racism in criminal justice system essay

Report Racial and Ethnic Disparities in the Criminal Justice System

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Introduction

Throughout the nation, people of color are far more likely to enter the nation’s justice system than the general population. State and federal governments are aware of this disparity, and researchers and policymakers are studying the drivers behind the statistics and what strategies might be employed to address the disparities, ensuring evenhanded processes at all points in the criminal justice system. This primer highlights data, reports, state laws, innovations, commissions, approaches and other resources addressing racial and ethnic disparities within our country’s justice systems, to provide information for the nation’s decision-makers, state legislators.

Examining the Data and Innovative Justice Responses to Address Disparities

For states to have a clear understanding of the extent of racial and ethnic disparities in the states, they need to have data from all stages of the criminal justice system.

1. Law Enforcement

Disparities within traffic stops.

Contact with law enforcement, particularly at traffic stops, is often the most common interaction people have with the criminal legal system.

According to a  large-scale analysis of racial disparities in police stops across the United States , “police stop and search decisions suffer from persistent racial bias.” The study, the largest to date, analyzed data on approximately 95 million stops from 21 state patrol agencies and 35 municipal police departments across the country. The authors found Black drivers were less likely to be stopped after sunset, when it is more difficult to determine a driver’s race, suggesting bias in stop decisions. Furthermore, by examining the rate at which stopped drivers were searched and turned up contraband, the study found that the bar for searching Black and Hispanic drivers was lower than that for searching white drivers.

The study also investigated the effects of legalization of recreational cannabis on racial disparities in stop outcomes—specifically examining Colorado and Washington, two of the first states to legalize the substance. It found that following the legalization of cannabis, the number of total searches fell substantially. The authors theorized this may have been due to legalization removing a common reason officers cite for conducting searches. Nevertheless, Black and Hispanic drivers were still more likely to be searched than white drivers were post-legalization.

Data Collection Requirements in Statute

At least 23 states and the District of Columbia have laws related to or requiring collection of data when an individual is stopped by law enforcement. Some of these laws specifically prohibit racial profiling or require departments to adopt a policy to the same effect. Collection of demographic data can serve as a means of ensuring compliance with those provisions or informing officials on current practices so they can respond accordingly.

States have employed many reporting or other requirements for evaluation of the data collected under these laws. For example, Montana requires agencies to adopt a policy that provides for periodic reviews to “determine whether any peace officers of the law enforcement agency have a pattern of stopping members of minority groups for violations of vehicle laws in a number disproportionate to the population of minority groups residing or traveling within the jurisdiction…”

Maryland’s law requires local agencies to report their data to the Maryland Statistical Analysis Center. The center is then tasked with analyzing the annual reports from local agencies and posting the data in an online display that is filtered by jurisdiction and by each data point collected by officers.

The amount and kind of data collected also varies state by state. Some states leave the specifics to local jurisdictions or require the creation of a form based on statutory guidance, but most require the collection of demographic data including race, ethnicity, color, age, gender, minority group or state of residence. Notably, Missouri’s law requires collection of the following 10 data points:

• The age, gender and race or minority group of the individual stopped.
• The reasons for the stop.
• Whether a search was conducted because of the stop.
• If a search was conducted, whether the individual consented to the search, the probable cause for the search, whether the person was searched, whether the person’s property was searched, and the duration of the search.
• Whether any contraband was discovered during the search and the type of any contraband discovered.
• Whether any warning or citation was issued because of the stop.
• If a warning or citation was issued, the violation charged or warning provided.
• Whether an arrest was made because of either the stop or the search.
• If an arrest was made, the crime charged.
• The location of the stop.

State laws differ as to what kind of stop triggers a data reporting requirement. For example, Florida’s law applies to stops where citations are issued for violations of the state’s safety belt law. While Virginia’s law is broader, requiring all law enforcement to collect data pertaining to all investigatory motor vehicle stops, all stop-and-frisks of a person and all other investigatory detentions that do not result in arrest or the issuance of a summons.

Cultural Competency and Bias Reduction Training for Law Enforcement

At least 48 states and the District of Columbia have statutory training requirements for law enforcement. These laws require law enforcement personnel statewide to be trained on specific topics during their initial training and/or at recurring intervals, such as in-service training or continuing education.

In most states, the law simply requires training on a subject, leaving the specifics to be determined by state training boards or other local authorities designated by law. However, some states, such as Iowa and West Virginia, have very detailed requirements and even specify how many hours are required, the subject of the training, required content, whether the training must be received in person and who is approved to provide the training.

Overall, at least 26 states mandate some form of bias reduction training. Find out more about these laws on NCSL’s Law Enforcement Training webpage.

Law Enforcement Employment and Labor Policies

States have also addressed equity and accountability in policing through certification and accountability measures and hiring practices.

For example, a 2020 California law ( AB 846 ) changed state certification requirements by expanding current officer evaluations to screen for various kinds of bias in addition to physical, emotional or mental conditions that might adversely affect an officer’s exercise of peace officer powers. The law also requires the Commission on Peace Officer Standards and Training to study, review and update regulations and screening materials to identify explicit and implicit bias against race or ethnicity, gender, nationality, religion, disability or sexual orientation related to emotional and mental condition evaluations.

In addition to screening, the California law requires every department or agency that employs peace officers to review the job descriptions used in recruitment and hiring and to make changes that deemphasize the paramilitary aspects of the job. The intent is to place more emphasis on community interaction and collaborative problem-solving.

Nevada ( AB 409 ), in 2021, added to statutory certification requirements mandating evaluation of officer recruits to identify implicit bias on the basis of race, color, religion, national origin, physical or mental disability, sexual orientation or gender identity expression. That same year, Nevada also enacted legislation ( SB 236 ) that requires law enforcement agencies to establish early warning systems to identify officers who display bias indicators or demonstrate other problematic behavior. It also requires increased supervision, training and, if appropriate, counseling to officers identified by the system. If an officer is repeatedly identified by the early warning system, the law requires the employing agency to consider consequences, including transfer from high-profile assignments or other means of discipline.

Another area of interest for states has been hiring a more diverse workforce in law enforcement and support agencies. For example, New Jersey SB 2767  (2020) required the state Civil Service Commission to conduct a statewide diversity analysis of the ethnic and racial makeup of all law enforcement agencies in the state.

Finally, at least one state addressed bias in policing through a state civil rights act. Massachusetts ( SB 2963 ) established a state right to bias-free professional policing. Conduct against an aggrieved person resulting in decertification by the Police Office Standards and Training Commission constitute a prima-facie violation of the right to bias-free professional policing. The law also specifies that no officer is immune from civil liability for violating a person’s right to bias-free professional policing if the conduct results in officer decertification.

Disproportionality of Native Americans in the Justice System According to the U.S. Department of Justice, from 2015 to 2019, the number of American Indian or Alaska Native justice-involved individuals housed in local jails for federal correctional authorities, state prison authorities or tribal governments increased by  3.6% . Though American Indian and Alaska Natives make up a small proportion of the national incarcerated population relative to other ethnicities, some jurisdictions are finding they are disproportionately represented in the justice system. For example, in  Pennington County , S.D., it is estimated that 10% to 25% of the county’s residents are Native American, but they account for 55% of the county’s jail population. Similarly, Montana’s Commission on Sentencing  found  that while Native Americans represent 7% of the state’s general population, they comprised 17% of those incarcerated in correctional facilities in 2014 and 19% of the state’s total arrests in 2015.

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2. pretrial release and prosecution, risk assessments.

Recently, state laws have authorized or required courts to use pretrial risk assessment tools. There are about  two dozen pretrial risk assessment tools in use  across the states. 

Laws in Alaska, Delaware, Hawaii, Indiana, Kentucky, New Jersey and Vermont require courts to adopt or consider risk assessments in at least some, if not all, cases on a statewide basis. While laws in Colorado, Illinois, Montana, New York, Pennsylvania, Rhode Island, Virginia and West Virginia authorize or encourage, but do not require, adopting a risk assessment tool on a statewide basis.

This broad state adoption of risk assessment tools raises concern that systemic bias may impact their use. In 2014, U.S. Attorney General Eric Holder  said  pretrial risk assessment tools “may exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system and our society.”

More than 100 civil rights organizations expressed similar concerns in  a statement  following a 2017 convening. The dependance of pretrial risk assessment tools on data that reflect systemic bias is the crux of the issue. The statement highlights that police officers disproportionately arrest people of color, which impacts risk assessment tools that rely on arrest data. The statement then set out key principles mitigating harm that may be caused by risk assessments, recognizing their broad use across the country.

The conversation about bias in pretrial risk assessments is ongoing. In 2021, the Urban Institute published the report “ Racial Equity and Criminal Justice Risk Assessment .” In the report, the authors discuss and make recommendations for policymakers to balance the use of risk assessment as a component of evidence-based practice with pursuing goals of reducing racial and ethnic disparities. The authors state that “carefully constructed and properly used risk assessment instruments that account for fairness can help limit racial bias in criminal justice decision-making.”

Academic studies show varied results related to the use of risk assessments and their effect on racial and ethnic disparities in the justice system. One study, “ Racist Algorithms or Systemic Problems ,” concludes “there is currently no valid evidence that instruments in general are biased against individuals of color,” and, “Where bias has been found, it appears to have more to do with the specific risk instrument.” In another study, “ Employing Standardized Risk Assessment in Pretrial Release Decisions ,” the authors, without making causal conclusions, find that “despite comparable risk scores, African American participants were detained significantly longer than Caucasian participants … and were less likely to receive diversion opportunity.”

In a recent report titled “ Civil Rights and Pretrial Risk Assessment Instruments ,” the authors recommend steps to protect civil rights when risk assessment tools are used. The report underscores the importance of expansive transparency throughout design and implementation of these tools. It also suggests more community oversight and governance that promotes reduced incarceration and racially equitable outcomes. Finally, the report suggests decisions made by judges to detain should be rare, deliberate and not dependent solely on pretrial risk assessment instruments.

States are starting to regulate the use of risk assessments and promote best practices by requiring the tool to be validated on a regular basis, be free from racial or gender bias and that documents, data and records related to the tool be publicly available.

For example, California (2019  SB 36 ) requires a pretrial services agency validate pretrial risk assessment tools on a regular basis and to make specified information regarding the tool, including validation studies, publicly available. The law also requires the judicial council to maintain a list of pretrial services agencies that have satisfied the validation requirements and complied with the transparency requirements. California published its most recent validation  report  in June 2021.

Similarly, Idaho (2019  HB 118 ) now requires all documents, data, records and information used to build and validate a risk assessment tool to be publicly available for inspection, auditing and testing. The law requires public availability of ongoing documents, data, records and written policies on usage and validation of a tool. It also authorizes defendants to have access to calculations and data related to their own risk score and prohibits the use of proprietary tools.

Pretrial Release

A  recent report from the U.S. Commission on Civil Rights  evaluates the civil rights implications of pretrial release systems across the country.

Notable findings from the report include stark racial and gender disparities in pretrial populations with higher detention rates and financial conditions of release imposed on minority populations. The report also finds that more than 60% of defendants are detained pretrial because of an inability to pay financial conditions of release. 

States have recently enacted legislation to address defendants’ ability to pay financial conditions of release, with at least 11 states requiring courts to conduct ability-to-pay considerations when setting release conditions.  NCSL’s Statutory Framework of Pretrial Release report  has additional information about state approaches to pretrial release.

Prosecutorial Discretion

Prosecutorial discretion is a term used to describe the power of prosecutors to decide whether to charge a person for a crime, which criminal charges to file and whether to enter into a plea agreement. Some argue this discretion can be a source of disparities within the criminal justice system.

The  Prosecutorial Performance Indicators  (PPI), developed by Florida International University and Loyola University Chicago, is an example of an effort to address this. PPI provides prosecutors’ offices with a method to measure their performance through several indicators, including racial and ethnic disparities. As part of their work to bring accountability and oversight to prosecutorial discretion, PPI has created six measures specifically related to racial and ethnic disparities in the criminal justice system. The PPI measures include the following:

• Victimization of Racial/Ethnic Minorities.
• Case Dismissal Differences by Victim Race/Ethnicity.
• Case Filing Differences by Defendant Race/Ethnicity.
• Pretrial Detention Differences by Defendant Race/Ethnicity.
• Diversion Differences by Defendant Race/Ethnicity.
• Charging and Plea Offer Differences by Defendant Race/Ethnicity.

Below is a table highlighting disparity  data discovered through the use of PPI measures , gathered from specific jurisdictions.

Young People in the Justice System

As is the case in the adult system, compared to young white people, youth of color are disproportionately represented at every stage in the nation’s juvenile justice system. Overall juvenile placements  fell by 54%  between 2001 and 2015, but the placement rate for Black youth was 433 per 100,000, compared to a white youth placement rate of 86 per 100,000. According to a report from the Prison Policy Initiative, an advocacy organization, titled “ Youth Confinement: The Whole Pie 2019 ,” 14% of all those younger than 18 in the U.S. are Black, but they make up 42% of the boys and 35% of the girls in juvenile facilities. Additionally, Native American and Hispanic girls and boys are also overrepresented in the juvenile justice system relative to their share of the total youth population.  Information  from California reveals that prosecutors send Hispanic youth to adult court via “direct file” at over three times the rate of white youth.

At the federal level, the 2018 reauthorized  Juvenile Justice and Delinquency Prevention Act  requires states to identify and analyze data on race and ethnicity in state, local and tribal juvenile justice systems. States must identify disparities and develop and implement work plans to address them. States are required to document how they are addressing racial and ethnic disparities and establish a coordinating body composed of juvenile justice stakeholders to advise states, units of local government and Native American tribes. If a state fails to meet the act’s requirements, it will result in a 20% reduction of formula grant funding.

An example of a coordinating council that has examined extensive data is the Equity and Justice for All Youth Subcommittee of the  Georgia Juvenile Justice State Advisory Group . The group conducted a county-by-county assessment and analysis of disproportionality in Georgia and found one of the most effective ways to reduce disproportionate treatment of youth is to reduce harsh disciplinary measures in schools. This in turn helps reduce disproportionate referrals to the system.

3. Incarceration

Incarceration statistics help paint a picture of the disparities in the criminal justice system. Significant racial and ethnic disparities can be seen in both jails and prisons. According to the MacArthur Foundation’s  Safety and Justice Challenge website , “While Black and Latinx people make up 30% of the U.S. population, they account for 51% of the jail population.”

An  October 2021 report  from The Sentencing Project, an organization advocating for criminal justice reform, found that “Black Americans are incarcerated in state prisons across the country at nearly five times the rate of whites, and Latinx people are 1.3 times as likely to be incarcerated than non-Latinx whites.” At the time of the report, there were 12 states where more than half of the prison population is Black and seven states with a disparity between the Black and white imprisonment rate of more than 9 to 1.

To have a clearer sense of the racial makeup of who is incarcerated at any given time, some systems developed data dashboards to provide information on their jail populations. In Allegheny County, Pa., for instance, the  jail data dashboard  is publicly available and provides a range of information on who is incarcerated in the jail. The dashboard provides an up-to-the-day look at the race, gender and age of the jail population. According to the dashboard, on average from Jan. 1, 2019, to mid-November 2021, 65% of individuals in the jail were Black.

Dashboards may also be established by the individual state, though these generally look back over a specified time, rather than providing a close-to-live look at the jail population. Colorado passed a law in 2019 ( HB 1297 ) requiring county jails to collect certain data and report it to the state Division of Criminal Justice on a quarterly basis. That data is compiled in a publicly available  Jail Data Dashboard . The dashboard includes information on the racial and ethnic makeup of jail populations in the state. In the second quarter of 2021, 88% of people incarcerated in jails in the state were white, 16% were Black, 2% were Native American and 1% were classified as “other race.” In the same quarter, ethnicity data for incarcerated people showed 67% were non-Hispanic, 33% were Hispanic and 9% were classified with “unknown ethnicity.”

Pennsylvania’s Department of Corrections has an online  dashboard  providing similar information for the state prison population. The dashboard shows Black people make up 12% of the state’s overall population but 44% of the population in state correctional institutions, while white people make up 74% of the state population and 45% of the state prison population. While dashboards themselves don’t reduce disparities, they help create a clearer understanding of them.

4. Sentencing

Racial and ethnic disparities can also be seen in the sentencing of individuals following a criminal conviction. The use of sentencing enhancements and federal drug sentencing both provide examples of the disparities in sentencing.

Sentencing enhancements in California  have been found  to be applied disproportionately to people of color and individuals with mental illness according to the state’s  Committee on Revision of the Penal Code . More than 92% of the people sentenced for a gang enhancement in the state, for instance, are Black or Hispanic. The state has more than 150 different sentence enhancements and more than 80% of people incarcerated in the state are subject to a sentence enhancement.

In response to recommendations from the committee,  AB 333  was enacted in 2021 to modify the state’s gang enhancement statutes by reducing the list of crimes under which use of the current charge alone creates proof of a “pattern” of criminal gang activity and separates gang allegations from underlying charges at trial.

Impact Statements and Legislative Task Forces

Racial impact statements and data.

Legislatures are currently taking many steps to increase their understanding of racial and ethnic disparities in the justice system. In some states, this has taken the form of racial and ethnic impact statements or corrections impact statements.

At least 18 states require  corrections impact statements  for legislation that would make changes to criminal offenses and penalties. These look at the fiscal impact of policy changes on correctional populations and criminal justice resources. A few states have required the inclusion of information on the impacts of policy changes on certain racial and ethnic groups.

Colorado has taken this approach. The state enacted  legislation in 2013  (SB 229) requiring corrections fiscal notes to include information on gender and minority data. In 2019, the state passed  legislation  (HB 1184) requiring the staff of the legislative council to prepare demographic notes for certain bills. These notes use “available data to outline the potential effects of a legislative measure on disparities within the state, including a statement of whether the measure is likely to increase or decrease disparities to the extent the data is available.”

Other states with laws requiring racial and ethnic impact statements include  Connecticut ,  Iowa ,  Maine ,  New Hampshire ,  New Jersey ,  Oregon  and  Virginia . Additionally, Florida  announced  a  partnership  in July 2019 “between the Florida Senate and Florida State University’s College of Criminology & Criminal Justice to analyze racial and ethnic impacts of proposed legislation.”  Minnesota’s Sentencing Commission has compiled racial impact statements for the legislature since 2006, though this is not required in law.

