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Public policy—including decisions related to criminal justice and immigration—has far-reaching consequences, but too often is swayed by political rhetoric
and unfounded assumptions. The Vera Institute of Justice has created a series of briefing papers to provide an accessible summary of the latest evidence
concerning justice-related topics. By summarizing and synthesizing existing research, identifying landmark studies and key resources and, in some cases,
providing original analysis of data, these briefs oer a balanced and nuanced examination of some of the significant justice issues of our time.
About these briefs
For the Record
An Unjust Burden: e Disparate
Treatment of Black Americans in the
Criminal Justice System
By Elizabeth Hinton, Assistant Professor, Department of History and Department of African and African American Studies,
Harvard University, LeShae Henderson, Special Assistant, Research, Vera Institute of Justice,
and Cindy Reed, Senior Editor, Vera Institute of Justice May 2018
Vera Evidence Brief
Summary
The over-representation of black Americans in the nation’s
justice system is well documented. Black men comprise
about 13 percent of the male population, but about 35
percent of those incarcerated. One in three black men born
today can expect to be incarcerated in his lifetime,
compared to one in six Latino men and one in 17 white men.
Black women are similarly impacted: one in 18 black women
born in 2001 is likely to be incarcerated sometime in her life,
compared to one in 111 white women. The underlying reasons
for this dis-proportionate representation are rooted in the
history of the United States and perpetuated by current
practices within the nation’s justice system.
This brief presents an overview of the ways in which America’s
history of racism and oppression continues to manifest in the
criminal justice system, and a summary of research demon-
strating how the system perpetuates the disparate treatment
of black people. The evidence presented here helps account
for the hugely disproportionate impact of mass incarceration
on millions of black people, their families, and their communi-
ties. This brief explains that:
› Discriminatory criminal justice policies and practices
have historically and unjustifiably targeted black people
since the Reconstruction Era, including Black Codes, va-
grancy laws, and convict leasing, all of which were used
to continue post-slavery control over newly-freed people.
› This discrimination continues today in often less overt ways,
including through disparity in the enforcement of seemingly
race-neutral laws. For example, while rates of drug use are
similar across racial and ethnic groups, black people are ar-
rested and sentenced on drug charges at much higher rates
than white people.
› Bias by decision makers at all stages of the justice process
disadvantages black people. Studies have found that they
are more likely to be stopped by the police, detained pretri-
al, charged with more serious crimes, and sentenced more
harshly than white people.
› Living in poor communities exposes people to risk factors
for both oending and arrest, and a history of structural
racism and inequality of opportunity means that black
people are more likely to be living in such conditions of
concentrated poverty.
In addition to the clear injustice of a criminal justice system
that disproportionately impacts black people, maintaining
these racial disparities has a high cost for individuals, families,
and communities. At the individual level, a criminal conviction
has a negative impact on both employability and access to
housing and public services. At the community level, dispropor-
tionately incarcerating people from poor communities removes
economic resources and drives cycles of poverty and justice
system involvement, making criminal justice contact the norm in
the lives of a growing number of black Americans.
2
A snapshot of current
disparities in incarceration
Present day disparities show that the burden of the tough
on crime and mass incarceration eras has not fallen equally
on all Americans, but has excessively and unfairly burdened
black people. ough these disparities have narrowed in
recent years, there still remains a wide gulf between black
and white incarceration rates.
1
Black people are represented
in the American criminal justice system in unwarranted
numbers given their share of the population.
2
› Black men comprise about 13 percent of the U.S. male
population, but nearly 35 percent of all men who are
under state or federal jurisdiction with a sentence of
more than one year.
3
› One in three black men born in 2001 can expect to be
incarcerated in his lifetime, compared to one in six Latino
men and one in 17 white men.
4
› Black people are incarcerated in state prisons at a rate 5.1
times greater than that of white people.
5
› One in 18 black women born in 2001 will be incarcerated
sometime in her life, compared to one in 45 Latina
women and one in 111 white women.
6
› For-four percent of incarcerated women are black,
although black women make up about 13 percent of the
female U.S. population.
7
As this brief demonstrates, these racial disparities are no
accident, but rather are rooted in a history of oppression
and discriminatory decision making that have deliberately
targeted black people and helped create an inaccurate picture
of crime that deceptively links them with criminali. (See
“Black people have historically been targeted by intentionally
discriminatory criminal laws,” below.) ey are compounded
by the racial biases that research has shown to exist in
individual actors across the criminal justice system—from
police and prosecutors to judges and juries—that lead to
disproportionate levels of stops, searches, arrests, and pretrial
detention for black people, as well as harsher plea bargaining
and sentencing outcomes compared to similarly situated
white people. (See “Bias by criminal justice system actors
can lead to disproportionate criminal justice involvement for
black people” at page 7.) Underlying all of this are deep and
systemic inequities that have resulted in inordinate numbers
of black Americans living in overpoliced, poor communities,
surrounded by economic and educational disadvantage—
known drivers of criminal behavior—resulting in a tenacious
cycle of criminal justice involvement for too many black
individuals and their families. (See “Communities of color
are disproportionately impacted by extreme pover and its
connection to crime” at page 10.)
Black people have historically
been targeted by intentionally
discriminatory criminal laws
Racial disparities in the criminal justice system have deep
roots in American history and penal policy. In the South, fol-
lowing Emancipation, black Americans were specific targets
of unique forms of policing, sentencing, and confinement.
Laws that capitalized on a loophole in the 13
th
Amendment
that states citizens cannot be enslaved unless convicted of a
crime intentionally targeted newly emancipated black people
as a means of surveilling them and exploiting their labor. In
1865 and 1866, the former Confederate legislatures quickly
enacted a new set of laws known as the Black Codes to force
former slaves back into an exploitative labor system that
resembled the plantation regime in all but name.
8
Although
these codes did recognize the new legal status of black
Americans, in most states newly-freed people could not vote,
serve on juries, or testi in court.
9
Vagrancy laws at the
center of the Black Codes meant that any black person who
could not prove he or she worked for a white employer could
be arrested.
10
ese “vagrants” most oen entered a system
of incarceration administered by private industry. Known
as convict leasing, this system allowed for the virtual
enslavement of people who had been convicted of a crime,
even if those “crimes” were for things like “walking without
a purpose” or “walking at night,” for which law enforcement
officials in the South aressively targeted black people.
11
Northern states also turned to the criminal justice
system to exert social control over free black Americans.
Policymakers in the North did not legally target black
Americans as explicitly as did their southern counterparts,
but disparate enforcement of various laws against “suspi-
cious characters,” disorderly conduct, keeping and visiting
disorderly houses, drunkenness, and violations of ci
ordinances made possible new forms of everyday surveil-
lance and punishment in the lives of black people in the
Northeast, Midwest, and West.
12
ough such criminal justice
3
involvement was based on racist policies, the results were
nevertheless used as evidence to link black people and crime.
Aer Reconstruction, scholars, policymakers, and reformers
analyzed the disparate rates of black incarceration in the
North as empirical “proof” of the “criminal nature” of black
Americans.
13
Higher rates of imprisonment of black people in both the
North and South deeply informed ongoing national debates
about racial differences. e publication of the 1890 census
and the prison statistics it included laid the groundwork for
discussions about black Americans as a distinctly dangerous
population.
14
Coming 25 years aer the Civil War and mea-
suring the first generation removed from slavery, the census
figures indicated that black people represented 12 percent of
the nation’s population, but 30 percent of those incarcerated.
15
e high arrest and incarceration rates of black Americans—
though based on the racist policies discussed above—served
to create what historian Khalil Gibran Muhammad has called
a “statistical discourse” about black crime in the popular
and political imagination, and this data deeply informed
national discussions about racial differences that continue to
this day.
16
Indeed, a 2010 study found that white Americans
overestimate the share of burglaries, illegal drug sales, and
juvenile crime commied by black people by approximately
20 to 30 percent.
17
(See “e myth of black-on-black crime,”
on page 4.)
ese distorted notions of criminali continued to shape
political discourse and policy decisions throughout the
20
th
century. In 1965, President Lyndon Johnson declared
the “War on Crime” and began the process of expanding and
modernizing American law enforcement.
18
Johnson made
his declaration despite stable or decreasing crime levels.
Perceived increases in crime in urban centers at the time
may be tied in part to changes in law enforcement practices
and crime reporting as jurisdictions vied for newly-available
federal nding for law enforcement under his initiatives.
19
Nevertheless, a discourse about high crime in urban areas—
areas largely populated by black people—had taken hold in
the national consciousness.
20
Statistics linking black people and crime have historically
overstated the problem of crime in black communities and
produced a skewed depiction of American crime as a whole.
21
e FBI’s Uniform Crime Report—one commonly cited
source for U.S. crime statistics—fails to measure criminal
justice outcomes beyond the point of arrest, and thus does
not account for whether or not suspects are convicted.
22
In the 1970s, black people had the highest rate of arrest for
the crimes of murder, robbery, and rape—crimes that also
had the lowest percentage of arrestees who were eventually
convicted.
23
Yet statistical data on crime based on arrest rates
deepened federal policymakers’ racialized perception of the
problem, informing crime control strategies that intensified
law enforcement in low-income communities of color from
the 1960s onwards.
24
For instance, in trying to understand
where and when certain crimes occur, researchers from
the National Commission on Law Enforcement and
Administration of Justice spoke only with law enforcement
agencies and officers stationed in low-income black commu-
nities. is skewed the data—which intentionally ignored
the disproportionate police presence in these neighborhoods
as well as delinquency among middle class, white, young
men—yet was used to cra strategies for the War on Crime,
such as increased patrol and surveillance in low-income
communities of color.
25
Even present-day race-neutral
laws and policies can have
disparate impacts on black
people
Legislators in the United States no longer explicitly write
laws in the racially discriminatory manner that marked
the Reconstruction Era. But even laws that are neutral on
their face can disparately impact black people.
26
e “War
on Drugs,” for example, inspired policies like drug-free
zones and habitual offender laws that produced differential
outcomes by race.
› Drug-free zone laws prohibit the use or sale of drugs
in proximi of certain protected areas like schools,
playgrounds, parks, and public housing projects.
27
ose
who use or sell drugs within a certain distance from
these areas pically receive punitive sentences, such
as mandatory minimums (up to eight years in some
states), sentence enhancements (which allow judges to
increase a person’s sentence beyond the normal range),
or doubling of the maximum penal for the underlying
offense (as in Washington, DC).
28
Because of residential
segregation—which pushes low-income black people to
high densi areas of the ci and white people oen to
less dense suburbs—coupled with the high densi of the
neighborhoods where schools in urban areas are located,
people of color are disproportionately impacted by these
laws.
