000 in 2016, which exceeded the community rate in that year of 5.2 per 100,000 (Carson and Cowhig, 2020; Mumola, 2005). The relatively high rate of prison homicide is related to the age, race, and sex distribution of the prison population, but the absence of firearms in prison also protects against the risk of homicide mortality. When the prison homicide rate is compared to the community non-firearm homicide rate, adjusting for age, race, and sex, the incidence of homicide in prison is about twice as high as that in the community (Western, 2021).

Although the risk of violent victimization is very high in prison compared to community rates, victimization risks are relatively higher for White prisoners. Theories of prisoner victimization emphasize vulnerability and a lack of guardianship. Thus age, mental health status, and sexual identity are correlated with race and associated with greater vulnerability and lower levels of guardianship (Steiner et al., 2017; Wooldredge and Steiner, 2012).

Health and Incarceration

Incarcerated people are generally in poor health, suffering from relatively high rates of chronic conditions, infectious disease, and mental illness. Courts have decided that the constitutional prohibition against cruel and unusual punishment establishes a minimal right to health care. As a result, prisons and jails face the significant challenge of managing medical services for a high-needs population. Injuries sustained through accidents or assaults, the cumulative effects of incarceration-related stress, and the inadequate treatment of preexisting conditions may all impair the health of incarcerated people. Research points to two areas in which prisons and jails appear to clearly affect the physical health status of incarcerated people: mortality risk and infectious disease.

Despite the relatively high burden of disease, mortality rates in prison are not uniformly high. Standardized mortality ratios for White men have been estimated at around 1.2, indicating an age-standardized mortality risk in prison about 20 percent higher than in the general population (Rosen et al., 2011; Patterson, 2010). But standardized mortality ratios estimated for Black incarcerated men have been estimated at around 0.5, indicating that the death rate for Black men in prison is about half the death rate for those in the general population (see also Wildeman et al., 2016). Patterson (2010) examines the contribution of violence to prison and community mortality rates and finds that the low prison homicide rate of Black men could

Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×

not explain the mortality gap between prison and community. Analysis of cause-specific mortality data for men incarcerated in North Carolina found that the excess risk was associated with cardiovascular disease, cancer, and infectious disease (Rosen et al., 2011).

Although correctional health services may reduce mortality for Black men with chronic conditions, research on health and incarceration finds that prison impairs health by elevating the transmission of infectious disease. High rates of HIV, hepatitis B, and hepatitis C have been widely documented in U.S. prisons. Recent estimates indicate that HIV prevalence in prison exceeds community rates by a factor of three to five, and hepatitis B and hepatitis C prevalence exceeds community rates by five to 10 times (Gough et al., 2010; Bick, 2007). Although precise numbers are difficult to estimate, screening at prison intake suggests that 80–90 percent of cases were present before incarceration, with the remainder transmitted in prison, mostly through sexual activity and needle use.

A related line of research studies outbreaks of infectious disease, focusing on the spread of tuberculosis, influenza, and varicella (Beaudry et al., 2020). Each of these infections is airborne and spread through aerosol transmission (droplets) and contact with surfaces. The congregate living areas, dining halls, and recreation areas that make up the physical plant of prisons facilitate the spread of airborne pathogens, particularly in overcrowded conditions. Population turnover raises the risks of both bringing infections in from surrounding communities and also transmitting disease back to the communities from which the incarcerated population is drawn.

The significance of correctional facilities for the transmission of infectious disease was strikingly illustrated by the novel coronavirus pandemic. Prisons and jails were consistently among the leading hot spots for COVID-19 outbreaks throughout 2020 (the National Academies, 2020). Facilities such as Rikers Island (New York City, NY), Cook County jail (Chicago, IL), and Marion Correctional Institution (OH) suffered outbreaks that resulted in dozens of fatalities among staff and incarcerated people.

The Consequences of Conviction and Incarceration

Labor Market Consequences

A wide range of evidence points to the negative effects of criminal conviction and incarceration on later employment and earnings. People with criminal records and histories of incarceration experience high rates of unemployment and low earnings, both before and after incarceration (Kling, 2006; Western et al., 2001). Both having a criminal record and experiencing incarceration may reduce economic opportunities. A criminal record may signal untrustworthiness, unreliability, or dangerousness to a

Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×

prospective employer. The experience of incarceration itself—the risks of violence, isolation, and infectious disease—may contribute to disability and erode human capital.