Legislative Studies and Task Forces

States are also taking a closer look at racial disparities within criminal justice systems by creating legislative studies or judicial task forces. These bodies examined disproportionalities in the criminal justice system, investigated possible causes and recommended solutions.

In 2018, Vermont  legislatively established  the state’s  Racial Disparities in the Criminal and Juvenile Justice System Advisory Panel . The panel submitted its  report to the General Assembly  in 2019. Part of the report recommended instituting a public complaint process with the state’s Human Rights Commission to address perceived implicit bias across all state government systems. It also recommended training first responders to identify mental health needs, educating all law enforcement officers on bias and racial disparities and adopting a community policing paradigm. Finally, the panel agreed that increased and improved data collection was important to combat racial and ethnic disparities in the justice system. The panel recommended “developing laws and rules that will require data collection that captures high-impact, high-discretion decision points that occur during the judicial processes.”

State lawmakers are well positioned to make policy changes to address the racial and ethnic disparities that research has shown are present throughout the criminal justice system. As they continue to develop a greater understanding of these disparities, state legislatures have an opportunity to make their systems fairer for all individuals who encounter the justice system, with the goal of  reducing or eliminating racial and ethnic disparities. 

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Pretrial justice policy was the subject of a recent NCSL Town Hall with state Sens. Elgie Sims of Illinois and Brian Pettyjohn of Delaware.

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“ Unequal ” is a multipart series highlighting the work of Harvard faculty, staff, students, alumni, and researchers on issues of race and inequality across the U.S. The first part explores the experience of people of color with the criminal justice legal system in America.

It seems there’s no end to them. They are the recent videos and reports of Black and brown people beaten or killed by law enforcement officers, and they have fueled a national outcry over the disproportionate use of excessive, and often lethal, force against people of color, and galvanized demands for police reform.

This is not the first time in recent decades that high-profile police violence — from the 1991 beating of Rodney King to the fatal shooting of Michael Brown in 2014 — ignited calls for change. But this time appears different. The police killings of Breonna Taylor in March, George Floyd in May, and a string of others triggered historic, widespread marches and rallies across the nation, from small towns to major cities, drawing protesters of unprecedented diversity in race, gender, and age.

According to historians and other scholars, the problem is embedded in the story of the nation and its culture. Rooted in slavery, racial disparities in policing and police violence, they say, are sustained by systemic exclusion and discrimination, and fueled by implicit and explicit bias. Any solution clearly will require myriad new approaches to law enforcement, courts, and community involvement, and comprehensive social change driven from the bottom up and the top down.

While police reform has become a major focus, the current moment of national reckoning has widened the lens on systemic racism for many Americans. The range of issues, though less familiar to some, is well known to scholars and activists. Across Harvard, for instance, faculty members have long explored the ways inequality permeates every aspect of American life. Their research and scholarship sits at the heart of a new Gazette series starting today aimed at finding ways forward in the areas of democracy; wealth and opportunity; environment and health; and education. It begins with this first on policing.

Harvard Kennedy School Professor Khalil Gibran Muhammad traces the history of policing in America to “slave patrols” in the antebellum South, in which white citizens were expected to help supervise the movements of enslaved Black people.

Photo by Martha Stewart

The history of racialized policing

Like many scholars, Khalil Gibran Muhammad , professor of history, race, and public policy at the Harvard Kennedy School , traces the history of policing in America to “slave patrols” in the antebellum South, in which white citizens were expected to help supervise the movements of enslaved Black people. This legacy, he believes, can still be seen in policing today. “The surveillance, the deputization essentially of all white men to be police officers or, in this case, slave patrollers, and then to dispense corporal punishment on the scene are all baked in from the very beginning,” he  told NPR  last year.

Slave patrols, and the slave codes they enforced, ended after the Civil War and the passage of the 13th amendment, which formally ended slavery “except as a punishment for crime.” But Muhammad notes that former Confederate states quickly used that exception to justify new restrictions. Known as the Black codes, the various rules limited the kinds of jobs African Americans could hold, their rights to buy and own property, and even their movements.

“The genius of the former Confederate states was to say, ‘Oh, well, if all we need to do is make them criminals and they can be put back in slavery, well, then that’s what we’ll do.’ And that’s exactly what the Black codes set out to do. The Black codes, for all intents and purposes, criminalized every form of African American freedom and mobility, political power, economic power, except the one thing it didn’t criminalize was the right to work for a white man on a white man’s terms.” In particular, he said the Ku Klux Klan “took about the business of terrorizing, policing, surveilling, and controlling Black people. … The Klan totally dominates the machinery of justice in the South.”

When, during what became known as the Great Migration, millions of African Americans fled the still largely agrarian South for opportunities in the thriving manufacturing centers of the North, they discovered that metropolitan police departments tended to enforce the law along racial and ethnic lines, with newcomers overseen by those who came before. “There was an early emphasis on people whose status was just a tiny notch better than the folks whom they were focused on policing,” Muhammad said. “And so the Anglo-Saxons are policing the Irish or the Germans are policing the Irish. The Irish are policing the Poles.” And then arrived a wave of Black Southerners looking for a better life.

In his groundbreaking work, “ The Condemnation of Blackness: Race, Crime, and the Making of Modern Urban America ,” Muhammad argues that an essential turning point came in the early 1900s amid efforts to professionalize police forces across the nation, in part by using crime statistics to guide law enforcement efforts. For the first time, Americans with European roots were grouped into one broad category, white, and set apart from the other category, Black.

Citing Muhammad’s research, Harvard historian Jill Lepore  has summarized the consequences this way : “Police patrolled Black neighborhoods and arrested Black people disproportionately; prosecutors indicted Black people disproportionately; juries found Black people guilty disproportionately; judges gave Black people disproportionately long sentences; and, then, after all this, social scientists, observing the number of Black people in jail, decided that, as a matter of biology, Black people were disproportionately inclined to criminality.”

“History shows that crime data was never objective in any meaningful sense,” Muhammad wrote. Instead, crime statistics were “weaponized” to justify racial profiling, police brutality, and ever more policing of Black people.

This phenomenon, he believes, has continued well into this century and is exemplified by William J. Bratton, one of the most famous police leaders in recent America history. Known as “America’s Top Cop,” Bratton led police departments in his native Boston, Los Angeles, and twice in New York, finally retiring in 2016.

Bratton rejected notions that crime was a result of social and economic forces, such as poverty, unemployment, police practices, and racism. Instead, he said in a 2017 speech, “It is about behavior.” Through most of his career, he was a proponent of statistically-based “predictive” policing — essentially placing forces in areas where crime numbers were highest, focused on the groups found there.

Bratton argued that the technology eliminated the problem of prejudice in policing, without ever questioning potential bias in the data or algorithms themselves — a significant issue given the fact that Black Americans are arrested and convicted of crimes at disproportionately higher rates than whites. This approach has led to widely discredited practices such as racial profiling and “stop-and-frisk.” And, Muhammad notes, “There is no research consensus on whether or how much violence dropped in cities due to policing.”

Gathering numbers

In 2015 The Washington Post began tracking every fatal shooting by an on-duty officer, using news stories, social media posts, and police reports in the wake of the fatal police shooting of Brown, a Black teenager in Ferguson, Mo. According to the newspaper, Black Americans are killed by police at twice the rate of white Americans, and Hispanic Americans are also killed by police at a disproportionate rate.

Such efforts have proved useful for researchers such as economist Rajiv Sethi .

A Joy Foundation Fellow at the Harvard  Radcliffe Institute , Sethi is investigating the use of lethal force by law enforcement officers, a difficult task given that data from such encounters is largely unavailable from police departments. Instead, Sethi and his team of researchers have turned to information collected by websites and news organizations including The Washington Post and The Guardian, merged with data from other sources such as the Bureau of Justice Statistics, the Census, and the Centers for Disease Control and Prevention.

A Joy Foundation Fellow at the Harvard Radcliffe Institute, Rajiv Sethi is investigating the use of lethal force by law enforcement officers,

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They have found that exposure to deadly force is highest in the Mountain West and Pacific regions relative to the mid-Atlantic and northeastern states, and that racial disparities in relation to deadly force are even greater than the national numbers imply. “In the country as a whole, you’re about two to three times more likely to face deadly force if you’re Black than if you are white” said Sethi. “But if you look at individual cities separately, disparities in exposure are much higher.”

Examining the characteristics associated with police departments that experience high numbers of lethal encounters is one way to better understand and address racial disparities in policing and the use of violence, Sethi said, but it’s a massive undertaking given the decentralized nature of policing in America. There are roughly 18,000 police departments in the country, and more than 3,000 sheriff’s offices, each with its own approaches to training and selection.

“They behave in very different ways, and what we’re finding in our current research is that they are very different in the degree to which they use deadly force,” said Sethi. To make real change, “You really need to focus on the agency level where organizational culture lies, where selection and training protocols have an effect, and where leadership can make a difference.”

Sethi pointed to the example of Camden, N.J., which disbanded and replaced its police force in 2013, initially in response to a budget crisis, but eventually resulting in an effort to fundamentally change the way the police engaged with the community. While there have been improvements, including greater witness cooperation, lower crime, and fewer abuse complaints, the Camden case doesn’t fit any particular narrative, said Sethi, noting that the number of officers actually increased as part of the reform. While the city is still faced with its share of problems, Sethi called its efforts to rethink policing “important models from which we can learn.”

Fighting vs. preventing crime

For many analysts, the real problem with policing in America is the fact that there is simply too much of it. “We’ve seen since the mid-1970s a dramatic increase in expenditures that are associated with expanding the criminal legal system, including personnel and the tasks we ask police to do,” said Sandra Susan Smith , Daniel and Florence Guggenheim Professor of Criminal Justice at HKS, and the Carol K. Pforzheimer Professor at the Radcliffe Institute. “And at the same time we see dramatic declines in resources devoted to social welfare programs.”

“You can have all the armored personnel carriers you want in Ferguson, but public safety is more likely to come from redressing environmental pollution, poor education, and unfair work,” said Brandon Terry, assistant professor of African and African American Studies and social studies.

Kris Snibble/Harvard file photo

Smith’s comment highlights a key argument embraced by many activists and experts calling for dramatic police reform: diverting resources from the police to better support community services including health care, housing, and education, and stronger economic and job opportunities. They argue that broader support for such measures will decrease the need for policing, and in turn reduce violent confrontations, particularly in over-policed, economically disadvantaged communities, and communities of color.

For Brandon Terry , that tension took the form of an ice container during his Baltimore high school chemistry final. The frozen cubes were placed in the middle of the classroom to help keep the students cool as a heat wave sent temperatures soaring. “That was their solution to the building’s lack of air conditioning,” said Terry, a Harvard assistant professor of African and African American Studies and social studies. “Just grab an ice cube.”

Terry’s story is the kind many researchers cite to show the negative impact of underinvesting in children who will make up the future population, and instead devoting resources toward policing tactics that embrace armored vehicles, automatic weapons, and spy planes. Terry’s is also the kind of tale promoted by activists eager to defund the police, a movement begun in the late 1960s that has again gained momentum as the death toll from violent encounters mounts. A scholar of Martin Luther King Jr., Terry said the Civil Rights leader’s views on the Vietnam War are echoed in the calls of activists today who are pressing to redistribute police resources.

“King thought that the idea of spending many orders of magnitude more for an unjust war than we did for the abolition of poverty and the abolition of ghettoization was a moral travesty, and it reflected a kind of sickness at the core of our society,” said Terry. “And part of what the defund model is based upon is a similar moral criticism, that these budgets reflect priorities that we have, and our priorities are broken.”

Terry also thinks the policing debate needs to be expanded to embrace a fuller understanding of what it means for people to feel truly safe in their communities. He highlights the work of sociologist Chris Muller and Harvard’s Robert Sampson, who have studied racial disparities in exposures to lead and the connections between a child’s early exposure to the toxic metal and antisocial behavior. Various studies have shown that lead exposure in children can contribute to cognitive impairment and behavioral problems, including heightened aggression.

“You can have all the armored personnel carriers you want in Ferguson,” said Terry, “but public safety is more likely to come from redressing environmental pollution, poor education, and unfair work.”

Policing and criminal justice system

Alexandra Natapoff , Lee S. Kreindler Professor of Law, sees policing as inexorably linked to the country’s criminal justice system and its long ties to racism.

“Policing does not stand alone or apart from how we charge people with crimes, or how we convict them, or how we treat them once they’ve been convicted,” she said. “That entire bundle of official practices is a central part of how we govern, and in particular, how we have historically governed Black people and other people of color, and economically and socially disadvantaged populations.”

Unpacking such a complicated issue requires voices from a variety of different backgrounds, experiences, and fields of expertise who can shine light on the problem and possible solutions, said Natapoff, who co-founded a new lecture series with HLS Professor Andrew Crespo titled “ Policing in America .”

In recent weeks the pair have hosted Zoom discussions on topics ranging from qualified immunity to the Black Lives Matter movement to police unions to the broad contours of the American penal system. The series reflects the important work being done around the country, said Natapoff, and offers people the chance to further “engage in dialogue over these over these rich, complicated, controversial issues around race and policing, and governance and democracy.”

Courts and mass incarceration

Much of Natapoff’s recent work emphasizes the hidden dangers of the nation’s misdemeanor system. In her book “ Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal ,” Natapoff shows how the practice of stopping, arresting, and charging people with low-level offenses often sends them down a devastating path.

“This is how most people encounter the criminal apparatus, and it’s the first step of mass incarceration, the initial net that sweeps people of color disproportionately into the criminal system,” said Natapoff. “It is also the locus that overexposes Black people to police violence. The implications of this enormous net of police and prosecutorial authority around minor conduct is central to understanding many of the worst dysfunctions of our criminal system.”

One consequence is that Black and brown people are incarcerated at much higher rates than white people. America has approximately 2.3 million people in federal, state, and local prisons and jails, according to a 2020 report from the nonprofit the Prison Policy Initiative. According to a 2018 report from the Sentencing Project, Black men are 5.9 times as likely to be incarcerated as white men and Hispanic men are 3.1 times as likely.

Reducing mass incarceration requires shrinking the misdemeanor net “along all of its axes” said Natapoff, who supports a range of reforms including training police officers to both confront and arrest people less for low-level offenses, and the policies of forward-thinking prosecutors willing to “charge fewer of those offenses when police do make arrests.”

She praises the efforts of Suffolk County District Attorney Rachael Rollins in Massachusetts and George Gascón, the district attorney in Los Angeles County, Calif., who have pledged to stop prosecuting a range of misdemeanor crimes such as resisting arrest, loitering, trespassing, and drug possession. “If cities and towns across the country committed to that kind of reform, that would be a profoundly meaningful change,” said Natapoff, “and it would be a big step toward shrinking our entire criminal apparatus.”

Retired U.S. Judge Nancy Gertner cites the need to reform federal sentencing guidelines, arguing that all too often they have been proven to be biased and to result in packing the nation’s jails and prisons.

Stephanie Mitchell/Harvard file photo

Sentencing reform

Another contributing factor in mass incarceration is sentencing disparities.

A recent Harvard Law School study found that, as is true nationally, people of color are “drastically overrepresented in Massachusetts state prisons.” But the report also noted that Black and Latinx people were less likely to have their cases resolved through pretrial probation ­— a way to dismiss charges if the accused meet certain conditions — and receive much longer sentences than their white counterparts.

Retired U.S. Judge Nancy Gertner also notes the need to reform federal sentencing guidelines, arguing that all too often they have been proven to be biased and to result in packing the nation’s jails and prisons. She points to the way the 1994 Crime Bill (legislation sponsored by then-Sen. Joe Biden of Delaware) ushered in much harsher drug penalties for crack than for powder cocaine. This tied the hands of judges issuing sentences and disproportionately punished people of color in the process. “The disparity in the treatment of crack and cocaine really was backed up by anecdote and stereotype, not by data,” said Gertner, a lecturer at HLS. “There was no data suggesting that crack was infinitely more dangerous than cocaine. It was the young Black predator narrative.”

The First Step Act, a bipartisan prison reform bill aimed at reducing racial disparities in drug sentencing and signed into law by President Donald Trump in 2018, is just what its name implies, said Gertner.

“It reduces sentences to the merely inhumane rather than the grotesque. We still throw people in jail more than anybody else. We still resort to imprisonment, rather than thinking of other alternatives. We still resort to punishment rather than other models. None of that has really changed. I don’t deny the significance of somebody getting out of prison a year or two early, but no one should think that that’s reform.”

 Not just bad apples

Reform has long been a goal for federal leaders. Many heralded Obama-era changes aimed at eliminating racial disparities in policing and outlined in the report by The President’s Task Force on 21st Century policing. But HKS’s Smith saw them as largely symbolic. “It’s a nod to reform. But most of the reforms that are implemented in this country tend to be reforms that nibble around the edges and don’t really make much of a difference.”

Efforts such as diversifying police forces and implicit bias training do little to change behaviors and reduce violent conduct against people of color, said Smith, who cites studies suggesting a majority of Americans hold negative biases against Black and brown people, and that unconscious prejudices and stereotypes are difficult to erase.

“Experiments show that you can, in the context of a day, get people to think about race differently, and maybe even behave differently. But if you follow up, say, a week, or two weeks later, those effects are gone. We don’t know how to produce effects that are long-lasting. We invest huge amounts to implement such police reforms, but most often there’s no empirical evidence to support their efficacy.”

Even the early studies around the effectiveness of body cameras suggest the devices do little to change “officers’ patterns of behavior,” said Smith, though she cautions that researchers are still in the early stages of collecting and analyzing the data.

And though police body cameras have caught officers in unjust violence, much of the general public views the problem as anomalous.

“Despite what many people in low-income communities of color think about police officers, the broader society has a lot of respect for police and thinks if you just get rid of the bad apples, everything will be fine,” Smith added. “The problem, of course, is this is not just an issue of bad apples.”

Efforts such as diversifying police forces and implicit bias training do little to change behaviors and reduce violent conduct against people of color, said Sandra Susan Smith, a professor of criminal justice Harvard Kennedy School.

Community-based ways forward

Still Smith sees reason for hope and possible ways forward involving a range of community-based approaches. As part of the effort to explore meaningful change, Smith, along with Christopher Winship , Diker-Tishman Professor of Sociology at Harvard University and a member of the senior faculty at HKS, have organized “ Reimagining Community Safety: A Program in Criminal Justice Speaker Series ” to better understand the perspectives of practitioners, policymakers, community leaders, activists, and academics engaged in public safety reform.

