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4Crime, Race, and Ethnicity

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Learning Outcomes After reading this chapter, you should be able to

• Explain the concepts of race and ethnicity as social constructs.

• Examine evidence about racial inequality and social class in relation to crime.

• Analyze evidence regarding racial inequality and social class in relation to rates of victimization and incarceration.

• Explain how the war on drugs contributes to racial discrimination in the criminal justice system.

• Critically analyze the connections between race and the death penalty.

• Examine empirical evidence on the issue of racial profiling.

• Examine empirical evidence on the issue of immigration and crime rates.

Section 4.1 Race and the Criminal Justice System

In April 2012 law enforcement in Oklahoma arrested one of the region’s foremost drug king- pins. In the home of the alleged drug kingpin, police seized 4 pounds of marijuana, $276,000 in cash, and two firearms: a revolver and a semiautomatic pistol. Police believe that the defen- dant is the “mastermind” (Perez, 2012) of a drug-dealing organization that supplied approxi- mately 40% of the marijuana markets in Oklahoma and three nearby states: Missouri, Kansas, and Arkansas. The suspect, drug kingpin Darlene Mayes, is a White grandmother with thin- ning silver hair who appears to be in her 60s or 70s. Thus, she has been dubbed the “Granny Drug Kingpin” (Perez, 2012).

Studies suggest that when asked to picture a drug dealer, overwhelmingly the American pub- lic visualizes a young man of color (Burston et al., 1995). However, evidence from this chapter will demonstrate that drug use and drug crime spans racial and ethnic groups and that all racial groups seem to commit drug crime in similar rates. Whether broaching issues of drug crime or any other type of crime, issues of perception, race, and criminality are central in the study of criminology.

4.1 Race and the Criminal Justice System While there are studies on both sides of the racial disparity and policing issue, it is difficult not to conclude that the American criminal justice system has a disproportionate and nega- tive impact on people of color that is often dramatic and pervasive. Research demonstrates that members of poor, disenfranchised groups receive harsher treatment in all phases of the criminal justice system: They are more likely to be stopped, investigated, arrested, charged, put on trial, found guilty, and sent to prison (Tonry, 2011).

The disproportionately high percentage of minorities in the system is cumulative. Police are more likely to arrest someone who has a prior record, and prosecutors are more likely to charge someone who has previously been arrested or spent time in jail. A judge is more likely to convict and incarcerate a defendant rather than offer probation to someone who has pre- viously spent time behind bars (Schnake et al., 2010). Thus, racial disparities in crime and incarceration rates are critically important in the study of contemporary criminology.

Race and Ethnicity Defined From the perspective of a social scientist, race and ethnicity are social constructs. As dis- cussed in Chapter 1, a social construct is an entity in society that is not fixed; rather, its mean- ing is continually defined and redefined by evolving norms and values in society. From this perspective, race refers to a group of individuals who are distinguished by some perceived common physical characteristics. These physical characteristics are often broad and overlap- ping but are also perceived as exclusive and distinct to the racial label. In contrast, ethnic- ity refers to a group of individuals who share common cultural beliefs, norms, values, and practices. These common cultural practices may include customs, family structure, religious practices, language, and traditions centered on food, music, and art.

Section 4.1 Race and the Criminal Justice System

Understanding race and ethnicity as social constructs acknowledges that individuals and groups of various origins change over time. Physical characteristics change when cultures combine by producing offspring, and cultures are assimilated as people move from country to country or even region to region within a nation. Similarly, social attitudes and perceptions about race and ethnicity change over time.

In his book The American Kaleidoscope, Lawrence Fuchs (1990) uses the metaphor of a kaleidoscope to vividly illustrate how racial and ethnic patterns in the United States evolve over time. Several popular metaphors and symbols have been used to repre- sent the relatively young and unique patterns of racial and ethnic assimila- tion and acculturation in America. Meta- phors such as melting pot or salad bowl suggest that different groups combine and mix in American society to form something unique while also retaining some of their original components.

The kaleidoscope metaphor suggests that the size and shape of different racial and ethnic groups evolve dynamically over time. The size, shape, and colors of different sections meld together and are reshaped, and new colors are formed. While a powerful metaphor, these symbols for racial and ethnic evolution in America likely ignore the history of conflict and oppression intertwined with issues of race and ethnicity. Moreover, these metaphors also seem to disregard that social-structural marginalization and stratification continue to connect with issues of race and ethnicity in contemporary America.

Race and Socioeconomic Status In the United States poverty disproportionately impacts people and communities of color. Similarly, people of color are overrepresented among the lower social classes (Bishaw, 2011). Areas of concentrated poverty—typically neighborhoods of mostly extremely poor people— are associated with higher crime rates, underperforming public schools, poor housing and health conditions, and fewer job opportunities (Bishaw, 2011). Data reported by the Kaiser Family Foundation (2020) found that in 2018, 24% of American Indians/Alaska Natives, 22% of Blacks, 19% of Hispanics, 15% of those identifying with multiple races, 11% of Asians/ Native Hawaiians and Pacific Islanders, and 9% of Whites were living in poverty in the United States. People of color are clearly overrepresented among those living in poverty, and they are also overrepresented among those impacted by the criminal justice system.

Spencer Platt/Staff/Getty Images News/Getty Images North America Metaphors like melting pot, salad bowl, or kaleidoscope are used to describe the diversity of Americans.

Section 4.1 Race and the Criminal Justice System

Using the Sociological Lens: Perceptions on Racial Disparities

Inherent in any discussion of race and social stratification in the United States is the disconnect between majority and minority views of how society functions. While Whites often acknowl- edge advantages based on race, there is often a lack of understanding of the pervasiveness of racial and cultural disadvantages for minorities. A 2019 Pew Research Center survey on American’s view of race found that the majority of White and Black adults believe that Black people are treated less fairly when it comes to policing and the criminal justice system (see Figure 4.1).

Despite this acknowledgment of disparity, unequal practices persist. For example, the same study found that a higher percentage of minorities reported being unfairly stopped by police versus White respondents (see Figure 4.2).

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Figure 4.1: Percentage of adults (by race) who think Black people are treated less fairly by police and the criminal justice system

From “Key Findings on Americans’ Views of Race in 2019,” by A. Brown, 2019, Pew Research Center (https://www.pewresearch.org/fact-tank/2019/04/09/key-findings-on-americans-views-of-race-in-2019).

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0% By the criminal justice systemIn dealing with the police

White Black

Section 4.1 Race and the Criminal Justice System

Using the Sociological Lens: Perceptions on Racial Disparities (continued)

The challenge for criminal justice professionals moving forward is to address disparities toward racial minorities not only in practice but also in perception in order to ensure equal justice for all.

Critical Thinking Questions 1. What are some ways law enforcement agencies can reduce negative public views about

their practices? 2. Who bears responsibility for negative impacts of police policy: legislators, police, the

media, or some other source?

Figure 4.2: Percentage of American adults (by race) reporting being unfairly stopped by police

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White Asian Hispanic Black

Section 4.2 Crime Rates and Race

4.2 Crime Rates and Race Research demonstrates that rates of crime perpetration and crime victimization do not affect all groups in society equally. In other words, crime tends to have a disproportionate impact on poor communities and communities of color. For example, Native American populations in the United States suffer from high levels of poverty and social-structural marginality. In part as a result, Native Americans as a group are nearly twice as likely to be victims of many types of violent crime compared to any other racial or ethnic group in the United States. Moreover, while there is limited data available to researchers, it seems likely that Native Americans also have comparatively high rates of criminal offending (Tibbetts, 2012). Criminologists have consistently found that most crime is intraracial; that is, people disproportionately commit crimes against people of their own race (see Figure 4.3).

Figure 4.3: Percentage of violent incidents, by victim and offender race and ethnicity, 2018

From “Criminal Victimization, 2018,” by R. E. Morgan and B. A. Oudekerk, 2019, Bureau of Justice Statistics (https://www.bjs.gov/content/pub/pdf/cv18.pdf ).

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0% White offender Black offender Hispanic offender Asian offender

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Race, socioeconomic status, and crime rates cluster among other racial and ethnic groups as well. Research suggests that along with Native Americans, African Americans tend to have higher rates of crime perpetration, especially for violent offenses. Whites and Asian Ameri- cans tend to commit lower rates of both property and violent crime (American Sociologi- cal Association, 2007). However, given the size of the White population in the United States, most people arrested in the United States are White. For example, in 2016, 69.6% of all people arrested nationwide were White, compared to 26.9% Black or African American and 2% American Indian or Alaska Native (FBI, 2017). It is important to note that rates of crime

Section 4.2 Crime Rates and Race

perpetration are often measured by arrests. As discussed in Chapter 1, arrest rates as a mea- sure of crime are reasonably accurate but also have a series of shortcomings and thus present an incomplete picture of the crime problem in America (Tibbetts, 2012).