Several studies have tried to isolate the causal effect of incarceration by capitalizing on the random assignment of judges to criminal cases. Judges vary in their propensity to hand down prison sentences, so random assignment induces variation in incarceration that is unrelated to other factors, such as criminal involvement or a lack of soft skills, that are associated with poor labor market outcomes. Among the studies based on the random assignment of judges, an early analysis by Kling (2006) finds no effect of prison incarceration on earnings, and this result was replicated by Loeffler (2013). On the other hand, Mueller-Smith (2015) finds that incarceration did cause a reduction in earnings. Studying pretrial jail detention, Dobbie and colleagues (2018) also found a reduction in earnings associated with incarceration. Audit studies conducted by Pager (2007; see also Pager et al., 2009) also indicate the clear reluctance of employers to hire job applicants with prison records (see also Decker et al., 2015). Audit evidence also indicates the aversion of employers to job applicants with misdemeanor arrests and no conviction (Uggen et al., 2014) and felony convictions without incarceration (Agan and Starr, 2018). Employer surveys yield similar results.

Labor market experiences after incarceration also appear to clearly differ by race. In an analysis of what they called compounded disadvantage, Lyons and Pettit (2011) examine the wage trajectories of Black and White men before and after incarceration and find that the racial gap in earnings became wider after incarceration. Field studies also find that employment outcomes after incarceration have been found to be worse for Black youth and men compared to White people (Western and Sirois, 2019; Sullivan, 1989). Consistent with these findings, Pager (2007; see also Pager et al., 2009) also finds that the stigma of a criminal record in the labor market is larger for Black jobseekers than for White ones.

Parental Incarceration

As incarceration rates increased, more families and children had direct experience with the imprisonment of a parent (see NRC, 2014, Figure 9-1). About half of the 2.2 million people incarcerated in the United States today are parents; 2.7 million children have at least one incarcerated parent, and about 10 million children have had a parent incarcerated at some point (Underwood, 2021). Black children are nine times more likely than White children to have an incarcerated parent, and Latino children are three times more likely (Underwood, 2021).

The number of children with a mother in prison increased 131 percent from 1991 to 2007 (see NRC, 2014, Figure 9-1), while the number with a

Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×

father in prison increased 77 percent (Glaze and Maruschak, 2008). Parental incarceration has been found to affect many aspects of children’s wellbeing, including increasing the risk of later system involvement by those children (Wildeman et al., 2018; Ruiz and Kopak, 2014; Kjellstrand and Eddy, 2011; Foster and Hagen, 2009). Against a large literature finding evidence of the negative effects of parental incarceration on children and the intergenerational persistence of incarceration risk, researchers also caution that removing a parent from the home who is violent or otherwise harmful can improve children’s well-being (Turney and Wildeman, 2015). Consistent with this finding, a study of Ohio correctional data finds that parental imprisonment reduces the risk of children’s imprisonment in adulthood by about five percentage points, and the reduction in the risk of imprisonment is found to be significantly larger for Black children (Norris et al., 2021).

Parental incarceration can also precipitate removal and foster care, and, under federal laws that set limits on the time children can remain in foster care, it can lead to fast-tracked adoption (Zavez, 2008). Child welfare involvement also increases the likelihood of later criminal system involvement for these children (Tasca et al., 2011). Incarcerated mothers are more likely than incarcerated fathers to have lived with their children prior to incarceration. In a 2004 survey of incarcerated persons, 55 percent of females in state prisons who were parents, compared with 36 percent of males, reported living with their children in the month before arrest. Parents incarcerated in federal prisons are more likely than those in other facilities to report living with their children before arrest (73% of females, compared with 46% of males). In addition, incarcerated mothers are more likely than incarcerated fathers to have come from single-parent households (42% vs. 17% in state prisons and 52% vs. 19% in federal prisons; Glaze and Maruschak, 2008). The significant racial disparities in adult incarceration therefore translate into earlier introduction of Black, Native, and Latino children to the criminal system; see discussion above about the harmful effects of early exposure to the criminal justice system on child development.

