Disparity is the discrepancy between the percentage of a group in one population when compared to the percentage of that same group in another population. To illustrate, if Latin-Americans are arrested 12 percent of the time but account for 45 percent of those people taken into custody, there is a disparity (Commission on Racial and Ethnic Disparity, 2004, n.p.). Disparity can be in the form of either an overrepresentation or underrepresentation of the specific group being measured. There is overrepresentation where a larger proportion of a group is present at various stages within the justice system (such as intake, detention, adjudication, and disposition) than would be expected as a result of equally fair treatment of that same group based on their proportion in the population that is being used as a basis of comparison (Commission on Racial and Ethnic Disparity, 2004, n.p.).
Underrepresentation, on the other hand, is the opposite of overrepresentation. It pertains to a situation where a smaller proportion of a specific group is present at various stages within the justice system (such as intake, detention, adjudication, and disposition) than would be expected as a result of equally fair treatment of that same group based on their proportion in the population that is being used as a basis of comparison (Commission on Racial and Ethnic Disparity, 2004, n.p.).
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Discrimination, on the other hand, is the result of disparate treatment - when a certain group is treated differently than others for invalid reasons such as gender, racial, and/or ethnic status (Commission on Racial and Ethnic
Disparity, 2004, n.p.). Discrimination in the criminal justice system is achieved through:
racial prejudice that subsists in each individual in this racist society; a system designed without any accountability at each segment; a total lack of awareness by the general public about how the system actually works; and a total lack of awareness and/or consideration by legislators, and institutional wardens and custodians about African American culture, for example, history and the current societal challenges created by the racially prejudiced handling of African Americans all over history.
There is no other issue in criminal justice that is more disturbing than the occurrence of racial disparity within the system. In all of its stages—from the arrest to imprisonment and parole—substantial racial and ethnic disparities are found in almost all jurisdictions. Years and years of discrimination, slavery and segregation, according to Butler (1997), have created the social environments that fuel high levels of African-American criminal behavior (p.43). Hence, the hypothesis is that similar to low standardized test scores, poor grades, and depressed wages, black criminality is another product of a history of white supremacy. Furthermore, with regard to drug enforcement, blacks comprise a mere 13% of drug users but are 74% of those incarcerated for drug offenses. Butler (1997) asserts that even though conscious discriminatory intent may not exist, the criminal justice system is presently administered in a racially discriminatory fashion (p. 49).
Michael Tonry (1994) avers that racial disparities in the US prison system have been increasing throughout the last third of the twentieth century (p. 89). Even though blacks comprise just 12% of the national population, the black percentage of prison admissions exceeds that of whites. In addition, the racial composition of the prison population has reached near parity between blacks and whites. Tonry (1994) compared racial incarceration rates in America to those in Australia, Canada, and England and Wales. He finds the ratio of black-to-white incarceration rates in England and Wales is 7.10:1, slightly higher than the United States’ ratio of 6.44:1. Numbers in Australia and Canada also reveal that these four countries handle visible minority groups no less differentially harshly than does the United States. Further, Kennedy (1994) condemns what he considers a widespread and larger-than-life perception that definition of criminality and the administration of law enforcement is pervaded with undesirable racial prejudice (p. 13). Since African Americans are much more likely than whites to be victims of violent crime, the greatest threat to their communities is not racist police officers, but violent—typically black—criminals. Critiques of racist law enforcement, according to Kennedy (1994), ignore the fact that blacks suffer from an ineffective amount of police protection (p. 16).
Whereas the frequent portrayal of government policies is that they unambiguously favor white interests over black interests, Kennedy believes that not enough attention is paid to the varied and conflicting ways in which policies affect black communities. Kennedy (1994) concludes that in the absence of findings of discriminatory purpose, legislatures, not the courts, are a more appropriate forum for confronting and remedying policies that have racially disparate consequences.
On another aspect of the issue, Davis (1998) espouses the argument that more than any other officials in the criminal justice system, prosecutors have the most immediate effect on racial disparities, and hence, should carry the most responsibility in resolving them (p. 128). Although, charges should determine the sentence, there are many conditions that result in different sentences for the same crime. These states of affairs create the disparities. Politics influence sentencing decisions. Elected officials are not accountable to the people involved in each case and they are resolving and issuing decisions in an effort to create a public image for themselves. Mandatory sentencing has moved the discretion in sentencing from the judge to the prosecutor. Without any prosecutor accountability, this only increases the potential for racism in sentencing. When the judge had the power to use his/her discretion, their decisions were made under public scrutiny. Davis asserts that the role of the prosecutor is not simply to imprison criminals but to also ensure that the overall administration of the criminal justice system is implemented with equity and fairness. It is interesting to note that no fixed standard on racial discrimination can me easily met and proved due to the fact that racial discrimination is much less obvious than it was in the past, and is often too subtle or unconscious to irrefutably prove.
