SOC 305 Crime & Society week 1 dicussion

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Learning Objectives

• Understand the concepts of “race” and “ethnicity” as social constructs.

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

• Analyze evidence about racial differences in rates of victimization.

• Analyze evidence regarding racial inequality and incarceration rates.

• Explore how the War on Drugs contributes to racial discrimination in the criminal justice system.

• Examine crack cocaine and marijuana law enforcement in context of racial discrimination.

• 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.

Crime, Race, and Ethnicity

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Section 4.1 Race and the Criminal Justice System CHAPTER 4

In April of 2012, law enforcement in Oklahoma arrested one of the region’s foremost drug kingpins. In the home of the alleged drug kingpin, police seized four pounds of marijuana, $276,000 in cash, and two firearms: a revolver and a semiautomatic pistol. Police believe that the defendant is the “mastermind” (Perez, 2012, p. 1) of a drug-dealing organization that supplies approximately 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 thinning 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 public visualizes a young man of color (Burston, Jones, & Roberson-Sanders, 1995). How- ever, 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 per- ception, race, and criminality are central in the study of criminology.

4.1 Race and the Criminal Justice System

The American criminal justice system disproportionately impacts people of color, and this disproportionate impact by race is often dramatic and consistent at nearly every level of the system. 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 disproportionate involvement in the system is cumula- tive. Police are more likely to arrest someone who has a prior record, 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 some- one who has previously spent time behind bars (Schnake, Jones, & Brooker, 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 meaning 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 overlapping but also perceived as exclusive and distinct. In contrast, ethnicity refers to a group of individuals who share common cultural beliefs, norms, values, and prac- tices. These common cultural practices may include family customs, religious practices, and traditions centered on food, music, and art.

Understanding race and ethnicity as social constructs acknowledges that the lived history of individuals and groups of various origins changes over time. Similarly, social attitudes

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Section 4.1 Race and the Criminal Justice System CHAPTER 4

and perceptions about race and ethnicity change over time. And finally, patterns of migra- tion, immigration, and reproduction continually reshape racial and ethnic groups, in America in particular.

In his book The American Kaleidoscope, Lawrence Fuchs (1990) uses the metaphor of a kalei- doscope to vividly illustrate how racial and ethnic patterns in the United States evolve over time. Several popular metaphors and symbols have been used to represent the rela- tively young and unique patterns of racial and ethnic assimilation and acculturation in

America. Metaphors such as the “melting pot” or “salad bowl” suggest that different groups combine and mix in American society to meld together 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 col- ors of different sections meld together and are reshaped, and new colors are formed. While a powerful metaphor, all of 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 marginality 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). Concentrated poverty is associated with higher crime rates, underperforming public schools, poor housing and health conditions, and fewer job opportunities (Bishaw, 2011). According to the 2010 Census, non-Hispanic Whites constitute 72.4% of the U.S. popula- tion and 9.9% of those living in poverty. In contrast, African Americans represent 12.6% of the U.S. general population, but 27.4% of those living in poverty. Hispanics now represent 16.3% of the U.S. general population but 26.6% of individuals living below the poverty line (DeNavas-Walt, C., Proctor, B., & Smith, J., 2011; United States Census Bureau, 2011). 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/Getty Images

Metaphors like melting pot, salad bowl, or kaleidoscope are used to describe the diversity of Americans.

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Section 4.2 Crime Rates and Race CHAPTER 4

4.2 Crime Rates and Race

The 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. Crimi- nologists have consistently found that most crime is intraracial; that is, people dispropor- tionately commit crimes against people of their own race. 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).

Race, socioeconomic status, and crime rates cluster among other racial and ethnic groups as well. The research suggests that along with Native Americans, African Americans tend to have higher rates of crime perpetration, especially for violent offenses. Whites and Asian Americans tend to commit lower rates of both property and violent crime. However, given the size of the White population in the United States, most people arrested in the United States are White. For example, in 2009, 69% of all people arrested nationwide were White, compared to 28% African American (http://www2.fbi.gov/ucr/cius2009/arrests/ index.html). It is important to note that rates of crime perpetration are often measured by arrests. As discussed in Chapter 1, arrest rates as a measure of crime are reasonably accu- rate but also have a series of shortcomings and thus present an incomplete picture of the crime problem in America (Tibbetts, 2012).

Members of racial and ethnic minority groups are also overrepresented as victims of crime. In 2010, African Americans had higher rates of violent crime victimization (20.8 per 1,000 people) than Hispanics (15.6 per 1,000) and Whites (13.6 per 1,000) (Truman, 2011a). 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 building from 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 the Bureau of Justice Statistics (2011), there were a total of 748,728 inmates in local jails in 2010. Of these inmates, Whites consti- tuted 44.3% (331,686 inmates), African Americans made up 37.8% (283,019 inmates), and Hispanics 15.8% (118,299 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.

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Section 4.2 Crime Rates and Race CHAPTER 4

Table 4.1: Numbers of inmates in local jails, by characteristic, midyear 2000 and 2005–2010

Characteristic 2000 2005 2006 2007 2008a 2009a 2010

Total 621,149 747,529 756,819 780,174 785,533 767,434 748,728

Sex

Male 550,162 652,958 666,819 679,654 685,862 673,728 656,360

Female 70,987 94,571 99,000 100,520 99,670 93,706 92,368

Adults 613,534 740,770 759,717 773,341 777,829 760,216 741,168

Male 543,120 646,807 661,164 673,346 678,657 667,039 649,284

Female 70,414 93,963 98,552 99,995 99,172 93,176 91,884

Juvenilesb 7,615 6,759 6,102 6,833 7,703 7,218 7,560

Held as adultsc 6,126 5,750 4,835 5,649 6,410 5,846 5,647

Held as juveniles 1,489 1,009 1,268 1,184 1,294 1,373 1,912

Race/Hispanic origind

White 260,500 331,000 336,500 338,200 333,300 326,400 331,600

Black/African American

256,300 290,500 295,900 301,700 308,000 300,500 283,200

Hispanic/Latino 94,100 111,900 119,200 125,500 128,500 124,000 118,100

Othere 10,200 13,000 13,500 13,900 14,000 14,800 15,000

Two or more races

… 1,000 700 800 1,300 1,800 800

Note: Detail may not sum to total due to rounding. …Not collected

a Based on revised data from selected jail jurisdictions for the number of inmates confined at midyear 2008 and 2009. See Methodology for a description of revised data.

bJuveniles are persons under the age of 18 at midyear. cIncludes juveniles who were tried or awaiting trial as adults. dEstimates are based on reported data adjusted for nonresponse. eExcludes persons of Hispanic or Latino origin.