Sustaining a relationship between an incarcerated parent and their child can be difficult due to several factors, not limited to visitation restrictions, difficulty navigating the criminal justice system, transportation challenges, and lack of consistent communication. Visitation rules for incarcerated individuals vary across the United States, for example. Correctional facility visits can be challenging as facilities may require pre-clearance, approved adult supervision for children younger than 18, and proof of identification; visits may be canceled without notice; and it may be a financial burden to travel to the facility (Boppre et al., 2022). Depending on where the parent is incarcerated, visitation may require the child to be transported a significant distance to reach the facility, thus

Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×

requiring reliable transportation from a supervising adult. Moreover, incarcerated individuals face significant communication barriers as they are not able to accept incoming calls and they must pay for all outgoing calls, often at significant cost. Without easy, consistent access to a phone and affordable calls, it can be difficult for an incarcerated parent to maintain consistent communication with their child. Box 4-3 discusses some strategies for addressing these challenges.

Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×

Collateral Consequences

Collateral sanctions are typically located outside the penal code, implemented by non-criminal justice institutions, and interpreted by courts as civil regulations rather than criminal penalties. Among other limitations, these include restrictions on occupational licensure (Aukerman, 2005) and on parental rights, access to housing and education, public benefits, and voting rights (Manza and Uggen, 2006). Today, approximately 5.2 million U.S. adults remain disenfranchised due to a felony conviction, representing about 2.3 percent of the total U.S. voting-eligible population and 6.2 percent of the Black voting-eligible population (Uggen et al., 2020). Although these legal and informal restrictions are separable for analytic purposes, people experience them in combination as compounding challenges (Uggen and Stewart, 2014).

People who have been released from prison are also required to navigate the stigma and negative reactions of those in their community. This arises in both immediate face-to-face interactions and in what Lageson calls “digital punishment,” a product of the widespread public availability of criminal records in the information age, which can further restrict opportunities and enhance the stigma of a criminal record (Lageson, 2020, 2016).

Ineligibility for certain welfare benefits also adds to the financial insecurity of formerly incarcerated individuals. Some states subject people with a felony drug conviction to restrictions or complete bans on food assistance under the Supplemental Nutrition Assistance Program, cash assistance through Temporary Assistance for Needy Families, or both.

In addition, due to federal policies and local practices that deny assistance to individuals convicted of a drug felony offense, many justice-involved individuals face unique barriers to obtaining housing assistance. For example, the law allows family members who house relatives or friends engaged in criminal activity to be evicted themselves, even if the tenants “did not know of, could not foresee, or could not control the behavior of other occupants or guests” (Love et al., 2021).

Incarceration also deepens the social disadvantages that have resulted from racial disparities in poverty rates and educational attainment. For example, data show that despite sharing a similar criminal history and generally very low levels of schooling, Black men are far less likely than White men to be employed during the 12 months after prison. Moreover, the Black men who are employed during that period earn less than their White counterparts (the National Academies, 2018).

Researchers have taken evidence of racial disparities in incarceration, the exposure to harm during imprisonment, and the negative socioeconomic effects that may flow from conviction and incarceration to investigate the possibility of community-level effects associated with high rates of incarceration

Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×

that are spatially concentrated in low-income Black and Hispanic neighborhoods. There is strong evidence of the spatial concentration of incarceration in minority communities, even accounting for, or contributing to, local crime rates (Simes, 2021; Sampson, 2012). Under these conditions, some scholars believe that these adverse impacts fed inequality in Black communities, furthering a cycle of inequity that saw societal conditions such as those outlined in Chapter 4 feed into criminal justice contact and involvement, which further perpetuated and exacerbated structural racism impacting non-White communities (Clear, 2009; Rose and Clear, 1998). They hypothesize that the resulting “coercive mobility” is itself criminogenic, increasing crime rather than decreasing it. Assessing the community-level effects of incarceration that are also closely associated with crime, poverty, and segregation poses a steep challenge for causal inference (NRC, 2014), but even in the absence of causal evidence from experimental designs, researchers conclude that the spatial concentration of incarceration contributes to a multidimensional disadvantage of which criminal justice intervention is a significant part (Simes, 2021; Sampson and Loeffler, 2010).