Some community-based safety models have yielded important results. Smith singles out the Crisis Assistance Helping Out on the Streets program (known as CAHOOTS ) in Eugene, Ore., which supplements police with a community-based public safety program. When callers dial 911 they are often diverted to teams of workers trained in crisis resolution, mental health, and emergency medicine, who are better equipped to handle non-life-threatening situations. The numbers support her case. In 2017 the program received 25,000 calls, only 250 of which required police assistance. Training similar teams of specialists who don’t carry weapons to handle all traffic stops could go a long way toward ending violent police encounters, she said.

“Imagine you have those kinds of services in play,” said Smith, paired with community-based anti-violence program such as Cure Violence , which aims to stop violence in targeted neighborhoods by using approaches health experts take to control disease, such as identifying and treating individuals and changing social norms. Together, she said, these programs “could make a huge difference.”

At Harvard Law School, students have been  studying how an alternate 911-response team  might function in Boston. “We were trying to move from thinking about a 911-response system as an opportunity to intervene in an acute moment, to thinking about what it would look like to have a system that is trying to help reweave some of the threads of community, a system that is more focused on healing than just on stopping harm” said HLS Professor Rachel Viscomi, who directs the Harvard Negotiation and Mediation Clinical Program and oversaw the research.

The forthcoming report, compiled by two students in the HLS clinic, Billy Roberts and Anna Vande Velde, will offer officials a range of ideas for how to think about community safety that builds on existing efforts in Boston and other cities, said Viscomi.

But Smith, like others, knows community-based interventions are only part of the solution. She applauds the Justice Department’s investigation into the Ferguson Police Department after the shooting of Brown. The 102-page report shed light on the department’s discriminatory policing practices, including the ways police disproportionately targeted Black residents for tickets and fines to help balance the city’s budget. To fix such entrenched problems, state governments need to rethink their spending priorities and tax systems so they can provide cities and towns the financial support they need to remain debt-free, said Smith.

Rethinking the 911-response system to being one that is “more focused on healing than just on stopping harm” is part of the student-led research under the direction of Law School Professor Rachel Viscomi, who heads up the Harvard Negotiation and Mediation Clinical Program.

Jon Chase/Harvard file photo

“Part of the solution has to be a discussion about how government is funded and how a city like Ferguson got to a place where government had so few resources that they resorted to extortion of their residents, in particular residents of color, in order to make ends meet,” she said. “We’ve learned since that Ferguson is hardly the only municipality that has struggled with funding issues and sought to address them through the oppression and repression of their politically, socially, and economically marginalized Black and Latino residents.”

Police contracts, she said, also need to be reexamined. The daughter of a “union man,” Smith said she firmly supports officers’ rights to union representation to secure fair wages, health care, and safe working conditions. But the power unions hold to structure police contracts in ways that protect officers from being disciplined for “illegal and unethical behavior” needs to be challenged, she said.

“I think it’s incredibly important for individuals to be held accountable and for those institutions in which they are embedded to hold them to account. But we routinely find that union contracts buffer individual officers from having to be accountable. We see this at the level of the Supreme Court as well, whose rulings around qualified immunity have protected law enforcement from civil suits. That needs to change.”

Other Harvard experts agree. In an opinion piece in The Boston Globe last June, Tomiko Brown-Nagin , dean of the Harvard Radcliffe Institute and the Daniel P.S. Paul Professor of Constitutional Law at HLS, pointed out the Court’s “expansive interpretation of qualified immunity” and called for reform that would “promote accountability.”

“This nation is devoted to freedom, to combating racial discrimination, and to making government accountable to the people,” wrote Brown-Nagin. “Legislators today, like those who passed landmark Civil Rights legislation more than 50 years ago, must take a stand for equal justice under law. Shielding police misconduct offends our fundamental values and cannot be tolerated.”

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Criminal Justice

In May of 2020, the death of George Floyd at the hands of Minneapolis police sparked a national conversation on racism in policing. The conversation was long overdue. While Floyd’s death was a wake-up call for many, it was also the latest evidence of systemic, anti-Black racism in the United States criminal justice system.

Since the 1600s, racist stereotypes have permeated American society and shaped its criminal justice system. Some of the first organized “police forces” in the United States were slave patrols in the American South, and as policing evolved, disparities in the treatment of Black and white Americans did not.

During the 1980s, the federal government’s strategy to counter illegal drug use shifted from treatment and poverty reduction programs to increased incarceration, penalties, and enforcement for drug offenders. The prison population skyrocketed over the next several decades — in 1972 there were only 200,000 people incarcerated in the United States, while there are now more than 2.2 million. The trend of mass incarceration has meant mostly Black incarceration. Black Americans currently represent one-third of the incarcerated population, even though they make up only an eighth of American adults.

Today, Black Americans are more likely to be arrested, convicted, and given harsher sentences than white Americans who commit the same crimes. They receive much greater police scrutiny than those who are not Black — for instance, they use drugs at the same rates as other races and ethnicities but make up nearly 1 in 3 arrests for drug use. And they suffer deadly police violence at a greater rate than non-Black Americans, as the family of George Floyd knows all too well.

Our criminal justice system’s violence and inequality toward Black Americans is fueled by a long history of racism that frames Black people as inherently dangerous criminals. Positively transforming criminal justice in the United States will require confronting this history and implementing policy based in fairness and accountability.

Sources for the information above are cited at the bottom of this page.

Explore a curated sample of Harvard research and resources related to anti-Black racism in criminal justice below.

The great decoupling: the disconnection between criminal offending and experience of arrest across two cohorts.

Contact with the criminal justice system should only occur when one commits a crime. This study reveals how police arrests are increasingly informed by race instead of criminal behavior.

Unfair by Design: The War on Drugs, Race, and the Legitimacy of the Criminal Justice System

Equality before the law is one of the fundamental guarantees citizens expect in a just and fair society. This study explains how the recent trend toward mass incarceration, which has a disproportionate impact on African Americans, undermines this claim to fairness.

The Condemnation of Blackness: Race, Crime, and the Making of Modern Urban America (HarvardKey Only)

The idea of Black people as innately dangerous and criminal is deeply ingrained in the United States. This book traces the history of this notion and reveals how social scientists and reformers used crime statistics to mask and excuse anti-black racism, violence, and discrimination across the nation.

Punishment without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal (HarvardKey Only)

This book examines inequality in the criminal justice system through an in-depth look at misdemeanors. It reveals a sprawling system that punishes the innocent and disproportionately targets low-income people of color.

Visualizing Police Exposure by Race, Gender, and Age in New York City

This data visualization depicts the disparities in average police stops in New York City from 2004 to 2012. It illustrates that Black men and women are more likely than their peers to be exposed to policing.

Racial Disparities in the Massachusetts Criminal System

People of color are drastically overrepresented in Massachusetts state prisons. This report explores the factors that lead to persistent racial disparities in the Massachusetts criminal system.

American Policing and Protest || Radcliffe Institute

The United States has a long history of police violence against people of color. In this panel, experts discuss the historical roots of policing and ways to create a fair criminal justice system.

PolicyCast: A Historic Crossroads for Systemic Racism and Policing in America

In this podcast Harvard Kennedy School professors Khalil Gibran Muhammad and Erica Chenoweth discuss police brutality, addressing systemic racism in criminal justice, and social movements.

Citations for Section Overview

• Britannica, T. Editors of Encyclopedia. "War on Drugs." Encyclopedia Britannica. https://www.britannica.com/topic/war-on-drugs
• Ghandnoosh, Nazgol. 2015. “Black Lives Matter: Eliminating Racial Inequity in the Criminal Justice System.” The Sentencing Project. February 3, 2015. https://www.sentencingproject.org/publications/black-lives-matter-eliminating-racial-inequity-in-the-criminal-justice-system/.
• Mauer, Marc. 2011. “Addressing Racial Disparities in Incarceration.” The Prison Journal 91 (3): 87S-101S. https://doi.org/10.1177/0032885511415227
• Muhammad, Khalil Gibran. 2019. The Condemnation of Blackness: Race, Crime, and the Making of Modern Urban America, with a New Preface. Cambridge: Harvard University Press. http://id.lib.harvard.edu/alma/990120310410203941/catalog.
• Parker, Kim, Juliana Menasce Horowitz, and Monica Anderson. 2020. “Amid Protests, Majorities Across Racial and Ethnic Groups Express Support for the Black Lives Matter Movement.” Pew Research Center. June 12, 2020. https://www.pewsocialtrends.org/2020/06/12/amid-protests-majorities-across-racial-and-ethnic-groups-express-support-for-the-black-lives-matter-movement/.
• “Racial Justice.” n.d. Equal Justice Initiative. Accessed February 3, 2021. https://eji.org/racial-justice/.

Citations for Page Images

• Interior of Strafford County Jail, New Hampshire | Unidentified Artist. Crime, Prisons: United States. New Hampshire. Dover. Strafford County Jail: New Hampshire State Charitable and Correctional Institutions: Interior - Strafford County Jail., 1902. http://id.lib.harvard.edu/images/HUAM313572soc/catalog
• A young Black girl in a Georgia prison cell, 1963 | Young girls being held in a prison cell at the Leesburg stockade. Part of Barbara Deming Papers. Folder: Alphabetical Correspondence: Student Nonviolent Coordinating Committee (SNCC): Photographs, 1963. RLG collection level record MHVW92-A44. http://id.lib.harvard.edu/images/olvgroup1003350/urn-3:RAD.SCHL:258877/catalog 
• A New York City demonstration against discriminatory policing, 1976 | Lane, Bettye. Police and Jewish demonstration in Crown Heights , 1976. Part of Bettye Lane Photographs. Folder: Crown Heights demonstration. Schlesinger Library on the History of Women in America, Radcliffe Institute PC32-136-R8/f12. http://id.lib.harvard.edu/images/8000905528/catalog

REVIEW CONTENTS

Systemic triage: implicit racial bias in the criminal courtroom, crook county: racism and injustice in america’s largest criminal court, by nicole van cleve, stanford university press, april 2016.

author. Professor of Law, U.C. Irvine School of Law. A.B. Harvard College, J.D. Yale Law School. I wish to thank Rick Banks, Erwin Chemerinsky, Beth Colgan, Sharon Dolovich, Ingrid Eagly, Jonathan Glater, Kaaryn Gustafson, Maximo Langer, Stephen Lee, Sasha Natapoff, Priscilla Ocen, Kevin Lapp, Eric Miller, Richard Re, Christine Scott-Hayward, Carroll Seron, and Bryan Sykes, for valuable feedback. I am also grateful to members of The Yale Law Journal , particularly John Ehrett, Hilary Ledwell, Aaron Levine, Diana Li, and Anna Mohan for their thoughtful comments and editorial suggestions.

Introduction

The criminal justice system is broken. Its policies and policing practices flood courtrooms in urban environments with too many cases to handle given available resources. Many are cases involving indigent individuals of color accused of nonviolent offenses. Scholars like Sasha Natapoff, Jenny Roberts, and Issa Kohler-Hausmann are bringing much needed attention to this serious issue, focusing primarily on misdemeanor adjudications. 1

In a groundbreaking new book, Crook County: Racism and Injustice in America’s Largest Criminal Court , Professor Nicole Gonzalez Van Cleve 2 adds an important, novel dimension to this problem. She exposes the deeply flawed operation of the criminal justice system by focusing on how felonies are processed in Cook County, Illinois. Her disturbing ethnography of the Cook County-Chicago criminal courts, the largest unified criminal court system in the United States, 3 is based upon 104 in-depth interviews with judges, prosecutors, public defenders, and private attorneys; her own experiences clerking for both the Cook County District Attorney’s Office and the Cook County Public Defender’s Office; and one thousand hours of felony courtroom observations conducted by 130 court watchers. 4 This mix of perspectives, all of which focus on the court professionals “whose actions define the experience and appearance of justice,” 5 provides a chilling account of how racialized justice is practiced in the Cook County criminal justice system, despite the existence of due process protections and a court record. By “turn[ing] the lens on those in power as they do the marginalizing,” 6 Van Cleve reveals how judges, defense lawyers, and prosecutors transform race-neutral due process protections into the tools of racial punishment.

An important theme of Van Cleve’s book is that the racism practiced in the Cook County courts is not “more enigmatic than the overt racism of the past.” 7 Rather, it is equally “ pervasive, direct, and violent.” 8 To substantiate this point, she exposes deeply problematic and explicitly racist practices that courtroom actors engage in, despite holding seemingly contradictory perspectives. This is one of the more compelling aspects of her book, since it is unusual to encounter such blatant racism on display in this ostensibly colorblind and post-racial era. She explains how these actors “claim their behavior as ‘colorblind’ through coded language, mimic fairness through due process procedures, and rationalize abuse based on morality—all while achieving the experience of segregation and de facto racism.” 9

In this Review, I complicate the theory of racism underlying Van Cleve’s ethnography. Although she never states this explicitly, her theory rests on the assumption that racial bias is visible and conscious, even if expressed in ways that mask its presence. This is demonstrated not only by the examples she uses, but also by the book’s conclusion, which encourages readers to go to court to observe the racist practices she describes and thus shame courtroom actors into changing them.

However, I argue that the problem of racial bias is not so limited. Rather, research from the past several decades reveals that implicit racial biases can influence the behaviors and judgments of even the most consciously egalitarian individuals in ways of which they are unaware and thus unable to control. Additionally, the effects of implicit biases may not be open and obvious. Importantly, then, the absence of discernible racism does not signal the absence of racial bias. Furthermore, since it is not possible to detect the influence of implicit biases on decision making simply through observations and interviews, it is difficult to ferret out and even more difficult to address. Yet, the absence of overtly racist practices does not make the problem of racial bias any less concerning.

Despite the fact that implicit biases operate in the shadows, I argue that there is strong reason to suspect that they will influence the judgments of courtroom actors in Cook County, even after blatantly racist practices disappear. This is because criminal courthouses in jurisdictions across the country, including those in Cook County, are bearing the brunt of “tough on crime” policies and policing practices that disproportionately target enforcement of nonviolent and quality of life offenses in indigent, urban, and minority communities. These policies and practices burden the system with more cases than it has the capacity to handle, resulting in what I refer to as systemic triage.

Triage denotes the process of determining how to allocate scarce resources. In the criminal justice context, scholars typically use the term triage to describe how public defenders attempt to distribute zealous advocacy amongst their clients because crushing caseloads limit their ability to zealously represent them all. 10 In this Review, I build upon my prior work examining public defender triage 11 and use the phrase systemic triage to highlight that all criminal justice system players are impacted by such expansive criminal justice policies and policing practices—not only public defenders, but also the entire cadre of courtroom players, including prosecutors and judges.

I argue that under conditions of systemic triage, implicit racial biases are likely to thrive. First, these criminal justice policies and policing practices will strengthen the already ubiquitous association between subordinated groups and crime by filling courtrooms with overwhelming numbers of people of color. Second, implicit biases flourish in situations where individuals make decisions quickly and on the basis of limited information, exactly the circumstances that exist under systemic triage. In sum, the problem of racial bias will likely persist under conditions of systemic triage, even when it is not accompanied by patently racist behaviors. This problem is even more pernicious because its subtle nature makes it more challenging to expose and correct.

This Review proceeds in three parts. Part I summarizes and analyzes Van Cleve’s ethnographic evidence and conclusions. Importantly, because her account is primarily qualitative, I cannot quantify the frequency with which the problematic practices she identifies occur nor determine how representative her examples are. Part II argues that racism in the criminal justice system is more problematic and pernicious than even Van Cleve’s account suggests. Relying on social science evidence demonstrating the existence of implicit racial biases, I argue that these biases can influence the discretionary decisions, perceptions, and practices of even the most well-meaning individuals in ways that are not readily observable. We should be especially concerned about implicit bias in courtrooms experiencing systemic triage. Finally, Part III offers some solutions to reduce the racialized effects of systemic triage.

i. racism in practice

Van Cleve’s haunting ethnography argues that the existence of “myriad due process protections, legal safeguards, and a courtroom record supposedly holding judges and lawyers accountable” 12 does little to prevent racism from manifesting in the criminal courtrooms of Cook County. Rather, her work reveals how these courts are “transformed from central sites of due process into central sites of racialized punishment.” 13 This punishment takes multiple forms, including treating people of color as criminalseven when they are members of the public appearing in court as jurors, witnesses, or researchers; 14 ridiculing defendants with stereotypically black-sounding names; 15 mocking the speech patterns of black defendants by employing a bastardized version of Ebonics; 16 using lynching language during plea negotiations; 17 and subjecting people of color to degrading and humiliating treatment. 18 Van Cleve argues that courtroom actors also routinely punish defendants of color for attempting to exercise their due process rights.

Evidence from her ethnography reveals that judges, prosecutors, defense lawyers, and sheriff’s deputies engaged in these racialized practices. Even more disturbingly, bad racial actors were not the only ones to treat people of color more harshly. 19 Van Cleve’s ethnography would be slightly less chilling if this were the case because then one could take some comfort knowing that the problems would disappear once all the bad apples were removed from the system. However, Van Cleve’s observations foreclose this simplistic account. Rather, she includes examples of even well-meaning judges, prosecutors, and defense lawyers participating in and sustaining this system of racial punishment.

The obvious question is how can actors who “subscribe to the principles of due process, . . . learn ethical standards in law school[,] . . . speak in sympathetic ways about justice, fairness, colorblindness, and even identify bias in the system,” engage in and rationalize their racialized practices? 20 As I discuss in Section I.A, Van Cleve argues that racism in the courts is accomplished through a process of acculturation that begins at the courthouse doors with sheriff’s deputies enforcing racial boundaries. In Section I.B, I present Van Cleve’s assessment of how this racialized culture is maintained through the aggressive policing and harsh treatment of anyone, including courtroom actors, who fails to observe its practices. 21 I also describe Van Cleve’s explanation for how judges, prosecutors, and defense attorneys rationalize their racist behaviors by divorcing their perspectives from their practices or “duties” within the system. It is in this way, she argues, that they deflect blame, assuage their guilt, and abdicate responsibility for their role in maintaining the system of racialized punishment. Finally, Section I.C explores some limitations of her powerful and disturbing account.

