The criminal justice system aims to administer the law, ensure public safety, and provide justice to the offenders and the offended. The Constitution’s Bill of Rights guarantees access to due process and equal protection, which includes the right to be trialed fairly and impartially, negating the racial, sexual, socioeconomic, or ethnic identity of an individual or group. However, certain laws have made it nearly impossible to achieve true due process in its entirety, such as the Black Codes and Jim Crow laws of 1865, and the Sentencing Project amongst a few that seek to unjustly criminalize people of color. Apart from legal ordinance, racial stereotypes, personal biases amongst the law upholders, and institutional discrimination play a huge role that affect incrimination and sentencing procedures. This brief highlights the implications of the former and various other contributing factors on various stakeholders and how to improve it for the better good of all the citizens and institutional processes.

Overview

The following section discusses the importance of understanding the disparities that affect the equal and just functioning of our criminal justice system and how correcting it is critical.

A. Pointed Summary

• The need for undeniable equal treatment for all in a diverse country
• The underlying causes and consequences for various areas

B. Relevance

The US, with an ever-diverse population, which is diversifying at a fast pace, it has become particularly important that equal treatment is provided for all, whether it be in terms of socioeconomic development, educational access, political representation, or criminal justice so as to strengthen the democratic processes and functioning of the state. As it is, people of color are more likely to be involved in criminality due to higher rates of poverty, unemployment, and a lack of access to housing, education, basic facilities etcetera due to historical and institutional exclusion and inequality. Furthermore, an unequal justice system makes marginalized communities more vulnerable to the cycle of collateral damage that keeps on repeating, affecting them socioeconomically and psychologically. This would prevent one section of society from developing, thus affecting the entire population and economy and would halt all democratic institutions from upholding equality, equity, justice, and natural rights. Additionally, discourse for a more just system would make space to comprehend the underlying causes of racial disparities at the root levels of the justice system and how they could be avoided by utilizing a community-centered approach.

History

Racial disparities in the criminal justice system, especially in the courts, are deeply rooted in the institutions, judiciaries, and networks that address crime. Racial disparities are mainly present due to historical racism, personal biases, and systematic discrimination (the biggest causes of racial inequalities) that affect court decision-making. In addition, implicit and explicit biases also play a massive role in race, becoming an issue frequently presented through personal biases that jury members, judges, and prosecutors, for example, hold when it comes to sentencing. 

According to the National Association of Criminal Defense Lawyers, one of the main reasons the criminal justice system has become this way is due to the laws and constitutional amendments written after the Civil War. The 13th Amendment is crucial in the issue of racial disparities. Although it abolished slavery, it also provided a loophole for state officials to gain control over African Americans after the Civil War, especially in the South. The 13th Amendment states, “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." This, in turn, affected the way the new economic and labor systems were formed. The new approach relied on and promoted the imprisonment and convictions of African Americans, and the 13th Amendment offered the necessary loophole. 

A. Current Stances

The system, which was established around a century and a half ago and relied on African Americans' imprisonment, is still in place today and, therefore, still promotes and is operated based on racial bias, hence why it is still an ongoing issue that must be solved. However, it is challenging to solve this matter, as it is highly interconnected with the whole country’s systems. The courts fail to give innocent citizens justice by still promoting a structure that functions on implicit and explicit biases that cloud the judgment process. This issue requires law — and policymakers, prosecutors, judges, jury members, and police, among a few professionals involved — to change how the system discriminates against people of color. 

B. Tried Policy

After the end of the civil war, certain laws were installed to maintain control over African Americans, affecting the treatment they received. Two of the most notable policies are the Black Codes and Jim Crow Laws, which were passed in 1865. Both affected the freedom and rights of Black people, limiting them in what they could and could not do. The Black Codes affected the ability and right to move freely through public spaces. This is a crucial rule, as it often led to a sentence for a minor crime. If a police officer were to “catch” or suspect something suspicious about a Black individual, they would be stopped, led to court, and sentenced to prison, which is still relevant today. During these stops, the victims are also often subject to police violence and brutality, another overlooked aspect of this topic. 

Khalil Gibran Muhammad, Professor of history, Race, and Public Policy at the Harvard Kennedy School, states that the Black Codes were put in place to criminalize every type of freedom and power Black people held. Because every step they took could be considered criminal, they were more likely to be arrested and then convicted in the courtroom because of the racist laws enforced. Each part of this ordeal was done disproportionately, as described by Harvard historian, Jill Lepore. He states, “Police patrolled Black neighborhoods and arrested Black people disproportionately; prosecutors indicted Black people disproportionately; juries found Black people guilty disproportionately; judges gave Black people disproportionately long sentences; and, then, after all this, social scientists, observing the number of Black people in jail, decided that, as a matter of biology, Black people were disproportionately inclined to criminality.”

Although these laws were abused in order to hold control over African Americans so they could be exploited for the new system immediately following the Civil War, this behavior is still carried on today and affects people of color in various ways. 

