This article has been updated since its original publication in September 2018. If you know of a study I’ve missed or are aware of a forthcoming study, email me. Show
In 2016, Sen. Tim Scott (R-S.C.) gave a powerful speech on the floor of the U.S. Senate. Scott talked about how he had been repeatedly pulled over by police officers who seemed to be suspicious of a black man driving a nice car. He added that a black senior-level staffer had experienced the same thing and had even downgraded his car in the hope of avoiding the problem. Given that Scott otherwise has pretty conservative politics, there was little objection or protest from the right. No one rose up to say that he was lying about getting pulled over. The thing is, most people of color have a similar story or know someone who does. Yet, there’s a deep skepticism on the right of any assertion that the criminal justice system is racially biased. In early August 2018, National Review editor and syndicated columnist Rich Lowry wrote a column disputing the notion that our system is racist. Andrew Sullivan wrote something similar in New York magazine. (Interestingly, both Lowry and Sullivan cite criminologist John Pfaff to support their positions. Pfaff has since protested on Twitter that both misinterpreted what he wrote.) And attempting to refute the notion that the system is racist has become a pretty regular beat for conservative crime pundit Heather Mac Donald. Of particular concern to some on the right is the term “systemic racism,” often wrongly interpreted as an accusation that everyone in the system is racist. In fact, systemic racism means almost the opposite. It means that we have systems and institutions that produce racially disparate outcomes, regardless of the intentions of the people who work within them. When you consider that much of the criminal justice system was built, honed and firmly established during the Jim Crow era — an era almost everyone, conservatives included, will concede rife with racism — this is pretty intuitive. The modern criminal justice system helped preserve racial order — it kept black people in their place. For much of the early 20th century, in some parts of the country, that was its primary function. That it might retain some of those proclivities today shouldn’t be all that surprising. In any case, after more than a decade covering these issues, it’s pretty clear to me that the evidence of racial bias in our criminal justice system isn’t just convincing — it’s overwhelming. But because there still seems to be some skepticism, I’ve attempted below to catalog the evidence. The list below isn’t remotely comprehensive. And if you know of other studies, please send them to me. I would like to make this piece a repository for this issue. I, of course, can’t vouch for the robustness or statistical integrity of all of these studies. I’m only summarizing them. But for the most part, I’ve tried to include either peer-reviewed studies or reviews of data that tend to speak for themselves and don’t require much statistical analysis. I will note that most (but not all) of these studies do factor in variables that address common claims such as that the criminal justice system discriminates more by class than by race, or that racial discrepancies in sentencing or incarceration can be explained by the fact that black people commit more crimes. And I’ve also included a section for studies that do not find bias in various aspects of the criminal justice system. There are far fewer of these, though I’m open to the possibility that I missed some. Finally, none of this is to say that race is the only thing we need to worry about in the criminal justice system. Certainly, lots of white people are wrongly accused, arrested and convicted. Lots of white people are treated unfairly, beaten and unjustifiably shot and killed by police officers. White people too are harmed by policies such as mandatory minimums, asset forfeiture, and abuse of police, prosecutorial and judicial power. There are problems here that are inextricable from race. And there are problems that aren’t directly related to race. But even the latter set of problems tend to be exacerbated when you factor race into the equation. On to the evidence. Skip to a section
Policing and profilingI’ve had more than one retired police officer tell me there is a running joke in law enforcement when it comes to racial profiling: It never happens . . . and it works. But the problem with trying to dismiss profiling concerns by noting that higher rates at which some minority groups commit certain crimes is that it overlooks the fact that huge percentages of black and Latino people have been pulled over, stopped on the street and generally harassed despite the fact that they have done nothing wrong. Stop-and-frisk data, for example, consistently show that about 3 percent of these encounters produce any evidence of a crime. So 97 percent-plus of these people are getting punished solely because they belong to a group that statistically commits some crimes at a higher rate. That ought to bother us.
Misdemeanors, petty crimes and driver’s license suspensions
The drug warBlack people are consistently arrested, charged and convicted of drug crimes including possession, distribution and conspiracy at far higher rates than white people. This, despite research showing that both races use and sell drugs at about the same rate.
Juries and jury selectionThough the Supreme Court made it illegal for prosecutors to exclude prospective jurors because of race in the 1986 case Batson v. Kentucky, that ruling has largely gone unenforced. The New Yorker reported in 2015 that in the approximately 30 years since the ruling, courts have accepted the flimsiest excuses for striking black jurors and that prosecutors have in turn trained subordinates how to strike black jurors without a judicial rebuke. A 2010 report by the Equal Justice Initiative documented cases in which courts upheld prosecutors’ dismissal of jurors because of allegedly race-neutral factors such as affiliation with a historically black college, a son in an interracial marriage, living in a black-majority neighborhood or that a juror “shucked and jived.” There are no comprehensive national data on the rate at which prosecutors strike black jurors, but there have been quite a few regional studies.
The death penaltyProsecutors on aggregate don’t seem to seek the death penalty more for black people than white people, though there are definitely some gaping disparities in a few states and in some counties. Instead, the real racial bias when it comes to the death penalty pertains to the race of the victim. Killers of black people rarely get death sentences. White killers of black people get death sentences even less frequently. And far and away, the type of murder most likely to bring a death sentence is a black man who kills a white woman.
Prosecutors, discretion and plea bargainingDepending on which study you look at, somewhere between 80 and 95 percent of criminal cases are resolved with a plea bargain before ever getting to trial. While most legal observers agree that plea bargaining is widely abused and does little to serve the interests of justice, most also believe believe that if every defendant were to insist on a trial, the system would come grinding to a halt. The bias here comes in when we look at who gets plea bargains, what kinds of deals they’re offered and how many, though innocent, feel pressured to accept.
Judges and sentencing
School suspensions and the school-to-prison pipeline
Prison, incarceration and solitary confinementBlack people are of course overrepresented in the prison population. And, as noted in one particular study below, they’re overrepresented even after you account for variables such as the crime rate among blacks.
Bail, pretrial detention, commutations and pardons, gangs and other issues
The dissent — contrarian studies on race and the criminal justice system
Watch the latest Opinions videos: More from Radley Balko: White people can compartmentalize police brutality. Black people don’t have the luxury. The no-knock warrant for Breonna Taylor was illegal Report: Wrongful convictions have stolen at least 20,000 years from innocent defendants Militarized policing doesn’t reduce crime and disproportionately hits black communities New York, California bills look to hold police, prosecutors more accountable What is racial disparity in criminal justice?"Racial disparity" is defined as existing in the criminal justice system when "the proportion of a racial/ethnic group within the control of the system is greater than the proportion of such groups in the general population."
What is an example of disparity in criminal justice?African Americans are incarcerated in state prisons at five times the rate of whites. Black men face disproportionately harsh incarceration experiences as compared with prisoners of other races.
Does race matter in the criminal justice system?Race matters in our criminal legal system. It affects how likely you are to be pulled over by police, how likely you are to be released or detained pretrial, how likely the state is to seek the death penalty, and how severely you are sentenced.
Why are there racial disparities in the juvenile justice system?Often racial and ethnic disparity is presented as being caused by differential offending (i.e., youths of color commit more crimes or commit more serious crimes) or differential treatment (i.e., the juvenile justice system treats youths of color differently).
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