TBT: Notes on Unequal Justice
20 Years Ago, I wrote About Inequality in the Justice System -- and It Hasn't Gone Away
Author’s Note: Throwback Thursday is an occasional feature in which I take a look at a past column and consider it from today’s vantage point. Today I look at a piece from 2003 on criminal justice.
The American criminal justice system has a race problem.
It’s not just that African Americans and Latinos tend to be overrepresented among victims of police violence. It’s that American policing targets minorities in its everyday interactions under the pretext of crime prevention.
This is not overt. Police are no more racist than the rest of society, and in most cases police departments are only responding to the directives of elected leaders, who are taking their cues from the press and a public that has been scared by often misleading coverage or grandstanding by politicians seeking to gain political leverage. There is a shared responsibility here, but that does not mitigate the real world effects, which include police violence against civilians, aggressive policing of minority neighborhoods (stop-and-frisk may be gone, but the underlying theories remain in play), and the continued use of versions of “broken-window policing,” all of which add up to a set of disparate racial outcomes that do little to truly affect what may be happening on the streets.
Take the efforts to rein in gun violence in Chicago, detailed by the Marshall Project last month. Police there use otherwise innocuous traffic stops and other seemingly benign interactions as “pretext(s) to search.” The searches might yield a number of things — drugs, guns, nothing. But the efforts, as Lakeidra Chavis and Geoff Hing write, have done little to stem gun violence because “gun enforcement overwhelmingly focuses on possession crimes — not use.”
A Marshall Project analysis found that from 2010 to 2022, the police made more than 38,000 arrests for illegal gun possession. These arrests — almost always a felony — doubled during this timeframe. While illegal possession is the most serious offense in most of the cases we analyzed, the charges often bear misleading names that imply violence, like “aggravated unlawful use of a weapon.”
Recent research shows that most people convicted in Illinois for felony gun possession don’t go on to commit a violent crime, and the majority of those sentenced to prison for gun possession don’t have past convictions for violence. Instead, people who already committed violent crimes are more likely to do so again.
The racial disparities in this enforcement are glaring. Although Black people comprise less than a third of the city’s population, they were more than 8 in 10 of those arrested for unlawful possession in the timeframe we reviewed. The number of Black people arrested could fill every seat at a Chicago Bulls game and then some; the majority are men in their 20s and 30s.
The consequences of these arrests are long-lasting. If convicted, people face a year or more in prison, depending on the charges. Even without time behind bars, those we interviewed faced damning criminal records, time on probation, job loss, legal fees and car impoundments.
This is reminiscent of stop-and-frisk efforts in New York, which were deemed both ineffective and ultimately unconstitutional. The New York Times in 2020, as part of its coverage of the Michael Bloomberg presidential run, considered the legacy of stop-and-frisk. It wrote that
Data suggests that the vast majority of street stops made by the police in New York at the height of stop-and-frisk weren’t particularly helpful in fighting crime: Few led to arrests or uncovered weapons. But research has found that a small subset of stops, those based on specific suspicions by officers and not general sweeps or racial profiling, do appear to have helped reduce crime.
The impact, the Times writes, was felt well beyond the criminal justice system and led to suppressed outcomes in school, behavioral problems and other issues.
I mentioned earlier that there is a historical element to all of this. James Baldwin wrote about this kind of policing in the 1960s. Martin Luther King made specific mention of it in his “I Have a Dream” speech. And scholars are making note.
From the Marshall Project piece:
“The police use these measures without engaging in any kinds of efforts to determine whether they work, and they've used them for decades and decades and decades,” says Aziz Huq, a law professor at the University of Chicago, who co-wrote a report on race and gun laws last year.
The researchers, attorneys and advocates cited by reporters
repeatedly compared the United States’ approach to gun violence to the war on drugs, a failed, decades-long endeavor to reduce drug use. Tough-on-crime policies and tactics like stop-and-frisk searches landed disproportionately on Black communities and sent incarceration rates soaring.
