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Race and Criminal Injustice

Is there scientific evidence to support the existence of “race” among humans?  No.  Does that mean “race” does not matter?

“Race” does matter in our society – despite its lack of biological basis. Race is a social construct that influences how people perceive and treat each other. 

In the United States we wish that we were beyond race.  But the superstition lingers and affects us all

How does it affect our human efforts at justice in the criminal courts?

Group Identity

Our sense of identity – who we believe ourselves to be, what and who we identify with – influences how we perceive events, and other people.  Race, gender, and other socially defined demographic characteristics influence our sense of identity, and our perception.

In the United States, we believe that judging others based upon “race” is wrongPeople resist recognizing (perceiving) that they themselves could or would do something wrong. 

As a result, we tend to believe that attitudes about race affect other people, but not ourselves

Ironically, this projection of an unfavorable characteristic, which we deny in ourselves and project onto “the other,” is a the key to racial stereotyping

However we define ourselves and the groups we identify with; we tend to think simplistically. We believe that “we” are good; but “they” are bad.

The Other

Another factor is fear of the unknown.  We feel that we know ourselves, and the cultural milieu from which we come. 

But we may lack understanding of “The other,” the outsider – who comes from a strange culture, a different experience, another “race.”  We may think that “they” are unknown to us.  So they seem unpredictable to us, which can lead us to fear them.

See our article:  Self-defense and The Other

Race and the self-fulfilling prophecy

Then there is the problem social psychologists call “the self-fulfilling prophecy phenomenon” – captured in the aphorism “what a fool believes, he sees.” 

If a person believes a theory about a member of an “other” group, scientists found that the person will ignore all facts inconsistent with the theory and see only the facts consistent with the theory.  This is true, even if 99% of the facts contradict the theory, and only 1% of the facts support it.  We call this confirmation bias.

Because of this phenomenon, people generally will deem the theory proven true, even though 99% of the evidence disproves it!  

If the theory is about people of a perceived “race,” then the result is a racial stereotype. 

People who believe racial stereotype theories defend them with the argument that they are true, or partly true (because they believe them to be true).  But examined against all of the facts, they are not.

Racial stereotypes and crime

Bias based on race? Police light bar
Bias based on race? Police light bar

One common racial stereotype involves the theory that minority-race people are more often committing crimes than majority-race people.  Some use the stereotype to explain why a greater percentage of the minority race community are arrested, charged with crimes, convicted, and sentenced to prison; as compared to the majority-race community.

But, numerous studies have been done, by the American Bar Association and others, proving otherwise

For example, we know that African-Americans use illegal drugs at the same per capita rate as the general population in the United States.  Yet, people socially-defined as African-American are arrested, criminally charged, convicted, and incarcerated at a vastly higher rate than non-African-Americans.

“The National Institute of Drug Abuse estimated that while 12 percent of drug users are black, they make up nearly 50 percent of all drug possession arrests in the U.S. (The Black and White of Justice, Freedom Magazine, Volume 128).”

from article: the Truth About Black Crime, R. Jeneen Jones, Jan 16, 2000.

Same rate of crimes; higher rate of CJS impacts based on race

And the race bias problem goes beyond illegal drug crime cases:

Figure 1. Racial Disparity Matrix

Column AColumn B                   Column C                  Column D
Decision Point % who are African-American % at preceding decision point who are African-AmericanDisparity ratio
Total Population   15 N/AN/A
Arrest                       30152.00
Detention               35301.17
Prosecution            37351.06
Conviction             45371.22
a. Probation           38 450.84
b. Incarceration     50381.11

source: chart from a 2000 report from the Sentencing Project at page 29.

Given the evidence of the criminal justice system CJS) treating people differently based upon “race,” clearly the reason is not that minority-race people are committing crimes at a higher rate than majority-race people. 

After all, the illegal drug use rates are the same, but African-Americans are being disproportionately arrested, charged, convicted, and incarcerated:

  • African-Americans are arrested at much higher rate than people the percentage of all races committing crimes;
  • Then, of people of all races arrested, a disproportionate percentage of African-Americans are being charged;
  • And, of all races charged, a disproportionate percentage of African-Americans are being convicted;
  • Finally, of those of all races convicted, a disproportionate percentage of African-Americans are being sentenced to prison.

At each of these significant stages of the exercise of human discretion – by police, by prosecutors, by jurors, by judges, African-Americans are being treated unfairly, and more harshly than the general population.   Yet nearly every individual exercising that discretion likely believes their decision is not based upon race.  How can this conflict be reconciled?

Equal Rights, but Disparate Impact based on race

Though few people view themselves as racist – few police, few prosecutors, few defense attorneys, few judges, few jurors – the aggregate result is one of a strong, unfair impact based upon a person’s “race.”

Understanding is the first step to a solution to race bias

Putting to one side the racist origins of Drug Prohibition laws as well as their disparate impact on minorities today; the effect is seen across the board for every type of criminal case.  Space does not permit a full discussion of the solutions now.  But, we offer a few thoughts on solutions.

Gallagher Criminal Defense logo sm

Awareness of the problem may be a first step.  Be suspicious of any theory based upon race – or race-code words.  And when you hear one of those, challenge it.  Look for the evidence that contradicts the theory or stereotype. 

When we develop our empathy for others, and get to know and love other cultures, we are on the path towards a solution.

In the end, society is made up of individual people.  We can change ourselves.  And so we can change our society.  Beginning with ourselves, we can make our shared world a better, and more fair place.  Each of us can reduce and eliminate race bias.

Liberty for one, is liberty for all.

By Thomas C Gallagher is a Criminal Lawyer in Minneapolis.

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