A. Policing Racial Boundaries

Van Cleve suggests that the “double system of justice” 22 that exists in Cook County begins as defendants, family members, jurors, and witnesses arrive at the courthouse during the morning “rush hour.” She argues that armed sheriff’s deputies, who are the first institutional players the public encounters, begin the process of teaching people of color that they are second-class citizens within this space. 23 To support this point, she shares accounts of court watchers who observed deputies single out people of color for racial mockery and disrespect, making white court watchers acutely aware of their white privilege. 24 She explains that some white court watchers, no matter how they were dressed, reported being asked why they were there and whether they were lawyers or students, while some black court watchers “were mistaken for defendants and treated like criminals.” 25

She also provides anecdotes of sheriff’s deputies continuing to police racial boundaries in the courtrooms by subjecting people of color to hostile and disrespectful treatment for actions as simple—and reasonable—as daring to ask questions. When Van Cleve was a clerk in the prosecutor’s office, she observed an incident that occurred when an elderly black woman attempted to ascertain where her son’s case would be heard. The deputy “tore the woman up with insults” and finally stated to a prosecutor walking into the courtroom, “Tell her: ‘Your son is executed.’” 26 In contrast, Van Cleve also observed the different treatment of an older, gray-haired white woman—wearing a diamond wedding ring and sporting “perfectly coiffed” hair and “manicured and pristine” nails—who crossed the barrier separating the gallery from the courtroom to talk to the court clerk. This woman “was able to finish her question, was answered respectfully, and then the sheriff kindly told her to sit down—acting more like an usher than the abuser who had been barking at the public all afternoon.” 27 These are just a few of the disturbing examples of sheriff’s deputies demeaning people of color while treating the few privileged whites who appeared in the courthouse differently.

Van Cleve’s book does not share a single story in which courtroom actors chastised deputies for the hostility and aggressiveness they heaped on people of color. Instead, she argues that courtroom actors were socialized within the courthouse culture to avoid commenting on racial abuse and racial divides. 28 This is discussed next.

B. Culture and the Race Blind Code

Sheriff’s deputies were not the only courtroom actors to engage in racist behaviors. Van Cleve shares anecdotes of judges, prosecutors, and defense lawyers helping to create and sustain a system of racial punishment. Based on her ethnographic evidence, she explains that courtroom professionals learn to code race out of the picture by conflating criminality, morality, and race. This is done primarily by labeling certain defendants as “mopes,” a construct that implies immorality. 29 The term is used by courtroom actors to refer to “someone who is uneducated, incompetent, degenerate, and lazy.” 30 According to her, mope is a synonym for “nigger.” 31

Defendants who were labeled mopes were typically charged with nonviolent offenses, such as possession of drugs and shoplifting, that “imply social dysfunction rather than criminal risk.” 32 Because these defendants were overwhelmingly black and brown, “the moral rubric applied to defendants by courtroom professionals” was racially inscribed. 33 As such, the “‘immorality’ of defendants . . . is both a criminal distinction and a racial one . . . .” 34 Van Cleve argues that by using this colorblind logic, courtroom professionals convinced themselves that the “disdain” they showed to people of color was “not based upon the color of their skin but upon the moral violations they embody.” 35 She concludes that this “race-blind” code “ allow[ed] racism to exist in the courthouse space without professionals being ‘racists.’” 36

Defendants labeled as mopes received “due process for the undeserving.” 37 This entailed “(1) the streamlining of scripted due process requirements, (2) the curtailing of due process through informal sanctions that are often not part of the court record, and (3) the absolute exclusion of mopes from participation in the legal process—even in cursory ways mandated by law.” 38 Van Cleve shares stories of courtroom actors punishing those labeled as mopes for attempting to exercise their due process rights. In one disturbing example, Van Cleve overheard a sheriff’s deputy bragging to prosecutors about wrapping an electrical cord around a defendant’s seat, plugging it into the wall to feign an electric chair, and saying, “OK, you’re all plugged in and ready to go.” 39 This was done simply because the defendant had asked for a jury trial. 40 Prosecutors “laughed, and never questioned the legal ethics of such a practical joke.” 41 White defendants, she argues, were generally not subjected to the same treatment, 42 unless they “perform[ed] underclass whiteness” through their speech patterns or demeanor. 43

One of the most important aspects of Van Cleve ’s ethnography is her explanation for how racism becomes entrenched in institutional culture such that it persists regardless of “the racial identity and political leaning of any one person at the helm.” 44 For instance, some prosecutors expressed serious misgivings about the way the system treated criminal defendants, and some of them also viewed drug laws as draconian. 45 Ironically, one prosecutor even critiqued the “factory mill” practices of the system, which was only concerned with disposing of cases as quickly as possible. 46 Yet, based on their statements during interviews, Van Cleve concludes that prosecutors learned to rationalize their racialized behaviors by separating their perspectives from their practices. 47 They viewed their practice of law as a “duty” that did not necessarily reflect their actual beliefs. 48 Additionally, she found that prosecutors justified the curtailment of due process rights by convincing themselves that spending time on cases involving mopes “literally obstructs ‘real justice’” 49 by taking resources away from the important cases involving serious crimes with actual victims. 50 Their incentive was to resolve their cases as quickly as possible because due process for mopes, in the words of one prosecutor, was “a waste.” 51

Similarly, defense lawyers were sympathetic to “the plight of defendants,” “provide[d] critiques about substantive justice and the abuse of defendants by prosecutors and judges,” 52 and commented on the “ obvious racial disparities and divisions in the ways prosecutors and judges treated their indigent clients.” 53 Yet, they too engaged in racialized practices. This occurred because defense lawyers learned that “[t]here were dire consequences for fighting too hard, pursuing ‘too many’ motions and trials, or pushing due process necessities beyond the absolute minimum.” 54 Defense attorneys who engaged in vigorous and zealous advocacy often “were labeled ‘clueless,’ ‘difficult,’ ‘incompetent,’ or worse: ‘mopes,’” 55 and were humiliated and punished in ways that were not reflected in the court record. 56 For example, one attorney was locked up with her client. 57 Additionally, the clients of defense attorneys who engaged in zealous advocacy were sometimes punished with harsher treatment. 58

As a result of this socialization, one defense lawyer explained that he had to carefully weigh how much capital he expended on a client because capital was “finite and scarce.” 59 He had to “determine whether a defendant [wa]s worth the fight” 60 by separating those who were “native” to the system from the “tiny subset of outliers” who deserved zealous advocacy. 61 He deflected personal responsibility for the problematic choices he made, saying that “these are the sorts of decisions you find yourself having to make as a practical matter because that’s the system that exists and [it’s] bigger than you.” 62

In sum, Van Cleve’s book explains how criminal justice system professionals dispense, legitimize, and defend racialized justice. She argues, “Colorblind racism is more than just a ‘doing’ of rhetoric; it is a type of complicated habitus that informs institutional practices and cultural memberships, and even aids in the organizational efficiency of the criminal courts . . . . [This is] how professionals . . . ‘do racism’ while ‘doing justice.’” 63 Her own efforts to fit into the system and maintain her privileged access within it powerfully underscores the importance of entrenched institutional culture to sustaining racial disadvantage. 64 She describes her time embedded in the Cook County criminal justice system as “an indoctrination: the prosecutors, judges, and defense attorneys took me under their wings. It was through this process that I learned the rules of the racialized court system—rules that included both how to process cases efficiently and the proper moral and professional justifications for such practices.” 65

C. Limitations

Van Cleve’s account of how racism is practiced in the era of colorblindness is important and compelling. However, it is limited by a number of features typical of ethnographies. First, her observations are not necessarily generalizable to jurisdictions beyond Cook County. 66 Second, the absence of quantitative evidence makes it difficult to determine how frequent, representative, and pervasive the overtly racialized practices she exposes are. 67 Including some explanation of how she coded her data and how she determined which stories to include and exclude, as well as sharing the complexity of her evidence by discussing cases that did not fit neatly into her theory, could have helped address some of these problems and allowed readers to more readily evaluate her claims.

However, despite these limitations, there are reasons to believe that her qualitative accounts are representative of the culture of the Cook County criminal courts. Her ethnographic evidence is the result of nine months of observations collected over the course of seven years (1997-2004); 68 interviews she conducted during the same period; 104 interviews conducted by others in 2006; 69 and data collected by 130 court watchers from 2008-09. 70 Thus, her data “incorporate[] multiple vantage points on the same site” 71 and span over twelve years. Furthermore, the observations remain consistent over this period of time. All of this provides support for the pervasiveness of the practices she recounts and lends some external reliability to her findings. 72 Additionally, the lack of quantitative evidence is not a reason to dismiss her compelling conclusions. As one of the great ethnographers, Howard Becker, once observed in a classic article, qualitative methods “do not lend themselves to . . . ready summary” 73 and “frequently consist of many different kinds of observations which cannot be simply categorized and counted without losing some of their value as evidence.” 74

Overall, the importance of Van Cleve’s ethnography is its exposure of how some courtroom professionals in Cook County practice and rationalize racism in the era of colorblindness. She explains how racism thrives despite constitutional safeguards and courtroom actors who are well versed in ethics and who often hold perspectives that are consistent with notions of fairness, equality, and justice. 75 Van Cleve’s account of racism in the Cook County criminal courts is concerning and important to expose even if it is difficult to determine how pervasive these overtly racialized practices are.

In Part II, my goal is to supplement Van Cleve’s account of how racial bias operates. Van Cleve concludes that the practice of racism in Cook County is virtually indistinguishable from the racist practices of the Jim Crow era. 76 In support of this theory, she only shares examples of courtroom actors engaging in overtly problematic racialized practices in cases involving individuals labeled as mopes . 77 By restricting her examples, h er account leaves the impression that the problem of racism in Cook County is limited to that which is overt, explicit, and conscious. However,in Part II, I argue that racism in the criminal justice system is even more problematic. Relying on social science evidence demonstrating the existence of implicit racial biases, I contend that explicitly racist practices are not the only form of racism about which we should be concerned. Rather, implicit racial bias can also influence the discretionary decisions, perceptions, and practices of even the most well-meaning individuals in ways that are not readily observable. Thus, my theory of racism is broader than one that focuses solely on the overt racism Van Cleve exposes. While her account of explicitly racist conduct is deeply troubling, I argue that the problem of implicit racism is even more pernicious.

ii. Systemic triage and its racialized consequences

Judges, prosecutors, and defense lawyers in many criminal courtrooms across the country are laboring under the weight of far too many cases to give each one individualized treatment. This has systemic consequences as these professionals struggle to quickly sort defendants into those who are deserving of time and attention and those who are not, a process I describe as systemic triage. As I will explain, racialized justice is a foreseeable consequence of systemic triage because of the influence of implicit, i.e. unconscious, racial biases on behaviors, perceptions, and judgments. Section II.A summarizes the well-established social science research on implicit racial biases. Section II.B sets forth my theory of systemic triage. Finally, Section II.C argues that under conditions of systemic triage, even well-meaning, consciously egalitarian actors will likely engage in practices that sustain significant and problematic racial disparities.

A. Implicit Racial Bias

Research demonstrates that many of our decisions result from mental processes that occur without our conscious awareness, intent, and control. 78 These processes help us to cope with all the information that confronts us by makingquick, automatic, and unconscious associations in response to a stimulus. 79 For instance, we might automatically and unconsciously associate “nurse” with “compassion” and “hospital.” These unconscious associations can influence our perceptions, judgments, and behaviors without our conscious intent.

Implicit racial biases refer to the unconscious stereotypes and attitudes that we associate with racial groups. 80 These biases are pervasive and can influence real world behaviors. For instance, a meta-analysis of 122 implicit bias studies found evidence that implicit racial biases predict racial disparities in employment and healthcare. 81

There is copious evidence that individuals of all races have implicit racial biases linking blacks with criminality 82 and whites with innocence. In a recent article, Professors Robert Smith, Justin Levinson, and Zoë Robinson coined the phrase “ implicit white favoritism” to distinguish it from unconsciously negative racial attitudes and beliefs toward people of color. 83 They define implicit white favoritism as “the automatic association of positive stereotypes and attitudes with members of a favored group, leading to preferential treatment for persons of that group.” 84 Their analysis of existing studies reveals that white men are unconsciously “ disassociated with violence” and associated with positive, law-abiding behavior. 85 Implicit racial biases areactivated by cues present in the environment such as skin color. 86 Once activated, they can influence the behaviors and judgments of even the most egalitarian individuals in ways that sustain problematic and unwarranted racial disparities. 87

The influence of implicit biases on behaviors and judgments is not inevitable, however. Rather, certain environments are more conducive to their operation than others. Implicit biases flourish in situations where information and time are limited, decision makers are mentally drained and distracted, and decision making is highly discretionary. 88 As I will discuss next, these conditions exist under systemic triage.

B. Systemic Triage

Under an ideal model of criminal justice, courtroom professionals would have sufficient resources to give time and attention to every case. However, today’s criminal justice system operates very differently. In large urban environments like Cook County, public defenders, prosecutors, and judges are inundated with far more cases involving nonviolent offenses than they are equipped to handle. This makes it difficult to give each individual accused of misconduct the care and consideration he or she deserves and is constitutionally entitled to receive. 89 For instance, public defenders in Rhode Island each handle more than 1,700 cases per year, on average. The equivalent figures for individual public defenders in Dallas and Arizona are 1,200 and 1,000 respectively. 90 A recent article reports that “in upstate New York, one attorney represented over 2,200 clients; and in Illinois, a public defender handled 4,000 cases during the course of a year.” 91 These excessive caseloads impact defense lawyers, prosecutors, and judges alike, 92 creating pressure on each of these courtroom actors to engage in triage—the process of allocating scarce resources.

Typically, analysis of triage within the criminal justice system is focused on public defender offices. Scholars have discussed how public defenders attempt to distribute zealous advocacy amongst their clients since crushing caseloads prevent them from providing it fully to all clients. 93 As Phillip Atiba Goff and I previously observed,

[T]he provision of indigent defense is often likened to medical triage. Similar to hospital emergency rooms, [public defender] offices face demands that far outpace their resources. In order to save time to defend the cases that they find deserving, attorneys may plead out other cases quickly or go to trial unprepared. This reality means that for most [public defenders], the question is not “how do I engage in zealous and effective advocacy,” but rather, “given that all my clients deserve aggressive advocacy, how do I choose among them?” 94

Despite this robust discussion of public defender triage, however, little attention has been paid to the fact that judges and prosecutors also face intense pressure to quickly determine which cases can be resolved with little time and effort and which cases require or deserve the individualized attention associated with due process. I refer to this situation of pressurized decision making by all courtroom actors as systemic triage .

Systemic triage primarily results from criminal justice system policies and policing practices such as the War on Drugs and broken windows policing 95 that overwhelm courtroom professionals with more cases involving nonviolent offenders than they have the capacity to handle. This creates pressure on these actors to develop shortcuts for determining who deserves due process and who does not. For instance, under conditions of systemic triage, prosecutors will not have time, in every case, to interview victims and witnesses, and to make careful and considered judgments about how to exercise their enormous discretion according to their ethical mandate as ministers of justice. 96 Similarly, rather than providing effective and zealous advocacy to each of their clients by conducting investigations, 97 communicating and developing relationships with clients, 98 filing motions, 99 researching the law, preparing for trials, negotiating pleas, and otherwise engaging in vigorous advocacy, 100 defense lawyers instead will find ways to quickly determine when these time-consuming activities are necessary. Finally, judges will be constrained in their ability to carefully consider motions, ensure that defendants understand their rights, and make individualized sentencing decisions after careful review of the evidence. 101

However, the concept of systemic triage does not simply consider the triage decisions of individual public defenders, prosecutors, and judges in isolation. Rather, it highlights the symbiotic nature of triage decision making, attending to how the resource allocation decisions of an actor in one institution, such as the prosecutor, influences the workload of actors in the other institutions, i.e. public defenders and judges. For instance, a defense lawyer’s decision to take a case to trial does not simply increase her workload; it also has consequences for prosecutors and judges. As a result of the defense lawyer’s decision, the prosecutor will have to devote time and resources to tasks such as becoming familiar with the evidence and responding to motions. Similarly, judges will have to dedicate time to reviewing pleadings, issuing rulings, and overseeing jury selection, to name a few of the tasks associated with trials.

Systemic triage pays attention to this interdependent relationship amongst institutional actors. It highlights the fact thatwhile the pressure created by systemic triage comes chiefly from the overwhelming number of cases that flood the system, it also stems from the resource allocation decisions of all actors within the system. Thus, each individual actor, i.e. each prosecutor, defense lawyer, and judge, has a vested interest in overseeing how the others exercise their discretion.

For this reason, attending solely to the triage decisions of one individual institutional actor, such as the prosecutor, is insufficient to understand the systemic effects of triage. Rather, each institutional actor will police the resource allocation decisions of the others. The policing of decisions across institutions can create a racialized culture if resource allocation decisions typically favor individuals of one race over another. For instance, courtroom actors will punish the decision to grant due process rights to an individual who they conclude is undeserving. As I discuss next, the decision that an individual is undeserving is more likely to occur when that individual is a person of color, due to implicit racial bias. Hence, under conditions of systemic triage, a culture of decision making within a courthouse that sustains racially biased decision making is predictable.

C. Implicit Bias Under Conditions of Systemic Triage

I theorize that racialized justice is the foreseeable consequence of systemic triage, regardless of the conscious racial motives of judges, prosecutors, and criminal defense lawyers, and even in the absence of overtly racist practices. That is because implicit racial biases are likely to impact decision making under conditions of systemic triage for a number of reasons. First, the proactive policing practices that create the conditions leading to systemic triage also result in the disproportionate representation of people of color in criminal courtrooms. Filling criminal courtrooms with overwhelming numbers of people of color will likely strengthen the already ubiquitous conscious and unconscious association linking people of color with crime and whites with innocence because simply rehearsing associations strengthens them. 102 Strengthening these associations can occur even if many of the cases are dismissed 103 and even if judges, prosecutors, and defense lawyers understand on an intellectual level that this disproportionate representation is the predictable result of focusing law enforcement efforts on communities of color.