29
In Massachuses, for instance, a 2004 review of
4
The notion that black people commit violence against other
black people at greater levels than do members of other
racial and ethnic groups is sometimes colloquially referred
to as “black-on-black crime.” The term was originally used
by those in the black community to express concerns about
the safety of their neighborhoods, but has been wielded
more broadly by the media and observers to portray violent
crimes committed by black people.
a
Recently, the term
has been invoked to counter #BlackLivesMatter protests of
police shootings of black men by suggesting that the “real”
problem is black men shooting each other.
b
These notions
of criminality have consequences. Studies have shown that
“people with racial associations of crime are more punitive
regardless of whether they are overtly racially prejudiced,”
making them more likely to support policies such as the
death penalty.
c
But the notion that black-on-black intraracial violence is
greater than intraracial violence for other groups is not
borne out by statistics. A report from the Bureau of Justice
Statistics found that most violence occurs between victims
and oenders of the same race, regardless of race: 57 per-
cent of the nearly 3.7 million reported violent crimes commit-
ted against white victims were perpetrated by white oend-
ers; while of the 850,720 reported violent crimes committed
against black victims, 63 percent were committed by black
people.
d
Nor is there an epidemic of black-on-black violence:
the rate of both black-on-black and white-on-white nonfatal
violence declined 79 percent between 1993 and 2015.
e
The
number of homicides involving both a black victim and black
perpetrator fell from 7,361 in 1991 to 2,570 in 2016.
f
The myth of black-on-black crime is likely fostered at least in
part by the way that crime is measured. Federal government
crime reporting portrays a skewed picture of the relationship
between race and oending. The FBI’s Uniform Crime Report,
which is considered the ocial measure of the national
crime rate, has always emphasized street crime to the
exclusion of organized and white-collar crime.
g
As such, the
figures that inform law enforcement strategies and priorities
tend to reflect the crimes committed by low-income and
unemployed Americans who, in part because of structural
inequalities, are disproportionately black. (See “Commu-
nities of color are disproportionately impacted by extreme
poverty and its connection to crime” at page 10.) To the
extent that black-on-black crime exists, it is better understood
as a function of structural racism that has led to more black
people living in conditions of concentrated poverty than as
an inherently racial issue.
The myth of “black-on-black” crime
a
For an overview of the history and usage of the phrase “black-on-black crime,” see Brentin Mock, “The Origins of the Phrase ‘Black-on-Black Crime,’” CityLab,
June 11, 2015, https://perma.cc/8267-8442. Also see Zhai Yun Tan, “What Does ‘Black-on-Black Crime’ Actually Mean?” Christian Science Monitor, September 22,
2016, https://perma.cc/85Q2-TURC.
b
Heather MacDonald, “New Data: It’s Still about Black-on-Black Crime,” National Review, December 12, 2014, https://perma.cc/JP6G-K83X; and Alexandrea
Boguhn, “Right-Wing Media Push ‘Black-on-Black’ Crime Canard to Deflect from Ferguson Police Shooting,” Media Matters for America, August 18, 2014 (collecting
news articles), https://perma.cc/LUB4-2SHE. Also see Jamelle Bouie, “The Trayvon Martin Killing and the Myth of Black-on-Black Crime,” Daily Beast, July 15, 2013,
https://perma.cc/5SUB-CA34.
c
Nazgol Ghandnoosh, Race and Punishment: Racial Perceptions of Crime and Support for Punitive Policies (Washington, DC: The Sentencing Project, 2014), 19,
https://perma.cc/PW6M-CSQA.
d
Rachel E. Morgan, Race and Hispanic Origin of Victims and Oenders, 2012-15 (Washington, DC: Bureau of Justice Statistics, 2017), 2,
https://perma.cc/4XNR-3DKX. Also see David Neiwart, “White Supremacists’ Favorite Myths about Black Crime Rates Take Another Hit
from BJS Study,” Southern Poverty Law Center, October 23, 2017, https://perma.cc/2CK7-5QEF.
e
Morgan, Race and Hispanic Origin of Victims and Oenders (2017), at 4.
f
For 1991 figures, see James Alan Fox and Marianne W. Zawitz, Homicide Trends in the United States (Washington, DC: BJS, 2010) (trends by race), https://perma.cc/
TFD2-8QRD. For 2016 figures, see Federal Bureau of Investigation, “2016 Crime in the United States: Expanded Homicide Data Table 3,” https://perma.cc/4UFN-KUK7.
g
See Federal Bureau of Investigation, “Uniform Crime Reporting Statistics: UCR Oense Definitions,” https://perma.cc/2ZTB-ASCK.
5
sentencing data showed that black and Latino people
accounted for 80 percent of drug-free zone convictions,
even though 45 percent of those arrested statewide for
drug offenses were white.
30
› Habitual offender and “three strikes” laws penalize
individuals with repeat offenses more harshly, pically
increasing the sentence length for each conviction.
31
Under these laws, individuals charged with seemingly
minor crimes, like possession of a controlled substance,
can incur significantly enhanced sentences.
32
More and
deeper criminal justice system involvement of black peo-
ple is driven by overpolicing (see discussion of proactive
policing, below), which leads to more arrests for black
people; bias by criminal justice system actors (see “Bias
by system actors can lead to disproportionate criminal
justice involvement for black people” at page 7), which
leads to more convictions; and structural inequali (see
“Communities of color are disproportionately impacted
by extreme pover and its connection to crime” at page
10), which surrounds black people with the drivers of
criminal behavior. Disproportionate numbers of black
people are ensnared in the criminal justice system on
multiple occasions, seing them up to be subject to the
harsh impact of these laws.
33
› Location-based proactive policing practices like hot
spots policing increase preventive police patrols in
“micro-geographic locations” determined by data to have
high concentrations of crime.
34
Such practices arose in
response to violent crime in the 1980s and 1990s, and
were combined with policing strategies like zero toler-
ance and the “broken windows” model, which focused
police efforts on low-level quali-of-life crimes like
public drunkenness, loitering, or liering under a theory
that eliminating such small-scale disorder would also
decrease more serious offenses.
35
Such strategies can dis-
parately impact communities of color. In one study of law
enforcement and open-air drug markets—places where
drugs are sold in the open, pically outdoors or out of
cars—in Seale, researchers found that police officers are
more likely to target such markets because the drug trade
is visible and easier to access.
36
Even so, the study found
that police targeted black open-air markets over white
ones.
37
A similar study using the same data calculated
both the percentage of people who delivered drugs
who were black and white, as well as the percentages of
drug-related arrests based on race. Researchers found
that black people represented about 47 percent of those
delivering crack cocaine, but 79 percent of those arrested;
while white people constituted about 41 percent of those
delivering the drug, but only 9 percent of those arrested.
38
Moreover, a 2018 report on proactive policing concluded
that the targeting of physical locations that are deemed
high risk by police data is likely to lead to “large racial
disparities in the volume and nature of police-citizen
encounters.”
39
According to legal scholar Jonathan Simon,
this strategy to reduce violent crime “produced its own
racially neutral rationale for targeting neighborhoods of
high pover and crime, which were generally almost 100
percent Black or Black and Hispanic.”
40
For example, a
2016 NYPD inspector general’s report found that “the rate
of quali-of-life enforcement in precincts ciwide was
positively correlated with higher proportions of black
and Hispanic residents….”
41
One well-known example of the disproportionate effect
of race-neutral laws is New York’s experiment with en-
hanced sentencing for drug offenses.
42
In 1973, New York
State enacted the so-called “Rockefeller drug laws,” a set
of statutes that established mandatory minimum prison
sentences for felony drug convictions.
43
Under these laws,
someone convicted of selling two ounces—or possessing four
ounces—of heroin, morphine, opium, cocaine, or marijuana
faced a minimum of 15 years in prison.
44
e statutes pro-
vide a stark example of the ways in which laws wrien in
race-neutral terms can still impact people of different racial
groups in markedly different ways. Research on the impacts
of the Rockefeller drug laws, and later reforms to them, has
found the following:
› e number of people incarcerated for drug offenses in
New York State grew from 1,488 to 22,266 between 1973
and 1999—a nearly 15-fold increase—due in part to these
laws.
45
› at impact did not fall equally on people of all races. In
2001, for every one white male aged 21 to 44 incarcerated
under the Rockefeller Laws, 40 black males of similar age
were incarcerated for the same offense.
46
› A study of 2009 reforms to the Rockefeller drug laws
found that removing mandatory minimum sentences and
increasing access to treatment reduced racial disparities
in prison sentences and decreased rates of re-arrest.
However, following the reforms, black people arrested on
felony drug charges were still nearly twice as likely to
receive a prison sentence compared to similarly situated
white people.
47
6
New York’s laws were the first in a wave of similar policies
across the country. e federal government—and many
states—enacted mandatory minimums that called for longer
sentences for crack cocaine offenses—a drug more heavily
used among black people—over powder cocaine—a drug more
commonly used among white people.
48
Combined, these drug
laws contributed to substantial growth in the number of black
people behind bars and the extreme racial disparities that
characterize jails and prisons across the United States today.
49
(See “Drug laws: A case study in disparate impact,” above.)
Figure 1
Racial disparities in drug arrests and sentencing, 2016
60
70
80
50
40
30
20
10
0
13%
15%
73%
71%
77%
27%
31%31%
38%
22%
U.S. population Drug users in
the past year
Drug possession and
distribution arrests
Sentenced to state
prison for drug offenses
Sentenced to federal
prison for drug offenses
Black White
Sources: Adapted from Lawrence D. Bobo and Victor Thompson, “Racialized Mass Incarceration: Poverty, Prejudice, and Punishment” in Doing Race: 21 Essays
for the 21st Century, edited by Hazel Rose Markus and Paula M. L. Moya (New York: Norton, 2010), 322-55. U.S. population data from the U.S. Census Bureau,
American Community Survey, 2015. Monthly drug users data from the Substance Use and Mental Health Services Administration, Results from the 2016 National
Survey on Drug Use and Health: Detailed Tables. Drug arrest data from Federal Bureau of Investigation, Uniform Crime Reports, Crime in the United States, 2016.
Prison sentences data from E. Ann Carson, Prisoners in 2016 (Washington, DC: U.S. Bureau of Justice Statistics, 2018).
Drug laws: A case study in disparate impact
Drug oending provides an important case study because
information from public surveys consistently demonstrates that
rates of drug use are fairly consistent across racial and ethnic
groups. However, the practices of law enforcement agencies
and the courts have led to widely disparate outcomes depend-
ing on a person’s race. Black people make up about 13 percent
of the U.S. population and 15 percent of drug users who are
18 years old or older. Yet 27 percent of those arrested for drug
possession and distribution, 38 percent of those federally-sen-
tenced for drug-related crimes, and 33 percent of those sen-
tenced by states for drug-related crimes, are black. (See Figure
1, below.) In other words, the risk of incarceration in the federal
system for someone who uses drugs monthly and is black is
more than seven times that of his or her white counterpart.
