Reducing Racial Inequality in Crime and Justice Science, Practice, and Policy (2023) / Chapter Skim
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4 Criminal Justice Drivers of Racial Inequalities
4 Criminal Justice Drivers of Racial Inequalities
Pages 139-186
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From page 139... ...
Over the last two decades, researchers, policy makers, practitioners, and advocates have worked to reduce racial disparities, often within insti tutions 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 abol ish money bail, eliminate court-ordered fines and fees, reform sentencing policy, and end solitary confinement in prisons.
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From page 140... ...
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.
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From page 141... ...
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)
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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.
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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.
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. 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.
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From page 145... ...
Moreover, because definitions and counts of N ative 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 consid ering 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 incar ceration.
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, with minimal guidelines to guard against duplicative prosecutions or conflicting dispositions. Federal criminal law and federal agency policy thus disproportionately affect Indigenous people.
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From page 147... ...
Tribal governments also rely heavily on Bureau of Indian Affairs formula funding and Department of Justice grant fund ing to run their criminal justice systems because they lack the local tax base that other governments use to generate revenue. Where state criminal policy is the most important site of reform for most groups, for Indigenous people federal law, federal agency policy, and federal funding priorities are important sites of interven tion (e.g., Ulmer and B radley, 2018)
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From page 148... ...
The rules also apply only to offenses committed in areas defined as "Indian country" under federal law -- generally reservations and similar communities. Indigenous people who are not Indians or who are outside Indian country are subject to state jurisdiction to the same extent other groups are (except that many Indigenous Pacific Islanders are prosecuted in territorial courts, which may not be counted in national datasets)
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From page 149... ...
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.
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concluded that, a lthough the causal pathway from proactive policing to racial disparity is not well understood, large racial disparities in police contacts and the n ature 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.
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From page 151... ...
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 Birth Native Contact Cohort By Age Black Hispanic White American Men 1.
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From page 152... ...
. 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.
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. In the following sections, we document and explain how racial inequality is pro duced across system stages, and how criminal processing may amplify and concentrate the negative consequences of criminal justice contact among racial minority populations.
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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)
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. 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.
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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.
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From page 157... ...
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 docu mented evidence of a cultural stereotype of Black criminality, which has been shown to have a biased effect on how individuals process informa tion and form judgments, even when there is no conscious bias apparent (see, e.g., Eberhardt et al., 2004; Devine, 1989)
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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.
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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.
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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.
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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 bound aries of racially segregated space.
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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)
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, 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.
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. 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.
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. 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)
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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.
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From page 167... ...
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)
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From page 168... ...
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)
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From page 169... ...
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)
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The manual was intended to create uniformity among offenders sentenced for the same offense type and with the same criminal history. However, operating in tandem with statutory manda tory minimum sentences, federal sentencing guidelines have accompanied an increase in racial disparity (Hofer, 2019; Rehavi and Starr, 2014; McDonald and Carlson, 1993)
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If a defendant has prior offenses, the offenses are each given a numerical value, and these values are added together to determine the defendant's criminal history score, which places the defendant within an established criminal history category (United States Sentencing Commission, 2019, pp.
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United States, 1996) , although research regularly finds that Black defendants receive, on average, slightly longer sentences than White people even when the offense characteristics and criminal history are controlled (Yang, 2015; Rehavi and Starr, 2014; Ulmer et al., 2011)
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prison population were held in solitary confinement on any given day, and about 20 percent of the prison population were in soli tary 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 substan tial variation in conditions across jurisdictions and prison facilities.
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. 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.
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. Similar racial disparities have been reported in analyses of state prisoners in Florida (Cochran et al., 2018)
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. 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.
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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)
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From page 178... ...
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)
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From page 179... ...
. 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.
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In 1998, the New Hampshire Department of Corrections established the Family Connections Center,b which provides a variety of services and programs to incarcerated parents, including parenting education classes, parenting support groups, and healthy rela tionship classes. Vocational and life skills programs can help prepare incarcerated individuals for life outside of correctional facilities.
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. Incarceration also deepens the social disadvantages that have resulted from racial disparities in poverty rates and educational attainment.
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From page 182... ...
. 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)
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From page 183... ...
There are relatively few studies of racial disparities in probation sentencing and revocation. A fourcounty study examined racial differences in probation revocation in Dallas County (TX)
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. 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.
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From page 185... ...
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)
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From page 186... ...
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.
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