Second, under conditions of systemic triage, prosecutors and defense lawyers are likely anxious and distracted by all of the tasks simultaneously pulling at their attention, such as listening to the judge, negotiating with opposing counsel, quickly reviewing case files, thinking about what they will say when their cases are called, and answering questions from clients or witnesses. This multitasking can cause cognitive depletion, which is one of the classic situations in which implicit biases are likely to influence decisions and judgments. 104

Additionally, because courtroom actors handle large numbers of cases, they will feel compelled to make quick decisions in the face of enormous information deficits about which cases can be disposed of quickly and which cases are worthy of time and effort. For instance, prosecutors may offer plea bargains and pressure defense lawyers into convincing their clients to accept them despite the fact that neither actor had the time to thoroughly investigate the case and interview all the potential witnesses. 105 Implicit biases are more likely to influence judgments when individuals make discretionary decisions quickly, based upon incomplete information. 106

Implicit racial biases can affect decision making in ways that create and sustain problematic racial disparities. For instance, these biases can cause people to interpret ambiguous information in racially disparate ways. In one study demonstrating this, mock jurors were asked to evaluate evidence that was ambiguous as to guilt or innocence. 107 The results showed that as a result of implicit racial biases, jurors were significantly more likely to conclude that the evidence was probative of guilt when the case involved a dark-skinned perpetrator versus a light-skinned perpetrator. 108 In another study involving an assault, mock jurors were more likely to conclude that the defendant was less aggressive and “more honest and moral” when he was white as opposed to black. 109 These differences in judgment were correlated with implicit bias.

Under conditions of systemic triage, it is probable that implicit racial biases will cause judges, prosecutors, and defense lawyers to draw adverse inferences from ambiguous facts more readily when defendants are black, especially when nonviolent offenses involving drugs are at issue, since young black men are closely associated with drugs in our conscious and unconscious minds. 110 Thus, the confluence of a black defendant and a drug charge will likely make it cognitively easier to form a judgment that the defendant is guilty and will not benefit from more process. Conversely, when the defendant is white, implicit white favoritism will likely make judgments of guilt more difficult, resulting in the decision that due process will make a difference to the case.

Furthermore, implicit biases can also influence feelings of empathy. E mpathy sensitizes people to injustice 111 and plays an important role in discretionary decision making. In one study, for instance, researchers found that people who felt more empathy for white defendants than black defendants would give white defendants more lenient sentences, even when everything else about the case was identical. 112 Moreover, social scientists have found that there is a racial empathy gap, meaning that empathy for the pain experienced by another does not occur or occurs with less intensity when white subjects witness or imagine pain inflicted on black individuals. 113 This empathy gap is related to levels of implicit racial bias. 114 The more implicit anti-black bias subjects had, the greater was the difference in their empathic responses towards black and white individuals. 115

E mpathy can cause courtroom actors to take time to ensure that an individual’s due process rights are protected, to respond with more sympathy and listen with more care and attention to a defendant’s concerns, and to pay more attention to the circumstances of the case. Prosecutors and judges may respond more favorably to defense counsel’s arguments concerning mitigating circumstances and the hardships their clients might suffer as a result of incarceration. Empathy may also result in prosecutors being more willing to offer treatment or other rehabilitative options instead of incarceration, and judges being more willing to accept these recommendations. Empathy can also influence defense lawyers’ decisions about which clients are worthy of zealous advocacy a nd expending precious capital. However, because the conditions of systemic triage are likely to trigger implicit biases, courtroom actors might feel less empathy toward defendants of color. Thus, the benefits of empathy will accrue more to whites than blacks, resulting in significant racial disparities even in the absence of conscious bias and overtly racist behaviors. In fact, decision makers will be completely unaware that unconscious biases influenced their judgments.

The operation of implicit bias under conditions of systemic triage also explains how a courtroom culture can develop that routinely denies due process to black individuals and others stereotyped as criminal even in the absence of the type of overt and consciously biased decision making Van Cleve highlights in her book. Cook County is a paradigmatic case o f systemic triage. As Van Cleve observes, “Cases bombard the system; the average felony prosecutor in Cook County has three hundred or more open cases at any one time,” 116 and in 2005, each public defender resolved approximately 229 felonies, meaning that they likely worked on many more. 117 In one disturbing demonstration of how this pressure played out in perverse ways, Van Cleve describes an instance when sheriff’s deputies “act[ed] as go-betweens to update judges and courtroom workgroups on which court [was] ‘winning.’ One court watcher noted a judge screaming, “‘Let’s go! Do something!’ at his colleagues when there was a brief pause in a stream of plea bargains.” 118

Additionally, the association between blacks and crime is well rehearsed in Cook County given the disproportionate number of people of color charged with nonviolent offenses. 119 Of the almost ten thousand individuals housed in the Cook County jail, approximately 86.3% are black and Latino men charged withnonviolent offenses. 120 Van Cleve provides evidence of the strong conceptual association between blacks and crime that exists in Cook County. 121 For instance, she describes courtroom actors becoming so accustomed to seeing black individuals within the courthouse that they become desensitized to the racial disparities that shocked them when they first encountered the system. 122 The disproportionate representation of blacks in the criminal courthouse becomes natural and expected. Thus, even if the system in Cook County evolves to such an extent that judges, prosecutors, and defense lawyers no longer engage in race-conscious decision making that apportions due process rights based on whether or not someone is characterized as a mope, 123 and even if overtly racist practices disappear, it is probable that implicit racial biases will continue to influence behaviors in racially problematic ways.

iii. Recommended remedies

Consistent with her theme that racism in the Cook County courts is akin to Jim Crow racism, Van Cleve ends her book by encouraging readers to go to court to observe the racist practices she describes. Doing so, she argues, is “a type of activism [that can] lend a conscience to an otherwise unaccountable system.” 124 In Section III.A, I raise questions about the efficacy of her solution, and in III.B, I offer alternatives.

A. Problems with Court Watching

Van Cleve urges readers to help “rectify the . . . racial violence inflicted by the courts” 125 by engaging in court watching. The practice of court watching can be a powerful tool to expose the workings of a court system that operates in the shadows, 126 especially if courtroom actors do not realize that court watchers are there. Van Cleve’s ethnography is a testament to that. Additionally, if court watchers are open and obvious, their mere presence might lead judges, prosecutors, and defense lawyers to practice the professionalism that should accompany their role.

However, as a long-term solution to the problem of racial bias, court watching will be ineffective. One reason is that once court watchers leave, courtroom actors might revert back to their problematic behaviors. Van Cleve shares an instance of exactly this. When she was clerking at the prosecutor’s office, a prosecutor cautioned her to be on her “best behavior” after noticing a court watcher sitting in the gallery. 127 Then the judge and prosecutor “began to ‘perform’ the normative professionalism that one would associate with their roles” until the court watcher left. 128 Afterwards, they all burst out laughing. 129

Additionally, court watching might even stymie efforts at addressing bias at the structural level if people expect to witness overtly racist practices similar to the ones Van Cleve recounts. 130 This is likely since she asks readers to “[r]eplicate my data until you change the findings in Cook County-Chicago and perhaps in other jurisdictions.” 131 The problem is that court watchers may not encounter any of these racialized practices since judges, prosecutors, and defense lawyers may behave differently in their presence, preventing the watchers from getting an accurate view of the system. Furthermore, many of Van Cleve’s examples did not occur in open court, bu t rather during plea negotiations, in conversations with clients, or during interviews of courtroom actors. Such sources of information may not be available to the average court watcher. If people do not witness these practices, they may conclude that the system is no longer racially biased and that nothing more needs to be done to address racism in the criminal courts. However, as I argued in Part II, racial bias exists even when it is not discernible.

The problem of racial bias in the criminal justice system defies easy solutions. The influence of race on decision making will be difficult to flush out either because people may be unaware of the effect of implicit biases on their judgments or because they will hide their consciously racist beliefs. Furthermore, the enormous discretion wielded by prosecutors, defense lawyers, and judges facilitates racial bias, both conscious and implicit. The most effective solution would be to rethink the criminal justice policies and policing practices that not only create the conditions for systemic triage but also sustain the negative association between people of color and crime. Nevertheless, until that day arrives, there are some interim solutions that can help to safeguard against the influence of implicit racial biases. These are discussed next.

B. Individual, Institutional, and Systemic Solutions

The conditions of systemic triage allow implicit racial biases to thrive. Importantly, however, their effects are not inevitable. In this Section, I discuss some individual, institutional, and systemic mechanisms that together may help to reduce the influence of implicit biases on behaviors and judgments.

At the individual level, two interventions have proven promising: awareness of implicit bias 132 and doubting one’s objectivity. 133 Both of these interventions work by encouraging people to exercise care when making judgments and by helping people understand that their judgments might be biased even if they are not consciously aware of it. 134 These tools are especially likely to be successful when individuals are internally motivated to reduce biased judgments rather than externally motivated by concerns that others will judge them. 135

These interventions also highlight why the ideology of colorblindness is problematic. As Eduardo Bonilla-Silva argued in Racism Without Racists , at the heart of colorblind racism is the “myth” that “race has all but disappeared as a factor shaping the life chances of all Americans.” 136 Furthermore, this ideology allows “whites [to] enunciate positions that safeguard their racial interests without sounding ‘racist.’” 137 To the extent that courtroom actors engage in colorblindness, it will stymie efforts to reduce the effects of implicit racial bias on behaviors and judgments. 138 In fact, in social science studies, colorblindness “has been shown to generate greater individual expressions of racial bias on both explicit and implicit measures.” 139

One practical method for increasing awareness and encouraging people to doubt their objectivity is through training. Across the country, state and federal public defenders, prosecutors, and judges are being trained on what implicit biases are and how they can influence the decision making of even the most egalitarian individuals. 140 In fact, people who hold perspectives that are genuinely egalitarian can be the perpetrators of biased conduct based on implicit bias, especially if holding these perspectives makes them less likely to question their objectivity. The Department of Justice recently made these trainings mandatory for prosecutors and law enforcement officers. 141

In addition to awareness and questioning objectivity, other individual interventions such as slowing down decision making; engaging in mindful, deliberate information processing; 142 and gathering more information can prevent reliance on implicit stereotypes and attitudes. 143 The problem is that the pressure of systemic triage can make these interventions difficult to accomplish. 144 However, engaging in triage is a choice, not a requirement. In fact, triage in the criminal justice context arguably violates constitutional and professional mandates. Thus, prosecutors and defense lawyers should refuse to bow to the pressure to resolve cases hastily simply to deal with the realities of an overburdened system.

Professor Jenny Roberts explains that defense lawyers could “refus[e] to process individuals quickly through the lower criminal courts” by “litigat[ing] some of the many factual and legal issues” raised by these cases. 145 As for prosecutors, they should live up to their special responsibilities as “ministers of justice,” 146 which require them, among other things, “to see that the defendant is accorded procedural justice.” 147 Judges, too, should similarly avoid pressuring defense counsel and prosecutors to rush through jury selection and trials. Some may object to these proposals because giving defendants the individualized justice and zealous advocacy to which they are entitled will lead to longer delays and may also raise speedy trial concerns. However, the answer cannot be to simply continue to short circuit justice in the name of expediency. If giving defendants the process they are due leads the system to grind to a halt, then perhaps this will put pressure on criminal justice system decision makers to rethink the policing practices and criminal justice policies that create the conditions of systemic triage in the first place.

None of these interventions will be easy to accomplish. However, once people are aware that there are steps they can take to address implicit biases, the failure to do so is as culpable as acting on the basis of conscious racial bigotry. 148 Judges, prosecutors, and defense lawyers should accept responsibility for taking steps to reduce the influence of implicit biases; otherwise they are complicit in continuing to sustain a racialized system. There is reason for optimism that some courtroom actors will engage in these efforts. For instance, Federal District Court Judge Mark M. Bennett attempts to reduce the effects of implicit racial biases on his sentencing judgments by stripping photos and all racial indicators from his presentence reports. 149

While individual interventions are important, they must be accompanied by interventions at the institutional level in order to increase the chances of success. If this does not occur, it might be difficult for one individual to withstand the pressure to conform by speeding up case adjudications. For instance, Van Cleve relates how prosecutors and judges punished defense lawyers who attempted to engage in zealous advocacy. 150 This is unsurprising given the symbiotic nature of systemic triage, where the resource allocation decisions of one actor influence the workload of the others. Thus, even if an individual public defender decides to slow down in order to safeguard against the influence of implicit biases on decision making, the pressure and formal and informal punishments that the individual will suffer from judges and prosecutors because of his or her efforts may result in that individual succumbing to the pressure.

The leaders of prosecutor and public defender offices can assist by making it clear that they will support the efforts of their line personnel to do what is necessary to ensure that they are living up to their ethical and constitutional obligations. This will help reduce the influence of implicit bias not only because it will give individuals the courage to resist the pressure to dispose of cases quickly, but also because people are motivated to conform their beliefs to those of the people around them. 151 Thus, institutions should clearly communicate that making efforts to reduce the influence of implicit biases is important and provide institutional backing for those efforts. This will make individuals more likely to accept the punishment they might face from other institutional actors for refusing to engage in triage decision making and help them fight the pressure to practice racialized justice. Institutional support can also facilitate the creation of a cohort of like-minded individuals, making it easier to maintain one’s commitment to do what is necessary to address implicit biases.

Some institutions are already engaged in these efforts. For instance, San Francisco Public Defender Jeff Adachi has established safeguards in his office to reduce implicit biases’ pernicious effects. These safeguards include asking his attorneys to use checklists that require them to answer questions such as, “how would I handle this case different[ly] if my client was another race or had a different social background.” 152 Additionally, one district attorney’s office in North Carolina has asked an implicit bias expert to embed herself in the office to help line prosecutors determine how to reduce the influence of implicit biases on their discretionary decisions. 153 Both of these examples send the message throughout the office that the institution believes these efforts are important, thereby helping to motivate individuals to conform their behaviors to meet this expectation.

Finally, even if individuals and institutions make efforts to reduce the influence of implicit racial biases, the gold standard would be coordinated change among different arms of the criminal justice system —that is, the prosecutor’s office, the public defender’s office, and judges working together to address these biases. As I discussed in Part II, systemic triage attends to the interaction between criminal justice system institutions and the ways in which the resource allocation decisions of one influence the other. Thus, even if one institution encourages its personnel to engage in efforts to reduce implicit bias, the others might resist the increase in their workload that this might cause.

All three institutions should instead work together to ensure that the goal of efficiency does not override the important values of fairness, equality, and protection of constitutional rights. They should encourage each other to practice normative professionalism and pressure each other to align their practices with their beliefs in due process, legal ethics, and other values that likely motivated them to practice criminal law in the first place. If this occurred, it would slow down the system to such an extent that policymakers would be forced to confront the problem of overburdened courts and insufficient resources. This might provoke changes to current criminal justice policies and policing practices that not only create the conditions for systemic triage, but, by filling criminal courtrooms with individuals of color charged with nonviolent offenses, also help to strengthen the association linking black and brown individuals with crime and whites with innocence.

As this Review argues, racialized practices need not be overt, punitive, and extreme, and courtroom actors need not be consciously biased in order for race to have pernicious and disturbing consequences on behaviors and judgments. However, to the extent that people today are more likely to be consciously egalitarian than not, there is reason to hope that educating criminal justice actors about implicit racial biases and how systemic triage makes it more challenging to safeguard against the influence of these biases might help encourage actors to fight for institutional and structural changes. Changing the institutional and structural conditions that allow implicit biases to flourish is important because this “new” racism is, as Van Cleve concludes about colorblind racism, “just as punitive and abusive” 155 as old-fashioned bigotry.In fact, this new racism is in some ways more dangerous and pernicious than racial bigotry because it is ephemeral and difficult to eradicate.

Van Cleve’s important ethnography brings to light the hidden and pernicious workings of the criminal justice system that often operates in the shadows. Based on the model of systemic triage introduced in this Review, it is likely that the racialized practices she exposes also exist in many other jurisdictions with overburdened courts, although these practices may not operate in a similarly overt and explicit fashion. Even more troubling is the probability that these practices will thrive under conditions of systemic triage despite the existence of constitutional protections, a court record, and prosecutors, defense lawyers, and judges who are ostensibly committed to lofty principles of justice and fairness. The problematic practices of racism without racists make a mockery of justice that should trouble us all.

Volume 133’s Emerging Scholar of the Year: Robyn Powell

Announcing the eighth annual student essay competition, announcing the ylj academic summer grants program.

Issa Kohler-Hausmann, Managerial Justice and Mass Misdemeanors , 66 Stan. L. Rev . 611, 639-53 (2014); Alexandra Natapoff, Misdemeanors , 85 S. Cal. L. Rev. 1313 (2012); Jenny Roberts, Why Misdemeanors Matter: Defining Effective Advocacy in the Lower Criminal Courts , 45 U.C. Davis L. Rev. 277 (2011).

Nicole Gonzalez Van Cleve is an Assistant Professor at Temple University in the Department of Criminal Justice with courtesy appointments in the Department of Sociology and the Beasley School of Law. She is a recipient of the 2014-2015 Ford Foundation Fellowship Postdoctoral Award and was a Visiting Scholar at the American Bar Foundation.

Nicole Gonzalez Van Cleve, Crook County: Racism and Injustice in America’s Largest Criminal Court xii (2016).

Id. at xiii, 6-7, 9-10, 54.

Id. at xiii.

Id. at 186.

Other discussions of triage in the criminal justice system tend to focus on public defender triage. See, e.g. , Darryl K. Brown, Rationing Criminal Defense Entitlements: An Argument from Institutional Design , 104 Colum. L. Rev. 801 (2004) (arguing that trial judges face the task of rationing public defense services); Erica J. Hashimoto, The Price of Misdemeanor Representation , 49 Wm. & Mary L. Rev. 461, 475 (2007) (describing “the rise in total number of cases requiring appointment of counsel and the inadequacy of indigent defense budgets” (footnote omitted)); John B. Mitchell, Redefining the Sixth Amendment , 67 S. Cal. L. Rev. 1215, 1225 (1994) (“[T]his Article suggests the [public] defender’s work is better described by the medical/disaster theory of allocation in chaos—triage.”); L. Song Richardson & Phillip Atiba Goff, Implicit Racial Bias in Public Defender Triage , 122 Yale L. J. 2626 (2013) (arguing that public defender triage presents a way for implicit racial bias to affect legal outcomes).

Richardson & Goff, supra note 10.

Van Cleve , supra note 3, at xi.