7
Bias by system actors can
lead to disproportionate
criminal justice involvement for
black people
Beyond laws and policies that disparately impact black
people, the bias of individual actors in the criminal justice
system—police, prosecutors, judges, and juries—can rther
disproportionately involve black people, leading to more
frequent stops, searches, and arrests, as well as higher rates
of pretrial detention, harsher plea bargaining outcomes,
and more severe sentences than similarly situated white
people. Some of this bias may be the result of overt racism
but, more oen, it manifests as implicit bias. Implicit bias is
the “automatic positive or negative preference for a group,
based on one’s subconscious thoughts,” which can produce
discriminatory behavior even if individuals are unaware that
such biases form the bases of their decisions.
50
Implicit bias
affects everyone, but is of particular import when it results
in unequal treatment by criminal justice actors.
51
Such biases
impact individual stages of the process, like policing, and also
accumulate over multiple stages, through case processing,
prosecution, and disposition.
52
e cumulative effect of such
individual biases contributes to disproportionately negative
outcomes for black Americans.
Studies have found police are more likely to
stop, search, and arrest black people
Because police are the gateway to the court and prison
systems, understanding how bias affects policing practices is
critical to understanding larger racial disparities in American
criminal justice. Studies have shown that police officers can
hold implicit biases that affect their decisions toward black
individuals.
53
For example, a 2004 study found that when
police officers were asked “who looks criminal?” and shown
a series of pictures, they more oen chose black faces than
white ones.
54
Likewise, in another 2004 study, researchers
primed police officers to think about crimes using words like
“violent,” “stop,” and “arrest,” then showed them a series of
photographs. e study found that once primed, the officers
focused more quickly on black male faces and remembered
those faces to have features that have been considered to be
stereopically black—such as a broad nose, thick lips, and
dark skin.
55
e best available evidence suests that police bias toward
black Americans, coupled with strategic decisions to deploy
certain law enforcement practices—like hot spots policing—
more heavily in black communities, increases the likelihood
of encounters with police and negative outcomes like stops,
searches, use of force, and arrest.
56
› Studies on police use of force reveal that black people are
more likely than white people to experience use of force
by police. A study of police use of non-fatal force from
2002 to 2011 found that in street stops, 14 percent of
black people experienced non-fatal force compared to 6.9
percent of white people stopped by the police.
57
› Studies have found that police are more likely to pull over
and search black drivers despite lower contraband hit
rates. In a study of investigatory traffic stops in Kansas
Ci among drivers under 25 years old, 28 percent of
black men and 17 percent of black women were pulled
over in 2011 for an investigatory stop, compared to 13
percent of white men and 7 percent of white women.
58
In
2016, a Police Accountabili Task Force in Chicago found
that police searched black and Latino drivers four times
as oen as white drivers. However, police found contra-
band on white drivers twice as oen as black and Latino
drivers.
59
In a similar study in 2017 at Stanford Universi,
researchers developed a “threshold test” to quanti how
officers initiate searches. e study found that police
in North Carolina employ a lower search threshold to
black and Latino people than they do to white people and
Asian people, searching 5.4 percent of black people pulled
over compared to 3.1 percent of white people.
60
› Studies have shown similar disparities in police pedes-
trian stops. A study of 125,000 pedestrian stops by police
in New York Ci found black people were stopped more
than 23 percent more oen than white people—even
when controlling for “race-specific estimates of crime”—
representing over half of the stops and only 26 percent
of the ci’s population.
61
Moreover, stops of black people
were also less likely to lead to an arrest.
62
› Studies have also shown that police are more likely to
arrest black people. A meta-analysis of 23 research stud-
ies that focused on the relationship between race and the
likelihood of an arrest between 1977 and 2004 found that
black people were more likely to be arrested than their
white counterparts, even when controlling for factors
like the seriousness of the offense and the suspect’s
prior record.
63
Similarly, a study of the 1997 National
Longitudinal Survey of Youth data found that aer
8
controlling for differences in drug offending, non-drug
offending, and neighborhood context, racial disparities
in drug-related arrests still persist. is finding suests
that just being black significantly raises one’s chances
of arrest.
64
Moreover, a 2010 ACLU study found that
black people were 3.7 times more likely to be arrested for
marijuana possession than white people, even though
both groups use the drug at similar rates.
65
Prosecutor bias can lead to harsher out-
comes for black people
Biased decision making by prosecutors also negatively
impacts people of color. Prosecutors hold a particularly
outsized role in the criminal justice process, with discretion-
ary decision-making power over charging and plea bargains.
66
eir recommendations also can anchor courtroom discus-
sions about pretrial detention, bail amounts, and sentencing.
67
Research shows that bias can affect how prosecutors exercise
their discretion in the cases of black people.
68
› A 2012 review by the Vera Institute of Justice of 34 studies
looked at the effect of prosecutorial decision making on
racial disparities in sentencing and at five other discretion
points.
69
A greater number of studies found that people
of color are more likely to be prosecuted, held in pretrial
detention, and to receive other harsh treatment.
70
› A 2013 study found that federal prosecutors are more likely
to charge black people than similarly situated white people
with offenses that carry higher mandatory minimum
sentences.
71
A 2006 study found that state prosecutors are
more likely to charge black people under habitual offender
statutes than similarly-situated white people.
72
› Implicit bias can also impact the plea bargaining phase, by
which the vast majori of criminal cases are resolved.
73
A 2017 study of more than 48,000 misdemeanor and
felony cases in Wisconsin between 2000 and 2006 found
that white people were 25 percent more likely to have
their top charge dropped or reduced by prosecutors than
black people.
74
Disparities were especially glaring when
misdemeanor cases only were considered: white people
were nearly 75 percent more likely than black people to
see all misdemeanor charges carrying a potential sentence
of incarceration dropped, dismissed, or amended to lesser
charges.
75
e result of these disparities is that black people
originally charged with misdemeanors are not only more
likely to be convicted, they are more likely to be sentenced
to incarceration than white people.
Judicial bias can lead to worse criminal
justice outcomes for black people
Judges too have been found to hold implicit biases that can
impact their treatment of the black people whose cases are
before them. For example, a 2009 study of judges’ implicit
biases found that white judges were more motivated to be
fair when they were told that the accused was black.
76
When
not explicitly told the race of the defendant, but primed with
cues that implied the defendant was black, judges imposed
moderately harsher sentences.
77
Because judges oversee every
stage of the court process, their biases can lead to harsher
outcomes at multiple discretion points in a case, from pretrial
detention through sentencing.
78
› A 2009 study of drug offense convictions in three
U.S. district courts found that black people had higher
odds of pretrial detention than white people. Moreover,
those charged for offenses related to crack cocaine—a
charge more common among black people than white
people—were more likely to be held pretrial than those
charged for offenses involving powder cocaine. Whether
a defendant is held pretrial has downstream effects on
sentencing: this study found that men who were in cus-
tody during their sentencing hearings received sentences
about eight months longer on average than those who
were released before their hearings.
79
› A 2013 review of 50 years of studies on racial disparities
in bail practices found that black people are subject to
pretrial detention more frequently, and have bail set at
higher amounts, than white people who have similar
criminal histories and are facing similar charges. Studies
documented this dispari in state and federal cases as
well as juvenile justice proceedings, and in all regions of
the country.
80
› In a review of 40 studies into the linkage between race
and ethnici and sentencing severi, researchers found
that at both the state and federal levels, black people were
more likely to receive more severe sentences than their
white counterparts. is finding holds true even when
controlling for differences in criminal histories and the
effects of policies that have a disparate impact on people
of color, like the drug laws and hot spots policing prac-
tices discussed above.
81
Moreover, a 2005 analysis of 40
studies on racial disparities in sentencing at the state and
federal levels found that 43 percent of studies at the state
level and 68 percent at the federal level reported direct
racially discriminatory sentencing outcomes, impacting
9
both the initial decision to incarcerate and the length of
any ultimate sentence to incarceration.
82
› A study of capital cases in Philadelphia found that when
the victim was white and the accused black, defendants
who were perceived to have a more “stereopically Black
appearance” were more than twice as likely to receive a
death sentence as black people on trial who were per-
ceived as less so. e accused person’s appearance made
no difference, however, when both the victim and the
accused were black.
83
› Multiple studies demonstrate the impact of skin color
on sentencing, with lighter-skinned black people oen
receiving more lenient treatment and darker-skinned
black people receiving more punitive sentences. For
instance, when controlling for the pe of offense, so-
cioeconomic status, and demographic indicators among
a subset of incarcerated men in Georgia from 1995 to
2002, dark-skinned black men received prison sentences
a year-and-a-half longer—and the lightest-skinned black
men about three-and-a-half months longer—than their
white counterparts.
84
A 2015 study of men facing first-
time felony charges found that darker-skinned black men
received sentences that were, on average, 400 days longer
than their white counterparts, while medium-skinned
black men received sentences about 200 days longer than
their white counterparts. On average, black men received
a sentence 270 days longer than white men.
85
› A study of cases in which men were charged with felony
crimes in urban U.S. counties in 2000 found that black
defendants were more likely to be detained pretrial; that
pretrial detention impacted the likelihood of a guil plea
for black, white, and Latino defendants; and that both
detention and guil pleas affected sentence outcomes.
Taken together, the effects of cumulative bias increased
the probabili that the average black person charged
with a felony would go to prison by 26 percent.
86
Studies have found evidence of racial bias
against black people in jury verdicts and
sentencing
e potential racial bias of jurors in criminal cases has been
examined in studies using archival analysis of case verdicts,
post-trial juror interviews, and mock jury experiments in
which researchers can randomly assign subjects to “juries”
and control for and isolate variables of interest.
87
Such stud-
ies have examined both the impact of the racial composition
of juries on sentences, as well as the effect of the defendant’s
race on jurors’ decision making. e results are complex
and the scholarship is incomplete, and while some research
aributes racial discrimination by jurors to a bias against
defendants who belong to a race different than their own,
studies do show evidence that implicit bias may influence
white jurors in some cases where the accused is black.
88
› In a 2003 review of empirical research on race and
juries, the authors found complex relationships between
implicit juror bias and a defendant’s race depending on
the pe of case at issue. In studies that used summaries
of trials that were more “racially charged,” like a summary
of the O.J. Simpson case, white mock jurors appeared less
likely to exhibit bias. When studies used trials that were
not racially charged, racial biases were found, suesting
that the white mock jurors were motivated to appear less
racist the more racially salient the case before them.
89
› A 2005 meta-analysis of 34 studies on mock jury verdict
decisions and 16 studies on mock juror sentencing
decisions found a notable effect of racial bias on mock
jurors’ decision making. e study shows that mock
jurors are more likely to render both guil verdicts and
longer sentences to defendants whose race differsd from
their own, suesting that jurors are more lenient toward
members of their own racial groups.
