Bill of Right in Action Winter 1992 (9:1)
Does the Criminal Justice System Discriminate Against African-Americans?
A white truck driver named Reginald Denny was driving his big-rig through South Central Los Angeles during the April 1992 Los Angeles riots. Television viewers all over Los Angeles watched in horror as a helicopter camera zoomed in on Denny being pulled from his truck and beaten by several young black men. The videotape of this attack became almost as famous as the one that helped set off the rioting -- the amateur video that showed policemen surrounding and beating Rodney King.
Based on videotape of the Denny beating, the police arrested five young African-American men. They were charged with many crimes, including attempted murder. None could post bail, which exceeded $500,000 in one case. Eventually, three of the five were ordered to stand trial for attacking Denny and several other victims.
The Denny case became the focus for a longstanding feeling in the African-American community that blacks cannot get justice in our system. Many people in the community came forward to support the defendants. The camera seemed to show that somebody was guilty, but many people insisted that the three black men would never get a fair trial from a criminal justice system dominated by white prosecutors, jurors, and judges. Is this perception valid? [Editor's note: In a controversial verdict, the defendants were acquitted on the most serious charges in the case.]
The Color of Justice
Over the years, critics of the criminal justice system have cited many cases and studies. For example, statistical studies suggest that more than half of all black males in large cities can expect to be arrested at least once during their lifetime, while only 14 percent of white males are ever arrested. African-Americans make up 12 percent of the U.S. population, but they are 45 percent of all prison inmates and 40 percent of those sentenced to death. In 1992, there were more black men in prison than in college. Even more startling, a quarter of all African-American males aged 20-29 are locked up, on probation, or on parole right now.
The question remains whether these statistics are the result of a racist criminal justice system or have other causes. Social scientists and politicians have argued about this question for decades.
In a controversial 1975 article titled, "White Racism, Black Crime, and American Justice," criminologist Robert Staples argued that there was discrimination. He said the legal system was made by white men to protect white interests and keep blacks down. Staples charged that the system was characterized by second-rate legal help for black defendants, biased jurors, and judges who discriminate in sentencing.
A dozen years later, sociologist William Wilbanks rejected the discrimination argument. In his book, The Myth of a Racist Criminal Justice System, Wilbanks reviewed scores of studies that seemed to show statistical inequalities between whites and blacks in arrest rates, imprisonment, and other areas of criminal justice. He felt the inequalities were due to factors other than racial discrimination, such as poverty and the defendant's prior record.
Other sociologists, too, have suggested that the apparent inequalities have more to do with poverty than race. Street crimes such as robbery and assault, prominent in the statistics, are often committed by people from poor backgrounds. In 1992, almost 45 percent of all African-American children grow up below the official poverty line, compared to only 16 percent of all white youngsters. These figures grew worse in the 1980s, as job opportunities gradually disappeared from most urban black communities. During the 1990s, however, poverty rates dropped and so did the crime rate.
The connection between poverty and crime has long been noted. During the 1930s, a much larger part of the white population was poor, and whites committed a greater percentage of street crime. Whites then accounted for nearly 80 percent of those in prison -- compared to 40 percent today. The question of poverty alone may well account for many of the apparent inequalities in the system.
A Rand Institute study in 1983, however, unearthed some disturbing data. Rand compared the treatment of whites and blacks at key decision points in the criminal justice system, such as sentencing. The researchers found that black defendants seemed to be treated more harshly. However, the researchers did not identify a cause for these inequalities. Later studies have provided more insight into this troubling data.
The San Jose Mercury News conducted a massive study of 700,000 California legal cases over a 10-year period. The paper reported in December 1991 that 33 percent of the white adults who were arrested, but had no prior record, were able to get felony charges against them reduced. Only 25 percent of the African-Americans and Latinos with no priors were as successful in plea bargaining.
The Mercury News study did not blame intentional racism for these inequalities. It did, however, suggest that subtle cultural fears and insensitivity contributed to the problem. The study noted that over 80 percent of all California prosecutors and judges are white, while more than 60 percent of those arrested are non-white.
In 1985, Cornell law professor Sheri Lynn Johnson reviewed a dozen mock jury studies. She concluded that the "race of the defendant significantly and directly affects the determination of guilt." In these studies, identical trials were simulated, sometimes with white defendants and sometimes with African-Americans. Professor Johnson discovered that white jurors were more likely to find a black defendant guilty than a white defendant, even though the mock trials were based on the same crime and the same evidence.
And Professor Johnson found that black jurors behaved with the reverse bias. They found white defendants guilty more often than black defendants. Furthermore, the race of the victim in the case affected both groups. If the victim was black, white jurors tended to find a white defendant less blameworthy. In the same way, if the victim was white, black jurors found black defendants less blameworthy.
According to these mock jury experiments, both white and black jurors seem to discriminate. Professor Johnson, however, did not think the juror bias was intentional. "Because the process of attributing guilt on the basis of race appears to be subconscious," Johnson says, "jurors are unlikely either to be aware of or to be able to control that process."
The mock trials did have one encouraging result. When white and black mock jurors met together, as many real juries do, the effect of race tended to disappear. This result seems to indicate that the best way to eliminate racial bias in verdicts is to select racially mixed juries. The U.S. Supreme Court has moved in this direction by prohibiting both prosecutors and defense lawyers from eliminating prospective jurors solely because of race. [See Batson v. Kentucky (1986) and Georgia v. McCollum (1992)]
The 1983 Rand Institute study found that convicted African-Americans were more likely than whites to go to prison. And their sentences were longer. "This disparity," the study concluded, "suggests that probation officers, judges, and parole boards are exercising discretion in sentencing and/or release decisions in ways that result in de facto discrimination against blacks." De facto means the discrimination exists in fact, but without legal authority -- and it may not be intentional.
Unintended discrimination can occur at many points in the legal process. Probation officers often prepare reports to help judges make sentencing decisions. Reports include information on the criminal's prior record and background. Since many African-American criminals grow up poor, their records often show problems like unemployment and violence in the home. Judges could often be tempted to assume black criminals are more dangerous than white criminals, who more often come from middle-class backgrounds. Some observers feel that such assumptions can lead judges to sentence black offenders more harshly than white offenders.
The state of Georgia was the subject of a careful study of 2,000 murder cases prosecuted during the 1970s. The study showed that defendants convicted of killing whites were more than four times more likely to receive the death penalty than those convicted of murdering blacks. The study also revealed that black defendants who murdered whites had by far the greatest chance of being sentenced to death.
A Georgia black man who had been sentenced to death for killing a white police officer used this study in his appeal to the U.S. Supreme Court. He claimed the study proved that Georgia's jurors and judges discriminated against African-American defendants. In a 5-4 decision, the Supreme Court accepted the results of the study, but ruled that it did not prove the discrimination was intentional. Writing for the majority, Justice Lewis F. Powell concluded that the study failed to "demonstrate a constitutionally significant risk of racial bias affecting the Georgia capital sentencing process." [McCleskey v. Kemp (1987)]
On the whole, most studies confirm that some racial discrimination exists in the American criminal justice system, but that it is not intentional. It is rooted in subtle assumptions and fears that are deeply ingrained in the wider society. Critics of the system, however, insist that inequalities, regardless of their basis, should not be swept under the rug. They maintain that any discrimination is intolerable, and we must all make a serious attempt to do away with it.
P.S. George Zimmerman's case started today. Will history repeat itself in this case or is America post-racial?