Probation, Parole, and Supervision

Community supervision remains the largest segment of U.S. correctional control with 4.4 million people under community supervision in 2018 (Carson, 2020; Kaeble and Alper, 2020; Zeng, 2020). The term “community supervision” encompasses both probation and parole. Modern probation is a type of supervised community release determined by a court, sometimes prior to sentencing, or as part of a criminal sentence. A probation sentence is often given to defendants with relatively short criminal records and for low-level offenses. A probation sentence often involves regular meetings with a probation officer and compliance with the conditions of the community-based sentence, which might involve programming, work, or educational activities. Whereas probation is often ordered in lieu of incarceration, parole follows a period of prison incarceration. Parole’s origins date back to the indeterminate sentence, created in the 19th century, in which a judge specifies a range for the period of incarceration, for example from one to five years. Under an indeterminate sentence, prison release is determined at a parole hearing. If parole is granted, a prisoner is able to return to the community subject to conditions of release. If those conditions are violated, parole can be revoked resulting in a return to prison.

Several studies find that probation and parole supervision create a recidivism trap, one that increases the risk of incarceration even in the absence of new criminal conduct. Probation and parole are both a type of conditional release, where supervision in the community depends on

Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×

complying with a few conditions, such as maintaining employment and a stable address, avoiding drinking and drug use, and avoiding association with others who have criminal records. For an economically insecure population, often living in poor neighborhoods and struggling with substance use problems, compliance with such conditions of supervision can be challenging. In many cases, noncompliance may reflect life circumstances much more than involvement in crime. The response by probation and parole officers to noncompliance varies greatly across agencies, but parole and probation clients can be returned to incarceration for so-called technical (non-criminal) violations of release conditions. Strong evidence of an elevated risk of re-incarceration has been reported by Franco-Paredes and colleagues (2021), Rose and Shem-Tov (2021), Harding and colleagues (2017), Hyatt and Barnes (2017), and Lofstrom and colleagues (2014).

Do the risks of revocation vary with race? There are relatively few studies of racial disparities in probation sentencing and revocation. A four-county study examined racial differences in probation revocation in Dallas County (TX), Iowa’s Sixth Judicial District, Multnomah County (OR), and New York City (NY) from 2007 to 2010 (Jannetta et al., 2014). Black probationers experienced relatively high revocation rates in all four jurisdictions, being 18 to 36 percent more likely to be placed in custody than White probationers. Of the observed Black/White disparity in revocation, between 20 and 49 could not be explained by demographics, offense type, criminal history, or other covariates. Similar results were obtained in the analysis of probation revocation from a large southwestern state. Black probationers there were found to have relatively high rates of revocation but were less likely to be discharged early or to successfully complete the probation sentence, net of demographic characteristics, a risk score, and offense type (Steinmetz and Henderson, 2016; see also Olson and Lurigio, 2000).

Research on racial disparities in parole has examined both the parole release decision and the revocation decision. A number of papers find that minorities are less likely to be paroled than White people (Huebner and Bynum, 2008; Proctor, 1999; Bynum and Paternoster, 1984; Heinz et al., 1976). Research on parole violations has found that Black people are between 50 percent and over 100 percent more likely to be charged with parole violations than White people, even when controlling for relevant demographic and legal factors (Steen et al., 2013; Grattet et al., 2009; Steen and Opsal, 2007). Black people are also more likely to be returned to prison for a parole violation, which contributes to racial disparities in incarceration overall (Curry, 2016; Vito et al., 2012). Finally, a report by the Brennan Center for Justice finds that Black and Latino people remain on probation and parole longer than similarly situated White people, which other research suggests may generate increasing disadvantages for people of color over time (Eaglin and Solomon, 2015; Steen and Opsal, 2007).

Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×

It’s possible that observed disparities in parole are a mechanical effect of prison release policies from earlier cohorts that received lengthier prison sentences for violent and repeat offenses that are still on parole, as well as requirements of releasing inmates. These studies indicate that community supervision, among the many stages from arrest to release, is a major driver or racial inequality in the criminal justice system.