Historically, members of racial and ethnic minority groups were overrepresented as victims of crime, but that trend is changing. In 2018 Whites had higher rates of violent crime victim- ization (24.7 per 1,000 people) than Blacks (20.4 per 1,000), Hispanics (18.6 per 1,000), and Asians (16.2 per 1,000) (Morgan & Oudekerk, 2019). Understanding the complex connections between poverty, race, and crime is important in order to devise effective public policy to prevent and control crime.

Incarceration Rates and Race People of color are overrepresented in the American correctional system. This section will examine racial differences in local jails and in state and federal prisons, based on the most recent data available from the Bureau of Justice Statistics. Those data will be combined with 2010 census data to calculate the corresponding incarceration rates for Whites, African Americans, and Hispanics in the United States.

People of color are incarcerated in jails across America at rates much higher than their White counterparts (see Table 4.1). According to a Bureau of Justice Statistics report (Zeng, 2019a), there were a total of 745,200 inmates in local jails in 2017. Of these inmates, Whites consti- tuted 49.7% (370,100 inmates), African Americans 33.6% (250,100 inmates), and Hispanics 14.5% (108,400 inmates). Compared to the representation of these groups in the general population, people of color are much more likely to be incarcerated in local jails.

Table 4.1: Jail incarceration rates, by race/Hispanic origin, 2005 and 2010–2017

Race/ origin 2005 2010 2011 2012 2013 2014 2015a 2016a 2017*

Whiteb 167 † 167 † 167 † 173 † 174 † 178 † 178 † 180 † 187

Blackb 803 † 745 † 721 † 709 † 668 † 667 † 640 633 616

Hispanic 263 † 235 † 219 † 212 † 199 † 200 † 184 196 † 185

American Indian/ Alaska Nativeb

339 426 410 401 437 443 378 379 366

Asianb 40 † 31 † 32 † 30 † 28 32 † 30 † 30 † 26

Otherb,c 34 26 † 26 † 34 33 24 † 36 40 39

Note. Number of confined inmates in local jails per 100,000 U.S. residents (for total) or per 100,000 U.S. residents of a given demographic group, at midyear. Data are based on the inmate population confined on the last weekday in June. Results may differ from previous reports in the series due to data updates from jails. * Comparison year. † Difference with comparison year is significant at the 95% confidence level. a In 2015 and 2016 the Annual Survey of Jails collected demographic data on inmate population at year-end instead of midyear. Jails typically hold fewer inmates at year-end than at midyear. In calculating midyear jail incarceration rates, the 2015 and 2016 inmate populations were adjusted for seasonal variation. b Excludes persons of Hispanic/Latino origin (e.g., White refers to non-Hispanic Whites and Black refers to non-Hispanic Blacks). c Includes Native Hawaiians, Other Pacific Islanders, and persons of two or more races. Source: Jail Inmates in 2017, by Z. Zeng, 2017, Bureau of Justice Statistics (https://www.bjs.gov/content/pub/pdf/ji17.pdf ).

Section 4.2 Crime Rates and Race

African Americans and Hispanic populations are also dramatically overrepresented in the American prison system. According to a Bureau of Justice Statistics report (Bronson & Carson, 2019), there were a total of 1,439,808 individuals under the jurisdiction of state or federal correctional authorities in the United States as of December 2017. These prisoners are serv- ing time in both government-run and private prison facilities and both juvenile and adult facilities, and they include both male and female inmates. In December 2017, Whites consti- tuted 436,500 inmates, or 30.3% of all prison inmates. In comparison, there were 475,900 Black inmates that made up 33.1% of all inmates. And Hispanics totaled 336,500 inmates, or 23.4% of all prison inmates. These overwhelming racial disparities in the prison system are even more dramatic when analyzed by rate.

The disproportionate impact of the correctional system on people of color is most apparent when data from jails and state and federal prisons are combined and then compared to repre- sentation in the general population. Incarceration rates can be calculated relying on the most recent available data from both the U.S. Census Bureau and the Bureau of Justice Statistics. The incarceration rate for Whites in America is considerably lower compared to people of color. In 2017, 806,600 individuals were identified as White incarcerated, including both jails and prisons. With an estimated 249,301,832 Whites in the general population of the United States, the incarceration rate for Whites was approximately 324 for every 100,000 (Bronson & Carson, 2019; U.S. Census Bureau, 2019; Zeng, 2019a).

Comparatively speaking, the incarceration rate for African Americans is strikingly high. As of 2017 there were 726,000 Black Americans incarcerated in jails and prisons in the United States. At that time there were an estimated 43,410,367 Blacks in the U.S. general popula- tion. Thus, the incarceration rate for Blacks in 2017 was approximately 1,672 per 100,000. Analyzing this data, Blacks are incarcerated at a rate that is more than 5 times that of Whites (Bronson & Carson, 2019; U.S. Census Bureau, 2019; Zeng, 2019a).

Hispanics also experience incarceration at very high rates. In 2017, there were an estimated 50,477,594 non-White Hispanics in the general American population. Combining both jails and prisons, there were 444,900 Hispanics incarcerated in the United States. Therefore, the incarceration rates for Hispanics in America was approximately 881 per 100,000 in the general population, nearly 3 times the rate of Whites (Bronson & Carson, 2019; U.S. Census Bureau, 2019; Zeng, 2019a).

Recent data shows that the number of Hispanics as a percentage of the prison population is increasing in relation to their percentage of the total U.S. population, while the gap in the per- centage of imprisoned Whites and Blacks is shrinking (see Figure 4.4).

Section 4.2 Crime Rates and Race

The incarceration data presented in the previous paragraphs is based on a cross-section anal- ysis, or a study designed to describe, compare, and contrast evidence gathered at a specific point in time. In contrast, a longitudinal analysis describes, compares, and contrasts evidence over a period of time. In general, longitudinal studies are considered a superior and more reli- able research method compared to cross-sectional evidence.

The longitudinal data about the disproportionate impact of incarceration on people of color presents an even more striking picture. According to an analysis by Marc Mauer and Ryan King (2007) of the Sentencing Project, if current incarceration trends continue, 1 out of every 3 African American boys born in 2008 in America will serve time in prison over the course of their lifetime, compared to 1 out of 17 White males. Similarly, 1 out of every 6 Hispanic baby boys born in 2008 in America is likely to serve time in prison over their lifetime. The incarceration of a substantial number of individuals, young men of color in particular, has a profound impact on neighborhoods and communities.

Figure 4.4: U.S. adult population and U.S. prison population by race and Hispanic origin, 2017

Note. Whites and Blacks include those who report being only one race and are non-Hispanic. Hispanics are of any race. Prison population is defined as inmates sentenced to more than 1 year in federal or state prison.

From “The Gap Between the Number of Blacks and Whites in Prison Is Shrinking,” by J. Gramlich, 2019, Pew Research Center (https://www.pewresearch.org/fact-tank/2019/04/30/shrinking-gap-between-number-of-blacks-and-whites-in-prison).

Share of U.S. adult population

Share of U.S. prison population

White 64%

White 30% Black 33%

Black 12%

Hispanic 23%

Hispanic 16%

Section 4.2 Crime Rates and Race

Incarceration’s impact on communities is cumulative (Lusane, 1991). Similarly, when prison- ers return to the community, this reentry process is concentrated within states, within zip codes, and within communities (Petersilia, 2009). Thus, incarceration has consequences for communities and regions, not just individuals. Since incarceration rates disproportionately impact individuals and communities of color, issues of family instability, reentry, employ- ment, and political representation also disproportionately impact communities of color (see Chapter 2).

The data on racial differences in incarceration rates raise a series of important issues in the study of crime and criminology. Many of the founding documents of the United States make profound and meaningful promises about due process, equality under the law, and equal pro- tection of the laws. As social scientists, it is critically important to study dynamics that may or may not contribute to the overrepresentation of the poor and people of color in the criminal justice system.

In the Field: Experts Weigh In on Race and Incarceration

Why is it important to examine the disproportion among races in the incarcerated population?

Erik Fritsvold

One of the cornerstone questions in all of criminology is why does our incarcerated population look so different from our general population? Clearly, jails and prisons in the United States over- represent men, people of color, and those of lower socioeconomic status. The research literature that examines explanations for this overrepresentation is complex. There is modest evidence to suggest that people of color are more likely to perpetrate certain types of crimes and to be crime victims in certain categories of crime. However, there is a legacy of literature that examines rea- sons why for the same criminal behavior, people of color are more likely to come to the attention of law enforcement and more likely to be punished harshly by the criminal justice system.

Potentially, one of the most important explanations within this discussion is spatial and geographic density. People of color are more likely to live in residentially crowded urban communities. In these communities, by definition, there is less private space. Thus, there is a more robust life taking place on the street and in other public spaces. Police are tasked with policing public spaces. Thus, residentially crowded communities have less privacy in general, and more behavior is on display for others in the community as well as law enforcement.