Id . at 11.

See generally id. ch. 1 (describing the various forms of racialized punishment in Cook County).

Id . at 60-61.

Id . at 43.

Id . at 108.

See, e.g. , id. at 59-65.

Id . at 133.

Id . at 16.

Id . at 22-28.

Id . at 25-26.

Id . at 25, 41-42.

Id . at 35-36.

Id . at 66.

Id . at 32-35.

Id. at 57-61.

Id. at 115.

Id . at 60.

Id . at 68-69.

Id . at 73.

Id . at 65-69.

Id . at 13-16, 138.

Id . at 138.

Id. at 133.

Id . at 135, 137.

Id . at 71-73.

Id . at 180.

Id . at 97. Private attorney responses were more mixed, with about half expressing that bias existed and the other half expressing that it did not. Id . at 97-98.

Id. at 83, 103.

Id . at 84.

Id. at 159.

Id. at 160.

Id. at 160-61.

Id . at 161.

Id . at 53.

See, e.g. , id. at 8, 9, 61.

John D. Brewer, The Ethnographic Critique of Ethnography: Sectarianism in the FUC , 28 Soc. 231, 233 (1994) (“Ethnography falls short because findings cannot be generalised; and when ethnographers make claims about empirical generalisation they often fail to establish that the setting is typical of the larger population to which the data are thought to be relevant.”).

In one instance, she does provide some quantitative data to support her powerful qualitative account. For instance, when discussing whether defense lawyers believed that defendants were treated fairly regardless of race or class, she included two tables providing the percentage of attorneys who answered the question in the affirmative, in the negative, or failed to answer the question at all. Van Cleve , supra note 3, at 97. However, no similar empirical evidence was provided for any of her other claims.

Id. at 197.

Id. She explains that she used this multifaceted approach because in an era where people avoid expressing negative racial attitudes, it is difficult to measure the influence of race using a single method. Id. at 195-96.

Id. at 196.

See Margaret D. LeCompte & Judith Preissle Goetz, Problems of Reliability and Validity in Ethnographic Research , 52 Rev. Educ. Res. 31, 32 (1982) ( “External reliability addresses the issue of whether independent researchers would discover the same phenomena or generate the same constructs in the same or similar settings.”).

Howard S. Becker, Problems of Inference and Proof in Participant Observation , 23 Am. Soc. Rev. 652, 659-60 (1958).

Id. ; see also Erving Goffman, Asylums 7-9 (1968) (explaining that the author did not gather statistical evidence because a good way to learn about any social world is to obtain ethnographic detail instead).

See Van Cleve , supra note 3, at 11-13.

See id . at 186.

The only instance she offers of normative professionalism involved a defense lawyer who was not part of any particular courtroom workgroup. According to Van Cleve, this lawyer’s outsider status protected her from the culture of the Cook County courts. Id. at 77-78. Van Cleve does not explain why she provides no accounts of courtroom actors engaging in positive interactions with those labeled mopes. The reader is thus left wondering whether these examples existed but she chose not to include them, or whether she and others simply did not observe professional conduct in cases involving mopes.

See John A. Bargh, The Four Horsemen of Automaticity: Awareness, Intention, Efficiency, and Control in Social Cognition , in 1 Handbook of Social Cognition 1 (Robert S. Wyer, Jr. & Thomas K. Srull eds., Psychology Press 2014) (1994).

Id. at 31 (stating that automatic processes “enable[] a reduction of the massive amount of stimulation and information bombarding one at any given moment into a more manageable subset of important objects, events, and appraisals”); Sandra Graham & Brian S. Lowery, Priming Unconscious Racial Stereotypes About Adolescent Offenders , 28 L. & Hum. Behav . 483, 485 (2004) (“[T]he view of stereotypes as largely unconscious is consistent with social cognition research on the cognitive heuristics or shortcuts that perceivers must employ to manage the vast amount of social information with which they must deal.” (citation omitted)).

The scholarship on implicit racial bias is vast. For a summary of the literature on implicit racial bias, particularly as it relates to the criminal justice system, see Jerry Kang et al., Implicit Bias in the Courtroom , 59 UCLA L. Rev. 1124 (2012); and L. Song Richardson, Arrest Efficiency and the Fourth Amendment , 95 Minn. L. Rev. 2035 (2011) .

Anthony G. Greenwald et al. , Statistically Small Effects of the Implicit Association Test Can Have Societally Large Effects , 108 J. Personality & Soc. Psychol. 553, 558 (2015).

See, e.g. , Jennifer L. Eberhardt et al., Seeing Black: Race, Crime, and Visual Processing , 87 J. Personality & Soc. Psychol. 876, 876 (2004) (“The stereotype of Black Americans as violent and criminal has been documented by social psychologists for almost 60 years.” (citations omitted)); Graham & Lowery, supra note 79 , at 485 (describing the “pernicious belief” that African American youth are “violent, aggressive, dangerous, and possess adult-like criminal intent”); Sophie Trawalter et al., Attending to Threat: Race-Based Patterns of Selective Attention , 44 J. Experimental Soc. Psychol . 1322, 1322 (2008) (“There is overwhelming evidence that young Black men are stereotyped as violent, criminal, and dangerous.”).

See Robert J. Smith, Justin D. Levinson & Zoë Robinson, Implicit White Favoritism in the Criminal Justice System , 66 Ala. L. Rev. 871, 873 (2015).

Id. at 874-75 (footnote omitted).

Id. at 898 (emphasis added).

John A. Bargh et al., Automaticity of Social Behavior: Direct Effects of Trait Construct and Stereotype Activation on Action , 71 J. Personality & Soc. Psychol . 230, 241-42 (1996). Bargh writes, “To the extent that an individual repeatedly has the same reaction to a social stimulus event, the representation of that response should come eventually to be activated automatically on the mere occurrence of that event.” Id. at 231.

See generally Greenwald et al., supra note 81, at 553 (describing how small, implicit biases can have a societally significant impact either by influencing many people in small ways or by repeatedly affecting individuals); Anthony G. Greenwald et al., Understanding and Using the Implicit Association Test: III. Meta-Analysis of Predictive Validity , 97 J. Personality & Soc. Psychol. 17 (2009) ( describing implicit racial bias studies) . For a summary of critiques of the implicit association test and responses to those critiques, see Darren Lenard Hutchinson, “Continually Reminded of Their Inferior Position”: Social Dominance, Implicit Bias, Criminality, and Race , 46 Wash. U. J.L. & Pol’y 23, 41-45 (2014).

See infra Section II.C.

See, e.g. , Alexandra Natapoff, Aggregation and Urban Misdemeanors , 40 Fordham Urb. L.J. 1043, 1043 (2013) (noting the pressure to treat people as groups rather than as individuals, which “is in deep tension with core precepts of criminal law, most fundamentally the idea that criminal guilt is an individuated concept reflecting the defendant’s personal culpability”); Natapoff, supra note 1, at 1317-18; Lisa C. Wood et al., Meet-and-Plead: The Inevitable Consequence of Crushing Defender Workloads , 42 Litig. 20, 26 (2016) (noting that “the problem of excessive workloads is systemic” and that “[f]or years, tough-on-crime policies, mandatory minimum sentences, collateral consequences, and broken-windows policing pushed workloads ever higher”); see also Kohler-Hausmann, supra note 1, at 639 (describing the large increase in the number of misdemeanor arrests in New York City from 1980 to 2011).

Wood et al., supra note 89, at 20, 22.

Id. at 21 (citing Honorable Sean C. Gallagher, A Judge’s Comments , 42 Litig . 21 (2016)).

See, e.g. , Brown, supra note 10; Bruce A. Green, Criminal Neglect: Indigent Defense from a Legal Ethics Perspective , 52 Emory L.J. 1169, 1180-81 (2003) ; Mitchell, supra note 10, at 1224-25; Richardson & Goff, supra note 10 ; see also Hashimoto, supra note 10, at 475 (“Lawyers carrying caseloads that far exceed national standards cannot adequately consult with their clients or provide sufficient investigation.”).

Richardson & Goff, supra note 10, at 2632.

Michelle Alexander, The New Jim Crow : Mass Incarceration in the Age of Colorblindness 184 (2010) ( arguing that “the War on Drugs is the engine of mass incarceration”); Ojmarrh Mitchell & Michael S. Caudy, Examining Racial Disparities in Drug Arrests , 32 Just. Q . 288, 309 (2015) (finding that “the policies pursued under the War on Drugs disproportionately held African-Americans accountable for their transgressions”); see also Katherine Beckett et al., Drug Use, Drug Possession Arrests, and the Question of Race: Lessons from Seattle , 52 Soc. Probs. 419 (2005) (noting the huge impact of the War on Drugs on blacks); M. Chris Fabricant, War Crimes and Misdemeanors: Understanding “Zero-Tolerance” Policing As a Form of Collective Punishment and Human Rights Violation , 3 Drexel L. Rev. 373, 393-95 (2011) (recounting the War on Drugs’ effect on blacks living in New York); K. Babe Howell, Broken Lives from Broken Windows: The Hidden Costs of Aggressive Order-Maintenance Policing , 33 N.Y.U. Rev. L. & Soc. Change 271, 276-80 (2009) (critiquing broken windows policing); Natapoff, supra note 89, 1063-66 (noting that police focus arrests on young men of color); Al Baker, New York Minorities More Likely To Be Frisked , N.Y. Times (May 13, 2010), http://www.nytimes.com/2010/05/13/nyregion/13frisk.html [http:// ‌ perma.cc ‌ /79DV-GPVM]; Ray Rivera et al., A Few Blocks, 4 Years, 52,000 Police Stops , N.Y. Times (July 11, 2010), http://www.nytimes.com/2010/07/12/nyregion/12frisk.html [http:// ‌ perma.cc ‌ /NKK6-6QZZ]. Some scholars, such as Jeffrey Fagan and Garth Davies, conclude that broken-windows policing “is not about disorderly places, nor about improving the quality of life, but about policing poor people in poor places.” Jeffrey Fagan & Garth Davies, Street Stops and Broken Windows: Terry , Race, and Disorder in New York City , 28 Fordham Urb. L.J. 457, 457 (2000). See generally George L. Kelling & James Q. Wilson, Broken Windows: The Police and Neighborhood Safety , Atlantic (Mar. 1982), http://www ‌ .theatlantic ‌ .com ‌ /magazine/archive/1982/03/broken-windows/304465/ [http://perma.cc/YBP7-VJSS] (discussing broken windows policing).

See Model Rules of Prof’l Conduct r. 3.8 cmt. 1 ( Am. Bar Ass’n 2014).

ABA Standards for Criminal Justice: Prosecution Function and Defense Function, ABA § 4-4.1 (4th ed. 2016), http://www.americanbar.org/groups/criminal_justice ‌ /standards ‌ /Defense ‌ FunctionFourthEdition.html [http://perma.cc/9F26-DG3X].

Id . §§ 4-3.1, 4-3.3, 4-3.9, 4-5.1.

Id . §§ 4-5.2, 4-7.11, 4-8.1.

Id . § 4-4.6 (discussing counsel’s obligation to research the law); id. §§ 4-6.1 to -6.3 (discussing counsel’s obligation to negotiate). These ethical obligations apply regardless of the lawyer’s workload, see id. § 4-4.1(a) (“Defense counsel has a duty to investigate in all cases, and to determine whether there is a sufficient factual basis for criminal charges.”), and whether or not defendants want to plead guilty, id. §§ 4-4.1(b), 4-6.1(b).

See infra note 144 and accompanying text for an example of a judge in Cook County engaging in triage behaviors.

These negative associations are not just practiced in the courthouse, but within offices too. For instance, in Cook County, Van Cleve shares how the Gang Unit of the State’s Attorney’s Office wallpapers its office with mug shots of black and Latino defendants. Van Cleve , supra note 3 , at 1.

Kohler-Hausmann, supra note 1 , at 642-43 (noting that many misdemeanor offenses in New York City are dismissed).

See Daniel T. Gilbert & J. Gregory Hixon, The Trouble of Thinking: Activation and Application of Stereotypic Beliefs , 60 J. Personality & Soc. Psychol. 509, 509 (1991) (finding that once stereotype activation occurred, cognitive “busyness” increased the application of stereotypes); Olesya Govorun & B. Keith Payne, Ego-Depletion and Prejudice: Separating Automatic and Controlled Components , 24 Soc. Cognition 111, 111-12 (2006) (discussing cognitive depletion) ; Graham & Lowery, supra note 79 , at 486 (discussing the impact of information deficits); Anthony G. Greenwald & Mahzarin R. Banaji, Implicit Social Cognition: Attitudes, Self-Esteem, and Stereotypes , 102 Psychol. Rev. 4, 18 (reviewing researchers’ finding that “time pressure on a judgment task (thereby reducing attentional resources available for the task) increased the level of ethnic stereotyping in subjects’ judgments”); Jennifer A. Richeson & J. Nicole Shelton, Negotiating Interracial Interactions: Costs, Consequences, and Possibilities , 16 Current Directions Psychol. Sci. 316, 318 (2007) (discussing dominant group anxiety during interracial interactions) .

Van Cleve’s book provides evidence of this type of behavior. See, e.g. , Van Cleve , supra note 3 , at 122 (discussing her observation that prosecutors rarely read the case files of “mopes”); id. at 83-87 (discussing how public defenders are punished for engaging in zealous advocacy).

See Graham & Lowery, supra note 79 , at 486 (discussing the impact of information deficits); Greenwald & Banaji, supra note 104 , at 18 (reviewing researchers’ finding that “time pressure on a judgment task (thereby reducing attentional resources available for the task) increased the level of ethnic stereotyping in subjects’ judgments”).

Justin D. Levinson & Danielle Young, Different Shades of Bias: Skin Tone, Implicit Racial Bias, and Judgments of Ambiguous Evidence , 112 W. Va. L. Rev. 307, 337 (2010).

Id. at 337-39.

Samuel R. Sommers & Phoebe C. Ellsworth, White Juror Bias: An Investigation of Prejudice Against Black Defendants in the American Courtroom , 7 Psychol. Pub. Pol’y & L . 201, 212 (2001). These differences disappeared when race was made salient. Id. at 212-13.

See, e.g. , Eberhardt et al., supra note 82 , at 883 (discussing the implicit association of blacks with crime ); Trawalter et al., supra note 82 , at 1322 (“ There is overwhelming evidence that young Black men are stereotyped as violent, criminal, and dangerous .”); Bernd Wittenbrink et al., Spontaneous Prejudice in Context: Variability in Automatically Activated Attitudes , 81 J. Personality & Soc. Psychol . 815 (2001) (discussing how context influences the activation of implicit bias). In prior work, Phillip Atiba Goff and I have referred to this quick judgment of criminality as the “suspicion heuristic.” L. Song Richardson & Phillip Atiba Goff, Self-Defense and the Suspicion Heuristic , 98 Iowa L. Rev. 293, 295 (2012).

See John F. Dovidio et al., Empathy and Intergroup Relations , in Prosocial Motives, Emotions, and Behavior: The Better Angels of Our Nature 393, 399 (Mario Mikulincer & Phillip R. Shaver eds., 2010); Matteo Forgiarini et al., Racism and Empathy for Pain on Our Skin , 2 Frontiers Psychology 1, 1 (2011).

James D. Johnson et al., Rodney King and O.J. Revisited: The Impact of Race and Defendant Empathy Induction on Judicial Decisions , 32 J. Applied Soc. Psychol. 1208, 1215 (2002). Additionally, the jurors were more likely to attribute the actions of white defendants to the situation. Id. at 1216.

S tudies have found that witnessing or imagining another individual experiencing pain causes our own brains to react as if we were experiencing pain ourselves. Forgiarini et al., supra note 111, at 1 (“[E]xperimental data indicate that when people witness or imagine the pain of another person, they map the other[’s] pain onto their brain using the same network activated during firsthand experience of pain, as if they were vicariously experiencing the observed pain.” (citations omitted)). However, in one study, the brains of white individuals exhibited less activation when observing pain inflicted on black individuals than on white individuals. Id. at 2, 4-6. The study did not involve black subjects. To the extent that this racial empathy gap works both ways, that is, that black decision makers would show the same lack of empathy toward whites experiencing pain, racial disparities would still exist since blacks are underrepresented in the legal field.

Van Cleve , supra note 3 , at 72.

Id. at 159; see also id. at 28-29, 58 (discussing the extreme time pressure under which defense attorneys and prosecutors work).

See id. at 20-21.

Id. at 19 (noting that 67.3% are young black men between the ages of twenty-one and thirty years, and Latinos and other people of color constitute nineteen percent ); id. at 7 (noting that most of the black and Latino defendants appearing in felony court were charged with “possession of drugs, theft, intent to sell drugs, or other non-violent offenses”).

See supra note 25 and accompanying text (discussing instances in which sheriff’s deputies treated black researchers like criminals).

See Van Cleve , supra note 3 , at 27, 32, 101-02.

See supra notes 59-62 and accompanying text (discussing pricing decisions made by defense lawyers).

Van Cleve , supra note 3, at 189.

See, e.g. , Kathleen Daly, Black Women, White Justice , in Crossing Boundaries: Traditions and Transformations in Law and Society Research 209 (Austin Sarat & Marianne Constable eds., 1998) (sharing stories of courtroom encounters that reveal how black women experience the justice system).

Van Cleve , supra note 3, at 44.

She writes that court watching will allow people “to see racial degradation ceremonies performed in the name of criminal justice.” Id. at 189.

Patricia G. Devine & Margo J. Monteith, Automaticity and Control in Stereotyping , in Dual-Process Theories in Social Psychology 346 (Shelly Chaiken & Yaacov Trop eds., 1999); Jack Glaser & Eric D. Knowles, Implicit Motivation To Control Prejudice, 44 J. Experimental Soc. Psychol. 164, 171 (2008); John T. Jost et al., The Existence of Implicit Bias Is Beyond Reasonable Doubt: A Refutation of Ideological and Methodological Objections and Executive Summary of Ten Studies that No Manager Should Ignore, 29 Res. Organizational Behav. 39, 56-57 (2009); Devin G. Pope et al., Awareness Reduces Racial Bias (Nat’l Bureau of Econ. Research, Working Paper 19765, 2014) (on file with author).