Source: United States Department of Justice. Bureau of Justice Statistics (2011). Jail Inmates at Midyear 2010, Statistical Tables. Publication No. NCJ 233431. Washington, D.C.: Minton, T.

African Americans and Hispanic populations are also dramatically overrepresented in the American prison system (see Tables 4.2 and 4.3). According to the Bureau of Justice Statistics (2012), there were a total of 1,612,395 individuals incarcerated in prisons in the United States as of December of 2010. These 1.6 million prisoners are serving time in both the state and federal prison system, both government-run and private prison facilities, both juvenile and adult facilities, and include both male and female inmates. In December of 2010, Whites constituted 499,600 inmates, or just under 31% of all prison inmates. In

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Section 4.2 Crime Rates and Race CHAPTER 4

comparison, there were 588,000 African American inmates that comprised 36.5% of all inmates. And Hispanics totaled 345,900 inmates, or 21.4% of all prison inmates. These overwhelming racial disparities in the prison system are even more dramatic when analyzed by rate.

Table 4.2: Estimated number of sentenced prisoners under state and federal jurisdiction, by sex, race, and Hispanic origin, December 31, 2000–2010

Male Female

Year Totala Whiteb Blackb Hispanic Totala Whiteb Blackb Hispanic

2000 1,237,500 436,500 572,900 206,900 83,700 34,500 37,400 10,000

2001 1,259,500 449,200 585,800 199,700 85,000 36,200 36,400 10,200

2002 1,291,300 436,800 586,700 235,000 89,000 35,400 36,000 15,000

2003 1,316,500 454,300 586,300 251,900 92,800 39,100 35,000 16,200

2004 1,337.700 449,300 551,300 260,600 96,100 42,500 32,100 15,000

2005 1,362,500 459,700 547,200 279,000 98,600 45,800 29,900 15,900

2006 1,399,100 478,000 534,200 290,500 103,100 49,100 28,600 17,500

2007 1,427,300 471,400 556,900 301,200 105,500 50,500 29,300 17,600

2008 1,434,800 477,500 562,800 295,800 105,300 50,700 29,100 17,300

2009 1,443,500 479,000 563,500 303,500 105,200 51,200 28,200 17,500

2010 1,446,000 451,600 561,400 327,200 104,600 48,000 26,600 18,700

Note: Counts based on prisoners with a sentence of more than 1 year. All estimates include persons under age 18. See Methodology for estimation method.

aIncludes American Indians, Alaska Natives, Asians, Native Hawaiians, other Pacific Islanders, and persons identifying as two or more races. bExcludes persons of Hispanic or Latino origin. cData source used to estimate race and Hispanic origin changed in 2010. Use caution when comparing to prior years. See Methodology. Sources: BJS, National Prisoner Statistics Program, Federal Justice Statistics Program, National Corrections Reporting Program, Survey of Inmates in State and Local Correctional Facilities, and National Inmate Survey.

Source: United States Department of Justice. Bureau of Justice Statistics (2012). Prisoners in 2010. Publication No. NCJ 236096. Washington, D.C.: Guerino, P., Harrison, P., & Sabol, W. Table p26

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Section 4.2 Crime Rates and Race CHAPTER 4

Table 4.3: Estimated number of sentenced prisoners under state and federal jurisdiction, by sex, race, Hispanic origin, and age, December 31, 2010

Male Female

Age Totala Whiteb Blackb Hispanic Totala Whiteb Blackb Hispanic Totalc 1,446,000 451,600 561,400 327,200 104,600 48,000 26,600 18,700 18-19 20,900 3,900 10,400 5,300 800 300 300 200

20-24 173,300 42,800 75,200 44,800 10,800 4,600 2,900 2,300

25-29 235,300 64,700 94,900 62,300 17,700 7,900 4,400 3,800

30-34 235,400 64,300 95,700 62,400 17,700 8,200 4,300 3,500

35-39 199,700 58,800 78,300 49,900 15,500 7,300 3,800 2,700

40-44 182,200 61,200 68,200 37,700 15,300 7,100 4,000 2,500

45-49 163,700 59,400 60,000 28,600 13,000 6,100 3,500 1,700

50-54 114,000 43,200 41,100 18,000 7,700 3,600 2,100 1,100

55-59 61,700 24,700 21,400 9,300 3,500 1,600 900 500

60-64 32,000 14,700 9,300 4,600 1,500 800 300 200

65 or older

25,300 13,500 5,600 3,600 900 500 200 100

Note: Data source used to estimate race and Hispanic origin changed in 2010 and data source for age distributions was enhanced between 2009 and 2010. Use caution when comparing to prior years. Counts based on prisoners with a sentence of more than 1 year. See Methodology for estimation method.

aIncludes American Indians, Alaska Natives, Asians, Native Hawaiians, other Pacific Islanders, and persons identifying two or more races. bExcludes persons of Hispanic or Latino origin. cIncludes persons under age 18.