“All of this is really just flavors of the ‘war on crime.’ That’s the dynamic and that’s the danger here,” said Benjamin Levin, an associate law professor at the University of Colorado.
All of this just sounds way too familiar.
Here is my 2003 column from The Progressive Populist, in which you’ll hear echoes of the debates we are still having:
Unequal Justice
The American system of jurisprudence is supposed to be based on the lofty notion that someone accused of a crime is presumed innocent, that he will be tried by a jury of his peers and that the courts will do whatever is necessary to prevent the innocent from going to prison or to his death.
But that lofty notion rarely is translated into reality.
Selective enforcement and prosecution of the law have conspired to create a system in which justice is rare, especially for young black and Latino males.
The "war on drugs" has been a prime culprit, resulting in the mass imprisonment of African-Americans and other minorities on relatively minor drug charges. Despite representing just 12 percent of the US population and 13 percent of US drug users, African-Americans represent 70 percent of those imprisoned for drug offenses.
Add to this the problem of location: Bad things happen everywhere, but the laws are enforced more strictly in certain areas -- like large cities. Baltimore, for instance, is much more likely to face a police crackdown on the use of crack or other drugs than a middle class college campus, even though the level of drug abuse might be higher on campus. This leads to a greater proportion of African-Americans being picked up for drug use.
The racial disparity in arrest rates points this out. The National Criminal Justice Commission, a Washington advocacy group, found that almost one in three African-American men between the ages of 20 and 29 is under criminal justice supervision on any given day. In Baltimore, the figure is 56 percent; in Washington, D.C., it is 42 percent; and in a single year in Los Angeles, one-third spend time behind bars.
The NCJC acknowledges that crimes rates are higher in poor minority communities, but not high enough to explain the disparity, especially because rates of offending in middle-class minority communities are the same as the general population. Racial disparities are better explained, according to the NCJC, by varying enforcement practices, such as the targeted drug sweeps being employed in New York and other big cities.
And once they enter the system, money and race aggravate an already bad situation. For instance, blacks are three times more likely to be arrested, but seven times more likely to end up in jail. The NCJC says that as "minorities move through the system, they encounter slightly harsher treatment at every step. Marginal disparities at arrest are combined with marginal disparities at the bail decision, the charging decision, the verdict and the sentence -- by the end of the process, the disparity is considerable."
Among the reasons: African-Americans tend to be poorer and have to rely on overworked and often inexperienced public defenders (contrast this with the expensive defense teams that O.J. Simpson, Klaus Von Bulow and the Menendez brothers were able to hire). And the lack of urban job prospects and economic security make judges less likely to grant bail or to impose lighter sentences.
And it tends to start "a vicious cycle," the NCJC says. "A person arrested once is branded an ex-offender for life. The person is pointed to as an example of how many people in the neighborhood are bad, or how many are repeat offenders. Having a criminal record also makes it more difficult to find a job."
The bail issue, in particular, can have a devastating impact on the ultimate outcome of a defendant's case. Defendants cannot work and have limited access to drug treatment if they are locked up, meaning they can't point to those things during sentencing as positive steps, making it less likely that a judge will look upon them with favor. And because they are behind bars, they often settle for the first deal offered, and not necessarily for the best one they can get.
These problems strike at the heart of the way our criminal justice system functions, but they do not explain the general lack of faith in the system among all segments of society. For this, we can blame the way the media -- both on the nightly news shows and on television cop dramas like NYPD Blue and so-called reality shows like Cops -- has altered the way we look at the American landscape, making it appear more dangerous than it really is. Less than 2 percent of the 11 million arrests made annually are for violent crimes such as rape and murder, but the nightly news is filled with a smorgasbord of violence.
This disconnect has helped create a skeptical audience, one ready to support three-strikes laws, mandatory sentencing and a host of other tough-on-crime measures pushed by pandering politicians that end up incarcerating more and more minority youth. And just as important, this skepticism, especially when combined with racial and ethnic bias, infects the jury pool and the judiciary and makes it difficult, if not impossible, for young black men to get a fair trial, perpetuating the cycle.