The second part of this discussion focuses more on overt discrimination. The criminological literature on racial profiling demonstrates that traffic stops, vehicle searches for contraband, and pretext stop and frisks (in New York City) are much more likely to target people of color. In addition, issues of poverty, bail, attorney representation, and resources more broadly play a role in this discussion as well.

Courtesy of Erik Fritsvold Erik Fritsvold, associate professor of sociology at the University of San Diego in San Diego, California.

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Section 4.2 Crime Rates and Race

Web Field Trip: Mass Incarceration Across the United States

Visit the website of the Sentencing Project, an institute dedicated to “research and advocacy for reform of the criminal justice system”: http://www.sentencingproject.org/map/map.cfm. Use the interactive map to view the corrections population and race and ethnicity disparity in your specific state.

Critical Thinking Questions 1. How does your state compare with neighboring states? 2. How does your state compare with the national average? 3. What is the state with the lowest racial disparity? 4. What is the state with the highest racial disparity?

Noah Fritz

The simple answer in a democracy and a constitutionally driven society is that it remains imperative to ensure fairness and justice. Given the reality of current incarceration rates, and the undisputed disparity on racial grounds, the criminal justice system and Ameri- can society at large must continue to question and reflect upon our institutional practices that generate these results. The com- parison between sentencing outcomes between powder and crack cocaine users is a primary example. Even if minority offenders have a greater propensity for street crime, as some would claim, it is imperative for criminology and jurisprudence to figure out why the CRJ [criminal justice system] discriminates—in a statistical sense, not necessarily in a political sense—against a major sector of our society. Developing social and educational programs that ensures equal opportunities and upward mobility is the corner- stone of our democracy. Any program or policy that systematically diminishes the American Dream should be greatly scrutinized.

What accounts for the high number of incarcerated Black men?

Jody Lewen

Innumerable, sometimes very subtle, cultural factors contribute to the high incarceration rate for Black men. For example, overpolicing Black men in particular can result in higher arrest rates, but even that comes from a societal bias that views Black men as particularly sinister. Studies have also demonstrated patterns of bias in the conviction and sentencing of Blacks as compared to others. (See the experiments of Dr. Jennifer Eberhardt on this topic.) In addition, the physical environment can also be a factor. For example, people who live in a more urban environment are more likely to be observed doing drugs than people in a suburban environment, where garages and backyards are plentiful enough to hide such activity. Finally, Black men grow up with disproportionately high rates of poverty, undereducation, and lack of employment opportunities, which make them more vulnerable to being drawn into crime to begin with.

Courtesy of Noah Fritz Noah Fritz, police analysis & administrative manager at the Tempe Police Department in Tempe, Arizona.

Courtesy of Jody Lewen Jody Lewen, executive director of the Prison University Project at San Quentin State Prison in California.

http://www.sentencingproject.org/map/map.cfm

Section 4.3 Race and the War on Drugs

Disproportionate Minority Contact In the modern era, law enforcement bodies are collecting and analyzing more systematic data about racial differences in the criminal justice system and attempting to create policies to address these disparities. One of the broadest initiatives began in 1988. Called dispropor- tionate minority contact (DMC), it was initiated by the Coalition for Juvenile Justice via the DOJ. DMC requires that “each State must address efforts to reduce the proportion of youth detained or confined in secure detention facilities . . . who are members of minority groups” (Coleman, n.d.).

The Office of Juvenile Justice and Delinquency Prevention (OJJDP) seeks to gather reliable data about DMC in order to craft proactive and multifaceted strategies. For example, its report from 2009, Reducing Disproportionate Minority Contact: Preparation at the Local Level, focuses on the importance of communicating accurate and empirically driven information about the crime problem to the American public. The major challenge here may be the inaccuracies fre- quently presented by the media. After analyzing 77 research studies on the issue, the report made the following determination:

Overall, the studies taken together indicate that depictions of crime in the media are not reflective of the rate of crime generally, the proportion of crime which is violent, the proportion of crime committed by people of color, or the proportion of crime committed by young people. (Soler & Garry, 2009, p. 2)

The DMC initiatives reflect some of the central goals of criminology. Both emphasize that politically neutral, reliable, empirical information is key to addressing a host of issues in the criminal justice system, including its disproportionate impact on people of color.

Consistent with these findings, a report for the OJJDP notes that overall, juvenile arrests have been declining for more than a decade (Puzzanchera, 2019). In fact, in 2017 U.S. law enforce- ment agencies arrested around 809,700 persons younger than age 18, the lowest number since at least 1980—and 70% below a peak of nearly 2.7 million in 1996.

4.3 Race and the War on Drugs In 1972 President Richard Nixon declared a “war on drugs” with significant and long- standing consequences for the American criminal justice system. This metaphor indicated that drug policy in America would be first and foremost a law enforcement and criminal justice system issue, and secondarily an issue of public health. Under a larger “tough on crime” political platform, the Nixon administration’s punitive approach to drugs set a prec- edent that was largely continued by subsequent administrations of both political parties (Mohamed & Fritsvold, 2010).

The war on drugs reshaped the American correctional system. Since the inception of the war on drugs, the number of drug offenders in America’s jails and prisons has increased more than 1,000% (Fellner, 2000). In the early 1980s, jails and prisons in the United States were just beginning to experience an influx of drug offenders. In 1980 drug offenders constituted approximately 6.5% of all prison inmates in the state system and 25% of all prison inmates

Section 4.3 Race and the War on Drugs

in the federal system (Fellner, 2000; Mohamed & Fritsvold, 2010). In comparison, in 2016 drug offenders constituted 13.9% of all state prison inmates and 58.2% of federal inmates (Bronson & Carson, 2019). These data clearly demonstrate the increase in the proportion of drug offenders in the criminal justice system produced by changes in drug policy. However, the impact of these policies on incarceration may be more apparent when examining changes in the number of individual offenders incarcerated for drug crime. In 1980, 581,000 people were arrested for drug crimes, and by 2018 the number had almost tripled to 1,654,282 peo- ple (FBI, 2019). In 1980 about 41,000 people were in prison or jail for drug crimes, and by 2017 that number neared 453,000 (Sentencing Project, 2019a).

According to experts, this dramatic increase in incarceration was the result of the war on drugs and related punitive drug policies and not driven by an increase in rates of drug use or a dramatic increase in drug crime (Fellner, 2000). Moreover, criminologists frequently criticize America’s drug policies for their disproportionate impact on people of color.

Since the declaration of the war on drugs in the early 1970s, a significant percentage of our country’s law enforcement resources are dedicated to drug offenders. For example, in 2018, 1,654,282 people were arrested for nonviolent drug offences in the United States (FBI, 2019). Of these arrests, 86.4% were for drug possession offenses, while 13.6% were for the sale or manufacturing of illegal drugs (FBI, 2019). These 1,654,282 arrests constitute more people than those who live in each of 12 of our 50 states, including New Hampshire, Rhode Island, Idaho, Montana, Vermont, and Wyoming.

Discrimination and American Drug Policy In 2007 Ron Paul was contending to become the Republican nominee for president. In a presi- dential debate sponsored by PBS, Paul presented evidence about the discriminatory impacts of American drug policy:

For instance, [B]lacks make up 14% of those who use drugs. Yet 36% of those arrested are [B]lacks. And it ends up that 63% of those who finally end up in prison are [B]lacks. This has to change. We don’t have to have more courts and more prisons. We need to repeal the whole war on drugs. It isn’t working. (as cited in Mohamed & Fritsvold, 2010, p. 4)

Punitive drug policies have not affected all groups equally. When examining the overrepre- sentation of racial minorities in the criminal justice system, evidence suggests—as noted by Paul—that intentional and unintentional discriminatory drug policy is of paramount impor- tance. Research consistently shows that African Americans and Whites seem to use illegal drugs at very similar rates (Mauer, 2011). However, Blacks and Hispanics make up roughly 51% of drug offenders in state prisons (Bronson & Carson, 2019). It seems that despite simi- lar levels of criminality, people of color are far more likely to be arrested and eventually incar- cerated for drug crime.

In 2007 researchers Phillip Beatty, Amanda Petteruti, and Jason Ziedenberg analyzed Bureau of Justice Statistics data from 2003 concerning racial disparities and the war on drugs. These researchers were working on behalf of the Justice Policy Institute, a nonprofit think tank that advocates for progressive, justice-based reforms in the criminal justice system. Their report, The Vortex: The Concentrated Racial Impact of Drug Imprisonment and Characteristics

Section 4.3 Race and the War on Drugs

of Punitive Counties, makes a compelling case that drug policies discriminate against tradi- tionally marginalized groups. They write,

African Americans are disproportionately incarcerated for drug offenses in the US, though they use and sell drugs at similar rates to Whites. As of 2003, twice as many African Americans as whites were incarcerated for drug offenses in state prisons in the US. African Americans make up 13% of the total US popu- lation, but accounted for 53% of sentenced drug offenders in state prisons in 2003. (Beatty et al., 2007, p. 2)

Michael Tonry is a renowned criminologist and sentencing policy expert who further sup- ports the contention that the war on drugs discriminates against racial minorities. Tonry is currently serving as the director of the Institute on Crime and Public Policy at the University of Minnesota and has wide-ranging experience in law and public policy. Tonry argues that for many types of crime, the racial disparities in incarceration are a result of racial disparities in crime rates. However, Tonry argues that America’s drug policies in practice do actively dis- criminate by race. “Drug law enforcement is the conspicuous exception. Blacks are arrested and confined in numbers grossly out of line with their use or sale of drugs” (Tonry, 1996, p. 49).