Source: United States Department of Justice. Bureau of Justice Statistics (2012). Prisoners in 2010. Publication No. NCJ 236096. Washington, D.C.: Guerino, P., Harrison, P., & Sabol, W. Table p26

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 rep- resentation in the general population. Incarceration rates can be calculated relying on 2010 data, the most recent available, from both the U.S. Census and the Bureau of Justice Statis- tics (United States Census Bureau, 2011; Minton, 2011; Guerino, Harrison, & Sabol, 2012).

The incarceration rate for Whites in America is considerably lower compared to people of color. In 2010, 831,286 individuals were identified as White incarcerated, including both jails and prisons. With 226,948,223 Whites in the general population of the United States, the incarceration rate for Whites was approximately 366 for every 100,000 (United States Census Bureau, 2011; Minton, 2011; Guerino, Harrison, & Sabol, 2012).

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Section 4.2 Crime Rates and Race CHAPTER 4

Comparatively speaking, the incarceration rate for African Americans is strikingly high. As of 2010, there were 871,019 African Americans incarcerated in jails and prisons in the United States. African Americans constitute 12% of the U.S. general population, or 39,496,514 people. Thus, the incarceration rate for African Americans in 2010 was 2,205 per 100,000. Analyzing this new data, African Americans are incarcerated at a rate that is approximately six times higher than Whites (United States Census Bureau, 2011; Minton, 2011; Guerino, Harrison, & Sabol, 2012).

Hispanics also experience incarceration at very high rates. Non-White Hispanics repre- sent 16.3% of the American population, or 51,094,696 individuals. Combining both jails and prisons, there are 464,199 Hispanics incarcerated in the United States. Therefore, the incarceration rates for Hispanics in America is approximately 908 per 100,000 in the gen- eral population, nearly 2.5 times the rate of Whites (United States Census Bureau, 2011; Minton, 2011; Guerino, Harrison, & Sabol, 2012).

The incarceration data presented in the previous section is based on a cross-section analy- sis, 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 evi- dence over a period of time. In general, longitudinal studies are considered a superior and more reliable 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.

Incarceration’s impact on communities is cumulative (Lusane, 1991). Similarly, when pris- oners 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 disproportion- ately impact individuals and communities of color, issues of family instability, reentry, employment, and political representation also disproportionately impact communities of color (see Chapter 2).

These 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 protection of the laws. As social scientists, it is critically important to study dynam- ics that may or may not contribute to the overrepresentation of the poor and people of color in the criminal justice system.

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Disproportionate Minority Contact (DMC)

In the modern era, law enforcement bodies are collecting and analyzing more system- atic 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 disproportionate minority contact (DMC) initiated by the Coalition for Juvenile Justice via the United States Department of Justice. DMC requires that “each State must address efforts to reduce the proportion of youth detained or confined in secure detention facili- ties . . . who are members of minority groups” (Coleman, n.d.).

The Office of Juvenile Justice and Delinquency Prevention seeks to gather reliable data about DMC in order to craft proactive and multifaceted strategies. For example, their most recent report “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 frequently 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.

4.3 Disparity Versus Discrimination: 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 socio-economic 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

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?

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Section 4.3 Disparity Versus Discrimination: Race and Social Class CHAPTER 4

to be caught and punished by the criminal justice system, and often punished severely. Since people of color experience poverty and marginalization at higher rates than 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 resi- dentially crowded communities, to be unable to post bail, to be represented by the 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 exploitation 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 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 described 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 precedent that was largely continued by subsequent administrations of both political par- ties (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. As a point of comparison, in 1980 drug offenders constituted approximately 6.5% of all prison inmates in the state system and 25% of all prison inmates in the federal system (Fellner, 2000; Mohamed & Fritsvold, 2010). In comparison, in 2009 drug offenders constituted 18% of all state prison inmates and 51% of federal inmates (Guerino, Harrison, & Sabol, 2012). 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 incarcera- tion may be more apparent when examining changes in the number of individual offend- ers incarcerated for drug crime. In 1980, 581,000 people were arrested for drug crimes, and by 2009, the number almost tripled to 1,663,000 people. In 1980, about 41,000 people were in prison or jail for drug crimes, and by 2003, that number neared 500,000 (Mauer & King, 2007).

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,

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in 2009, 1,663,582 people were arrested for nonviolent drug offences in the United States (Federal Bureau of Investigation [FBI], 2009). Of these arrests, 82% were for drug posses- sion offenses, while 18% were for the sale or manufacturing of illegal drugs (FBI, 2009). These 1,663,582 arrests constitute more people than those who live in 11 of our 50 states including New Hampshire, Rhode Island, Idaho, Montana, Vermont, and Wyoming. It is more people than those who live in the largest 46 of 50 largest cities in the United States, including Philadelphia; Phoenix; San Antonio; Dallas; Jacksonville, Florida; San Francisco; Austin; Columbus, Ohio; Detroit; Memphis; Baltimore; Tucson; Sacramento; Oklahoma City; Las Vegas; Milwaukee; Portland, Oregon; Miami; Raleigh, North Carolina; Atlanta; Minneapolis; and Washington, DC.

The War on Drugs and Racial Discrimination In 2007, Ron Paul was contending to become the Republican nominee for President of the United States. In a presidential debate sponsored by PBS, Paul presented evidence about the discriminatory impacts of American drug policy:

For instance, blacks make up 14% of those who use drugs. Yet 36% of those arrested are blacks. And it ends up that 63% of those who finally end up in prison are blacks. 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. (quoted in Mohamed & Fritsvold, 2010, p. 4)

Punitive drug policies have not affected all groups equally. When examining the over- representation of racial minorities in the criminal justice system, evidence suggests, as noted by Ron Paul, that intentional and unintentional discriminatory drug policy is of paramount importance. Research consistently shows that African Americans and Whites seem to use illegal drugs at very similar rates (Mauer, 2011). However, Blacks and His- panics comprise 65% of drug offenders in state prisons (West and Sabol, 2010). It seems despite similar levels of criminality, people of color are far more likely to be arrested and eventually incarcerated 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 of Punitive Counties,” makes a compelling case that drug policies discriminate against traditionally 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, Petteruti, & Ziedenberg, 2007, p. 2)

Michael Tonry, is a renowned criminologist and sentencing policy expert who further supports that the War on Drugs discriminates against racial minorities. Tonry is currently

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serving as the director of the Institute of 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 dis- parities in crime rates. However, Tonry argues that America’s drug policies in practice do actively discriminate 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 because of recidivism rates. Drug offenders have higher recidivism rates com- pared to most other types of crime (Mohamed & Fritsvold, 2010). Thus, drug offenders are particularly likely to be incarcerated multiple times, and 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, 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 minori- ties. Racial discrimination may be particularly apparent when examining case studies of certain drugs: crack cocaine and marijuana.