Legal Financial Obligations

Monetary sanctions and court-ordered fees resulting from contact with the criminal justice system can result in ongoing criminal justice supervision, especially for poor people. Non-payment of court fines and fees can result in continuing court supervision until payment is made in full. A randomized controlled trial in a misdemeanor court in Oklahoma showed that court fines and fees led to warrants for non-payment, debts in collection, and state garnishment of tax refunds (Pager et al., 2022). Researchers argue that fines and fees exacerbate inequality, creating a two-tiered system—one for people with the means to pay their fines and move forward and one for people who cannot afford to pay their fines (Harris, 2016). Studies show that these sanctions are both disproportionately imposed on and are associated with the adverse treatment of people of color by police and other officials (Bing et al., 2022; Shoub et al., 2021).

There is evidence that the financial, social, and health-related consequences of this system of monetary sanctions are substantial. Debt accumulates through interest, surcharges, and collection costs, which add to the financial burden on poor people. These monetary sanctions also disrupt families, especially when people are incarcerated for non-payment, and fear of re-incarceration can lead to significant stress (Harris, 2016).

CONCLUSION

This chapter describes how racial inequalities in neighborhood environments and crime combine with cumulative disadvantage through the stages of criminal processing to produce racial inequality in the criminal justice system and deepen structural racism in society more generally. Research indicates that the concentrated neighborhood disadvantage contributes to racial disparities in criminal offending and criminal justice involvement. These disparities coupled with the bias of criminal justice officials and the routine operations of police and courtrooms that intensively regulate low-level offenses generate large disparate impacts. Once individuals are ensnared in the criminal justice system, strong perpetuating effects continue criminal justice involvement and, in some cases, diminished life chances.

Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×

The combined effects of crime and poverty, punitive criminal justice policy focused in poor non-White communities, and racial bias put Black, Hispanic, and Native populations at high risk of initial criminal justice contact and severe treatment and at high risk of the negative consequences of criminal justice system involvement. This inequality is produced at a number of decision points and involves a large number of officials that comprise a criminal justice system that produces long-lasting consequences that are spatially concentrated and may stretch across generations. The expansion of the criminal justice system in low-income Black, Hispanic, and Native American communities from the 1970s to the early 2000s became a new and salient dimension of racial inequality in the post-Civil Rights period since the 1960s.

The collective effect of spatially concentrated crime and poverty, a penal code that has intensified punishment for drugs and violence, and criminal processing that has amplified racial disproportion comprises a social structure of racial inequality, with historical roots in institutions designed for racial exclusion and domination (see Chapter 1).

The social structure of racial inequality that emerges from this review of the research contrasts with the dominant analysis, which decomposes criminal justice disparity into components for crime and discrimination.

The idea that criminal processing creates growing disproportion in a context of structural disadvantage raises challenging questions for science and policy. For science, where the focus has often been on estimating discrimination, the question is: What do we control for? For example, sentencing studies routinely control for the prior criminal record to assess racial discrimination. But if prior discrimination tainted the criminal record, controlling for the prior record defines bias more narrowly. Arnold and colleagues (2020), in their analysis of pretrial detention, observe that in some analyses, “the definition of bias is so narrow that it rules out many plausible forms of racial bias.”

A similar issue is raised in studies of policing. Knox and Mummolo (2020) critically review studies of police use of force that have found no racial differences in the victimization of civilians by police once characteristics of the police encounter are controlled. The authors argue that in a context in which there are large racial differences in the likelihood of a police encounter, conditioning on characteristics of the encounter controls away the relevant bias in police behavior.

For policy, racial inequality that is produced in a cumulative way in the social context of structural disadvantage may be unyielding to the narrow interventions that target specific points of discretion identified in discrimination studies. Examination of research on arrest, sentencing, incarceration, and community supervision indicates that disparity can result from a range of factors, including possible biased decision-making by line

Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×

officials, social structural inequalities, and inequalities produced through institutional design. Arnold and colleagues (2020) appear to be pointing to this larger policy challenge when they argue that “economists must critically examine the notion that there must exist ‘relevant differences’ across groups that can ‘explain’ away observed racial differences when studying bias and discrimination.” Reducing racial inequalities in the criminal justice system that are cumulatively produced from a starting point of structural inequalities in crime and poverty may require changes inside and outside the criminal justice system that are implemented in a comprehensive and coordinated way.

CONCLUSION 4-1: Enduring and spatially concentrated patterns of racial inequality in residence, poverty, violent crime, and enforcement provide a context for racial inequality in criminal justice involvement. As a result, criminal justice system contact—including police stops, arrests, incarceration, and community supervision—tends to be highly spatially concentrated.