The disproportionate impact of drug arrests and incarceration on minority populations is exacerbated by recidivism rates. Drug offenders have higher recidivism rates compared to those who commit most other types of crime (Mohamed & Fritsvold, 2010). Thus, drug offenders are particularly likely to be incarcerated multiple times and are often frequently “churning” in and out of the correctional system (Petersilia, 2009). Over time, the cumulative effect of the racial disparities associated with the war on drugs, and the related challenges of reentry, will have an even more significant impact on individuals and communities of color.

There seems to be compelling evidence from politicians, policy advocates, and respected scholars that the war on drugs does discriminate by race and that the overrepresentation of people of color in the criminal justice system can in part be explained by drug policies that intentionally or unintentionally result in a disproportionate impact on racial minorities. Racial discrimination may be particularly apparent when examining case studies of certain drugs: crack cocaine and marijuana.

Crack Versus Powder Cocaine As suggested by U.S. District Court judge Clyde S. Cahill, punitive crack cocaine laws—and their disproportionate impact on racial and ethnic minorities—have been particularly con- troversial in the contemporary criminal justice system:

This one provision, the crack statute, has been directly responsible for incar- cerating nearly an entire generation of young black American men for very long periods. It has created a situation that reeks with inhumanity and injus- tice. The scales of justice have been turned topsy-turvy so that those master- minds, the kingpins of drug trafficking, escape detection while those whose role is minimal, even trivial, are hoisted on the spears of an enraged elector- ate and at the pinnacle of their youth are imprisoned for years while those responsible for the evil of the day remain free. (as cited in Inciardi et al., 2007, p. 252)

Section 4.3 Race and the War on Drugs

Crack cocaine is a relatively recent and particularly harmful version of the illegal drug cocaine. The powder form of cocaine has been in existence since the mid-1800s. Powder cocaine had a brief period of widespread use in everyday products in the late 1800s and early 1900s, including hay fever remedies and Coca-Cola soft drinks (Musto, 1999). Crack cocaine is pow- der cocaine mixed with baking soda and water and cooked over a stove or in a microwave. It can be smoked by the user. Due to its method of ingestion, crack delivers a more potent and more short-lived high compared to powder cocaine. Moreover, crack can be sold in much less expensive individual doses because it requires less cocaine per use compared to the powder form. While the origins of crack cocaine are not entirely clear, its use became popular in some American cities in the mid- to late 1980s (Reinarman & Levine, 1997).

The dangers of crack cocaine and its asso- ciation with people of color were likely exaggerated by the American news media in the late 1980s and into the early 1990s. Vivid articles and television features pre- sented crack cocaine in America’s cities as an “epidemic,” “plague,” or “national crisis.” Crack was overwhelmingly associated with users and dealers who were from tradition- ally marginalized groups, often poor men of color. Research suggests that while most crack users are White, crack is dispropor- tionately used by members of racial minority groups (Inciardi et al., 2007). Moreover, the advent of crack cocaine did likely increase the volatility and attendant violence of the

underground market for drugs, but at the height of crack use in the late 1980s, approximately 96% of Americans had never tried crack cocaine (Reinarman & Levine, 1997). It seems that crack use was most visible among some marginalized individuals in some American cities. But there is no reliable evidence that crack use was an epidemic (Reinarman & Levine, 1997; Berger et al., 2009).

In the late 1980s the Reagan administration signed a series of extremely punitive laws against illegal drugs, and crack cocaine in particular. The 1986 and 1988 Anti-Drug Abuse Acts cre- ated a series of mandatory minimum penalties for illegal drugs at the federal level. Manda- tory minimum sentences restrict discretion in the judicial process by specifying the term of incarceration to be served based on the type and amount of drug possessed by the accused. Powder and crack cocaine are different versions of the same drug, but they were treated very differently by this legislation.

The Anti-Drug Abuse Act created a 100:1 ratio for penalties for crack versus powder cocaine. The mandatory minimum sentencing scheme specified that a defendant found guilty of pos- sessing 5 grams of crack cocaine would trigger a mandatory 5-year prison term. Five grams of crack cocaine constitutes 10 to 50 individual doses of the drug and has an approximate street value of $125 to $750. In dramatic contrast, 500 grams of powder cocaine was required to trigger the same 5-year federal mandatory minimum sentence. Five hundred grams of pow- der cocaine likely constitutes 2,500 to 5,000 individual doses of the drug and has an esti- mated street value of $32,500 to $50,000 (Berger et al., 2009; Inciardi et al., 2007; Reinarman & Levine, 1997).

Courtesy Everett Collection During the 1980s crack cocaine use was presented as an epidemic largely associated with poor men of color.

Section 4.3 Race and the War on Drugs

Mandatory minimum sentences for crack cocaine have disproportionately impacted the most visible and marginalized users of the drug, who are often young urban men of color. Throughout the 1990s and early 2000s, Blacks accounted for approximately 80% of all crack arrests (Mauer, 2011). The evidence is quite strong that crack cocaine laws have contributed to the overrepresentation of members of racial minority groups in the criminal justice system (Berger et al., 2009; Inciardi et al., 2007; Reinarman & Levine, 1997).

The case of Derrick Curry demonstrates the punitiveness of the federal mandatory mini- mum sentencing laws on crack cocaine. This case is presented in a 2007 article titled “African Americans, Crack, and the Federal Sentencing Guidelines” by James Inciardi, Hilary Surratt, and Steven Kurtz. In the early 1990s Curry, an African American 20-year-old college student in Washington, DC, was studying criminal justice. He was also involved in the distribution of crack cocaine but seemed to be “no more than a low-level drug courier” (Inciardi et al., 2007, p. 253). Curry was caught with over 1 pound of crack cocaine in his automobile after a larger network of dealers had been under the surveillance of both the FBI and the Drug Enforce- ment Administration (DEA). Curry was eventually sentenced to a prison term of 19 years and 7 months without the possibility of parole. The authors argue:

Derrick Curry’s sentence, by almost any available standard, is incomprehen- sibly severe. It is nearly three times the prison sentence served by most mur- derers in the United States; it is four times the prison sentence served by most kidnappers; it is five times the prison sentence served by most rapists; and it is ten times the prison sentence served by those who illegally possess guns. (Inciardi et al., 2007, p. 253)

After more than 25 years in existence, new legislation in 2010 altered the mandatory mini- mum sentence schema for crack cocaine. In December 2010 President Barack Obama signed the Fair Sentencing Act into law. Under the Fair Sentencing Act the 500 grams of powder cocaine necessary to trigger a 5-year mandatory minimum prison term remains unchanged. However, the new legislation prescribes that 28 grams of crack cocaine are now required to trigger the mandatory 5-year prison sentence. This replaces the old 100:1 quantity ratio of powder to crack cocaine with an 18:1 ratio. Amendments to the act in 2011 made applica- tion of the legislation retroactive, meaning that offenders who had been sentenced under the 100:1 ratio could have their sentences reduced to be in line with the new 18:1 ratio. As of December 2014, 6,880 previously sentenced crack cocaine offenders had received reduced sentences (U.S. Sentencing Commission, 2015).

Crack cocaine laws have a particularly controversial place in the history of the American crim- inal justice system. Some critics contend that the disproportionate impact of these laws on people of color, and possibly the war on drugs more generally, was quite foreseeable (Tonry, 1996). Regardless, the evidence suggests quite strongly that members of traditionally mar- ginalized groups, African American males in particular, were disproportionately impacted by the harsh penalties for crack cocaine. This issue of racial discrimination—more specifi- cally, similar criminal behavior resulting in much different consequences for different racial groups—is also evident in the Case Study feature on marijuana arrests in California.

Section 4.3 Race and the War on Drugs

Case Study: Historical Marijuana Possession Arrests in California

Previous chapters discussed how criminal law ebbs and flows with changes in social norms and attitudes over time. One example of this can be seen in what was the racial disparity in dealing with marijuana violations in the state of California. California legalized marijuana usage for adults starting in 2018, but a historical review of the impacts of disparity in enforce- ment and sentencing are instructive.