According to The Sentencing Project, sentencing procedures disadvantage people of color compared to other individuals because of their race and socioeconomic barriers. They note that there may be wrongful use of confidential information; the knowledge the court officials, such as judges and prosecutors, have of one’s personal information, such as race, might interfere with their judgment, which makes them more prone to charge heavier punishments for minor crimes, for example. The data presented in the article by The Sentencing Project corroborates this and states that prosecutors are, for example, more likely to charge or convict people of color to heavier punishments and harsher conditions compared to their white counterparts.

Policies such as drug-free school zone laws also mainly affect people of color, as the report by The Sentencing Project states that, “The expansive geographic range of these zones coupled with high urban density has disproportionately affected residents of urban areas, and particularly those in high-poverty areas – who are largely people of color.” In New Jersey, 96% of those affected by these laws were either African American or Latino. 

Implicit bias also plays a considerable role in wrongful convictions, as judges or jury members often make decisions without knowing their said biases. That being said, this topic is much more complex and has many more policies and laws that affect the overall systems and discrimination encountered by people of color. 

‍

Policy Problem

A. Stakeholders

Racial disparities in the criminal justice system affect not only alleged criminals and victims but also every citizen of the United States who depends on the country’s judicial system for justice. The likelihood of any individual Black or Hispanic male going to jail in the United States — 28.5% and 16%, respectively — remains higher than that of a White male (4.4%). According to the National Conference of State Legislatures, from disparities in stop decisions during traffic stops to the disproportionate representation of Native Americans in the justice system, racial and ethnic disparities exist across-the-board. In addition, even jurors — individuals chosen to ensure fairness and justice at trials — can be part and parcel of racial biases during trials, further widening the racial and ethnic disparities in court. According to the Legal Defense Fund, even though striking jurors based on race or ethnicity is illegal in the United States, many lawyers utilize peremptory challenges to manipulate the jury in their favor, such as particularly striking out Black jurors when the defendant is an African-American person. The widespread nature of these disparities represents the wide variety of individuals who affect and are affected by the justice system and, therefore, the injustices that might occur within it.

B. Risks of Indifference

Even though Black people comprise about 13.6% of the American population, they represent nearly 38% of the United States prison population. People of color in the United States have been historically subject to structural disadvantages such as redlining practices and limited access to healthcare and supermarkets. These structural disadvantages that follow historically institutionalized racism in the United States reduce “residential and economic mobility,” leading to increased contact with law enforcement. According to the Kirwan Institute for the Study of Race and Ethnicity, structural disadvantages, such as having a criminal history, often become causes for further racial inequality in our society, reinforcing negative stereotypes that directly affect opportunities and incarceration rates for people of color. In addition, implicit racial biases among the jurors, law enforcement, prosecutors, and other officials who stand at different points in the criminal justice system, contribute directly to the racial and ethnic disparities in the system. However, it remains crucial to note that the discrepancies in the values of America’s criminal justice system and the disproportionate results of its working suggest the existence of laws and policies that allow for racial discrimination under the pretense of a judicial system that treats everybody “equally under the law.” Therefore, without effective policy change surrounding racial and ethnic biases in the criminal justice system, racial disparities will continue to have long-lasting negative impacts on the lives of minorities in America, and the United States will continue to violate Article 26 and Article 2 of the International Covenant on Civil and Political rights. 

Policy Options

Numerous policy solutions have been proposed at the state and federal levels to help combat this delicate issue. A widely-implemented policy that has been in place for the past decade in at least 26 states includes mandatory bias reduction training among law enforcement personnel. While only two states (Iowa and West Virginia) have levied detailed requirements on the specific content and standards the training should meet, most states leave the specifics of the training to local authorities. However a study conducted by Dr. Calvin Lai, an Associate Professor of Psychological and Brain Sciences at Washington University in St. Louis has shown that while racial equity training might help police officers change their internal beliefs, they are very unlikely to have an impact on policing tactics in the medium to long term.

A paper from the Urban Institute suggests that an alternative solution to addressing racial inequity within the criminal justice system in America includes reducing or eliminating the use of pretrial risk assessments while deciding whether or not charged individuals are put in detention prior to their court proceedings. Pretrial risk assessments, which are often intended to be objective tools to aid judges in making fair and data-driven decisions, can perpetuate racial bias and inequity due. These kinds of assessments often rely on historical data that reflect systemic racial disparities in law enforcement and criminal justice outcomes that were collected when judges and/or prosecutors solely decided on whether pretrial detention was needed, leaving it significantly vulnerable to individual biases. As a result, individuals from marginalized communities, particularly Black and Brown populations, may be unfairly labeled as higher risk solely based on discriminatory practices from the past. Instead, lawmakers must pass legislation that addresses the root causes which may affect a defendant’s ability to attend court proceedings, such as childcare responsibilities or being unable to get time off of work.