90
› A 2010 study found that mock jurors showed racial bias
toward darker-skinned individuals, evaluating ambig-
uous evidence as a greater indication of guilt than they
did for lighter-skinned people. Moreover, when asked to
rate the defendant’s level of guilt on a scale of 1 to 100,
mock jurors perceived the darker-skinned individuals to
be more guil than lighter-skinned individuals. Perhaps
most notably, the study found that many mock jurors
could not recall whether the defendant was a lighter- or
darker-skinned individual, implying that the defendant’s
skin tone was not consciously, but rather implicitly,
considered in their evaluation of guilt. ese findings
held true regardless of the race of the mock juror (though
none of the jurors were black).
91
10
Communities of color are
disproportionately impacted
by extreme poverty and its
connection to crime
e historical legacy of slavery and racist policymaking and
norms in America has had significant and long-lasting effects
on racial inequali. Research shows that well aer slavery
ended, de-industrialization, discriminatory housing practices
known as red-lining, and white flight from neighborhoods
as black families migrated north pushed large numbers of
black people into pover, perpetuating economic inequalities
between white and black people.
92
ese neighborhoods are
characterized by an extreme concentration of disadvantage
where formal employment opportunities and access to
quali education are limited, and neighborhood resources
are scarce.
93
While these factors describe the structural realities of
extreme pover, they are also known drivers of criminal
conduct, independent of race or ethnici.
94
Researchers
have found higher levels of violent crime in poor urban
neighborhoods, regardless of race. Studies demonstrate that
when white men are living in an environment characterized
by pover, unemployment, and single-parent households,
they are more likely to commit homicide and other violent
crimes than black men confronting a similar set of structural
impediments.
95
But the realities of pover disproportionately affect black
people: 22 percent of black people lived in pover in 2016,
compared to approximately 9 percent of white people.
96
us, higher rates of pover and the cumulative effects
of structural racism mean black people are exposed to the
structural risk factors that make crime more likely at greater
rates than their white counterparts. Compounded with
justice system laws and practices that have disparate impacts
and bias among justice system actors, discussed above, black
people are consequently arrested for certain crimes at higher
rates.
97
Put differently, racial disparities in the justice system
are deeply rooted in historical racism that manifests today in
structural inequalities—from the differences in the quali of
education to unemployment rates to household wealth.
98
e criminal justice system does not only punish those
accused and convicted of crimes. With such large numbers of
black Americans being arrested and incarcerated, it also im-
pacts entire communities. e widening reach of the criminal
justice system in low-income communities of color—includ-
ing higher rates of arrest and incarceration—rther depletes
resources and social capital in these places, perpetuating
pover and criminal justice involvement.
› Parental incarceration is now commonplace for black
children. One in 25 white children born in 1990 had an
incarcerated parent at some point during childhood, com-
pared to one in four black children.
99
e negative impact
of having an incarcerated parent can include criminal
justice involvement, behavioral health issues, low educa-
tional aainment, and lack of economic resources.
100
› Disparities in incarceration of black men impacts
women and families. With such high incarceration rates
for black men, women are oen le to raise children
alone while their partners cycle in and out of jail and
prisons, increasing the number of households within
communities of color headed by women and single
parents or individual family members.
101
Beyond the eco-
nomic challenges these women face, in 2014 researchers
found that having a family member who is incarcerated
negatively impacts women’s cardiovascular health.
102
› e social and economic consequences of a criminal
record impede successl reentry. People who have
been incarcerated experience collateral consequences of
conviction that hinder their abili to access employment,
housing, education, and other supports following their
release from prison, making reentry difficult and increas-
ing the chances of recidivism.
103
Conclusion
Highly visible events—from Michael Brown in Ferguson,
Missouri, to Eric Garner in Staten Island, New York; from
Sandra Bland in Texas and Stephon Clark in California to
Philando Castile in Minnesota—in which the lives of black
men, women, and boys ended aer encounters with law
enforcement, have served to elevate public awareness of
disproportionate police violence. However, the ways in which
the criminal justice system operates to disadvantage people
of color are systemic and ingrained, and more oen subtle.
11
Focusing on high profile incidents of violence and abuse,
while essential, will only make a small dent in the disparities
present in the justice system that undercut the life potential
of people who live in communities of color.
e evidence for racial disparities in the criminal justice
system is well documented. However, there is no evidence
that these widely disproportionate rates of criminal justice
contact and incarceration are making us safer. To the contrary,
studies have shown that concentrated incarceration in poor
communities erodes communi resources and may actually
increase crime.
104
e disproportionate racial impact of
certain laws and policies, as well as biased decision making
by justice system actors, leads to higher rates of arrest and
incarceration in low-income communities of color which, in
turn, increases economic strain, rther reduces income, and
stifles wealth creation. Consequently, current approaches to
criminal justice are extending levels of discrimination that
are pically associated in the popular consciousness with a
pre-civil rights era, but still exist today.
Resources
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21 Essays for the 21st Century, edited by Hazel Rose Markus and Paula M. L. Moya. New York: Norton, 2010, 322-55.
Butler, Paul. Chokehold: Policing Black Men. New York: The New Press, 2017.
Davis, Angela J., ed. Policing the Black Man: Arrest, Prosecution, Imprisonment. New York: Pantheon, 2017.
Hinton, Elizabeth. From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America. Cambridge, MA:
Harvard University Press, 2016.
Muhammad, Khalil Gibran. The Condemnation of Blackness: Race, Crime, and the Making of Modern Urban America.
Cambridge, MA: Harvard University Press, 2011.
Jeremy Travis, Bruce Western, and Steve Redburn, eds. The Growth of Incarceration in the United States: Exploring Causes
and Consequences. Washington, DC: National Academies Press, 2014, https://perma.cc/3PKW-CDNQ.
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12
Endnotes
1 For disparities in jail populations, see Ram Subramanian, Kristine
Riley, and Chris Mai, Divided Justice: Trends in Black and White
Jail Incarceration, 1990-2013 (New York: Vera Institute of Justice,
2017), 21-22 & figure 7 (in 1990, black people were nearly seven
times more likely than white people to be held in local jails; in 2013,
they remained 3.6 times more likely to be incarcerated in jail than
white people), https://perma.cc/VCK2-DNA2. For disparities in
prison populations, see Eli Hager, “A Mass Incarceration Mystery,”
Marshall Project, December 15, 2017 (Marshall Project analysis
of yearly reports by the Bureau of Justice Statistics and the FBI’s
Uniform Crime Reporting system), https://perma.cc/R6MB-58BY.
2 Black people are not the only racial and ethnic minorities who
experience racial discrimination and overrepresentation in the
criminal justice system. Latinos, for instance, are 17 percent of the U.S.
population but make up 23 percent of those with a prison sentence
of more than one year. E. Ann Carson, Prisoners in 2016 (Washington,
DC: BJS, 2018) (calculated from table 10),
https://perma.cc/T8PE-TVJ2. The Bureau of Justice Statistics’ 1999
report on Native American incarceration found that Native American
people were incarcerated at a rate about 38 percent higher than
the national rate of incarceration, with 4 percent of the adult Native
American population behind bars on any given day. The Sentencing
Project, Fact Sheet: Trends in U.S. Corrections (Washington, DC: The
Sentencing Project, 2017), viii,
https://perma.cc/ZQV7-AVQ2. Native Hawaiian people likewise
experience significant overrepresentation at each stage of the
criminal justice process in Hawaii, comprising 24 percent of the
state’s population but 36 percent of those admitted to prison or jail.
See Oce of Hawaiian Aairs, The Disparate Treatment of Native
Hawaiians in the Criminal Justice System (Honolulu, HI: Oce
of Hawaiian Aairs, 2010), 33, https://perma.cc/5N34-DV9L. This
brief focuses on criminal justice disparities as they impact black
Americans due in no small part to the fact that Latino crime patterns
are importantly absent from the FBI Uniform Crime Report and prison
records, in part because the FBI decided not to measure Latino arrest
rates. For a brief period between 1980 and 1987, the FBI began to
collect crime data by ethnicity in an attempt to fill that statistical
void. Before that window, and until as recently as 2014, the majority
of available statistics tabulated arrest data by race, with categories
for white, black, Asian or Pacific Islander, and American Indian or
Alaska Native. As such, Latinos largely vanished from American crime
data in the 20
th
century. Works that have helped bridge the existing
statistical gaps by enhancing our view of the criminalization and
policing of Latino Americans include Rodolfo F. Acuňa, Occupied
America: A History of Chicanos (New York: Pearson, 2014); Juanita
Díaz-Cotto, Chicana Lives and Criminal Justice: Voices from El Barrio
(Austin, TX: University of Texas Press, 2006); Edward J. Escobar, Race,
Police, and the Making of a Political Identity: Mexican Americans
and the Los Angeles Police Department, 1900–1945 (Berkeley, CA:
University of California Press, 1999); Kelly Lytle Hernández, Migra!
A History of the U.S. Border Patrol (Berkeley, CA: University of
California Press, 2010); Kelly Lytle Hernández, City of Inmates:
Conquest, Rebellion, and the Rise of Human Caging in Los Angeles,
1771–1965 (Chapel Hill, NC: University of North Carolina Press, 2017);
Suzanne Oboler, ed., Behind Bars: Latino/as and Prison in the United
States (New York: Palgrave Macmillan, 2009); and Victor M. Rios,
Punished: Policing the Lives of Black and Latino Boys (New York:
New York University Press, 2011). Some of the best analysis of Latino
crime and incarceration rates can be found in Michael Tonry and
Matthew Melewski, “The Malign Eects of Drug and Crime Control
on Black Americans,” in Crime and Justice: A Review of Research—
Volume 37, edited by Michael Tonry (Chicago: University of Chicago
Press, 2008); and Jeremy Travis, Bruce Western, and Steve Redburn,
eds., The Growth of Incarceration in the United States: Exploring
Causes and Consequences (Washington, DC: National Academies
Press, 2014), 61-64. On white-collar crime, see Max Schanzenbach
and Michael L. Yager, “Prison Time, Fines, and Federal White-Collar
Criminals: The Anatomy of a Racial Disparity,” Journal of Criminal
Law and Criminology 96, no. 2 (2005-2006), 757-94,
https://perma.cc/ZWN9-622X.
3 For the percent of black men in the U.S. population, see
U.S. Census Bureau, “ACS Demographic and Housing Estimates
2012-2016 American Community Survey 5-Year Estimates,”
https://perma.cc/85BE-KN7Q. For the percent of black men
incarcerated in state and federal prisons, see E. Ann Carson,
Prisoners in 2016 (2018), 15 & table 10.