CONCLUSION 4-2: Three key processes are important for racial inequality. First, the early stages of the system—including police stops, jails, misdemeanor courts, and fines and fees—generate vast numbers of contacts between police and the courts and racial and ethnic minority groups. Second, sustained criminal justice involvement is produced through a cumulative process that may increase disparity with movement through the system. Third, the criminal justice system ensnares large segments of a disproportionately minority population for whom social problems related to concentrated poverty, including but not limited to serious crime, engender a criminal justice response involving arrest and penal control.

CONCLUSION 4-3: The criminal justice system produces racial inequality through the cumulative impact from policing through community supervision; a focus on disparities or trends at any one point in the system will tend to underestimate the systemic effect of inter-related stages. Understanding the impact of the criminal justice system on racial inequality will require a more holistic analysis of contact across multiple stages of the system.

Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 139
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 140
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 141
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 142
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 143
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 144
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 145
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 146
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 147
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 148
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 149
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 150
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 151
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 152
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 153
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 154
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 155
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 156
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 157
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 158
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 159
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 160
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 161
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 162
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 163
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 164
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 165
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 166
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 167
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 168
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 169
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 170
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 171
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 172
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 173
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 174
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 175
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 176
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 177
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 178
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 179
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 180
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 181
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 182
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 183
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 184
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 185
Suggested Citation:"4 Criminal Justice Drivers of Racial Inequalities." National Academies of Sciences, Engineering, and Medicine. 2023. Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy. Washington, DC: The National Academies Press. doi: 10.17226/26705.
×
Page 186
Next: 5 Introduction to Part II »
Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy Get This Book
×
Buy Paperback | $50.00 Buy Ebook | $40.99
MyNAP members save 10% online.
Login or Register to save!
Download Free PDF

The history of the U.S. criminal justice system is marked by racial inequality and sustained by present day policy. Large racial and ethnic disparities exist across the several stages of criminal legal processing, including in arrests, pre-trial detention, and sentencing and incarceration, among others, with Black, Latino, and Native Americans experiencing worse outcomes. The historical legacy of racial exclusion and structural inequalities form the social context for racial inequalities in crime and criminal justice. Racial inequality can drive disparities in crime, victimization, and system involvement.

Reducing Racial Inequality in Crime and Justice: Science, Practice, and Policy synthesizes the evidence on community-based solutions, noncriminal policy interventions, and criminal justice reforms, charting a path toward the reduction of racial inequalities by minimizing harm in ways that also improve community safety. Reversing the effects of structural racism and severing the close connections between racial inequality, criminal harms such as violence, and criminal justice involvement will involve fostering local innovation and evaluation, and coordinating local initiatives with state and federal leadership.

This report also highlights the challenge of creating an accurate, national picture of racial inequality in crime and justice: there is a lack of consistent, reliable data, as well as data transparency and accountability. While the available data points toward trends that Black, Latino, and Native American individuals are overrepresented in the criminal justice system and given more severe punishments compared to White individuals, opportunities for improving research should be explored to better inform decision-making.

  1. ×

    Welcome to OpenBook!

    You're looking at OpenBook, NAP.edu's online reading room since 1999. Based on feedback from you, our users, we've made some improvements that make it easier than ever to read thousands of publications on our website.

    Do you want to take a quick tour of the OpenBook's features?

    No Thanks Take a Tour »
  2. ×

    Show this book's table of contents, where you can jump to any chapter by name.

    « Back Next »
  3. ×

    ...or use these buttons to go back to the previous chapter or skip to the next one.

    « Back Next »
  4. ×

    Jump up to the previous page or down to the next one. Also, you can type in a page number and press Enter to go directly to that page in the book.

    « Back Next »
  5. ×

    Switch between the Original Pages, where you can read the report as it appeared in print, and Text Pages for the web version, where you can highlight and search the text.

    « Back Next »
  6. ×

    To search the entire text of this book, type in your search term here and press Enter.

    « Back Next »
  7. ×

    Share a link to this book page on your preferred social network or via email.

    « Back Next »
  8. ×

    View our suggested citation for this chapter.

    « Back Next »
  9. ×

    Ready to take your reading offline? Click here to buy this book in print or download it as a free PDF, if available.

    « Back Next »
Stay Connected!