Eric Luis Uhlmann & Geoffrey L. Cohen, “I Think It, Therefore It’s True”: Effects of Self-Perceived Objectivity on Hiring Discrimination , 104 Organizational Behav. & Hum. Decision Processes 207, 210-11 (2007).

Emily Pronin, Perception and Misperception of Bias in Human Judgment , 11 Trends Cognitive Sci. 37, 39 (2007).

E. Ashby Plant & Patricia G. Devine, Internal and External Motivation To Respond Without Prejudice , 75 J. Personality & Soc. Psychol . 811, 824-28 (1998).

Eduardo Bonilla-Silva , Racism Without Racists 302 (2014).

Van Cleve highlights numerous instances of colorblindness amongst courtroom actors. See supra notes 27-33 .

Jennifer K. Elek & Paula Hannaford-Agor, First, Do No Harm: On Addressing the Problem of Implicit Bias in Juror Decision M aking , 49 Court Rev. 190, 193 (2013) (citing Jennifer A. Richeson & Richard J. Nussbaum, The Impact of Multiculturalism Versus Color-Blindness on Racial Bias , 40 J. Experimental Soc. Psychol . 417 (2004)).

I have conducted these trainings for police departments, federal and state prosecutors, and public defenders.

Office of Pub. Affairs, Department of Justice Announces New Department-Wide Implicit Bias Training for Personnel , U.S. Dep’t Just. ( June 27, 2016 ) , http://www.justice.gov ‌ /opa/pr ‌ /de ‌ part ‌ ment ‌ -justice ‌ -announces-new-department-wide-implicit-bias-training-per ‌ son ‌ nel [http:// ‌ perma.cc/P3K2-JFF4].

Bargh , supra note 78, at 28.

Id. (“[I]t is possible to gain control [over automatic processes] by ‘making the hard choice’ and spending the additional cognitive effort to avoid pigeonholing or stereotyping an individual. Instead, the person can effortfully seek out additional individuating information and integrate it into a coherent impression.” (citation omitted)); Marilynn B. Brewer, A Dual Process Model of Impression Formation , in 1 Advances in Social Cognition 1 (Thomas K. Scrull & Robert S. Wyer, Jr. eds., 1988); Susan T. Fiske & Steven L. Neuberg, A Continuum of Impression Formation, from Category-Based to Individuating Processes: Influences of Information and Motivation on Attention and Interpretation , in 23 Advances in Experimental Social Psychology 1 (Mark P. Zanna ed., 1990).

Sometimes there is good reason to attempt to resolve cases quickly. For instance, sometimes a defendant can get released from custody immediately or have his case dismissed instead of languishing in jail.

Jenny Roberts, Crashing the Misdemeanor System , 70 Wash. & Lee L. Rev. 1089, 1131 (2013); Michelle Alexander, Opinion, Go to Trial: Crash the Justice System , N.Y. Times (Mar. 10, 2012), http://www.nytimes.com/2012/03/11/opinion/sunday/go-to-trial-crash-the-justice -system.html [http://perma.cc/A87K-7SWR].

One important caveat needs to be made here. My argument is not that moving swiftly through a case is always problematic. For instance, there are circumstances when defense counsel may want to quickly resolve a case because doing so will result in a better outcome for her client. Rather, I am simply making the point that rushing through cases solely to deal with the pressures of triage is problematic.

This knowledge is based on conversations with Judge Bennett.

See supra notes 54-58.

Gretchen B. Sechrist & Charles Stangor, Perceived Consensus Influences Intergroup Behavior and Stereotype Accessibility , 80 J. Personality & Soc. Psychol. 645, 651 (2001).

Jeff Adachi, Public Defenders Can Be Biased, Too, and It Hurts Their Non-White Clients , Wash. Post (June 7, 2016), http://www.washingtonpost.com/posteverything/wp ‌ /2016/06 ‌ /07 ‌ /public ‌ -defenders-can-be-biased-too-and-it-hurts-their-non-white-clients [http:// ‌ perma.cc ‌ /S98M-9CRG].

This information is based on my conversations with this implicit bias expert.

This is a project with which I am involved.

Van Cleve , supra note 3, at 186.

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A pandemic that disproportionately affected communities of color, roadblocks that obstructed efforts to expand the franchise and protect voting discrimination, a growing movement to push anti-racist curricula out of schools – events over the past year have only underscored how prevalent systemic racism and bias is in America today.

What can be done to dismantle centuries of discrimination in the U.S.? How can a more equitable society be achieved? What makes racism such a complicated problem to solve? Black History Month is a time marked for honoring and reflecting on the experience of Black Americans, and it is also an opportunity to reexamine our nation’s deeply embedded racial problems and the possible solutions that could help build a more equitable society.

Stanford scholars are tackling these issues head-on in their research from the perspectives of history, education, law and other disciplines. For example, historian Clayborne Carson is working to preserve and promote the legacy of Martin Luther King Jr. and religious studies scholar Lerone A. Martin has joined Stanford to continue expanding access and opportunities to learn from King’s teachings; sociologist Matthew Clair is examining how the criminal justice system can end a vicious cycle involving the disparate treatment of Black men; and education scholar Subini Ancy Annamma is studying ways to make education more equitable for historically marginalized students.

Learn more about these efforts and other projects examining racism and discrimination in areas like health and medicine, technology and the workplace below.

Update: Jan. 27, 2023: This story was originally published on Feb. 16, 2021, and has been updated on a number of occasions to include new content.

Understanding the impact of racism; advancing justice

One of the hardest elements of advancing racial justice is helping everyone understand the ways in which they are involved in a system or structure that perpetuates racism, according to Stanford legal scholar Ralph Richard Banks.

“The starting point for the center is the recognition that racial inequality and division have long been the fault line of American society. Thus, addressing racial inequity is essential to sustaining our nation, and furthering its democratic aspirations,” said Banks , the Jackson Eli Reynolds Professor of Law at Stanford Law School and co-founder of the Stanford Center for Racial Justice .

This sentiment was echoed by Stanford researcher Rebecca Hetey . One of the obstacles in solving inequality is people’s attitudes towards it, Hetey said. “One of the barriers of reducing inequality is how some people justify and rationalize it.”

How people talk about race and stereotypes matters. Here is some of that scholarship.

For Black Americans, COVID-19 is quickly reversing crucial economic gains

Research co-authored by SIEPR’s Peter Klenow and Chad Jones measures the welfare gap between Black and white Americans and provides a way to analyze policies to narrow the divide.

How an ‘impact mindset’ unites activists of different races

A new study finds that people’s involvement with Black Lives Matter stems from an impulse that goes beyond identity.

For democracy to work, racial inequalities must be addressed

The Stanford Center for Racial Justice is taking a hard look at the policies perpetuating systemic racism in America today and asking how we can imagine a more equitable society.

The psychological toll of George Floyd’s murder

As the nation mourned the death of George Floyd, more Black Americans than white Americans felt angry or sad – a finding that reveals the racial disparities of grief.

Seven factors contributing to American racism

Of the seven factors the researchers identified, perhaps the most insidious is passivism or passive racism, which includes an apathy toward systems of racial advantage or denial that those systems even exist.

Scholars reflect on Black history

Humanities and social sciences scholars reflect on “Black history as American history” and its impact on their personal and professional lives.

The history of Black History Month

It's February, so many teachers and schools are taking time to celebrate Black History Month. According to Stanford historian Michael Hines, there are still misunderstandings and misconceptions about the past, present, and future of the celebration.

Numbers about inequality don’t speak for themselves

In a new research paper, Stanford scholars Rebecca Hetey and Jennifer Eberhardt propose new ways to talk about racial disparities that exist across society, from education to health care and criminal justice systems.

Changing how people perceive problems

Drawing on an extensive body of research, Stanford psychologist Gregory Walton lays out a roadmap to positively influence the way people think about themselves and the world around them. These changes could improve society, too.

Welfare opposition linked to threats of racial standing

Research co-authored by sociologist Robb Willer finds that when white Americans perceive threats to their status as the dominant demographic group, their resentment of minorities increases. This resentment leads to opposing welfare programs they believe will mainly benefit minority groups.

Conversations about race between Black and white friends can feel risky, but are valuable

New research about how friends approach talking about their race-related experiences with each other reveals concerns but also the potential that these conversations have to strengthen relationships and further intergroup learning.

Defusing racial bias

Research shows why understanding the source of discrimination matters.

Many white parents aren’t having ‘the talk’ about race with their kids

After George Floyd’s murder, Black parents talked about race and racism with their kids more. White parents did not and were more likely to give their kids colorblind messages.

Stereotyping makes people more likely to act badly

Even slight cues, like reading a negative stereotype about your race or gender, can have an impact.

Why white people downplay their individual racial privileges

Research shows that white Americans, when faced with evidence of racial privilege, deny that they have benefited personally.

Clayborne Carson: Looking back at a legacy

Stanford historian Clayborne Carson reflects on a career dedicated to studying and preserving the legacy of civil rights leader Martin Luther King Jr.

How race influences, amplifies backlash against outspoken women

When women break gender norms, the most negative reactions may come from people of the same race.

Examining disparities in education

Scholar Subini Ancy Annamma is studying ways to make education more equitable for historically marginalized students. Annamma’s research examines how schools contribute to the criminalization of Black youths by creating a culture of punishment that penalizes Black children more harshly than their white peers for the same behavior. Her work shows that youth of color are more likely to be closely watched, over-represented in special education, and reported to and arrested by police.

“These are all ways in which schools criminalize Black youth,” she said. “Day after day, these things start to sediment.”

That’s why Annamma has identified opportunities for teachers and administrators to intervene in these unfair practices. Below is some of that research, from Annamma and others.

New ‘Segregation Index’ shows American schools remain highly segregated by race, ethnicity, and economic status

Researchers at Stanford and USC developed a new tool to track neighborhood and school segregation in the U.S.

New evidence shows that school poverty shapes racial achievement gaps

Racial segregation leads to growing achievement gaps – but it does so entirely through differences in school poverty, according to new research from education Professor Sean Reardon, who is launching a new tool to help educators, parents and policymakers examine education trends by race and poverty level nationwide.

School closures intensify gentrification in Black neighborhoods nationwide

An analysis of census and school closure data finds that shuttering schools increases gentrification – but only in predominantly Black communities.

Ninth-grade ethnic studies helped students for years, Stanford researchers find

A new study shows that students assigned to an ethnic studies course had longer-term improvements in attendance and graduation rates.

Teaching about racism

Stanford sociologist Matthew Snipp discusses ways to educate students about race and ethnic relations in America.

Stanford scholar uncovers an early activist’s fight to get Black history into schools

In a new book, Assistant Professor Michael Hines chronicles the efforts of a Chicago schoolteacher in the 1930s who wanted to remedy the portrayal of Black history in textbooks of the time.

How disability intersects with race

Professor Alfredo J. Artiles discusses the complexities in creating inclusive policies for students with disabilities.

Access to program for black male students lowered dropout rates

New research led by Stanford education professor Thomas S. Dee provides the first evidence of effectiveness for a district-wide initiative targeted at black male high school students.

How school systems make criminals of Black youth

Stanford education professor Subini Ancy Annamma talks about the role schools play in creating a culture of punishment against Black students.

Reducing racial disparities in school discipline

Stanford psychologists find that brief exercises early in middle school can improve students’ relationships with their teachers, increase their sense of belonging and reduce teachers’ reports of discipline issues among black and Latino boys.

Science lessons through a different lens

In his new book, Science in the City, Stanford education professor Bryan A. Brown helps bridge the gap between students’ culture and the science classroom.

Teachers more likely to label black students as troublemakers, Stanford research shows

Stanford psychologists Jennifer Eberhardt and Jason Okonofua experimentally examined the psychological processes involved when teachers discipline black students more harshly than white students.

Why we need Black teachers

Travis Bristol, MA '04, talks about what it takes for schools to hire and retain teachers of color.

Understanding racism in the criminal justice system

Research has shown that time and time again, inequality is embedded into all facets of the criminal justice system. From being arrested to being charged, convicted and sentenced, people of color – particularly Black men – are disproportionately targeted by the police.

“So many reforms are needed: police accountability, judicial intervention, reducing prosecutorial power and increasing resources for public defenders are places we can start,” said sociologist Matthew Clair . “But beyond piecemeal reforms, we need to continue having critical conversations about transformation and the role of the courts in bringing about the abolition of police and prisons.”

Clair is one of several Stanford scholars who have examined the intersection of race and the criminal process and offered solutions to end the vicious cycle of racism. Here is some of that work.

Police Facebook posts disproportionately highlight crimes involving Black suspects, study finds

Researchers examined crime-related posts from 14,000 Facebook pages maintained by U.S. law enforcement agencies and found that Facebook users are exposed to posts that overrepresent Black suspects by 25% relative to local arrest rates.

Supporting students involved in the justice system

New data show that a one-page letter asking a teacher to support a youth as they navigate the difficult transition from juvenile detention back to school can reduce the likelihood that the student re-offends.

Race and mass criminalization in the U.S.

Stanford sociologist discusses how race and class inequalities are embedded in the American criminal legal system.

New Stanford research lab explores incarcerated students’ educational paths

Associate Professor Subini Annamma examines the policies and practices that push marginalized students out of school and into prisons.

Derek Chauvin verdict important, but much remains to be done

Stanford scholars Hakeem Jefferson, Robert Weisberg and Matthew Clair weigh in on the Derek Chauvin verdict, emphasizing that while the outcome is important, much work remains to be done to bring about long-lasting justice.

A ‘veil of darkness’ reduces racial bias in traffic stops

After analyzing 95 million traffic stop records, filed by officers with 21 state patrol agencies and 35 municipal police forces from 2011 to 2018, researchers concluded that “police stops and search decisions suffer from persistent racial bias.”

Stanford big data study finds racial disparities in Oakland, Calif., police behavior, offers solutions

Analyzing thousands of data points, the researchers found racial disparities in how Oakland officers treated African Americans on routine traffic and pedestrian stops. They suggest 50 measures to improve police-community relations.

Race and the death penalty

As questions about racial bias in the criminal justice system dominate the headlines, research by Stanford law Professor John J. Donohue III offers insight into one of the most fraught areas: the death penalty.

Diagnosing disparities in health, medicine

The COVID-19 pandemic has disproportionately impacted communities of color and has highlighted the health disparities between Black Americans, whites and other demographic groups.

As Iris Gibbs , professor of radiation oncology and associate dean of MD program admissions, pointed out at an event sponsored by Stanford Medicine: “We need more sustained attention and real action towards eliminating health inequities, educating our entire community and going beyond ‘allyship,’ because that one fizzles out. We really do need people who are truly there all the way.”

Below is some of that research as well as solutions that can address some of the disparities in the American healthcare system.

Stanford researchers testing ways to improve clinical trial diversity

The American Heart Association has provided funding to two Stanford Medicine professors to develop ways to diversify enrollment in heart disease clinical trials.

Striking inequalities in maternal and infant health

Research by SIEPR’s Petra Persson and Maya Rossin-Slater finds wealthy Black mothers and infants in the U.S. fare worse than the poorest white mothers and infants.

More racial diversity among physicians would lead to better health among black men

A clinical trial in Oakland by Stanford researchers found that black men are more likely to seek out preventive care after being seen by black doctors compared to non-black doctors.

A better measuring stick: Algorithmic approach to pain diagnosis could eliminate racial bias

Traditional approaches to pain management don’t treat all patients the same. AI could level the playing field.

5 questions: Alice Popejoy on race, ethnicity and ancestry in science

Alice Popejoy, a postdoctoral scholar who studies biomedical data sciences, speaks to the role – and pitfalls – of race, ethnicity and ancestry in research.

Stanford Medicine community calls for action against racial injustice, inequities

The event at Stanford provided a venue for health care workers and students to express their feelings about violence against African Americans and to voice their demands for change.

Racial disparity remains in heart-transplant mortality rates, Stanford study finds

African-American heart transplant patients have had persistently higher mortality rates than white patients, but exactly why still remains a mystery.

Finding the COVID-19 Victims that Big Data Misses

Widely used virus tracking data undercounts older people and people of color. Scholars propose a solution to this demographic bias.

Studying how racial stressors affect mental health

Farzana Saleem, an assistant professor at Stanford Graduate School of Education, is interested in the way Black youth and other young people of color navigate adolescence—and the racial stressors that can make the journey harder.

Infants’ race influences quality of hospital care in California

Disparities exist in how babies of different racial and ethnic origins are treated in California’s neonatal intensive care units, but this could be changed, say Stanford researchers.

Immigrants don’t move state-to-state in search of health benefits

When states expand public health insurance to include low-income, legal immigrants, it does not lead to out-of-state immigrants moving in search of benefits.

Excess mortality rates early in pandemic highest among Blacks

The impact of the COVID-19 pandemic has been starkly uneven across race, ethnicity and geography, according to a new study led by SHP's Maria Polyakova.

Decoding bias in media, technology

Driving Artificial Intelligence are machine learning algorithms, sets of rules that tell a computer how to solve a problem, perform a task and in some cases, predict an outcome. These predictive models are based on massive datasets to recognize certain patterns, which according to communication scholar Angele Christin , sometimes come flawed with human bias . 

“Technology changes things, but perhaps not always as much as we think,” Christin said. “Social context matters a lot in shaping the actual effects of the technological tools. […] So, it’s important to understand that connection between humans and machines.”

Below is some of that research, as well as other ways discrimination unfolds across technology, in the media, and ways to counteract it.

IRS disproportionately audits Black taxpayers

A Stanford collaboration with the Department of the Treasury yields the first direct evidence of differences in audit rates by race.

Automated speech recognition less accurate for blacks

The disparity likely occurs because such technologies are based on machine learning systems that rely heavily on databases of English as spoken by white Americans.

New algorithm trains AI to avoid bad behaviors

Robots, self-driving cars and other intelligent machines could become better-behaved thanks to a new way to help machine learning designers build AI applications with safeguards against specific, undesirable outcomes such as racial and gender bias.

Stanford scholar analyzes responses to algorithms in journalism, criminal justice

In a recent study, assistant professor of communication Angèle Christin finds a gap between intended and actual uses of algorithmic tools in journalism and criminal justice fields.

Move responsibly and think about things

In the course CS 181: Computers, Ethics and Public Policy , Stanford students become computer programmers, policymakers and philosophers to examine the ethical and social impacts of technological innovation.