4 The Sentencing Project, Trends in U.S. Corrections (Washington, DC:
The Sentencing Project, 2017), 5, https://perma.cc/G3Y4-JE3L.
5 Ashley Nellis, The Color of Justice: Racial and Ethnic Disparity in
State Prisons (Washington, DC: The Sentencing Project, 2016), 3,
https://perma.cc/9WZB-F93P.
6 The Sentencing Project, Trends in U.S. Corrections (2017), at 5.
7 For the percentage of women incarcerated, see Elizabeth Swavola,
Kristine Riley, and Ram Subramanian, Overlooked: Women and
Jails in an Era of Reform (New York: Vera Institute of Justice,
2016), 11, https://perma.cc/YW3D-Y8JF. For the percentage of
black women in the population, see U.S. Census Bureau, “ACS
DEMOGRAPHIC AND HOUSING ESTIMATES, 2012-2016 American
Community Survey 5-Year Estimates,” https://perma.cc/PF25-4LKN.
8 Michelle Alexander, The New Jim Crow: Mass Incarceration in the
Age of Colorblindness (New York: The New Press, 2010), 28-29.
13
9 Constitutional Rights Foundation, “The Southern ‘Black Codes’ of
1865-66,” https://perma.cc/YTH8-3N5Z.
10 On vagrancy laws, see Douglas A. Blackmon, Slavery by Another
Name: The Re-Enslavement of Black Americans from the Civil War to
World War II (New York: Anchor, 2009); Alex Lichtenstein, Twice the
Work of Free Labor: The Political Economy of Convict Labor in the
New South (London: Verso, 1996); and David M. Oshinsky: “Worse
than Slavery”: Parchman Farm and the Ordeal of Jim Crow Justice
(New York: Free Press, 1997).
11 On convict leasing, see generally Douglas A. Blackmon, Slavery by
Another Name (2009). On specific vagrancy laws, see Shaun King,
“We Must Fully Unpack the Complicated Evils of our Justice System
in Order to Build the Sophisticated Solutions We Need,” Medium,
March 9, 2018, https://perma.cc/TY3W-XTR4. See also Sarah Haley,
No Mercy Here: Gender, Punishment, and the Making of Jim Crow
Modernity (Chapel Hill, NC: University of North Carolina Press,
2016); and Talitha L. LeFlouria, Chained in Silence: Black Women
and Convict Labor in the New South (Chapel Hill, NC: University of
North Carolina Press, 2015).
12 See Blackmon, Slavery by Another Name (2009), at 233.
13 See Khalil Gibran Muhammad, The Condemnation of Blackness:
Race, Crime, and the Making of Modern Urban America
(Cambridge, MA: Harvard University Press, 2010), 4. See also David
J. Rothman, The Discovery of the Asylum: Social Order and Disorder
in the New Republic (Boston: Little Brown, 1971), which oers the
most sustained consideration of these ties.
14 Elizabeth Hinton, From the War on Poverty to the War on Crime
(2016), at 19.
15 Muhammad, The Condemnation of Blackness (2010), at 3-4.
16 See ibid. at 4.
17 Ted Chiricos, Kelly Welch, and Marc Gertz, “Reconsidering the
Relationship Between Perceived Neighborhood Racial Composition
and Whites’ Perceptions of Victimization Risk: Do Racial Stereotypes
Matter?,” Criminology 50, no. 1 (2012), 145-86, 155-56 & 160.
18 Hinton, From the War on Poverty to the War on Crime (2016), at 1-3.
19 Ibid. at 6. Also see Jeremy Travis, Bruce Western, and Steve
Redburn, eds., The Growth of Incarceration in the United States
(2014), 110 (discussing establishment of Oce of Law Enforcement
Assistance to award grants aimed at improving and expanding law
enforcement), https://perma.cc/KZY6-RUGF; and David Weisburd
and Malay K. Majmundar, eds., Proactive Policing: Eects on
Crime and Communities (Washington, DC: National Academies
Press, 2018), 268 (discussing the federal Justice Assistance Grant
program for local law enforcement, which “increased the level
of policing in areas that recorded more violent crimes, which in
many areas has led to greater policing of poorer and/or more
predominantly [b]lack communities”). For example, the number of
recorded robberies and burglaries in New York City grew threefold
from 48,000 in 1965 to 143,000 in 1966. One thing that had changed
in the interim: crime reporting reforms were implemented by Mayor
John Lindsay in 1966. Hinton, From the War on Poverty to the War
on Crime (2016), at 6.
20 See Hinton, From the War on Poverty to the War on Crime (2016), at
6.
21 See generally Muhammad, The Condemnation of Blackness
(2010) (chronicling the link between the misinterpretation of crime
statistics and notions of black criminality in American history).
22 The UCR collects information on the following “crimes reported
to law enforcement agencies:” murder and non-negligent
manslaughter, forcible rape, robbery, aggravated assault, burglary,
larceny-theft, motor vehicle theft, and arson. Federal Bureau of
Investigation, “Uniform Crime Reporting Statistics: The Nation’s Two
Crime Measures,” https://perma.cc/YF7M-D7SM.
23 Gwynne Pierson, “Institutional Racism and Crime Clearance,” in
Black Perspectives on Crime and the Criminal Justice System,
edited by Robert L. Woodson (Boston: G. K. Hall, 1977), 110.
24 On the relationship between social science research and its direct
impact on federal policy, see Hinton, From the War on Poverty to
the War on Crime (2016), especially chapters 2, 3, and 6.
25 Ibid. at 83-86.
26 Salma S. Safiedine, Jihad J. Komis, and Christine M. Kulumani,
“Policy Reform at the Forefront of Racial Justice: The Racial Justice
Improvement Project,” Criminal Justice 31, no. 3 (2016), 25-30, 25
(“a policy can be race-neutral or socioeconomically neutral on its
face, and still have unintended negative racial and socioeconomic
impacts on the individual and, based on large concentrations, the
local community at large”).
27 Judith Greene, Kevin Pranis, and Jason Ziedenberg, Disparity by
Design: How Drug-Free Zone Laws Impact Racial Disparity—and
Fail to Protect Youth (Washington, DC: Justice Policy Institute,
2006), 5, https://perma.cc/D247-ZSF5.
28 Nicole D. Porter and Tyler Clemons, Drug-Free Zone Laws: An
Overview of State Policies (Washington, DC: The Sentencing Project,
2013), 2-3, https://perma.cc/KU23-JZF4.
29 Greene, Pranis, and Ziedenberg, Disparity by Design (2006),
https://perma.cc/R86F-UFY2. In New Jersey, for example, the
14
states’ dense urban areas are predominantly populated by black
and Latino people, while its suburbs are primarily populated by
white people. As a 2005 state commission on the state’s drug-free
zone laws noted, “[T]he more densely populated the area, the
greater number of schools. The more schools per square mile, the
greater number of drug-free zones. The greater number of zones
in a municipality, the more zones intersect with one another,
creating oddly shaped, overlapping entities that leave little else
unencumbered.” Ibid. at 26. As a result, drug-free zones cover great
swaths of the state’s majority black and Latino cities: 76 percent of
Newark, and over half of the cities of Camden and Jersey City. Ibid.
30 Greene, Pranis, and Ziedenberg, Disparity by Design (2006), at 15-17.
As shown by this study and several others in this brief, black people
are not the only group to be aected disproportionately by either
the racially neutral laws discussed in this section or the implicit bias
of criminal justice system actors discussed in the following section.
More research is needed to isolate the impacts of these laws, policies,
and practices on other racial and ethnic groups.
31 Three-strikes laws were enacted beginning in 1993 by about half
the states and the federal government to mandate enhanced
sentences on the third “strike”—up to life without the possibility
of parole—for people charged with certain repeat oenses. See
Elsa Y. Chen, “Impacts of ‘Three Strikes and You’re Out’ on Crime
Trends in California and Throughout the United States,” Journal of
Contemporary Criminal Justice, 24, no. 4 (2008), 345-70,
https://perma.cc/V5SE-J5PN.
32 James Austin, John Clark, Patricia Hardyman, and D. Alan Henry,
‘Three Strikes and You’re Out’: The Implementation and Impact of Strike
Laws (unpublished research paper), https://perma.cc/5DAA-VR3K.
33 Marc Mauer, “Racial Impact Statements as a Means of Reducing
Unwarranted Sentencing Disparities,” Ohio State Journal of Criminal
Law 5 no. 1 (2007), 19-46, 29-30, https://perma.cc/9AGE-LCUQ. Black
people are more likely to come into contact with police simply
because they tend to live in cities with populations over 250,000,
which, because of federal funding programs, have more police
ocers per capita. See David Weisburd and Malay K. Majmundar,
eds., Proactive Policing: Eects on Crime and Communities
(Washington, DC: National Academies Press, 2018), 269-70.
34 Weisburd and Majmundar, Proactive Policing (2018), 46-47 & 122-29.
Perhaps the most well-known hot spots policing model is New York
City’s Compstat system, a data-driven program developed in the
1990s to map and respond to concentrations of crime in the city,
which later became the norm for departments across the country.
See generally Bureau of Justice Assistance (BJA) and Police
Executive Research Forum (PERF), Compstat: Its Origins, Evolution,
and Future in Law Enforcement Agencies (Washington, DC: BJA &
PERF, 2013), 3-7, https://perma.cc/TJJ9-KTTQ.
35 On the rise of proactive policing strategies, see Weisburd and
Majmundar, Proactive Policing (2018), at 1; and Prisoner
Reentry Institute (PRI), Pretrial Practice: Rethinking the Front End of
the Criminal Justice System (New York: PRI, 2016), 4-5,
https://perma.cc/6GTX-GU8V. On broken windows policing, see
Weisburd and Majmundar, Proactive Policing (2018), at 70-73 & 163.
The authors found that broken windows policing has little impact
on public safety. Ibid. at 8 (“available program evaluations suggest
that aggressive, misdemeanor arrest-based approaches to control
disorder generate small to null impacts on crime”).
36 Katherine Beckett, Kris Nyrop, Lori Pfingst, and Melissa Bowen,
“Drug Use, Drug Possession Arrests, and the Question of Race:
Lessons from Seattle,” Social Problems 52, no. 3 (2005), 419-41, 434,
https://perma.cc/8SU6-744M.
37 Ibid. at 435.
38 Katherine Beckett, Kris Nyrop, and Lori Pfingst, “Race, Drugs, and
Policing: Understanding Disparities in Drug Delivery Arrests”
Criminology 44, no. 1 (2006), 105-37, 118, https://perma.cc/N5PR-HTU3.
39 Weisburd and Majmundar, Proactive Policing (2018), 301, conclusion
7-1.
40 PRI, Pretrial Practice (2016), at 5.
41 Mark G. Peters and Philip K. Eure, An Analysis of Quality-of-Life
Summonses, Quality-of-Life Misdemeanor Arrests, and Felony Crime
in New York City, 2010-2015 (New York: NYPD Oce of the Inspector
General), 5, https://perma.cc/6CDG-LCGC.