In 2010 the Drug Policy Alliance and California National Association for the Advancement of Colored People (NAACP) published two studies that marshaled compelling evidence about racial discrimination in marijuana arrests in California. Harry Levine, a drug policy expert and professor of sociology at Queens College, City University of New York; Jon Gettman, a professor of criminal justice at Shenandoah University; and Loren Siegel, an attorney for LS Consulting in Brooklyn, New York, conducted the research. The researchers examined marijuana use data by race and Uniform Crime Report arrest data for marijuana by race (Levine et al., 2010a, 2010b).

The evidence presented in the study demonstrates that across age groups, young Whites use marijuana at higher rates compared to both young Latinos and Blacks. The report relied on drug use data provided by the U.S. Department of Health and Human Services and SAMHSA. Marijuana use data was available for 18- to 25-year-olds from 2002 to 2007 (see Figure 4.5). These data compared respective marijuana use rates in the past month, in the past year, and over the lifetime for Whites, Blacks, and Latinos. For every year from 2002 to 2007, 18- to 25-year-old Whites had consistently higher rates of marijuana use than both Blacks and Lati- nos across all categories. The study reports similar findings for younger age groups as well (Levine et al., 2010a, 2010b).

(continued on next page)

Figure 4.5: Marijuana use by Whites, Blacks, and Latinos ages 18 to 25, 2002–2007

For 18- to 25-year-olds, across all years in the study and across all frequencies of marijuana use measured, Whites used marijuana more frequently than did Blacks and Latinos.

Based on data from the U.S. Department of Health and Human Services, SAMHSA, Office of Applied Studies, National Survey on Drug Use and Health, 2002–2007.

02-03 04-05 06 07 02-03 04-05 06 07 02-03 04-05 06 07

Used marijuana in the past month

Used marijuana in the past yearEver used marijuana

60%

50%

40%

30%

20%

10%

White Black Hispanic

Section 4.3 Race and the War on Drugs

Case Study: Historical Marijuana Possession Arrests in California (continued)

Marijuana use data was also available for 12- to 17-year-olds from 2004 to 2007 (see Fig- ure 4.6). These data also compared respective marijuana use rates between Whites, Blacks, and Latinos; however, data was only available for marijuana use in the past year and in the past month. In the 12–17 age cohort and across both use categories presented, Whites had con- sistently higher rates of marijuana use than did their Black and Latino counterparts. It seems that in the early-2000s, young Whites were consistently committing the crime of marijuana possession at higher rates than young Blacks and Latinos, a pattern that seemingly should be reflected in arrest rates (Levine et al., 2010a, 2010b).

Despite higher rates of marijuana use and thus possession by Whites, Blacks were significantly more likely to be arrested for marijuana possession in California in the early-2000s. To be able to make meaningful comparisons between racial groups with significantly different popula- tions, arrest data was presented as a rate: number of arrests in a racial group per 100,000 members of that racial group in the general population of a given city. From 2006 to 2008, data from all 25 cities in the report showed that, despite lower rates of marijuana use, Blacks were arrested at much higher rates compared to Whites. Overall, Blacks were arrested at a rate that was 4 to 12 times higher than the rate for Whites. In Los Angeles, California’s largest city and home to 10% of Californians, Blacks were arrested at 7 times the rate of Whites for mari- juana possession. In San Diego, California’s second most populous city, Blacks were arrested at 6 times the rate of their White counterparts for marijuana possession (Levine et al., 2010a).

(continued on next page)

Figure 4.6: Marijuana use by Whites, Blacks, and Latinos ages 12 to 17, 2004–2007

For 12- to 17-year-olds, across all years in the study and across all frequencies of marijuana use measured, Whites used marijuana more frequently than did Blacks and Latinos.

Based on data from the U.S. Department of Health and Human Services, SAMHSA, Office of Applied Studies, National Survey on Drug Use and Health, 2002–2007.

Whites Blacks Latinos

2004–05 2006 2007 2004–05 2006 2007

Used marijuana in past year Used marijuana in past month

25%

20%

15%

10%

Section 4.3 Race and the War on Drugs

Case Study: Historical Marijuana Possession Arrests in California (continued)

These racially discriminatory outcomes in marijuana arrests were also evident when compar- ing Whites and Latinos (see Figure 4.7). Again, Whites show higher rates of marijuana use compared to Latinos and thus commit the crime of marijuana possession at higher rates. The researchers again controlled for the different populations of Latinos and Whites in California cities by presenting data as arrest rates. In all 15 cities presented in the report, Latinos were significantly more likely to be arrested for marijuana possession compared to Whites. Overall, Latinos were 1.3 to 2.3 times more likely to be arrested for marijuana possession than were Whites, despite committing the crime less frequently (Levine et al., 2010b).

(continued on next page)

Figure 4.7: Fifteen cities in 12 California counties: White and Latino rates of marijuana possession arrests, 2006–2008

From 2006 to 2008, in all 15 cities presented in the report, Latinos were 1.3 to 2.3 times more likely to be arrested for marijuana possession compared to Whites.

Based on data from Arresting Blacks for Marijuana in California: Possession Arrests in 25 Cities, 2006–2008, by H. Levine, J. Gettman, and S. Siegel, 2010, Drug Policy Alliance and California NAACP.

Chino, San Bernadino Co

Santa Barbara, S Barbar Co

El Centro, Imperial Co

Upland, San Bernadino Co

San Jose, Santa Clara Co

Fremont, Alameda Co

Escondido, San Diego Co

Oxnard, Ventura Co

San Diego, San Diego Co

Fresno, Fresno Co

Corona, Riverside Co

Visalia, Tulare Co

Salinas, Monterey Co

Modesto, Stanilaus Co

Bakersfield, Kern Co

0 50 100 150 200 250 300 350 400 450 500 550 600

White marijuana possession arrest rate, per 100,000 Whites

Latino marijuana possession arrest rate, per 100,000 Latinos

Section 4.3 Race and the War on Drugs

In sum, the war on drugs has had a disproportionate impact on people of color and contrib- uted significantly to the overrepresentation of members of minority groups in the criminal justice system. The evidence suggests that traditionally marginalized groups tend to commit drug crimes at similar rates compared to Whites. However, as demonstrated in the cases of crack cocaine and marijuana possession, people of color tend to be punished more fre- quently and more harshly. The punitive federal mandatory minimum sentencing scheme for crack cocaine makes the inequitable impact on people and communities of color that much more significant. In part because of racial and ethnic inequality, the war on drugs and its attendant punitive drug legislation remains very controversial in the contemporary criminal justice system.

Case Study: Historical Marijuana Possession Arrests in California (continued)

This report presents fairly compelling evidence of widespread racially discriminatory out- comes in marijuana arrests. When reflecting on the evidence, it is important to consider the complex relationships between social class, race, crime, and punishment in the United States. Issues of visibility, residential crowding, and law enforcement resource allocation decisions played a significant role in the disproportionate impact of marijuana arrests on minority group members in California. Social class–based dynamics, like the ability to post bail and to hire a private attorney, may have played a role in these racially discriminatory outcomes as well. Examining these complex relationships, the authors conclude that these racially biased outcomes are not necessarily the product of explicit racist motivations by individual law enforcement officers. Instead, the authors contend that these biased outcomes are a struc- tural, “system-wide phenomenon” or “racism without racists” (Levine et al., 2010b, p. 13).

We do not think the arrests are mostly a result of personal bias or racism on the part of individual patrol officers and their immediate supervisors. Rather, this is a system- wide phenomenon occurring in cities and counties throughout California.

Police departments deploy most patrol and narcotics police to certain neighborhoods, usually designated “high crime.” These are disproportionately low-income, and dis- proportionately Latino and African American. It is in these neighborhoods where the police make most patrols, and where they stop and search the most vehicles and indi- viduals, looking for “contraband” of any type in order to make an arrest. The item that people in any neighborhood are most likely to possess, which can get them arrested, is a small amount of marijuana. In short, the arrests are ethnically and racially biased mainly because the police are systematically “fishing” for arrests in only some neigh- borhoods, and methodically searching only some “fish.” This produces what has been termed “racism without racists.” (Levine et al., 2010b, p. 13)

Critical Thinking Questions 1. Police officers are empowered with discretion in handling situations on the street. How

can police agencies ensure that officers exercise discretion in racially neutral ways? 2. Higher arrests in Latino and African American neighborhoods are often justified as a

law enforcement strategy because “that is where the crime is.” Are such saturation poli- cies for lower income (and often majority minority) neighborhoods ethical?

Section 4.4 Disparity Versus Discrimination: Select Issues of Race and Social Class

4.4 Disparity Versus Discrimination: Select Issues of Race and Social Class Chapter 3 contained a depth-oriented examination of crime and social class. The evidence presented suggested that in some modest ways, those of lower socioeconomic status may be more likely to commit certain types of crime. However, the bulk of the evidence suggests that a series of dynamics make the poor more likely to be caught and punished—often severely— by the criminal justice system. Since people of color experience poverty and marginalization at higher rates than do Whites, the class-based disadvantages built into the criminal justice system are likely particularly acute for people of color. Thus, people of color are more likely to live in more visible, residentially crowded communities, to be unable to post bail, to be repre- sented by a public defender, and to take less advantageous plea bargains.