The U.S. Department of Justice September 2000 report shows an over-representation of minorities in federal capital cases. It illustrates that “the proportion of minority defendants in federal capital cases exceeds the proportion of minority individuals in the general population” (U.S. Department of Justice, 2001). The government, nonetheless, was swift and keen on explaining that this fact cannot be accounted to racial or ethnic biases, but on the nature of the offenses falling under federal jurisdiction and the geographic disparity of such crimes. The Department’s additional study stated that federal enforcement is currently focused on drug trafficking, drug-related crimes and on criminal violence. This explains the number of federal capital crime minority arrests, since groups involved in drug-related cases are composed mostly of minorities.
Government data also shows that even if more Blacks and Hispanics get involved in potential capital cases, only a few of these indictments are approved as death penalty lawsuits, especially lesser than of the Whites. To prove further the absence of racial biases, the new death penalty protocol strengthens the provisions that ensure fair trial, and protects defendants’ identities against racial prejudices.
However, there are arguments that question the government’s claims of a bias-free federal death row. The American Civil Liberties Union (2001) brought into light the methodological errors of the study. They accused Attorney General Ashcroft for making rash conclusions out of a “fatally flawed” study. ACLU asserts that the Department of Justice study on capital case racial biases is unreliable for the following reasons. The study did not explain why U.S. Attorneys tries a case in the federal or state system. The data did not represent all “potentially eligible capital defendants,” it used deficient data that missing information, and Attorney General Ashcroft did not “provide the detailed underlying data it used to draw its conclusions. There is no way to understand if there are any national patterns requiring further analysis” (ACLU, 2001). Thus, ACLU presented several recommendations that include a new study to look into all potential federal capital cases in the U.S. using information in every federal district, and this study must be subjected to outsider reviews. They also prod that the congress must release a moratorium in federal executions so that there will be no death penalties bestowed until the result of the individual studies are released (ACLU, 2001).
Many of the studies, especially at the Federal level, found evidence of direct discrimination against minorities that resulted in significantly more severe sentences than their white counterparts. Pope and Feyerherm (1993) examined the role that minority status plays in the processing of youth at various stages (arrest, intake, detention, etc.) of the juvenile justice system. They discovered that there were relatively few program initiatives or policies in any jurisdictions specifically designed to reduce disproportionate representation and ensure equitable decision making (p.34).
They then propose two analytic models for local and state jurisdictions to collect and evaluate data that assesses how minority youth are being treated at all levels of the juvenile justice system. Pope and Feyerherm (1993) provide several guidelines to direct future research, including: disaggregate data as finely as possible, include multiple decision points in the processing system, employ multivariate models to detect indirect racial effects, attend to structural and community influences in both the officials’ and offenders’ environments, include family characteristics of the youth, and focus on rural and suburban as well as metropolitan areas (p.45). Spohn (2000), on the other hand, discusses how certain types of minority offenders are singled out for harsher treatment perhaps because they are perceived as being more dangerous (p. 67).
Blacks and Hispanics who are young, male, and unemployed are particularly more likely than their white counterparts to be sentenced to prison and in some places they also receive longer sentences or differential benefits from guideline departures. There is also evidence that minorities convicted of drug offenses, those with longer prior criminal records, those who victimize whites, and those who refuse to plead guilty or are unable to secure pretrial release are punished more severely than similarly situated whites (Spohn, 19994, p. 73). Spohn deduces that the sentencing reforms implemented since the 1970s have not achieved their goal of eradicating racial disparities and discrimination. It is clear, therefore that racial discrimination is not a thing of the past.
- American Civil Liberties Union (2001). Federal Death Row: Is it Really Color-Blind?
- Butler, Paul. (Fall 1997). “Affirmative Action: Diversity of Opinions.” University of Colorado Law Review. Vol. 68, No. 4.
- Commission on Racial and Ethnic Disparity. (2004). Annual Report and Recommendations 2003-2004. Retrieved February 17, 2006 from http://www.hartfordinfo.org/issues/documents/LegalIssues/RedReport.pdf
- Davis, Angela J. (1998) “Prosecution and Race: The Power and Privilege of Discretion.” Fordham Law Review. Vol. LXVII, No. 1.
- Kennedy, Randall. (April 1994) “The State, Criminal Law, and Racial Discrimination: A Comment.” Harvard Law Review. Vol. 107.
- Pope, Carl E. and William Feyerherm. (December 1993) “Research Summary: Minorities and the Juvenile Justice System.” U.S. Department of Justice, Office of Juvenile Justice and Delinquency Prevention.
- Spohn, Cassia C. (2000). “Thirty Years of Sentencing Reform: The Quest for a Racially Neutral Sentencing Process.” Criminal Justice 2000, Vol. 3. National Institute of Justice.
- Tonry, Michael. (1994). “Racial Disproportion in US Prisons.” British Journal of Criminology. Vol. 34, Special Issue.
- United States of America Department of Justice (2001). The Federal Death Penalty System.