Crack Versus Powder Cocaine As suggested by Judge Cahill, punitive crack cocaine laws, and their disproportionate impact on racial and ethnic minorities, have been particularly controversial in the contem- porary criminal justice system:

This one provision, the crack statute, has been directly responsible for incarcer- ating nearly an entire generation of young black American men for very long periods. It has created a situation that reeks with inhumanity and injustice. The scales of justice have been turned topsy-turvy so that those masterminds, the kingpins of drug trafficking, escape detection while those whose role is mini- mal, even trivial, are hoisted on the spears of an enraged electorate and at the pinnacle of their youth are imprisoned for years while those responsible for the evil of the day remain free. (U.S. District Court Judge Clyde S. Cahill, 1994. Quoted in Inciardi, Surratt, & Kurtz, 2007, p. 252)

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 powder 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 deliv- ers 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

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Section 4.3 Disparity Versus Discrimination: Race and Social Class CHAPTER 4

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 association with people of color were likely exagger- ated by the American news media in the late 1980s and into the early 1990s. Vivid arti- cles and television features presented crack cocaine in America’s cities as an “epidemic,” “plague,” or “national crisis.” Crack was overwhelmingly associated with users and deal- ers who were from traditionally marginalized groups, often poor men of color. Research suggests that while most crack users are White, crack is disproportionately used by mem- bers of racial minority groups (Inciardi, Surratt, & Kurtz, 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 approxi- mately 96% of Americans had never tried crack cocaine (Rein- arman & Levine, 1997). It seems that crack use was most visible among some marginalized indi- viduals in some American cities. But there is no reliable evidence that crack use was an epidemic (Reinarman & Levine, 1997; Berger, Free, & Searles, 2009).

In the late 1980s, the Regan Administration signed a series of extremely punitive laws against illegal drugs, and crack cocaine in particular. The 1986 and 1988 Anti-Drug Abuse Acts created a series of mandatory minimum penalties for illegal drugs at the federal level. Mandatory minimum sentences restrict discretion in the judicial process by speci- fying the term of incarceration to be served based on the type and amount of drug pos- sessed by the accused. Powder and crack cocaine are different versions of the same drug, but 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 possessing 5 grams of crack cocaine would trigger a mandatory 5-year prison term. Five grams of crack cocaine constitutes between 10–50 individual doses of the drug and has an approximate street value of between $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 powder cocaine likely constitutes between 2,500 and 5,000 individual doses of the drug and has an estimated street value of between $32,500 and $50,000 (Reinarman & Levine, 1997; Berger, Free, & Searles, 2009; Inciardi, Surratt, & Kurtz, 2007).

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

Courtesy Everett Collection

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

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Section 4.3 Disparity Versus Discrimination: Race and Social Class CHAPTER 4

color. Throughout the 1990s and 2000s, Blacks have 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 (Reinarman & Levine, 1997; Berger, Free, & Searles, 2009; Inciardi, Surratt, & Kurtz, 2007).

The case of Derrick Curry demonstrates the punitiveness of the federal mandatory min- imum 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, Derrick 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, Surratt, & Kurtz, 2007, p. 253). Curry was caught with over one pound of crack cocaine in his automobile after a larger network of dealers had been under the surveillance of both the Federal Bureau of Investigation (FBI) and the Drug Enforcement 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, Surratt, & Kurtz, 2007, p. 253)

After more than 25 years in existence, new legislation in 2010 altered the mandatory minimum sentence schema for crack cocaine. In December of 2010, President 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. In the original legislation, the precise timeline for implementing the change, and whether or not the legislation would apply retroactively, was not particularly precise. As of this writing, lawmakers are consid- ering various models to address this timeline issue (Fields, 2010; Frieden, 2010).

Crack cocaine laws have a particularly controversial place in the history of the Amer- ican criminal 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 marginalized groups, African American males in particular, were dis- proportionately impacted by the harsh penalties for crack cocaine. This issue of racial discrimination—more specifically, similar criminal behavior resulting in much different consequences for different racial groups—is also evident in the following case study of marijuana arrests in California.

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Section 4.3 Disparity Versus Discrimination: Race and Social Class CHAPTER 4

Marijuana Possession Arrests in California Contemporary research presents strong evidence of racial discrimination in marijuana arrests in California. This case study is particularly interesting for criminologists because marijuana possession arrests likely involve a high level of police officer discretion. Mari- juana laws are violated at relatively high rates, and the penalties in California are gener- ally less severe compared to other illicit drugs. According to Peter Moskos, an associate professor of law and political science at the John Jay College of Criminal Justice and ex- police officer in inner-city Baltimore, when choosing to make arrests, law enforcement officers are more likely to exercise discretion for commonly committed, low-level offenses compared to more rare and serious types of crime (Moskos, 2008).