42 Brian Mann, “The Drug Laws that Changed How We Punish,” NPR,
February 14, 2013, https://perma.cc/P6GG-KMNS.
43 The 1973 drug law was enacted as Chapters 276, 277, 278, 676,
and 1051 of the 1973 Penal Laws of New York State. Significant
subsequent amendments were contained in Chapters 785 and 832.
For a summary of the major provisions of the 1973 law, see National
Institute of Law Enforcement and Criminal Justice, U.S. Department
of Justice, The Nation’s Toughest Drug Law: Evaluating the New York
Experience—Final Report of the Joint Committee on New York Drug
Law Evaluation (Washington, DC: 1978), 33 & appendix,
https://perma.cc/WM5W-WFRN.
44 Jim Parsons, Qing Wei, Christian Henrichson, Ernest Drucker, and
Jennifer Trone, End of an Era? The Impact of Drug Law Reform in
New York City (New York: Vera Institute of Justice, 2015), 5,
https://perma.cc/PQ3L-YBD7.
15
45 New York State Division of Criminal Justice Services (DCJS), Felony
Drug Arrest, Indictment and Commitment Trends 1973-2008 (Albany,
NY: DCJS, 2010), 6, https://perma.cc/33S2-JEXM.
46 Ernest Drucker, A Plague of Prisons: The Epidemiology of Mass
Incarceration in America (New York: The New Press, 2011), 58-61 &
table 5.5.
47 Parsons, et al., End of an Era? (2015), at 17.
48 Anti-Drug Abuse Act of 1986, P.L. 99-570. 100 Stat. 3207, October 27,
1986, https://www.gpo.gov/fdsys/pkg/STATUTE-100/pdf/STATUTE-
100-Pg3207.pdf. On the federal crack cocaine law and its impacts,
see generally Deborah J. Vagins and Jesselyn McCurdy, Cracks
in the System: Twenty Years of the Unjust Federal Crack Cocaine
Law (Washington, DC: ACLU, 2006), https://perma.cc/43RP-M8JK;
and Families Against Mandatory Minimums (FAMM), A Brief History
of Crack Cocaine Sentencing Laws (Washington, DC: FAMM, 2013),
https://perma.cc/5LNK-3QGU. The law, which contained a 100-to-
one ratio between sentences for crack versus powder cocaine, was
repealed in 2010. The Fair Sentencing Act of 2010, SB 1789 (2010),
https://perma.cc/6P89-KEP4. For an overview of state-level crack
cocaine sentencing disparities, see Nicole D. Porter and Valerie
Wright, Cracked Justice (Washington, DC: The Sentencing Project,
2011), 3, https://perma.cc/FZ8D-ZDPT.
49 See Alexander, The New Jim Crow (2010).
50 U.S. Department of Justice, Understanding Bias: A Resource Guide
(Washington, DC: U.S. Department of Justice, 2015), 2, https://
perma.cc/XE84-7ME8.
51 On the prevalence of implicit bias generally, see Justin D. Levinson,
“Forgotten Racial Equality: Implicit Bias, Decisionmaking, and
Misremembering,” Duke Law Journal 57, no. 2 (2007), 345-424, 351-
52 (a number of studies have shown that “racially biased implicit
attitudes and stereotypes” are “real, pervasive, and dicult to
change”), https://perma.cc/LYY8-5GLA.
52 Disparate treatment can emerge from any one decision point in
the process or at multiple points, interacting in complex ways.
Subramanian, Riley, and Mai, Divided Justice (2017), 24 & n.16. While
in many instances disparities increase at each cumulative step of the
criminal justice process, some research shows that this is not always
the case. Sometimes, initial disparities can “correct” themselves
later in the justice process. A study looking at “corrections” for bias
in law enforcement in Driving While Intoxicated (DWI) cases in North
Carolina found that Latino men were almost two-thirds more likely to
have the DWI charges against them dropped than similarly situated
whites. For those who were charged, moreover, Latino men were sent
to jail for less time than their white counterparts. See Christopher L.
Grin, Jr., Frank A. Sloan, and Lindsey M. Eldred, “Corrections for
Racial Disparities in Law Enforcement,” William & Mary Law Review
55, no. 4 (2014),1365-1427, 1388-89 and table 3,
https://perma.cc/2468-MY86. Also see Besiki Kutateladze, Whitney
Tymas, and Mary Crowley, Race and Prosecution in Manhattan (New
York: Vera Institute of Justice, 2014), 3 (researchers found that people
of color were more likely than similarly-situated white people to have
their cases dismissed. Researchers speculated that this could have
been because of leniency or because prosecutors believed that
the arrest charges in these cases were not viable),
https://perma.cc/V5F3-EJU9; and Vera Institute of Justice, A
Prosecutor’s Guide for Advancing Racial Equity (New York: Vera
Institute of Justice, 2014), 15 (in Mecklenburg County, North Carolina
(Charlotte), black people “were more likely to have more arrest
charges and more serious arrest charges than whites,” but also
were “more likely to have their top arrest charge rejected”),
https://perma.cc/3Y9C-7R2E.
53 Implicit bias (as opposed to explicit bias) refers to attitudes and
beliefs that individuals hold about people without their conscious
knowledge. Thus, it is possible for individuals to act in biased
ways toward certain groups of people without making a conscious
decision to do so. Because most actions occur without conscious
thought, implicit biases have a significant influence over people’s
behavior. For more information about implicit bias and how it can
lead to discrimination, see The Perception Institute, https://perma.
cc/2PNS-7X4G. See also Katheryn Russell-Brown, “Making Implicit
Bias Explicit: Black Men and the Police,” in Policing the Black Man:
Arrest, Prosecution, and Imprisonment, edited by Angela J. Davis
(New York: Pantheon, 2017), 135-60.
54 Jennifer L. Eberhardt, Phillip Atiba Go, Valerie J. Purdie, and Paul
G. Davies, “Seeing Black: Race, Crime, and Visual Processing,”
Journal of Personality and Social Psychology 87, no. 6 (2004), 876-
93, at 878, https://perma.cc/XS7F-3B48.
55 Ibid. at 885-86.
56 On overpolicing communities of color, see Paul Butler,
Chokehold: Policing Black Men (New York: The New Press, 2017),
chapters 2 and 3; Marc Mauer, “The Endurance of Racial Disparity
in the Criminal Justice System,” in Policing the Black Man: Arrest,
Prosecution, and Imprisonment, edited by Angela J. Davis (New
York: Pantheon, 2017), 40-46; Alice Goman,
“On the Run: Wanted Men in a Philadelphia Ghetto,”
American Sociological Review 74, no. 3 (2009), 339-57,
http://journals.sagepub.com/doi/abs/10.1177/000312240907400301;
and Hinton, From the War on Poverty to the War on Crime (2016).
Modern policing has direct roots in practices that explicitly
targeted people based on their race: the modern police force in the
United States evolved out of slave patrols and night watches, which
16
sought to control the movement and behavior of black people and
Native Americans. See Philip S. Foner, History of Black Americans:
From Africa to the Emergence of the Cotton Kingdom (Westport, CT:
Greenwood, 1975), 206.
57 Shelley Hyland, Lynn Langton, and Elizabeth Davis, Police Use
of Nonfatal Force, 2002–11 (Washington, DC: Bureau of Justice
Statistics, 2015), 4, https://perma.cc/GX75-PQND.
58 The Sentencing Project, Black Lives Matter: Eliminating Racial
Inequity in the Criminal Justice System (Washington, DC: The
Sentencing Project, 2017), 10, https://perma.cc/U4H9-TSZ9. For
an in-depth discussion of investigatory police stops and their
relationship with race, see Charles R. Epp, Steven Maynard-Moody,
and Donald P. Haider-Markel, Pulled Over: How Police Stops Define
Race and Citizenship (Chicago: University of Chicago Press, 2014).
59 Police Accountability Task Force, “Recommendations for Reform:
Restoring Trust between the Chicago Police and the Communities
They Serve” (Chicago: Police Accountability Task Force, 2016), 8,
https://perma.cc/QNC8-HY5E
60 Researchers at Stanford University developed a new measurement
test called the “threshold test”—a statistically rigorous way to
quantify the threshold at which ocers become suspicious enough
to initiate searches. After analyzing data from 4.5 million trac
stops in 100 North Carolina cities, researchers found that black
and Latino drivers are subjected to a lower search threshold than
whites, suggestive of widespread discrimination against these
groups. See Edmund Andrews, “Stanford Researchers Develop New
Statistical Test that Shows Racial Profiling in Police Trac Stops,”
Stanford News, June 28, 2016, https://perma.cc/5FQ4-CTF8; and
Camelia Simoiu, Sam Corbett-Davies, and Sharad Goel, “The
Problem of Infra-marginality in Outcome Tests for Discrimination”
(unpublished paper, July 18, 2016), https://perma.cc/Z887-URAH.
61 Andrew Gelman, Jerey Fagan, and Alex Kiss, “An Analysis of the New
York City Police Department’s ‘Stop-and-Frisk’ Policy in the Context of
Claims of Racial Bias,” Journal of the American Statistical Association
102, no. 479 (2007), 813-23, 821-22, https://perma.cc/T2LZ-2ZLX .
62 Ibid. at 821.
63 Tammy Rinehart Kochel, David B. Wilson, and Stephen D. Mastrofski,
“Eect of Suspect Race on Ocers’ Arrest Decisions,” Criminology
49, no. 2 (2011), 473-512, 490 & 495-96.
64 Ojmarrh Mitchell and Michael S. Caudy, “Examining Racial
Disparities in Drug Arrests,” Justice Quarterly 32, no. 2 (2013), 288-
313, 309-10, https://perma.cc/T3XU-JZVF.
65 Ezekiel Edwards, Will Bunting, and Lynda Garcia, The War on
Marijuana in Black and White: Billions of Dollars Wasted on Racially
Biased Arrests (Washington, DC: ACLU, 2013), 9, 21-22 & 47,
https://perma.cc/G4QP-9K9P.
66 For an overview of the discretionary powers of prosecutors
and their impact on the criminal justice process, see Vera
Institute of Justice, “The Discretionary Power of Prosecutors,”
https://perma.cc/YM5X-B7DX.