However, a series of dynamics suggests that the criminal justice system discriminates against racial minority groups, sometimes independent of social class. It is far beyond the scope of a single textbook chapter to archive and analyze the historic evolution of racial and ethnic dynamics in America. However, many criminologists link the disproportionate impact of the criminal justice system to the legacy of slavery, Jim Crow laws, segregation, and labor exploi- tation woven into the fabric of America (Shelden, 2010). The following sections will analyze a series of criminal justice system policies and dynamics that seem to disproportionately and discriminately impact people of color.

The Death Penalty As touched on in Chapter 2, the death penalty is another area of criminal justice policy in which there is significant evidence of racial discrimination. Issues of racial inequality have contributed to a series of constitutional challenges to capital punishment statutes over time, including the due process clause of the Fifth Amendment, the equal protection clause of the 5th and 14th Amendments, and the 8th Amendment’s prohibition of cruel and unusual pun- ishment. Within this dynamic history, potentially the moment when issues of racial discrimi- nation and the death penalty were most prominent was the 1987 U.S. Supreme Court case McCleskey v. Kemp.

Web Field Trip: Drug Policy and the Disproportionate Impact on People of Color

Watch the presentation from Ethan Nadelmann, the founder and executive director of the Drug Policy Alliance, in which Nadelmann discusses the evolution of drug policy in America and its long-standing disproportionate impact on people of color: http://www.youtube.com /watch?v=iifGYnffrBI.

Critical Thinking Questions 1. What policies should we consider to make drug policy more equitable? 2. Why should society be concerned about the disproportionate impact of drug policy on

people of color?

http://www.youtube.com/watch?v=iifGYnffrBI

Section 4.4 Disparity Versus Discrimination: Select Issues of Race and Social Class

Warren McCleskey, an African American man, was convicted of the 1978 murder of a White police officer and eventually sentenced to death. The murder took place during the armed rob- bery of a furniture store in Fulton County, Georgia. McCleskey appealed his case, claiming that racial discrimination in the state of Georgia’s death penalty system violated the 14th Amend- ment’s equal protection clause. In addition, McCleskey argued that the 8th Amendment implies proportionately between the severity of the criminal offense and the severity of the punishment. If the death penalty did discriminate by race, and some offenders were advan- taged or disadvantaged in the Georgia criminal justice system, it could undermine this pro- portionality standard. In 1987 the case appeared before the U.S. Supreme Court (Berger et al., 2009; Linder, 2012).

McCleskey v. Kemp presented evidence to the court of systemic racial discrimination in the Georgia death penalty system. The case hinged on what became known as the Baldus study, a statistical analysis of racial discrimination in the Georgia capital punishment process con- ducted by law professors David Baldus, Charles Pulaski, and George Woodworth. The study examined more than 2,000 murder cases that appeared in Georgia criminal courts through- out the 1970s. The Baldus study presented evidence of “victim-based” discrimination in capi- tal cases in which African American murderers who were convicted of killing White victims were significantly more likely to be sentenced to death, compared to different racial combina- tions of both offenders and victims. More specifically, the Baldus study showed that murder cases with White victims were 4.3 times more likely to result in a death sentence compared to cases in which the murder victim was Black, even after statistically controlling for 39 other variables (Baldus et al., 1983; Berger et al., 2009; Linder, 2012).

The evidence of racial bias in the Georgia capital system presented in McCleskey v. Kemp was compelling. However, the U.S. Supreme Court, in a 5–4 decision, ruled that there was insufficient evidence that racial discrimination played a significant role in McCleskey’s case specifically, or in any particular individual case in the state. Thus, the Supreme Court ruled that McCleskey’s 8th and 14th Amendment rights were not violated. Warren McCleskey was executed in September 1991 by electrocution in Jackson, Georgia (Baldus et al., 1983; Berger et al., 2009; Linder, 2012).

Racial Profiling Racial profiling is a “practice [that] entails police targeting of particular groups for more intrusive law enforcement because of their race, ethnicity, or national origin” (Berger et al., 2009, p. 418). Beginning in the early 1990s, a series of high-profile lawsuits and attention from the ACLU corresponded with scholars increasingly studying the issue of racial profiling.

A series of research studies has focused on motor vehicle stops by law enforcement. Studies from Maryland and New Jersey in the early and mid-1990s demonstrated that motorists of color were much more likely than Whites to be pulled over and much more likely to have their vehicles searched by police, despite not being more likely to be speeding or otherwise violating traffic laws (Berger et al., 2009; Russell, 2003). A more recent study shows that although Black residents in Ferguson, Missouri, make up two thirds of the population, they accounted for 85% of all traffic stops, 90% of all tickets, and 93% of all arrests in the city (Andrews, 2016).

Section 4.4 Disparity Versus Discrimination: Select Issues of Race and Social Class

Some policy makers and members of law enforce- ment argue that profiling in general, and sometimes racial profiling specifically, is a practical and effec- tive law enforcement strategy. However, the empirical evidence does not support this claim. David Harris, a professor of law and endowed chair at the University of Pittsburgh School of Law, has studied and written about racial profiling extensively. In a 2003 study, he calculated law enforcement “hit rates,” or the percent- age of motor vehicle stops that result in contraband being found by the officer or of any other criminal offense being uncovered in the course of the traffic stop. According to Harris, when examining existing research studies that provide the data necessary to cal- culate a hit rate, law enforcement hit rates are higher for Whites compared to both African Americans and Hispanics. This research strongly suggests that racial profiling is a counterproductive law enforcement strategy as well as a controversial one (Berger et al., 2009; Harris, 2003).

However, some experts contend that racial profiling is not a widespread law enforcement practice. For example, in “Race and the Administration of Criminal Justice in the United States,” Randall Kennedy (2011) describes the varying definitions of racial profiling used in the research and emphasizes that “ferreting out this information when police deny that they are engaging in racial profiling (however defined) is a difficult, contentious endeavor” (p. 243).

Kennedy illustrates these complexities by examining a 2006 study of racial profiling in New York City. This study demonstrated that of all law enforcement stops of pedestrians in New York City in 2006, 55% of those stopped were Black. Thus, Black pedestrians were stopped by police at a rate “twice the representation of Blacks in the local population” (Kennedy, 2011, p. 244). However, a more nuanced examination of the evidence suggested that it may be the descriptions of crime suspects, not explicit racial profiling, that was the heart of the issue. The study shows that in 2006, citizens and crime victims in New York City frequently reported descriptions of crime suspects that were African American. If the percentage of crime sus- pect descriptions that were African American were compared to the percentage of pedestrian stops of African Americans, “Black pedestrians were stopped at a rate that was 20 to 30 per- cent lower than their representation in crime suspect descriptions” (Kennedy, 2011, p. 244).

The issue of racial profiling will continue to be of critical importance in the field of criminol- ogy and for criminal justice policy. It seems that a significant number of studies can identify and demonstrate the existence and counterproductive nature of racial profiling. However, other studies demonstrate that factors other than race may be central.

Hill Street Studios/DigitalVision/Getty Images Claims that racial profiling is responsible for the number of minorities in prison are widely debated.

Section 4.4 Disparity Versus Discrimination: Select Issues of Race and Social Class

Felony Disenfranchisement Racial disparities in the criminal justice system have cumulative consequences, including restrictions on voting rights. Every state has laws governing the voting rights of people who are incarcerated as well as people who have been released after serving their sentences. Given the growth of the criminal justice system, these laws impact a great number of people. As of 2016 about 6.1 million Americans experienced felony disenfranchisement (Sentencing Proj- ect, 2019b). Felony disenfranchisement is the temporary or permanent restriction of voting rights for individuals with felony convictions. The disproportionate incarceration of African American men is reflected in the number of people who are unable to vote—2.2 million Black adults were disenfranchised in 2016 (Sentencing Project, 2019b).

According to a 2018 public opinion survey, 63% of Americans support returning voting rights to people who have completed their sentences, and about 38% support voting rights for people on probation or parole (Huffington Post, 2018). However, in 11 states, people who have completed their sentences may still lose their right to vote for life (see Figure 4.8).

In recent years many states have changed their laws to allow more people with prior convic- tions to vote. From 1997 to 2018, about 1.4 million people regained the right to vote as a result of reforms fueled by increased public attention to the issue of disenfranchisement and growing awareness of the potential impact on election results (Sentencing Project, 2018). States including Florida and Alabama simplified the process of applying for clemency. Seven states, including Delaware, Maryland, Nebraska, and New Mexico, repealed or amended their policies of lifetime disenfranchisement. California and Connecticut now permit people on probation to vote, and Louisiana, Maryland, and Rhode Island allow those on probation and parole to vote.

Web Field Trip: Racial Profiling

Visit the website of the ACLU and listen to the audio interview with Dennis Parker, the direc- tor of the ACLU Racial Justice Program, on the topic of racial profiling: http://www.aclu.org /racial-justice/pervasive-problem-racial-profiling.