Marijuana is the most commonly used illegal drug in America by a significant margin (Inciardi & McElrath, 2011). There are approximately 14 million current users of marijuana (Inciardi & McElrath, 2011). Moreover, of Americans over the age of 12, 95 million people, or 40% of that population, have tried the drug (Inciardi & McElrath, 2011). Marijuana- related offenses accounted for more than 865,000 arrests in 2009, or 52% of all drug arrests nationwide (FBI, 2009). Of all marijuana arrests in the United States in 2009, 88% were for possession, not intent to distribute or manufacturing/cultivation (FBI, 2009). Moreover, the western region of the United States has the highest rates of drug use compared to other regions (Mohamed & Fritsvold, 2010). This is possibly evidenced by the fact that there were 61,000 arrests for marijuana offenses in California in 2009 (FBI, 2009).

In 2010, the Drug Policy Alliance and California National Association for the Advance- ment of Colored People (NAACP) published two studies that marshaled compelling evidence about racial discrimination in marijuana arrests in California. Harry Levine, 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 (see Chapter 1) arrests data for marijuana by race (Levine Gettman, & Siegel, 2010a; 2010b).

Web Field Trip: Tulia, Texas Visit the website of PBS http://www.pbs.org/independentlens/tuliatexas/ and watch the video pre- view of the 1999 Tulia, Texas, case. This documentary chronicles the wrongful arrest, prosecution, and incarceration of 46 people in a small Texas town for alleged drug crimes, almost all of whom were poor people of color. Moreover, it highlights the power and discretion of the legal system and criminal justice system actors.

Critical Thinking Questions

1. How does this case inform our larger discussion of the War on Drugs and racial discrimination? 2. What can be done to improve the checks and balances built into the criminal justice system?

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Section 4.3 Disparity Versus Discrimination: Race and Social Class CHAPTER 4

The evidence presented in the study demonstrates that across age groups young Whites use marijuana at higher rates compared to both young Hispanics and African Ameri- cans. The report relied on drug use data provided by the U.S. Department of Health and Human Services and the Substance Abuse and Mental Health Services Administration (SAMHSA). Marijuana use data was available for 18 to 25 year olds from 2002 to 2007 (see Figure 4.1). These data compared respective marijuana use rates in the past month, in the past year, and over one’s lifetime for Whites, African Americans, and Hispanics. For every year between 2002 and 2007, 18- to 25-year-old Whites had consistently higher rates of marijuana use than both African Americans and Hispanics across all categories. The study reports similar findings for younger age groups as well (Levine Gettman, & Siegel, 2010a; 2010b).

Figure 4.1: Marijuana use by Whites, Blacks, and Latinos ages 18 to 25, 2002–2007

Based on data from the U.S. Dept HHS, SAMHSA, Office of Applied Studies, National Survey on Drug Use and Health, 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 African Americans and Latinos.

Marijuana use data was also available for 12 to 17 year olds from 2004 to 2007 (see Figure 4.2). These data also compared respective marijuana use rates between Whites, African Americans, and Hispanics; however, data was only available for marijuana use in the past year and in the past month. In the 12 to 17 age cohort and across both use categories presented, Whites had consistently higher rates of marijuana use than did their African American and Hispanic counterparts. It seems that in the mid 2000s, young Whites were consistently committing the crime of marijuana possession at higher rates than young Blacks and Hispanics, a pattern that seemingly should be reflected in arrest rates (Levine Gettman, & Siegel, 2010a; 2010b).

60%

50%

40%

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10%

0% 2002-03 2004-05 2006 2007 2002-03 2004-05 2006 2007 2002-03 2004-05 2006 2007

Ever Used Marijuana Used Marijuana in Past Year Used Marijuana in Past Month

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Section 4.3 Disparity Versus Discrimination: Race and Social Class CHAPTER 4

Figure 4.2: Marijuana use by Whites, Blacks, and Latinos ages 12 to 17, 2004–2007

Based on data from the U.S. Dept HHS, SAMHSA, Office of Applied Studies, National Survey on Drug Use and Health, 2002–2007 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 African Americans and Latinos.

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

25%

20%

15%

10%

5%

0% 2004-05 2006 2007 2004-05 2006 2007

Used Marijuana in Past Year Used Marijuana in Past Month

Whites

Blacks

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These racially discriminatory outcomes in marijuana arrests were also evident when comparing Whites and Hispanics (see Figure 4.3). Again, Whites show higher rates of marijuana use compared to Hispanics and thus commit the crime of marijuana possession at higher rates. The researchers again controlled for the different populations of Hispanics and Whites in California cities by presenting data as arrest rates. In all 15 cities presented in the report, Hispanics were significantly more likely to be arrested for marijuana possession compared to Whites. Overall, Hispanics were between 1.3 and 2.3 times more likely to be arrested for marijuana possession than Whites, despite committing the crime less frequently (Levine, Gettman, & Siegel, 2010b).

Section 4.3 Disparity Versus Discrimination: Race and Social Class CHAPTER 4

Figure 4.3: Fifteen cities in 12 California counties: White and Latino rates of marijuana possession arrests, 2006–2008

From Levine, H., Gettman, J., & Siegel, S. (2010a). Arresting Blacks for marijuana in California: Possession arrests in 25 cities, 2006–2008. Los Angeles, CA: Drug Policy Alliance and California NAACP, p. 10.

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

This report is fairly compelling evidence of widespread racially discriminatory outcomes in marijuana arrests. When reflecting on the evidence, it is important to consider the com- plex relationships between social class, race, crime, and punishment in the United States. Issues of visibility, residential crowding, and law enforcement resource allocation deci- sions play a significant role in the disproportionate impact of marijuana arrests on minor- ity group members in California. Social class-based dynamics, like the ability to post bail and to hire a private attorney, may play 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 individ- ual law enforcement officers. Instead, the authors contend that these biased outcomes are

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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

Bakers�eld, Kern Co

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

White Marijuana Posession Arrest Rate, per 100,000 Whites

Latino Marijuana Posession Arrest Rate, per 100,000 Latinos

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Section 4.3 Disparity Versus Discrimination: Race and Social Class CHAPTER 4

a structural, “system-wide phenomenon” or “racism without racists” (Levine, Gettman, & Siegel, 2010b, p. 13).