To ensure equality, legislators must address the overwhelming racial disparities in the United States judicial system. People of color are already vulnerable to being involved in criminality and are also subjected to institutional racism from biased court systems. Restricting or completely removing the process of risk assessments before a defendant’s trial may allow for less racial bias in the pretrial process. Rather than endorsing these discriminatory processes, lawmakers should focus on legislating according to the root causes of a defendant’s ability to attend a trial. Though the United States has a long and complicated history of implicit and institutional bias, legislators can work to reduce this discrimination through anti-racist policy and thus make the criminal justice system more fair to people of color.

‍

Works Cited

1. Census Bureau QuickFacts. “U.S. Census Bureau QuickFacts: United States,” n.d. https://www.census.gov/quickfacts/fact/table/US/RHI225222. 
2. “Challenging Race as Risk: Implicit Bias in Housing: Kirwan Institute for the Study of Race and Ethnicity.” Challenging Race as Risk: Implicit Bias in Housing | Kirwan Institute for the Study of Race and Ethnicity. Accessed July 26, 2023. https://kirwaninstitute.osu.edu/research/challenging-race-risk-implicit-bias-housing. 
3. Committee on Revision of the Penal Code. (n.d.). California Law Revision Commission. Retrieved July 27, 2023, from http://www.clrc.ca.gov/CRPC/Pub/Reports/CRPC_AR2020.pdf 

4. Freeman, Kelly Roberts, Cathy Hu, and Jesse Jannetta. “Racial Equity and Criminal Justice Risk Assessment.” Urban.Org. Urban Institute, March 2021. https://www.urban.org/sites/default/files/publication/103864/racial-equity-and-criminal-justice-risk-assessment.pdf.

5. “How Racism in the Courtroom Produces Wrongful Convictions and Mass Incarceration.” Legal Defense Fund, November 22, 2022. https://www.naacpldf.org/judicial-process-failures/. 
6. Initiative, Prison Policy, and Wendy Sawyer and Peter Wagner. “Mass Incarceration: The Whole Pie 2023.” Mass Incarceration: The Whole Pie 2023 | Prison Policy Initiative, n.d. https://www.prisonpolicy.org/reports/pie2023.html. 
7. Interactive. “Report to the United Nations on Racial Disparities in the U.S. Criminal Justice System.” The Sentencing Project, November2,2022.https://www.sentencingproject.org/reports/report-to-the-united-nations-on-racial-disparities-in-the-u-s-criminal-justice-system/. 
8. Lai, Calvin K., and Jaclyn A. Lisnek. “The Impact of Implicit-Bias-Oriented Diversity Training on Police Officers’ Beliefs, Motivations, and Actions.” Psychological Science 34, no. 4 (February 3, 2023): 424–34. https://doi.org/10.1177/09567976221150617.
9. Lifetime likelihood of going to state or Federal Prison. Accessed July 26, 2023. https://bjs.ojp.gov/content/pub/pdf/Llgsfp.pdf.  
10. Mendel, R. (2018, April 19). Report to the United Nations on Racial Disparities in the U.S. Criminal Justice System – The Sentencing Project. The Sentencing Project. Retrieved July 28, 2023, from https://www.sentencingproject.org/reports/report-to-the-united-nations-on-racial-disparities-in-the-u-s-criminal-justice-system/#footnote-ref-40

11. Milton, M. (n.d.). NACDL - Racial Disparity. National Association of Criminal Defense Lawyers. Retrieved July 28, 2023, from https://www.nacdl.org/Landing/RacialDisparity 
12. “Pretrial Risk Assessment Tools Found to Be Subjective and Biased.” Gerald R. Ford School of Public Policy. Accessed July 31, 2023. https://fordschool.umich.edu/news/2023/pretrial-risk-assessment-tools-found-be-subjective-and-biased 
13. “Racial Disparities in the Criminal Justice System.” – City of Lincoln, NE. Accessed July 26, 2023. https://www.lincoln.ne.gov/City/Departments/Police/About-LPD/Transparency/Racial-Disparities. 
14. “Racial Disparity.” NACDL. Accessed July 26, 2023. https://www.nacdl.org/Landing/RacialDisparity. 
15. Racial equity and criminal justice risk assessment - urban institute. Accessed July 31, 2023. https://www.urban.org/sites/default/files/publication/103864/racial-equity-and-criminal-justice-risk-assessment.pdf  
16. “Report Racial and Ethnic Disparities in the Criminal Justice System.” National Conference of State Legislatures. Accessed July 26,2023.https://www.ncsl.org/civil-and-criminal-justice/racial-and-ethnic-disparities-in-the-criminal-justice-system.  
17. Walsh, C. (2021, February 23). Solving racial disparities in policing – Harvard Gazette. Harvard Gazette. Retrieved July 28, 2023, from https://news.harvard.edu/gazette/story/2021/02/solving-racial-disparities-in-policing/