Critical Thinking Questions 1. Do you agree that federal government legislation is the key to ending racial profiling? 2. What other approaches or strategies might be appropriate?

http://www.aclu.org/racial-justice/pervasive-problem-racial-profiling

Section 4.4 Disparity Versus Discrimination: Select Issues of Race and Social Class

Figure 4.8: Felony disenfranchisement restrictions by state, 2019

“Felony Disenfranchisement: A Primer,” by J. Chung, 2019, Sentencing Project (https://www.sentencingproject.org/publications /felony-disenfranchisement-a-primer). Reprinted with permission from The Sentencing Project, Washington, D.C.

No restriction Prison Prison & parole Prison, parole, & probation Prison, parole, probation, & post-sentence

Web Field Trip: Felony Disenfranchisement

Visit the website of the Sentencing Project to learn about the felony disenfranchisement laws in your state: https://www.sentencingproject.org/the-facts/#map?dataset-option=FDR.

Then click on the “Full Details and/or Compare” option for your state to see additional data relating to that state’s disenfranchised population.

Critical Thinking Questions 1. What are the laws regarding felony disenfranchisement where you live? Are voting

rights restored for ex-offenders where you live? 2. What are the laws in the states that neighbor yours? 3. What percentage of African Americans cannot vote in your state? 4. What states and regions seem to have the highest rates of felony disenfranchisement for

African Americans?

https://www.sentencingproject.org/the-facts/#map?dataset-option=FDR

Section 4.5 Immigration and Crime

4.5 Immigration and Crime Immigration is a critically important issue within the study of race, ethnicity, and crime. More- over, policy makers continue to debate the most prudent immigration and border control policies. Using sound research methodologies, criminologists have studied the relationship between immigration and crime and provided the public, policy makers, and social scientists with empirically driven findings to inform this issue.

Evidence suggests that increased immigration decreases crime in America, though immigra- tion is likely associated with increased street gang membership and plays a significant role in traditional organized crime groups. However, overall, immigration increases tend to contrib- ute to social-structural dynamics that decrease crime, such as “traditional family values, higher rates of marriage, and extended family supports that construct ethnic enclaves of stability within these communities” (Berger et al., 2009, p. 305). Moreover, some researchers suspect that the long hours required in many jobs disproportionately held by immigrants may have a dampening effect on crime. Similarly, some experts contend that American society overem- phasizes immediate material success and flamboyant wealth (Currie, 1998). Recent immigrant populations may not have been socialized to embrace this idea and thus are more likely to sub- scribe to long-term economic goals involving deferred gratification (Lee et al., 2001).

A Defining Study on the Relationship Between Immigration and Crime A defining study on the relationship between immigration and crime titled “Exploring the Connection Between Immigration and Violent Crime Rates in U.S. Cities, 1980–2000” was published in 2009. The authors—Graham Ousey, a professor of sociology at the College of William & Mary, and Charis Kubrin, a professor of sociology at George Washington Univer- sity—utilized their expertise in sociology, criminology, research methods, and quantitative analysis to produce a rich and informative piece of research (Ousey & Kubrin, 2009).

The methodology employed in this study was designed to address shortcomings in the exist- ing research on immigration and crime. The authors demonstrated that historically, the rela-

tionship between immigration rates and violent crime rates has been studied using cross-sectional research, examining the empirical picture of crime and immigration at a given point in time. Thus, the authors employed a longitudinal analysis that exam- ined data over a 20-year period, from 1980 to 2000. Moreover, the existing research on this issue largely does not intentionally connect immigration and crime trends with other social-structural issues in Ameri- can society, like larger economic dynam- ics, family dynamics, crime dynamics, and drug market dynamics. Thus, the statistical analysis at the heart of Ousey and Kubrin’s study included measures and variables to

SAUL LOEB/Staff/AFP/Getty Images There is evidence to suggest that increased immigration leads to a decrease in crime in the United States.

Section 4.5 Immigration and Crime

understand the relationship between immigration and violent crime, as well as how both these issues may connect with these larger social-structural dynamics in America (Ousey & Kubrin, 2009).

The research methodology employed in this study was powerful. The authors gathered crime and immigration data for 159 U.S. cities, each of which had a population of 100,000 or more, from 1980 to 2000. The violent crime measure was compiled using data from the Uniform Crime Report, using average violent crime rates in 3-year segments. Measuring rates of immi- gration is challenging, especially when attempting to include both documented and undocu- mented populations. The authors responded to this challenge by using a multifaceted mea- sure for immigration rates. They created a statistical measure that included the percentage of the population of a given city that is foreign born within the past 10 years, the percentage of the population that does not speak English proficiently, and the percentage of the popu- lation that is of Hispanic or Latino descent. While no measure of crime or immigration is likely 100% accurate, these multifaceted statistical measures will provide valid and powerful mechanisms to study this issue (Ousey & Kubrin, 2009).

Ousey and Kubrin used a sophisticated statistical analysis to test the many ways that immi- gration rates and crime rates may influence each other and larger structural dynamics in American society. The results compiled from 159 cities, using data from a 20-year period, demonstrate that increases in immigration rates decrease violent crime.

In the first model . . . we find evidence of a statistically significant relation- ship between change in immigration and change in violent crime. Specifically, a one unit increase over time in the immigration index is associated with a decrease of 253 violent crimes (per 100,000 persons). Interestingly . . . [these findings challenge] . . . popular perception that immigration is a major con- tributor of increased crime rates, but is consistent with theoretical models proffering rationales for why immigration has an inhibiting impact on vio- lence. (Ousey & Kubrin, 2009, p. 461)

The authors then use their statistical model to explore a series of possible explanations for why increases in immigration rates tend to decrease violent crime rates. Their analysis demonstrates that increased immigration brings stability to families and communities via extended family and kinship networks. In general, increasing stable, two-parent families likely provides a series of social and practical support systems that decrease violent crime. Moreover, it is possible that the presence of both two-parent families and extended family networks in a community provide informal social control that also discourages individuals from engaging in criminal behavior, and possibly violent criminal behavior in particular.

Relying on sound and longitudinal statistical research, the core finding of this study is that increases in immigration rates decrease violent crime rates. Similarly, other researchers have suspected that increases in immigration in recent decades have been “a key factor in contrib- uting to the crime drop of the 1990s” (Ousey & Kubrin, 2009, p. 466; see also Sampson et al., 2005). According to the authors, this finding likely contradicts “popular perceptions” (Ousey & Kubrin, 2009, p. 461) on this issue and thus is critically important for the continuing discus- sion about immigration and border control policy.

Section 4.5 Immigration and Crime

Updating their research, Ousey and Kubrin sought to examine the next generation of immi- gration and its relation to crimes by studying the period from 1994 to 2014. Despite a contin- ued lack of absolute, objective, and consistent data, the researchers were able to come up with conclusions about immigration and crime, continuing their longitudinal model. The results indicate that there was no correlation to increases in crime related to immigration during the 1994–2014 period. The authors of the study note:

One need only open a newspaper or watch the evening news to realize how vigorously debated immigration is today. On one side of the debate are those who call for stricter immigration control, arguing that immigration increases crime. On the other side of the debate are those who advocate for less restric- tive policies, maintaining that immigration does not necessarily cause crime to rise and may, in fact, reduce crime in communities throughout the United States. . . . Our two-pronged analysis of the research literature reveals that, overall, the immigration-crime association is negative—but very weak. (Ousey & Kubrin, 2018)

Using the Sociological Lens: The New Jim Crow?

The U.S. criminal justice system is flawed, but is it racist?

After slavery was eradicated, racism and discrimination persisted in the United States via a set of laws known as Jim Crow. From 1876 to 1965 these laws made legal the separation of Whites and Blacks in schools, communities, restaurants, transportation systems, and other pub- lic spaces. Separate areas were ostensibly equal, yet spaces and services provided to Blacks were typically inferior to those for Whites. Moreover, Jim Crow promoted discrimination in myriad other areas, including employment and hiring practices, lending protocols, and hous- ing approval, which served to institutionalize racism in these and other areas. Although these practices were invalidated over time—first by the Supreme Court (in the landmark 1954 case Brown v. Board of Education) and later by the federal government (in the Civil Rights Act of 1964 and the Voting Rights Act of 1965)— their lasting effect was to inject into society deep-seated inequalities that denied equal opportunity and experience to millions of Americans for years beyond the period in which it was legal to do so.

More than 55 years after the end of the Jim Crow era, the state of racism and dis- crimination in the United States remains unclear and hotly debated. In the 21st cen- tury, it has been suggested that the insidi- ous effects of past discriminatory mistakes have waned with time and over generations, as evidenced by evolving perspectives of the general public and enormous gains made by prominent African Americans, including the election of Barack Obama to the presidency.