[W]e 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 through- out California.

Police departments deploy most patrol and narcotics police to certain neigh- borhoods, usually designated “high crime.” These are disproportionately low- income, and disproportionately 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 individuals, 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 mari- juana. In short, the arrests are ethnically and racially biased mainly because the police are systematically “fishing” for arrests in only some neighborhoods, and methodically searching only some “fish.” This produces what has been termed “racism without racists.” (Levine, Gettman, & Siegel, 2010b, p. 13)

In sum, the War on Drugs has had a disproportionate impact on people of color and con- tributed 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 crime in similar rates compared to Whites. However, as demon- strated in the cases of crack cocaine and marijuana possession, people of color tend to be punished more frequently and more harshly. The punitive federal mandatory minimum sentencing scheme for crack cocaine makes the inequitable impact on people and commu- nities 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.

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 Pol- icy Alliance in which Nadelmann discusses the evolution of drug policy in America and its longstand- ing 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 as a whole be concerned about the disproportionate impact of drug policy

on people of color?

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Section 4.3 Disparity Versus Discrimination: Race and Social Class CHAPTER 4

The Death Penalty and Racial Discrimination

As touched on in Chapter 4, 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 following: the Due Process Clause of the Fifth Amendment, the Equal Protection Clause of the Fifth and Fourteenth Amendments, and the Eighth Amendment’s prohibition of Cruel and Unusual Punishment. Within this dynamic history, potentially the moment when issues of racial discrimination and the death penalty were most promi- nent was the 1987 United States Supreme Court case McCleskey v. Kemp.

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 robbery 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 Fourteenth Amendment’s Equal Protection Clause. In addition, McCleskey argued that the Eighth 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 advantaged or disadvantaged in the Georgia crimi- nal justice system, it could undermine this proportionality standard. In 1987, the case appeared before the Supreme Court of the United States (Berger, Free, & Searles, 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 conducted by law professors David Baldus, Charles Pulaski, and George Wood- worth. The study examined more than 2,000 murder cases that appeared in Georgia crimi- nal courts throughout the decade of the 1970s. The Baldus Study presented evidence of “victim-based” discrimination in capital 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 combinations of both offenders and victims. More spe- cifically, 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, Pulaski, & Woodworth, 1983; Berger, Free, & Searles, 2009; Linder, 2012).

The evidence of racial bias in the Georgia capital system presented in McCleskey v. Kemp is 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, Mr. McCleskey’s Eighth and Fourteenth Amendment rights were not violated. Warren McCleskey was executed in September of 1991 by electrocution in Jackson, Georgia (Baldus, Pulaski, & Woodworth, 1983; Berger, Free, & Searles, 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, Free,

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Section 4.3 Disparity Versus Discrimination: Race and Social Class CHAPTER 4

& Searles, 2009, p. 418). Beginning in the early 1990s, a series of high-profile lawsuits and attention from the American Civil Liberties Union (ACLU) corresponded with scholars increasingly studying the issue of racial profiling.

A series of research studies have 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 speed- ing or otherwise violating traffic laws (Berger, Free, & Searles, 2009; Russell, 2003).

Some policy makers and members of law enforcement argue that profiling in general, and sometimes racial profiling specifically, is a practical and effective law enforcement strategy. However, the empirical evidence does not support this claim. David Harris is a professor of law and associate dean for research at the University of Pittsburg School of Law. He has studied and written about racial profiling extensively. In a 2003 study, he calculated law enforcement “hit rates,” or the percentage 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 calculate 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, Free, & Searles, 2009; Harris, 2003).

However, some experts contend that racial profil- ing 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 defini- tions 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, conten- tious endeavor” (Kennedy, 2011, p. 243).

Kennedy illustrates these complexities by exam- ining 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 African American. Thus, African American pedestrians were stopped by police at a rate “twice the repre- sentation of Blacks in the local population” (Ken- nedy, 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

Hill Street Studios/Blend Images/Getty Images

Claims that racial profiling is responsible for the large number of minorities in prison are widely debated.

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Section 4.3 Disparity Versus Discrimination: Race and Social Class CHAPTER 4

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 sen- tences. Given the growth of the criminal justice system, these laws impact a great number of people. About 5.3 million Americans, or 1 in 41 adults, currently or permanently expe- rience felony disenfranchisement (Porter, 2010). Felony disenfranchisement is the tem- porary 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—1.4 million, or 13% of all Black men are disenfranchised (The Sentencing Project, 2011).

Motivated by the close results of the presidential election in 2000, various groups have been working to get state governments to reform their laws to allow more people to participate in the democratic process. According to public opinion surveys, 80% of Americans support returning voting rights to people who have completed their sen- tences, and about 66% support voting rights for people on probation or parole (Porter, 2010). In 48 of 50 states and Washington, DC, incarcerated people cannot vote (Maine and Vermont allow inmates to vote). In 35 states, people on parole are prohibited from voting, and in 30 of these 35, probationers cannot vote. In 12 states, people who have completed their sentences may lose their right to vote for life. Eight of those states have a variety of regulations including waiting periods and allowing only people committed of certain categories of crime to regain their voting rights. In four of those states—Iowa, Florida, Kentucky, and Virginia—people with a felony conviction need a pardon from the governor in order to regain their right to vote.

American. If the percentage of crime suspect descriptions that were African American were compared to the percentage of pedestrian stops of African Americans, “Black pedes- trians were stopped at a rate that was 20 to 30 percent lower [emphasis in original] 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 crimi- nology 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.

Web Field Trip: Racial Profiling Visit the website of the American Civil Liberties Union (ACLU) and listen to the audio interview with ACLU Dennis Parker, the director 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?

