Race, Class and Justice in the U.S. Legal System: Still A Long Way From the Promised Land

@RHRealityCheck

I just want to do God's will. And he's allowed me to go to the mountain. And I've looked over, and I've seen the promised land! I may not get there with you, but I want you to know tonight that we as a people will get to the promised land.

I look to a day when people will not be judged by the color of their skin, but by the content of their character.

I refuse to accept the view that mankind is so tragically bound to the starless midnight of racism and war that the bright daybreak of peace and brotherhood can never become a reality... I believe that unarmed truth and unconditional love will have the final word.

- Martin Luther King, Jr.

This week, a Belgian tourist said he believed he had been cut some slack by the New York City police mainly because he was white. (The tourist had been detained for what turned out to be a fictitious crime but was released before this was fully settled). Indeed, even a perfunctory look at US criminal justice figures reveals that something is not quite right.

For starters, perceptions play a large role in who gets suspected of crime and arrested in the first place. A 2009 study using FBI figures found that while whites and blacks engage in drug-related offenses at similar rates, blacks were three to six times more likely to be arrested on drug-related charges between 1980 and 2007.

For women victims of violence, police perceptions are equally detrimental to justice efforts. Research shows that the proportion of fake rape complaints is similar to the proportion of other fake crime complaints: three to eight percent of total complaints filed. But police officers are much more likely to mistrust an alleged rape victim than they are to mistrust other victims, particularly if the woman is a sex worker, an injection drug user, or was intoxicated during or before the assault.

And it is not just the police that base their work on perceptions. Personal experience from any frequent traveller will confirm that racial profiling in airport security is real. When I travelled with my Peruvian (now ex) husband, we were often appalled at the difference in treatment. One time, as a customs officer was just about to look through my husband’s bags for the third time that trip, he realized I was there too. “Oh, he is with you,” the officer said, waiving my husband on as if his being accompanied by a white European woman were an ironclad guarantee that he (and I) were innocent of whatever they thought he might have done.

Another issue is who dispenses justice. Studies from the United States have confirmed that racial minorities are significantly underrepresented at all levels of the legal profession, including as prosecutors and judges. There is also evidence to suggest that prosecutors in some cases use their peremptory challenges to preserve all-white juries in cases involving African American or Hispanic defendants.

Of course, race should not matter in jury composition: whites, blacks, Hispanics, and anyone else are equally each other’s peers and suggesting otherwise might be seen as playing into the racist undertones of the US criminal justice experience. However, it is not unreasonable to suggest that a certain racial imbalance in sentencing and judgement is foreseeable given the tremendous racial imbalance of the justice system in the first place, especially since human beings are biologically programmed to trust those who look most like ourselves (and mistrust those who don’t).

But sentencing might be racially-biased for another reason too. Whereas police sometimes employ too much discretion in deciding what cases are investigated and pursued, judges and juries at times find their hands tied with regard to how to mete out punishment. Federal mandatory minimum sentencing laws related to powder or crack-cocaine offenses, for example, have been identified as a key culprit in soaring incarceration rates for African American men and women alike.

And it is indeed with regard to who goes to jail that the United States really stands out. The incarceration rate in the United States is not only four times larger than the global average. In addition, the prison population is highly skewed towards Hispanic and black men. Even in white-majority cities, black and Hispanic men are much more likely to be held accountable for crime than whites.

Perhaps none of this is new or surprising. What is interesting, though, is that the same Belgian tourist could have made analogous assumptions had he been arrested and detained in most countries in Western Europe. In fact, the prison population is rarely representative of the population as a whole. In the United Kingdom—the country with the highest incarceration rate in Western Europe—individuals who used to be in the armed forces are overrepresented in prisons. In France, non-governmental organizations suggest that at least half of those incarcerated near urban centers are Muslim, though only seven to eight percent of the French population adhere to that faith.

Of course black, Hispanic, and Muslim men who have served in the armed forces aren’t inherently more criminal than the rest of the population. I think the real question is whether the problem is discretion in dispensing justice—too much in some respects and too little in others. And I think it is time for change.