67 See M. Marit Rehavi and Sonja B. Starr, “Racial Disparity in
Federal Criminal Sentences,” Journal of Political Economy
122, no. 6 (2014), 1320-54, 1326 (“Legal scholars, judges and
practitioners broadly agree that prosecutorial decisions play a
dominant role in determining sentences”), https://perma.cc/365A-
NM73; Birte Englich, “Blind or Biased? Justitia’s Susceptibility to
Anchoring Eects in the Courtroom Based on Given Numerical
Representations,” Law and Policy 28, no. 4 (2006), 497-514;
and Birte Englich and Thomas Mussweiler, “Sentencing Under
Uncertainty: Anchoring Eects in the Courtroom,” Journal of
Applied Social Psychology 31, no. 7 (2001), 1535-51. Also see Colin
Miller, “Anchors Away: Why the Anchoring Eect Suggests that
Judges Should Be Able to Participate in Plea Discussions,” Boston
College Law Review 54, no. 4 (2013), 1667-1725, https://perma.cc/
ED2L-427M; and Joshua A. Haby and Eve M. Brank, “The Role of
Anchoring in Plea Bargains,” Monitor on Psychology 44, no. 4
(2013), 30, https://perma.cc/KF2U-BYRX.
68 Robert J. Smith and Justin D. Levinson, “The Impact of Implicit Racial
Bias on the Exercise of Prosecutorial Discretion,” Seattle University
Law Review 35, no. 3 (2012), 795-826, https://perma.cc/377Y-UNMZ.
Bias may also impact the decisions of defense attorneys. L. Song
Richardson and Phillip Atiba Go, “Implicit Racial Bias in Public
Defender Triage,” Yale Law Journal 122, no. 8 (2013), 2626-49, 2648
(“Despite the fact that many public defenders are committed
to zealous and eective advocacy, there is abundant reason for
concern that implicit racial biases may aect their decisions”),
https://perma.cc/3WQA-9KZ4.
69 Besiki Kutateladze, Vanessa Lynn, and Edward Liang, Do Race and
Ethnicity Matter in Prosecution?: A Review of Empirical Studies (New
York: Vera Institute of Justice, 2012), https://perma.cc/A3SY-GTE3.
70 Ibid. This finding did not hold across the board. Researchers also
found proof of prosecutors treating white defendants more harshly
for certain oenses and at certain discretion points. Ibid. at 9-10.
Also see Celesta A. Albonetti and John R. Hepburn, “Prosecutorial
Discretion to Defer Criminalization: The Eects of Defendant’s
Ascribed and Achieved Status Characteristics,” Journal of
Quantitative Criminology 12, no. 1 (1996), 63-81 (discussing factors
that may influence diversion decisions to a greater extent than
race, although some of these factors (such as prior record) can
be inextricably intertwined with race); Travis W. Franklin. “The
17
Intersection of Defendants’ Race, Gender, and Age in Prosecutorial
Decision Making,” Journal of Criminal Justice 38, no. 2 (2010), 185-
92 (discussing the ways in which age and gender modify racially
charged decision making); and Tina L. Freiburger and Kareem L.
Jordan. “A Multilevel Analysis of Race on the Decision to Petition a
Case in the Juvenile Court,” Race and Justice 1, no. 2 (2011), 185-201,
188 (“Not all research examining race and juvenile court processing
has found minority disadvantage. In fact, several studies have
produced contradicting results at dierent decision points”).
71 Sonja B. Starr and M. Marit Rehavi, “Mandatory Sentencing
and Racial Disparity: Assessing the Role of Prosecutors and the
Eects of Booker,” Yale Law Journal 123, no. 1 (2013), 1-265,
https://perma.cc/29KP-EB5G. Ethnicity can also impact the
severity of a sentence. A study in Pennsylvania found that while
prosecutors choose to apply mandatory minimum sentences
in a minority of cases (about 18 percent), Latino men were
almost twice as likely to receive a mandatory sentence as their
white counterparts. Jeery T. Ulmer, Megan C. Kurlychek, and
John H. Kramer, “Prosecutorial Discretion and the Imposition of
Mandatory Minimum Sentences,” Journal of Research in Crime and
Delinquency 44, no. 4 (2007), 427-58, 442.
72 Charles Crawford, Ted Chiricos, and Gary Kleck, “Race, Racial
Threat, and Sentencing of Habitual Oenders,” Criminology 36, no.
3 (2006), 481-512, 503.
74 Carlos Berdejó, “Criminalizing Race: Racial Disparities in Plea
Bargaining,” Boston College Law Review 59 (2018) (forthcoming), 3,
draft available at https://perma.cc/3FZ9-JC6Y
75 Ibid. at 3-4.
76 Jerey J. Rachlinski, Sheri Johnson, Andrew J. Wistrich, and Chris
Guthrie, “Does Unconscious Racial Bias Aect Trial Judges?”
Notre Dame Law Review, 84, no. 3 (2008-2009), 1195-1246, 1223,
https://perma.cc/2GRH-97X4.
77 In order to assess the role of implicit bias in the decision-making
process of judges, the researchers in the study calculated the implicit
bias score of each judge using an implicit associations test (IAT). An
IAT score reflects a preference toward black or white people and is a
method of measuring a person’s implicit bias. Each judge was then
presented with three hypothetical cases. Researchers measured
whether a judges’ IAT score correlated with any racially disparate
outcomes in each of the three scenarios. In the first scenario, when
primed with black-associated words that implied the defendant was
black, judges with a white preference in the IAT gave slightly harsher
sentences to defendants. Judges with a black preference on the IAT,
on the other hand, gave less harsh sentences. See ibid. at 1214-16.
Fourteen million people had taken the IAT as of 2013, and 75 percent
showed implicit racial biases that favor white people. Cynthia Lee,
“Making Race Salient: Trayvon Martin and Implicit Bias in a Not Yet
Post-Racial Society,” North Carolina Law Review 91, no. 5 (2013), 101-
157, 117-18, https://perma.cc/4U36-LMX2.
78 Matthew Clair and Alix S. Winter, “How Judges Think about
Racial Disparities: Situational Decision-Making in the Criminal
Justice System,” Criminology 54, no. 2 (2016), 332-59, 352-54,
https://perma.cc/2EET-Y23Q.
79 Cassia Spohn, “Race, Sex, and Pretrial Detention in Federal
Court: Indirect Eects and Cumulative Disadvantage,”
Kansas Law Review 57, no. 4 (2009), 879-901, 888-89 & 895,
https://perma.cc/LF72-WTPE.
80 Cynthia E. Jones, “‘Give Us Free’: Addressing Racial Disparities in
Bail Determinations,” New York University Journal of Legislation and
Public Policy 16, no. 4 (2013), 919-62, 938-39,
https://perma.cc/manage/create?folder=13469-16845-29608-41698.
81 Cassia Spohn, “Thirty Years of Sentencing Reform: The Quest for a
Racially Neutral Sentencing Process,” in Policies, Processes, and
Decisions of the Criminal Justice System—Vol. 3 (Washington, DC:
U.S. Department of Justice, 2000), 427-501, 429 & 474-75,
https://perma.cc/849X-VQW9. Also see U.S. Sentencing Commission,
Demographic Dierences in Sentencing: An Update to the 2012
Booker Report (Washington, DC: U.S. Sentencing Commission, 2017),
2 (in analysis of federal sentencing data from October 1, 2011 to
September 30, 2016, finding that black men received sentences
on average 19.1 percent longer than similarly situated white men),
https://perma.cc/M6Z6-XUGB.
82 Tushar Kansal, Racial Disparity in Sentencing: A Review of the
Literature (Washington, DC: The Sentencing Project, 2005), 4-5,
https://perma.cc/67L2-2C7S.
83 Jennifer L. Eberhardt, Paul G. Davies, Valerie J. Purdie-Vaughns,
and Sheri Lynn Johnson, “Looking Deathworthy: Perceived
Stereotypicality of Black Defendants Predicts Capital-Sentencing
Outcomes,” Psychological Science 17, no. 5 (2006), 383-86, 384-85,
https://perma.cc/2RZ4-R5AX. In this study, researchers showed
subjects a series of photographs of black men and had them rate
the appearance of their features—such as lips, nose, hair texture,
and skin tone—as more or less “stereotypically black.” Researchers
then compiled these findings into a determination of which features
were considered most “stereotypically black.”
84 Jennifer L. Hochschild and Vesla Weaver, “The Skin Color Paradox
and the American Racial Order,” Social Forces, 86, no. 2 (2007),
643-70, 649, https://perma.cc/P4H5-22XV.
85 Traci Burch, “Skin Color and the Criminal Justice System: Beyond
18
Black-White Disparities in Sentencing,” Journal of Empirical Legal
Studies 12, no. 3 (2015), 395-420, 408. The study also found that
light-skinned black men received sentences 20 days shorter than
white men. Ibid.
86 John R. Sutton, “Structural Bias in the Sentencing of Felony
Defendants,” Social Science Research 42 no. 5 (2013), 1207-21, 1214-
16 & 1218-19, https://perma.cc/9E9M-MHPG.
87 Samuel R. Sommers and Phoebe C. Ellsworth, “How Much Do We
Really Know about Race and Juries? A Review of Social Science
Theory and Research,” Chicago-Kent Law Review 78, no. 3 (2003),
997-1031, 997-1005 (noting the obstacles and benefits of each
method of analysis), https://perma.cc/J532-4ZAS; and Nancy J.
King, “Postconviction Review of Jury Discrimination: Measuring the
Eects of Juror Race on Jury Decisions,” Michigan Law Review 92,
no. 1 (1993), 63-130, 75-77, https://perma.cc/5HJS-N592.
88 Such bias is not limited to white jurors. Studies have found that
both black and white mock jurors demonstrate “ingroup/outgroup”
bias, judging same-race defendants more favorably than other-
race defendants. See studies collected in Sommers and Ellsworth,
“How Much Do We Really Know about Race and Juries? ” (2003), at
1017-18. Other studies have found evidence of same-race leniency
among black mock jurors. Ibid. at 1019-20.
89 Sommers and Ellsworth, “How Much Do We Really Know about Race
and Juries? ” (2003), at 1013-14 (“Psychologists have suggested
that racial bias among [w]hites is more likely when salient norms
regarding racism are absent. In such situations, [w]hite perceivers
often let their guard down, allowing their behavior to be influenced
by anti-[b]lack attitudes and prejudice.”) In two experiments
conducted by the authors, the white jurors were significantly more
likely to vote to convict a black person accused in a case involving
a non-race salient fact pattern than in one involving a race salient
fact pattern. Ibid. at 1014-16.
90 Tara L. Mitchell, Ryann M. Haw, Jerey E. Pfeifer, and Christian A.
Meissner, “Racial Bias in Mock Juror Decision-Making: A Meta-
Analytic Review of Defendant Treatment,” Law and Human Behavior
29, no. 6 (2005), 621-37, 627-28. Also see Sommers and Ellsworth,
“How Much Do We Really Know about Race and Juries?” (2003).
91 Joshua D. Levinson and Danielle Young, “Dierent Shades of Bias:
Skin Tone, Implicit Racial Bias, and Judgments of Ambiguous
Evidence,” West Virginia Law Review 112 (2010), 307-50, 310-11.