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Section 4.4 Immigration and Crime CHAPTER 4

4.4 Immigration and Crime

Immigration is a critically important issue within the study of race, ethnicity, and crime. Moreover, 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 it is likely associated with increased street gang membership and plays a significant role in traditional organized crime groups. However, overall, immigration increases tend to contribute 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, Free, & Searles, 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 overemphasizes 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, Martinez, & Rosenfeld, 2001).

In recent years, many states have changed their laws to allow more people with prior convictions to vote. About 800,000 people have regained the right to vote as a result of increased public attention to the issue of disenfranchisement and growing awareness of the potential impact on election results (Porter, 2010). States including Florida and Alabama simplified the process of applying for clemency. Delaware, Maryland, and New Mexico repealed their policies of lifetime disenfranchisement. Connecticut now permits people on probation to vote, and Rhode Island allows those on probation and parole to vote.

Web Field Trip: Felony Disenfranchisement Visit the website of the Brenna Center for Justice to learn about the felony disenfranchisement laws in your state: http://www.brennancenter.org/page/-/d/download_file_48642.pdf.

Next, visit the website of 360degrees.org and their page dedicated to felony disenfranchisement: http://www.360degrees.org/ddata/voting/index.html.

After data is presented on the issue, a map will appear that examines disenfranchisement rates for the total population and for the African American male 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 American men cannot vote in your state? 4. What states and regions seem to have the highest rates of felony disenfranchisement for Afri-

can American men?

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Section 4.4 Immigration and Crime CHAPTER 4

A Defining Study on the Relationship Between Immigration and Crime

A defining study on the relationship between immigration and crime was published in 2009 titled “Exploring the Connection between Immigration and Violent Crime Rates in U.S. Cities, 1980–2000.” The authors, Graham Ousey, a professor of sociology at the Col- lege of William & Mary, and Charis Kubrin, a professor of sociology at George Wash- ington University, 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 existing research on immigra- tion and crime. The authors demonstrated that historically the relationship between immi- gration rates and violent crime rates has been studied using cross-sectional research, exam- ining the empirical picture of crime and immigration at a given point in time. Thus, the authors employed a longitudi- nal analysis that examined 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 American society like larger economic dynamics, fam- ily 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 understand the relationship between immigration and violent crime, and also 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 (see Chapter 1), using average violent crime rates in three-year segments. Measuring rates of immigration is challenging, especially when attempting to include both documented and undocumented populations. The authors responded to this challenge by using a multifaceted measure 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 population that is of Hispanic or Latino descent. While no measure of crime or immigration is likely 100% accurate, these multifaceted sta- tistical measures will provide valid and powerful mechanisms to study this issue (Ousey & Kubrin, 2009).

Alex Wong/Getty Images

Evidence suggests that increased immigration leads to a decrease in crime in the United States.

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Section 4.4 Immigration and Crime CHAPTER 4

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

In the first model . . . we find evidence of a statistically significant relationship 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 contributor of increased crime rates, but is consistent with theoretical models proffering rationales for why immigration has an inhibiting impact on violence. (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 fami- lies 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 decreases violent crime rates. Similarly, other research- ers have suspected that increases in immigration in recent decades have been “a key factor in contributing to the crime drop of the 1990s” (Ousey & Kubrin, 2009, p. 466; Sampson, Morenoff, & Raudenbush, 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 discussion about immigration and border control policy.

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. Between 1876 and 1965, these laws made legal the separation of Whites and Blacks in schools, communities, restaurants, transportation systems, and other public spaces. Sepa- rate 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 protocol, and housing approval, which served to institu- tionalize racism in these and other areas. Although these practices were over time invalidated, first by the Supreme Court (in the landmark 1954 case, Brown v. Board of Education) and later by the fed- eral 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 it was legal to do so. (continued)

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Section 4.4 Immigration and Crime CHAPTER 4

Using the Sociological Lens: The New Jim Crow? (continued) More than 45 years after Jim Crow, the state of racism and discrimination in the United States remains unclear and hotly debated. In the 21st century, it has been suggested that the insidious 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. 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 rac-

ist, and Manhattan Institute scholar Heather MacDonald arguing 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 chronicles racial dispari- ties 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. “We have managed decades after the civil rights movement to create something like a caste system in the United States,” says Alexander. “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” (quoted in Flanders, 2011).

Statistics proving disparities between the African American population—about 13% of the U.S. popu- lation—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 operates in a post-racial state further impedes progress on the problem, they suggest.

Socialist Worker, “When Racism Is the Law,” 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 MacDonald rejects accusations that the criminal justice system is racist. She agrees that Blacks are incarcerated at higher rates than Whites but says

Douglass Burrows/Getty Images

More than 45 years after Jim Crow laws were invalidated, some believe that discriminatory practices still exist in the American criminal justice system.

(continued)

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Section 4.4 Immigration and Crime CHAPTER 4

Using the Sociological Lens: The New Jim Crow? (continued) these statistics reflect the many ways in which they commit crime disproportionally. MacDonald sharply disagrees with the editors of the Socialist Worker that racism is behind Blacks’ higher incar- ceration and sentencing rates; more Black crime is the explanation, and she suggests 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 discrimina- tion. 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 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 the Gallup organization 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 somewhat improved, and 76% do not believe new civil rights legislation is needed (Gallup Organization, 2011).

Yet looking more closely at American opinions of race reveals deeper division. For example, a 2011 Washington Post poll found that 47% of Whites think that Blacks have achieved racial equality —but just 19% of Black respondents agree (Cohen & Craighill, 2011). A 2009 CNN/Opinion Research Corporation poll found similar cracks between White and Black perspectives when it revealed that although 76% of Whites think that Blacks have as good a chance as White people to get jobs for which they are qualified, only 45% of Blacks think this is true (CNN/Opinion Research Corporation, 2009). A different poll from the same year also revealed significant differences in the experience Whites and Blacks have with law enforcement: Just 6% of Whites said they have been treated unfairly by the police because of their race, while the majority of Black respondents—56%—said they have had this experience. This same poll found that just 11% of Whites think it is very common for police officers to be racist against Blacks; 45% of Blacks, however, view this as a common problem (CNN/ Opinion Corporation, 2009).

