To appear in:
Robinson, Matthew B. (2005).  Justice Blind? Ideals and Realities of American Criminal Justice (2nd Edition).  Upper Saddle River, NJ: Prentice Hall.

  An organization formed by the Leadership Conference on Civil Rights and the Leadership Conference Education Fund, published a study (2000) called Justice On Trial: Racial Disparities in the American Criminal Justice System (www.civilrights.org). The major claim of this chilling report is: “Racial disparity in the criminal justice system is the most profound civil rights crisis facing America in the new century. It undermines the progress we have made over the past five decades in ensuring equal treatment under the law, and calls into doubt our national faith in the rule of law.”

 As the authors of this report explain:

In the half century since a tired seamstress named Rosa Parks refused to give up her seat on the bus, the United States has made significant progress toward the objective of ensuring equal treatment under law for all citizens. The right to vote and the right to be free from discrimination in employment, housing and public accommodations are enshrined in statute. The number of minorities in positions of authority in public and private life continues to grow. America’s minorities now enjoy greater economic and educational opportunities than at any time in our history.  While it certainly cannot be said that the United States has achieved complete equality in these areas, we continue to make slow but steady progress on the path toward that goal.

But in one critical arena – criminal justice – racial inequality is growing, not receding.  Our criminal laws, while facially neutral, are enforced in a manner that is massively and pervasively biased.  The injustices of the criminal justice system threaten to render irrelevant fifty years of hard-fought civil rights progress.

  When Martin Luther King, Jr. was assassinated in 1968, many major achievements had been realized by the Civil Rights Movement. Yet, since then, these gains have being rescinded through criminal justice processes. For example, according to www.civilrights.org:

• In 1964 Congress passed the Civil Rights Act prohibiting discrimination in employment.  Yet today, three out of every ten African American males born in the United States will serve time in prison, a status that renders their prospects for legitimate employment bleak, and often bars them from obtaining professional licenses;
• In 1965 Congress passed the Voting Rights Act.  Yet today, 31 percent of all black men in Alabama and Florida are permanently disenfranchised as a result of felony convictions.  Nationally, 1.4 million black men have lost the right to vote under these laws;
• In 1965 Congress passed the Immigration and Nationality Act, which sought to eliminate the vestiges of racial discrimination in the nation's immigration laws.  Yet today, Hispanic and Asian Americans are routinely and sometimes explicitly singled out for immigration enforcement;
• In 1968 Congress passed the Fair Housing Act.  Yet today, the current housing for approximately 2 million Americans – two-thirds of them African American or Hispanic – is a prison or jail cell;
• Our civil rights laws abolished Jim Crow laws and other vestiges of segregation, and guaranteed minority citizens the right to travel and utilize public accommodations freely.  Yet today, racial profiling and police brutality make such travel hazardous to the dignity and health of law-abiding black and Hispanic citizens.

 The main argument of this report is that the U.S. Constitution’s guarantees of equal treatment under the law have been eroded because of criminal justice: “Unequal treatment of minorities characterizes every stage of the process.  Black and Hispanic Americans, and other minority groups as well, are victimized by disproportionate targeting and unfair treatment by police and other front-line law enforcement officials; by racially skewed charging and plea bargaining decisions of prosecutors; by discriminatory sentencing practices; and by the failure of judges, elected officials and other criminal justice policy makers to redress the inequities that become more glaring every day.”

 This report claims that the biases begin with police: “The disparate treatment of minorities in the American criminal justice system begins at the very stage of that system: the investigation of suspected criminal activity by law enforcement agents.” In fact, the problem clearly starts with the law (see Chapter 3). This report discusses several examples of biased laws, including the disparate treatment of crack and powdered cocaine (see Chapter 11) and the refusal various Supreme Court rulings, including the decision of McCleskey v. Kemp (1987), where the Supreme Court refused to overturn capital punishment in the face of overwhelming evidence of racial disparities that could not be explained away by legal factors (see Chapter 10).

 The main problems with policing, according to this report, include:

• The use and abuse of discretion by police, which allows and even encourages under legal techniques (such as pre-textual traffic stops and stop and frisk searches), to use racial profiling to disproportionately stop African Americans with little evidence of wrongdoing;
• Immigration practices that disproportionately detain and deport Hispanics;
• Department policies and laws that permit and encourage police to respond to flight by citizens as suspicious behavior, which increases the risk of use of force and use of lethal force by police against people not involved in criminal activity;
• Police brutality and corruption, each of which disproportionately affects minorities; and
• The disparate enforcement of open air drug markets (which disproportionately occur in inner-cities where minority residence is high) rather than markets that are better hidden and tend to involve the people who are most likely to deal drugs – Caucasians.