Viviane Moos/Contributor/Corbis Historical/Getty Images More than 55 years after Jim Crow laws were invalidated, some believe that discriminatory practices still exist in the American criminal justice system.

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Section 4.5 Immigration and Crime

Using the Sociological Lens: The New Jim Crow? (continued)

On the other hand, many believe that not only does the specter of Jim Crow continue to haunt but that a new era of institutionalized racism has been born via a criminal justice system that systematically discriminates against Americans of color. These points are considered in the following two perspectives, with editors at the Socialist Worker detailing the ways in which the criminal justice system is, like the Jim Crow system, systematically racist, and Manhattan Insti- tute scholar Heather Mac Donald arguing that the problem is not the system but Americans of color who commit more crime than the general public.

The Criminal Justice System Is Racist In 2011 civil rights lawyer Michelle Alexander sharpened the discussion of racism and justice in the United States when she suggested that the war on drugs and other elements of the criminal justice system had heralded a new era of Jim Crow–esque institutionalized discrimination. In her book, The New Jim Crow: Mass Incarceration in an Age of Colorblindness, Alexander chron- icles racial disparities in the war on drugs and the justice system, explaining high minority incarceration rates as the product of a systematic war on people of color. Says Alexander:

We have managed decades after the civil rights movement to create something like a caste system in the United States. In major urban areas, the majority of African- American men are either behind bars, under correctional control or saddled with criminal record and once branded as criminal or a felon, they’re trapped for life in second-class status. (as cited in Flanders, 2011)

Statistics proving disparities between the African American population—about 13% of the U.S. population—and the number of African Americans in prison abound, with numerous voices explaining the gap as the result of a racist system—that African Americans are the target of more police stops than Whites, are arrested more often than Whites for the same infraction, are incarcerated more often than Whites, are given longer sentences than Whites, and are sentenced to death more often than Whites. Relying in part on Alexander’s work and drawing from numerous other studies, editors at the Socialist Worker explain these disparities by charging the criminal justice system with being inherently biased in favor of Whites and against Blacks and other Americans of color. The mistaken belief that the United States oper- ates in a postracial state further impedes progress on the problem, they suggest.

“When Racism Is the Law,” by Socialist Worker, April 4, 2012 (http://socialistworker.org /2012/04/04/when-racism-is-the-law).

The Criminal Justice System Is Not Racist In the following perspective, Heather Mac Donald rejects accusations that the criminal jus- tice system is racist. She agrees that Blacks are incarcerated at higher rates than Whites but says these statistics reflect the many ways in which they commit crime disproportionally. Mac Donald sharply disagrees with the editors of the Socialist Worker that racism is behind Blacks’ higher incarceration and sentencing rates; more Black crime is the explanation, and she sug- gests ignoring this truth does a disservice to the Black community and to all Americans.

It can be hard to make sense of such sharply opposing opinions on issues like racism and discrimination. Compounding the problem is that personal prejudice—that is, the level of prejudice individual Americans feel toward one another on a daily or personal basis—is much lower than in decades past, making it difficult for some Americans to believe that racism is still

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http://socialistworker.org/2012/04/04/when-racism-is-the-law

Section 4.5 Immigration and Crime

a problem when it appears so infrequently in their everyday lives. Polls of the American public underscore this. In 2011, for example, a poll taken jointly by USA Today and Gallup found that 86% of Americans approve of marriage between White and Black couples, compared to just 43% in 1983, 36% in 1978, 20% in 1968, and 4% in 1958 (Jones, 2011). The same poll found that 89% of Americans think civil rights for African Americans have either greatly or some- what improved, and 76% do not believe new civil rights legislation is needed (Gallup, 2011).

Yet looking more closely at American opinions of race reveals deeper division. For example, a 2019 Pew Research Center survey found that 43% of Whites think that the United States has gone far enough in giving Blacks equal rights—but 78% of Black respondents disagree (Horowitz et al., 2019). The same survey found that 54% of Whites think that racial discrimi- nation is a major reason why Black people may have a harder time getting ahead, whereas 84% of Blacks think this is true. Additionally, the survey revealed significant differences in the experience Whites and Blacks have with law enforcement: 63% of Whites said they have been treated unfairly by the police because of their race, while 84% of Black respondents said they have had this experience.

Is racism largely a matter of perception, or are there systematic, institutionalized racist forces at work? Mac Donald details how she accounts for racial disparities in the criminal justice system, saying there are better explanations than racism.

“Is the Criminal-Justice System Racist?,” by Heather Mac Donald, City Journal, Spring 2008 (http://www.city-journal.org/2008/18_2_criminal_justice_system.html).

Critical Thinking Questions 1. What do you think best explains high Black incarceration rates compared to their per-

centage of the general population? Is institutionalized racism to blame? Are genuinely high rates of Black crime to blame? Are other factors to blame?

2. Heather Mac Donald suggests that attributing high Black incarceration rates to racism does a disservice to the Black community. What does she mean by this? Do you agree? Why or why not?

3. What do you think best accounts for the radically different perceptions of Black and White Americans on the issues of police racism, the ability of Black Americans to get jobs for which they are qualified, and whether Blacks have achieved racial equality?

4. What groups of people benefit most from the war on drugs? What groups of people are most harmed by the war on drugs?

5. Consider the way in which a drug arrest can alter the course of a person’s life. For exam- ple, presidents Bill Clinton and Barack Obama—both of whom have admitted to experi- menting with drugs—may not have ascended to the presidency had they been incarcer- ated at any point in time. In what instances do strict drug sentences irreparably harm people, and who are they more likely to harm? In what instances do they help people and better communities, and what types of people and communities are they most likely to benefit?

6. To what extent do you think Americans’ everyday experiences with people of other races and ethnicities—such as the people with whom they interact at work and in their community—inform their perceptions of the problem of racism in the criminal justice system? Do you think these experiences make them more or less likely to have a realistic perspective on the situation?

Using the Sociological Lens: The New Jim Crow? (continued)

http://www.city-journal.org/2008/18_2_criminal_justice_system.html

Chapter Summary

Chapter Summary This chapter explored how issues of race intertwine with social class, criminality, law enforcement, and corrections. This discussion was framed sociologically by defining race and ethnicity as social constructs, or social entities that do not have a fixed meaning or interpretation but rather are continually reshaped by societal norms and values. Data was presented that demonstrates that racial minority groups are overrepresented among the lower social classes in America and in the correctional system. Since people of color experi- ence poverty and marginalization at higher rates than do Whites, the class-based disadvan- tages built into the criminal justice system are likely particularly acute for people of color.

Moreover, a legacy of research studies and other evidence suggests racial minority groups are discriminated against in the criminal justice system, sometimes independent of social class. This chapter critically analyzed how the war on drugs contributes to the overrepre- sentation of people of color in the criminal justice system, highlighting laws and policies focused on crack cocaine and marijuana possession in California. In addition, evidence was presented concerning victim-based racial discrimination in the death penalty, racial profil- ing, and felony disenfranchisement.

The chapter concluded with an examination of the relationship between immigration rates and violent crime rates. While the data may be inconsistent and absolute conclusions unten- able, there is no evidence that immigrants to the United States dramatically increase crime rates.

In total, research suggests that the American criminal justice system in the new millennium continues to disproportionately impact the poor and people of color. In some instances, this disproportionate impact by race is produced by intentional and unintentional discrimina- tory policies that make the poor and people of color more likely to come to the attention of law enforcement and more likely to be punished harshly by the criminal justice system.

Critical Thinking and Discussion Questions

1. The text explores race and ethnicity as social constructs that have affected crime. In your opinion, are there other social constructs that influence the study of crime? If so, which ones, and in what way?

2. In what way is the criminal justice system cumulative? 3. What are core differences between race, ethnicity, and national origin? 4. In your opinion, what have been among the main outcomes of the war on drugs?

How close has it come to its original goals of reducing drug use and punishing drug suppliers?

5. In your opinion, is felony disenfranchisement an appropriate punishment? Why or why not?

6. What are kinship networks, and what bearing do they have on crime? 7. What does the phrase “racism without racists” mean in the context of the chapter?

Chapter Summary

Key Terms Baldus study A statistical analysis of racial discrimination in the Georgia capital punishment process conducted by law professors David Baldus, Charles Pulaski, and George Woodworth, presented to the U.S. Supreme Court in 1987 for the case McCleskey v. Kemp.

ethnicity A group of individuals who share common cultural beliefs, norms, values, and practices.

felony disenfranchisement The temporary or permanent restriction of voting rights for individuals with felony convictions.

intraracial crime A criminal event in which both the victim(s) and offender(s) are the same race.

mandatory minimum sentences Sentences that restrict discretion in the judicial process by specifying the term of incarceration to be served based on the type and amount of drug possessed by the accused.

race A group of individuals who are distinguished by some perceived common physical characteristics.

racial profiling A law enforcement practice involving the targeting of particular groups because of their perceived race, ethnicity, and/or nationality.

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