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

Heather MacDonald, “Is the Criminal-Justice System Racist?” City Journal, Spring 2008. http://www .city-journal.org/2008/18_2_criminal_ justice_system.html

Critical Thinking and Discussion Questions

1. What do you think best explains high Black incarceration rates compared to their percent 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 MacDonald 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? (continued)

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Chapter Summary CHAPTER 4

Chapter Summary

This chapter provided evidence to explore 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 demonstrated that racial minority groups are overrepresented among the lower social classes in America and in the cor- rectional system. Since people of color experience poverty and marginalization at higher rates than Whites, the class-based disadvantages 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 over- representation of people of color in the criminal justice system, highlighting laws and policies focused on crack cocaine and marijuana possession in California. In addition, evi- dence was presented concerning victim-based racial discrimination in the death penalty, racial profiling, and felony disenfranchisement.

The chapter concluded with an examination of the relationship between immigration rates and violent crime rates. Contrary to the opinion of many, the research shows that increases in immigration decrease violent crime rates. This crime decrease is due to the informal social control produced by family stability and extended kinship networks in communities.

In total, the evidence suggests that the American criminal justice system in the new mil- lennium continues to disproportionately impact the poor and people of color. In some instances this disproportionate impact by race is produced by intentional and uninten- tional discriminatory 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.

Using the Sociological Lens: The New Jim Crow? (continued) 5. Consider the way in which a drug arrest can alter the course of a person’s life. For example,

Presidents Bill Clinton and Barack Obama—both of whom have admitted to experimenting with drugs—may not have ascended to the presidency had they been incarcerated 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 commu- nity—informs 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?

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Chapter Summary CHAPTER 4

Key Terms

Baldus Study A statistical analysis of racial discrimination in the Georgia capital punishment process conducted by law pro- fessors David Baldus, Charles Pulaski and George Woodworth, presented to the U.S. Supreme Court in 1987 McCleskey v. Kemp.

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

felony disenfranchisement The tem- porary or permanent restriction of vot- ing 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 Sen- tences that restrict discretion in the judicial process by specifying the term of incarcer- ation 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 “practice [that] entails police targeting of particular groups for more intrusive law enforcement because of their race, ethnicity, or national origin” (Berger, Free, & Searles, 2009, p. 418).

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?

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Chapter Summary CHAPTER 4

In the Field: Experts Weigh in on Race, Ethnicity, and Crime The definition of crime changes as society changes its norms and values. Such changes also impact social responses to crimes. Experts comment on the study of crime, how crime impacts groups they work with, and different crime response and intervention methods.

Erik Fritsvold

Why is it important to examine the disproportion among races in the incarcer- ated population? One of the cornerstone questions in all of criminology is why does our incar- cerated 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 explana- tions for this overrepresentation is complex. There is modest evidence to sug- gest 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 reasons 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, residen- tially 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 pov- erty, bail, attorney representation and resources more broadly play a role in this discussion as well.

Noah Fritz

Why is it important to examine the disproportion among races in the incarcer- ated population? 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 cur- rent incarceration rates, and the undisputed disparity on racial grounds, the criminal justice system and American society at large must continue to ques- tion and reflect upon our institutional practices that generate these results. The comparison 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 cornerstone of our democracy. Any program or policy that systematically diminishes the American Dream should be greatly scrutinized.

Courtesy of Erik Fritsvold

Courtesy of Noah Fritz

(continued)

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Chapter Summary CHAPTER 4

In the Field: Experts Weigh in on Race, Ethnicity, and Crime (continued)

Joshua Gryniewicz

How are race and ethnicity represented in the different CeaseFire communi- ties impacted by crime? How are age and gender represented? CeaseFire works with those individuals who are at the highest risk for shoot- ing and/or being shot themselves based on statistical data. They are predomi- nately young men, ages 16 to 25, who are African American or Latino, with some gang involvement and most likely a past arrest. Our program is focused on those individuals who are the most difficult to reach and those outside conventional social service networks.

CeaseFire is a data-driven model. Through a combination of statistical information and street knowledge, CeaseFire identifies where we need to concentrate our efforts, focus our resources, and intervene in violence. This data guides us to the communities more impacted. It provides a picture of those individuals at the highest-risk for violence. And, most importantly, it shows us how we can intervene.

What might the relationships be among these social factors and the victims of these crimes? Are there any differences between offenders and victims? For this form of community violence where CeaseFire intervenes, there is very little demographic difference between individuals doing the shooting and those getting shot.

Jody Lewen and David Cowan

What accounts for the high number of incarcerated Black men? Jody Lewen: Innumerable, sometimes very subtle, cultural factors contrib- ute 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 back yards are plentiful enough to hide such activity. Finally, Black men grow up with disproportionately high rates of poverty, under-education, and lack of employment opportunities, which make them more vulnerable to being drawn into crime to begin with.

What is the demographic makeup of students involved in the College Program? What types of crimes are they serving time for?

David Cowen: Students in the College Program range in age from 18 to 70 years old. Approximately 50% are Black, 25% are White, 17% are Latino, and 8% are Asian, Pacific Islander, or Native American. Students are serving sentences from a couple of years to possible life sentences with the possibil- ity of parole. Their commitment offences are extremely diverse and could be violent or nonviolent, habitual, or first-time offences. PUP [Prison University Project] is not in the practice of asking why students are incarcerated because it bears little on the necessity for an education, nor does PUP discriminate against students because of their commitment offences.

Courtesy of Joshua Gryniewicz

Courtesy of Jody Lewen

Courtesy of David Cowan

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