 I discussed most of the issues in Chapters 6 and 11 this book. With the exception of brutality and corruption, these are forms of innocent bias, and do not require “bad cops” to occur. In fact, this organization concurs that police brutality and corruption are made more likely in an environment characterized by a “get tough on crime” approach where police officers find ways to justify behaviors they normally would not condone or commit because of the fact that most police officers are “good cops.”

 The main problems with courts, according to this report, include:

• The unchecked discretion of prosecutors in deciding whom to prosecute, what charges to press, and what sentences to pursue, which generally benefits Caucasian defendants (except for in death penalty cases);
• The discretion of federal prosecutors to decide in some cases to pursue some cases (especially drug cases) in federal courts rather than state courts, where sentences are generally harsher. With drug cases, this disproportionately occurs when cases involve alleged minority defendants;
• The disproportionate use of preventive detention for African Americans and the poor rather than grating bail, as well as the use of inflated bail amounts to deny the poor freedom while awaiting the disposal of their cases;
• Mandatory sentencing laws (such as three-strikes laws) are disproportionately used to harm minorities, especially when it comes to drug laws, by tying the hands of judges and not allowing them to use their own discretion to impose more rational sentences for relatively minor offenders;
• Death sentences are more routinely handed down for cases involving Caucasian murder victims, especially Caucasian victims murdered by minorities.

 Most of these issues were discussed in Chapters 7, 8, 10, and 11 of this book. I showed that the pretrial phase of courts, including charging, bail, and plea decisions are inherently biased against people of color and the poor. The authors of this report did not discuss trial procedures, but did point out some of the same sentencing biases that I discussed. The authors of the report write: “As an empirical matter, it is undeniable that prosecutors exercise their discretion in ways that have racially disproportionate impacts, even if their intent is race neutral. Such unfairness may ultimately be more dangerous than explicitly racist behavior, since it is harder to detect … and harder to eradicate …” In other words, the authors of this report have identified the same types of innocent bias that I concluded characterize American courts, and agree that race has effects on sentencing when it can.

 The main problems with corrections, according to this report, include:

• The abolition of parole at the federal level and in some states, which lengthens time served in prison and worsens correctional overpopulation;
• A massive increase in minority incarceration above and beyond their actually involvement in crime;
• Generally longer sentences for minority males and females for drug offenses; and
• The increased imprisonment of non-violent offenders, who are disproportionately likely to be minority males and increasingly minority females.

 I discussed most of the issues in Chapters 9, 11, and 12 of this book. Each of these outcomes is the result of America’s get tough on crime attitude. This report shows how this general approach to crime most directly affects minorities and the poor.

 According to the authors of the report, the following are consequences of America’s get tough on crime and minorities approach:

• Disenfranchising minorities convicted of criminal offenses (e.g., the loss of voting rights);
• Destabilizing communities by routinely removing large numbers of African Americans males and females from certain neighborhoods over decades;
• Compromising of the entire criminal justice apparatus by reducing respect for the law generally;
• Reducing the willingness of minorities to assist police with investigations, crime prevention through community policing, because of perceived racial bias;
• Reducing the willingness of minorities to serve on juries, because of perceived racial bias;
• Reducing funding for education and other social services, which also disproportionately affects the poor and people of color;
• Increasing exposure to harmful conditions, including illnesses and violence in overcrowded prisons;
• Increasing economic strain on American society by reducing the size of the American work force and tax base; and
• Reducing America’s standing in the world by harming our human rights image.

 The authors of the report conclude: “If the American criminal justice system were a corporation, it would be found to violate the civil rights laws so extensively that it might well be shut down. But for several reasons, racial inequality in the criminal justice system cannot be eradicated easily.” This is because of the fact that there is truly no “criminal justice system” (see Chapter 1), so changing the conditions that produce these problems requires changing laws and practices within thousands of agencies at various levels of governments. Also, “racial disparities emerge from deeply rooted, self-fulfilling stereotypes and assumptions” that are hard to root out. Finally, the political nature of crime and criminal justice in America is not conducive to honesty (see Chapter 2).

 Overall, the authors of the study conclude that the U.S. criminal justice network is one of the greatest threats to civil rights in our country: “The criminal justice arena is an especially critical battleground in the continued struggle for civil rights. Current disparities in criminal justice threaten fifty years of progress toward equality.” Because “Criminal justice reform is a civil rights challenge that can non longer be ignored,” the authors of the report put forth several recommendations for overcoming the problems they outlined. Many of these correspond nicely to the 50 recommendations I put forth in Chapter 13.