In this study, researchers showed mock jurors security camera
footage of either a light-skinned or dark-skinned perpetrator, then
presented trial evidence and asked them to evaluate just “how
much each piece of evidence tended to indicate whether the
defendant was guilty or not guilty.” They found that mock jurors
who viewed the photo of the dark-skinned perpetrator adjudged the
evidence as more indicative of guilt compared to those who viewed
the photo of the light-skinned perpetrator.
92 See Douglas S. Massey and Nancy A. Denton, American Apartheid:
Segregation and the Making of the Underclass, (Cambridge, MA:
Harvard University Press, 1993); and William Julius Wilson, The
Truly Disadvantaged: The Inner City, the Underclass, and Public
Policy (Chicago, IL: University of Chicago Press, 1987).
93 For a more in-depth examination of the systemic factors contributing
to poverty and inequality and their impact on crime, see generally
Wilson, The Truly Disadvantaged (1987); Robert J. Sampson and
William Julius Wilson, “Toward a Theory of Race, Crime, and Urban
Inequality,” in Crime and Inequality, edited by John Hagan and Ruth
D. Peterson (Stanford, CA: Stanford University Press, 1995), 37-56;
and Tommie Shelby, Dark Ghettos: Injustice, Dissent, and Reform
(Cambridge, MA: Harvard University Press, 2016).
94 Danielle Corinne Kuhl, Lauren J. Krivo, and Ruth D. Peterson,
“Segregation, Racial Structure, and Neighborhood Violent Crime,”
American Journal of Sociology 114, no. 6 (2009), 1765-1802.
95 Danielle Corinne Kuhl, Lauren J. Krivo, and Ruth D. Peterson,
“Neighborhood Violent Crime,” American Journal of Sociology 114,
no. 6 (2009), 1765-1802. On violence in poor communities of color,
see Elijah Anderson, Code of the Street: Decency, Violence, and the
Moral Life of the Inner City (New York: W. W. Norton & Company,
1999); and Bruce Western, “Lifetimes of Violence in a Sample of
Released Prisoners,” RSF: The Russell Sage Foundation Journal of
the Social Sciences 1, no. 2 (2015), 14-30. A full discussion of these
structural factors is beyond the scope of this brief. For a more in-
depth examination of the systemic factors contributing to poverty
and inequality and their impact on crime, see generally Wilson,
The Truly Disadvantaged (1987); Sampson and Wilson, “Toward a
Theory of Race, Crime, and Urban Inequality” (1995); and Shelby,
Dark Ghettos (2016).
96 Jessica L. Semega, Kayla R. Fontenot, and Melissa A. Kollar, Income
and Poverty in the United States: 2016, (Washington, DC: U.S.
Census Bureau, 2017), 12,https://perma.cc/B47L-YK2N. Also see
Robert J. Sampson and Janet L. Lauritsen, “Racial and Ethnic
Disparities in Crime and Criminal Justice in the United States,”
Crime and Justice 21, no. 1 (1997), 311-74, 324-30, https://perma.cc/
HZP7-PEZG; and Michael K. Brown, Martin Carnoy, Elliot Currie,
et al., Whitewashing Race: The Myth of a Color-Blind Society
(Berkeley, CA: University of California Press, 2003), 153-59.
97 Black people are arrested at higher rates for violent and property
crimes. In 2015, they accounted for 36 percent of violent crime arrests,
28 percent of property crime arrests, and 51 percent of murder and
19
non-negligent manslaughter arrests. Nazgol Ghandnoosh, Race and
Punishment: Racial Perceptions of Crime and Support for Punitive
Policies (Washington, DC: The Sentencing Project, 2014), 20 (citing
Federal Bureau of Investigation, “Crime in the United States 2015,”
table 43A (arrests by race and ethnicity, 2015),
https://perma.cc/AKG8-EYNV, https://perma.cc/TA8F-SFEH.
Arrest rates are an imperfect measure of actual rates of oending,
however, given the history of overpolicing primarily black
communities. When comparing arrest rates to imprisonment rates
for dierent oenses, Alfred Blumstein found that in 1991 “[d]
ierential arrest rates accounted for the over-representation
of blacks in prison by 89 percent for robbery, 75 percent for
burglary, and 50 percent for drug crimes.” Ghandnoosh, Race
and Punishment (2014), at 21 (citing Alfred Blumstein, “Racial
Disproportionality of U.S. Prison Populations Revisited,” University
of Colorado Law Review 64, no. 3 (1993), 743-60).
98 On education: While 5 percent of white children grow up with a
parent who did not graduate from high school, 12 percent of black
and 40 percent of Latino children grow up with a parent who did
not graduate from high school. American Psychological Association
Presidential Task Force on Educational Disparities, Ethnic and
Racial Disparities in Education: Psychology’s Contributions to
Understanding and Reducing Disparities (Washington, DC: American
Psychological Association, 2012), 17, https://perma.cc/G87C-X8GB.
The quality of education sometimes diers based on the racial
composition of a school. A 2007 study showed that white students
on average attend schools where 77 percent of the children are
white, while black or Latino students typically attend schools where
at approximately two-thirds of the students are also black or Latino.
Gary Orfield and Chungmei Lee, Historic Reversals, Accelerating
Resegregation, and the Need for New Integration Strategies (Los
Angeles: The Civil Rights Project/ Proyecto Derechos Civiles, UCLA,
2007), 24-26, https://perma.cc/7ZQH-TS2Y. Approximately two-
thirds of teachers in predominantly white schools are certified to
teach in their subject areas, while only about half of teachers in
predominantly black or Latino schools are so certified. APA Task
Force, Ethnic and Racial Disparities, (2012), at 17. On unemployment:
The unemployment rate for black people in 2016 averaged 8.4
percent, compared to 4.3 percent for white people and 5.8 percent
for Latino people. Bureau of Labor Statistics, “Unemployment Rate
and Employment-Population Ratio Vary by Race and Ethnicity,”
January 13, 2017, https://perma.cc/CD29-ZLTE. Unemployment in
particular has been linked to a greater likelihood of incarceration,
particularly for unemployed black men. Theodore G. Chiricos and
William D. Bales, “Unemployment and Punishment: An Empirical
Assessment” Criminology 29, no. 4 (1991), 701-24. On household
wealth: The median household income for black families in 2016 was
just $39,490, compared to $65,041 for white, non-Latino families.
Semega, Fontenot, and Kollar, Income and Poverty 2016 (2017), at 5.
99 Christopher Wildeman, “Parental Imprisonment, the Prison Boom,
and the Concentration of Childhood Disadvantage,” Demography
46, no. 2 (2009), 265-80, 270-71.
100 Eric Martin, “Hidden Consequences: The Impact of Incarceration on
Dependent Children,” National Institutes of Justice Journal No. 278,
March 2017, https://perma.cc/NN9J-ABF2.
101 Todd R. Clear, “The Eects of High Imprisonment Rates on
Communities,” Crime and Justice 37, no. 1 (2008), 97-132, 111.
102 Hedwig Lee, Christopher Wildeman, Emily Wang, et al., “A Heavy
Burden: The Cardiovascular Health Consequences of Having a
Family Member Incarcerated,” American Journal of Public Health
104, no. 3 (2014), 421-27, https://perma.cc/6TGX-8SMT.
103 “Collateral consequences are legal and regulatory sanctions
and restrictions that limit or prohibit people with criminal records
from accessing employment, occupational licensing, housing,
voting, education, and other opportunities.” Council of State
Governments Justice Center, “National Inventory of the Collateral
Consequences of Conviction,” https://perma.cc/VRZ2-PTH7. On
collateral consequences and reentry, see Ram Subramanian,
Rebecka Moreno, and Sophia Gebreselassie, Relief in Sight? States
Rethink the Collateral Consequences of Criminal Conviction,
2009-2014 (New York: Vera Institute of Justice, 2014), 8 (when issues
like mental illness, substance abuse, or lack of vocational skills or
education are left unaddressed, the risk of recidivism increases),
https://perma.cc/2PTX-QCD7; Michael Pinard, “Reflections and
Perspectives on Reentry and Collateral Consequences,” Journal of
Law and Criminology 100, no. 3 (2010), 1213-24, 1218-22,
https://perma.cc/KBN2-2KKQ; and Michael Pinard, “An Integrated
Perspective on the Collateral Consequences of Criminal
Convictions and Reentry Issues Faced by Formerly Incarcerated
Individuals,” Boston University Law Review 86, no. 3 (2006), 623-690,
https://perma.cc/ZS9L-7BYU. On the negative impact of a criminal
record on employment chances, see Devah Pager, “The Mark of a
Criminal Record,” American Journal of Sociology 108, no. 5 (2003),
937-75, https://perma.cc/27YT-2WEV. Moreover, black men without
a record are less likely to find employment than white men with a
record, highlighting the way that racial discrimination continues
to influence black people outside of the confines of the criminal
justice system. See Pager, Western, and Sugie, “Sequencing
Disadvantage” (2009); Pager, Marked: Race, Crime and Finding
Work (Chicago: University Of Chicago Press, 2009); and Pager,
“The Mark of a Criminal Record” (2003).
20
About Citations
As researchers and readers alike rely more and more on public
knowledge made available through the Internet, “link rot” has
become a widely-acknowledged problem with creating useful and
sustainable citations. To address this issue, the Vera Institute of
Justice is experimenting with the use of Perma.cc (https://perma.
cc/), a service that helps scholars, journals, and courts create
permanent links to the online sources cited in their work.
Credits
© Vera Institute of Justice 2018. All rights reserved. An electronic
version of this report is posted on Vera’s website at
www.vera.org/for-the-record-unjust-burden.
The Vera Institute of Justice is a justice reform change agent.
Vera produces ideas, analysis, and research that inspire change
in the systems people rely upon for safety and justice, and
works in close partnership with government and civic leaders to
implement it. Vera is currently pursuing core priorities of ending
the misuse of jails, transforming conditions of confinement, and
ensuring that justice systems more eectively serve America’s
increasingly diverse communities. For more information, visit
www.vera.org.
For more information about this brief or Vera’s Evidence Brief
series, contact Jim Parsons, vice president and research
director, at jparsons@vera.org.
Suggested Citation
Elizabeth Hinton, LeShae Henderson, and Cindy Reed. An Unjust
Burden: The Disparate Treatment of Black Americans in the
Criminal Justice System. New York: Vera Institute of Justice, 2018.
104 Don Stemen, The Prison Paradox: More Incarceration Will Not Make
Us Safer (New York: Vera Institute of Justice, 2017), 2 (citing Todd
R. Clear, “The Eects of High Imprisonment Rates on Communities,”
Crime and Justice 37, no. 1 (2008)), https://perma.cc/5TBR-WSDC.