Homicide victims from Black and Hispanic neighborhoods devalued

Social scientists found that homicide victims killed in Chicago’s predominantly Black and Hispanic neighborhoods received less news coverage than those killed in mostly white neighborhoods.

Algorithms reveal changes in stereotypes

New Stanford research shows that, over the past century, linguistic changes in gender and ethnic stereotypes correlated with major social movements and demographic changes in the U.S. Census data.

AI Index Diversity Report: An Unmoving Needle

Stanford HAI’s 2021 AI Index reveals stalled progress in diversifying AI and a scarcity of the data needed to fix it.

Identifying discrimination in the workplace and economy

From who moves forward in the hiring process to who receives funding from venture capitalists, research has revealed how Blacks and other minority groups are discriminated against in the workplace and economy-at-large. 

“There is not one silver bullet here that you can walk away with. Hiring and retention with respect to employee diversity are complex problems,” said Adina Sterling , associate professor of organizational behavior at the Graduate School of Business (GSB). 

Sterling has offered a few places where employers can expand employee diversity at their companies. For example, she suggests hiring managers track data about their recruitment methods and the pools that result from those efforts, as well as examining who they ultimately hire.

Here is some of that insight.

How To: Use a Scorecard to Evaluate People More Fairly

A written framework is an easy way to hold everyone to the same standard.

Archiving Black histories of Silicon Valley

A new collection at Stanford Libraries will highlight Black Americans who helped transform California’s Silicon Valley region into a hub for innovation, ideas.

Race influences professional investors’ judgments

In their evaluations of high-performing venture capital funds, professional investors rate white-led teams more favorably than they do black-led teams with identical credentials, a new Stanford study led by Jennifer L. Eberhardt finds.

Who moves forward in the hiring process?

People whose employment histories include part-time, temporary help agency or mismatched work can face challenges during the hiring process, according to new research by Stanford sociologist David Pedulla.

How emotions may result in hiring, workplace bias

Stanford study suggests that the emotions American employers are looking for in job candidates may not match up with emotions valued by jobseekers from some cultural backgrounds – potentially leading to hiring bias.

Do VCs really favor white male founders?

A field experiment used fake emails to measure gender and racial bias among startup investors.

Can you spot diversity? (Probably not)

New research shows a “spillover effect” that might be clouding your judgment.

Can job referrals improve employee diversity?

New research looks at how referrals impact promotions of minorities and women.

Black Lives Matter: Eliminating Racial Inequity in the Criminal Justice System

Like an avalanche, racial disparity grows cumulatively as people traverse the criminal justice system. This report identifies four key features of the criminal justice system that produce racially unequal outcomes and showcases initiatives to abate these sources of inequity in adult and juvenile justice systems around the country.

Related to: Racial Justice

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Executive Summary

“Every time you see me, you want to mess with me,” Eric Garner told the group of approaching New York City police officers. As they wrestled him to the ground to arrest him for selling untaxed loose cigarettes, an officer placed Garner in a chokehold and maintained his grip despite Garner’s pleas for air. One hour later, Garner was pronounced dead. The unarmed black man’s death and the white officer’s non-indictment despite videotape evidence have heightened concerns about police practices and accountability. In the wake of the fatal police shooting of unarmed teenager Michael Brown in Ferguson, Missouri, and that officer’s non-indictment, a growing number of Americans are outraged and demanding change.

“Black lives matter” has become a rallying cry in light of evidence that the criminal justice system is failing to uphold this basic truth. Official data, although woefully inadequate, 1 show that over half of those killed by police in recent years have been black or Latino. 2 Officers involved in these killings are rarely indicted, much less convicted, for excessive use of force. 3 And official responses to recent protests have spurred further controversy: militarized police forces disrupted public assemblies in Ferguson, 4 and New York City’s police union blamed pro-reform politicians and nonviolent protesters for the killing of two officers by a mentally unstable man. 5

The criminal justice system’s high volume of contact with people of color is a major cause of African Americans’ disproportionate rate of fatal police encounters, as well as of broader perceptions of injustice in many communities. This briefing paper identifies four key features of the justice system that contribute to its disparate racial impact, and presents recent best practices for targeting these inequities drawn from adult and juvenile justice systems around the country. In many cases, these practices have produced demonstrable results.

Policing is by no means the only stage of the justice system that produces racial disparity. Disadvantage accumulating at each step of the process contributes to blacks and Latinos comprising 56% of the incarcerated population, yet only 30% of the U.S. population. 6 The roots of this disparity precede criminal justice contact: conditions of socioeconomic inequality contribute to higher rates of some violent and property crimes among people of color. But four features of the justice system exacerbate this underlying inequality, and jurisdictions around the country have addressed each one through recent reforms.

Many ostensibly race-neutral policies and laws have a disparate racial impact. Police policies such as “broken windows” and stop, question, and frisk have disproportionately impacted young men of color. Prosecutorial policies, such as plea bargain guidelines that disadvantage blacks and Latinos compound these disparities, as do sentencing laws that dictate harsher punishments for crimes for which people of color are disproportionately arrested.

One reform to address this source of disparity in policing is the significant retrenchment of “stop and frisk” in New York City after a court ruled that the policy violated the constitutional rights of blacks and Latinos. Recent legislation reducing the sentencing disparity between the use and distribution of crack versus powder cocaine in California, Missouri, and at the federal level are examples of efforts to tackle sentencing inequalities.

Criminal justice practitioners’ use of discretion is – often unintentionally – influenced by racial bias.

Racial disparities in traffic stops have diminished on a nationwide basis in recent years, but persist in many jurisdictions. Police officers are more likely to stop black and Hispanic drivers for investigative reasons. Once pulled over, people of color are more likely than whites to be searched, and blacks are more likely than whites to be arrested. In jurisdictions like Ferguson, these patterns hold even though police have a higher “contraband hit rate” when searching white versus black drivers. Prosecutors and judges also often treat blacks and Hispanics more harshly in their charging and sentencing decisions.

The Vera Institute of Justice’s work with prosecutors’ offices around the country is one initiative addressing bias in charging decisions by monitoring outcomes and increasing accountability. Similarly, judges in Dorchester, Massachusetts, have worked with police and prosecutors to develop guidelines to reduce racial disparities in charging enhancements for people arrested for drug crimes in a school zone.

Key segments of the criminal justice system are underfunded, putting blacks and Latinos – who are disproportionately low-income – at a disadvantage.

Most states inadequately fund their indigent defense programs. Pretrial release often requires money bond, which can be prohibitive to low-income individuals and increases the pressure on them to accept less favorable plea deals. Many parole and probation systems offer supervision with little support. Public drug treatment programs are also underfunded, thereby limiting treatment and sentencing alternatives for low-income individuals.

New Jersey’s recently overhauled bail laws, which will increase nonmonetary release options, is an effort to create a more even playing field for low-income individuals. In Illinois, the expansion of alternative community programs has helped to nearly halve reliance on secure detention for youth.

Criminal justice policies exacerbate socioeconomic inequalities by imposing collateral consequences on those with criminal records and by diverting public spending.

A criminal conviction creates a barrier to securing steady employment, and those with felony drug convictions are disqualified from public assistance and public housing in many areas. In addition, allocating public resources to punitive programs comes at the expense of investments in crime prevention and drug treatment programs. Because of their higher rates of incarceration and poverty, people of color are disproportionately affected by these policy choices.

A key development in this area is California’s reclassification of a number of low-level offenses from felonies to misdemeanors under Proposition 47 in 2014. This initiative is intended to reduce prison admissions and to spare many low-level offenders the collateral consequences of a felony conviction. The law also redirects a portion of state prison savings – estimated to be $150-$250 million annually – to crime prevention and drug treatment programs.

Click here to download the full report.

Related Resources

Racial justice fund: 2023 impact report.

In 2021, The Sentencing Project established its Racial Justice Fund (RJF) to support state advocacy partners. These targeted grants provide our partners with the support needed to build their capacity and increase the scope of their impact.

June 1, 2024

Mass Incarceration Trends

Report highlights the growth in state and federal prison populations since the early 1970s, and its far reaching effect on families, communities, and society as a whole.

By Ashley Nellis, Ph.D. on May 21, 2024

The Second Look Movement: A Review of the Nation’s Sentence Review Laws

Legislatures in 12 states, the District of Columbia, and the federal government have enacted “second look” judicial review policies to allow judges to review sentences after a person has served a lengthy period of time.

By Becky Feldman on May 15, 2024

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What does it mean to say "The Criminal Justice System is Racist?"

This paper considers three possible ways of understanding the claim that the American criminal justice system is racist: individualist, “patterns’-based, and ideology-based theories of institutional racism. It rejects an individualist explanation of institutional racism because such an explanation fails to explain the widespread prevalence of anti-black racism in this system or indeed in the United States. It considers a “patterns” account of institutional racism, where consistent patterns of disparate racial effect mimic the structure of intentional projects of racial subjugation like slavery or Jim Crow. While a “patterns” account helpfully directs attention to the effects of policies and practices that make up an institution, it does not fully explain the deep roots of anti-blackness in the criminal justice system in the United States. The paper concludes by defending an ideology-based theory of institutional racism for understanding the criminal justice system because the stereotype of the black criminal has a mutually reinforcing relationship with the patterns of disparate outcome for black people in the criminal justice system. This relationship creates a looping effect where the stereotype of the black criminal fuels the disproportionate involvement of black people in the criminal justice system, and the disproportionate representation of black people with felony records, in prisons, brutalized in police encounters, and so on reinforces the idea that black people are especially prone to criminality. Ideological approaches to racism that integrate attention to the patterns of disparate effect best explain what it means to say that the criminal justice system is racist.

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From police to parole, black and white Americans differ widely in their views of criminal justice system

Black Americans are far more likely than whites to say the nation’s criminal justice system is racially biased and that its treatment of minorities is a serious national problem.

In a recent Pew Research Center survey , around nine-in-ten black adults (87%) said blacks are generally treated less fairly by the criminal justice system than whites, a view shared by a much smaller majority of white adults (61%). And in a survey shortly before last year’s midterm elections , 79% of blacks – compared with 32% of whites – said the way racial and ethnic minorities are treated by the criminal justice system is a very big problem in the United States today.

Racial differences in views of the criminal justice system are not limited to the perceived fairness of the system as a whole. Black and white adults also differ across a range of other criminal justice-related questions asked by the Center in recent years, on subjects ranging from crime and policing to the use of computer algorithms in parole decisions.

Here’s an overview of these racial differences:

Black adults in the U.S. consistently express more concern than white adults about crime.

In last year’s preelection survey, three-quarters of blacks – compared with fewer than half of whites (46%) – said violent crime is a very big problem in the country today. And while 82% of blacks said gun violence is a very big problem in the U.S., just 47% of whites said the same.

Blacks are also more likely than whites to see crime as a serious problem locally . In an early 2018 survey , black adults were roughly twice as likely as whites to say crime is a major problem in their local community (38% vs. 17%).

That’s consistent with a survey conducted in early 2017 , when blacks were about twice as likely as whites to say their local community is not too or not at all safe from crime (34% vs. 15%). Black adults were also more likely than whites to say they worry a lot about having their home broken into (28% vs. 13%) or being the victim of a violent crime (20% vs. 8%). However, similar shares in both groups (22% of blacks and 18% of whites) said they actually had been the victim of a violent crime.

Some of the most pronounced differences between blacks and whites emerge on questions related to police officers and the work they do.

A survey conducted in mid-2017 asked Americans to rate police officers and other groups of people on a “feeling thermometer” from 0 to 100, where 0 represents the coldest, most negative rating and 100 represents the warmest and most positive. Black adults gave police officers a mean rating of 47; whites gave officers a mean rating of 72.

Blacks are also more likely than whites to have specific criticisms about the way officers do their jobs, particularly when it comes to police interactions with their community.

In the Center’s survey earlier this year , 84% of black adults said that, in dealing with police, blacks are generally treated less fairly than whites. A much smaller share of whites – though still a 63% majority – said the same. Blacks were also about five times as likely as whites to say they’d been unfairly stopped by police because of their race or ethnicity (44% vs. 9%), with black men especially likely to say this (59%).

Stark racial differences about key aspects of policing also emerged in a 2016 survey . Blacks were much less likely than whites to say that police in their community do an excellent or good job using the right amount of force in each situation (33% vs. 75%), treating racial and ethnic groups equally (35% vs. 75%) and holding officers accountable when misconduct occurs (31% vs. 70%). Blacks were also substantially less likely than whites to say their local police do an excellent or good job at protecting people from crime (48% vs. 78%).

Notably, black-white differences in views of policing exist among officers themselves. In a survey of nearly 8,000 sworn officers conducted in the fall of 2016, black officers were about twice as likely as white officers (57% vs. 27%) to say that high-profile deaths of black people during encounters with police were signs of a broader problem, not isolated incidents. And roughly seven-in-ten black officers (69%) – compared with around a quarter of white officers (27%) – said the protests that followed many of these incidents were motivated some or a great deal by a genuine desire to hold police accountable for their actions, rather than by long-standing bias against the police. (Several other questions in the survey also showed stark differences in the views of black and white officers.)

The death penalty

A narrow majority of Americans (54%) support the death penalty for people convicted of murder, according to a spring 2018 survey . But only around a third of blacks (36%) support capital punishment for this crime, compared with nearly six-in-ten whites (59%).

Racial divisions extend to other questions related to the use of capital punishment. In a 2015 survey , 77% of blacks said minorities are more likely than whites to be sentenced to death for committing similar crimes. Whites were divided on this question: 46% said minorities are disproportionately sentenced to death, while the same percentage saw no racial disparities.

Blacks were also more likely than whites to say capital punishment is not a crime deterrent (75% vs. 60%) and were less likely to say the death penalty is morally justified (46% vs. 69%). However, about seven-in-ten in both groups said they saw some risk in putting an innocent person to death (74% of blacks vs. 70% of whites).

Parole decisions

Certain aspects of the criminal justice system have changed in recent decades. One example: Some states now use criminal risk assessments to assist with parole decisions. These assessments involve collecting data about people who are up for parole, comparing that data with data about other people who have been convicted of crimes, and then assigning inmates a score to help decide whether they should be released from prison or not.

A 2018 survey asked Americans whether they felt the use of criminal risk assessments in parole decisions was an acceptable use of algorithmic decision-making. A 61% majority of black adults said using these assessments is unfair to people in parole hearings, compared with 49% of white adults.

Voting rights for ex-felons

States differ widely when it comes to allowing people with past felony convictions to vote. In 12 states, people with certain felony convictions can lose the right to vote indefinitely unless other criteria – such as receiving a pardon from the governor – are met, according to the National Conference of State Legislatures . In Maine and Vermont, by contrast, those with felony convictions never lose the right to vote, even while they are incarcerated. Twenty-two states fall somewhere between these positions, rescinding voting rights only during incarceration and for a period afterward, such as when former inmates are on parole.

In a fall 2018 survey , 69% of Americans favored allowing people convicted of felonies to vote after serving their sentences. Black adults were much more likely than white adults to somewhat or strongly favor this approach (83% vs. 68%).

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John Gramlich is an associate director at Pew Research Center .

Most Black Americans Believe U.S. Institutions Were Designed To Hold Black People Back

An early look at black voters’ views on biden, trump and election 2024, a look at black-owned businesses in the u.s., 8 facts about black americans and the news, black americans’ views on success in the u.s., most popular.

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Racial bias and the criminal justice system

If you are looking for ways to connect issues related to the racism pandemic and shootings of unarmed black men and women into your class, the 2016 TOPSS essay contest question focused on racial bias in the criminal justice system. The full competition question is posted below, for you to see/use/adapt as needed in your class next fall.

Essay question from 2016

News events of the last few years have highlighted the problems with racial bias in many areas of society, including the criminal justice system. While the conscious, overt racism of the past continues to be a problem, today we understand that racial biases sometimes show up even in ways in which we are unaware, resulting in unintentional but damaging inequalities in many areas of society. All individuals and social institutions are vulnerable to these problems, but the consequences of racial bias in the criminal justice system are particularly severe.

Students are asked to write an essay of no more than 3,000 words that addresses the topic of racial bias and that provides information concerning cognitive and social factors that contribute to the problem. Students should also address how implicit bias has informed our understanding of racial biases. In addition, each essay should use existing psychological research to examine how this problem specifically impacts the criminal justice system.

Section one: Introduction

Use credible research and information to establish the scope and nature of the problem of racial bias, addressing the following topics:

• What evidence is there that racial bias exists in modern society?
• What are the impacts of this problem on society?

Clearly define any introduced terminology (e.g., discrimination, stereotyping, racism, prejudice) and use these terms with precision. Cite at least one peer-reviewed journal in this section.

Section two: Causes of racial bias

Select at least two cognitive factors that may contribute to racial bias and use psychological research to explain their impact. Examples include (but are not limited to): availability heuristic, cognitive dissonance, representativeness heuristic, confirmation bias, and victim blaming. Cite at least one peer-reviewed journal regarding these cognitive factors.

Select at least two social factors that contribute to racial bias and use psychological research to explain their impact. Examples include (but are not limited to): in-group bias, conformity, modeling, role playing, the "just world phenomenon", scapegoating, and institutionalized discrimination. Cite at least one peer-reviewed journal regarding these social factors.

Discuss how studies of implicit bias have informed our understanding of unconscious racial biases and their impact, citing examples of psychological research. Cite at least one peer-reviewed journal regarding implicit bias.

Section three: Application to criminal justice system and possible solutions

Select two concepts described in section two, and explain how these factors could reasonably impact the criminal justice system.

Discuss the role of psychological research in helping improve the understanding of factors that contribute to racial disparities in the criminal justice system. What role does psychological science play in informing solutions to these problems? Suggest one possible solution or training program that could be implemented in your own community that could reduce the frequency of racial discrimination in the criminal justice system.

2016 TOPSS Competition for High School Psychology Student Winners

• Jane Sensibaugh of Solon High School (Solon, Ohio) (PDF, KB)
• Alan Zheng of Pioneer High School (Ann Arbor, Mich.) (PDF, KB)
• Anan Quan of Cape Coral High School (Cape Coral, Fla.) (PDF, KB)
• Shi Jia Liu of Guangdong Country Garden School (Guangdong, China) (PDF, KB)
• APA Teachers of Psychology in Secondary Schools

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Racism in U.S. Criminal Justice System Essay

• To find inspiration for your paper and overcome writer’s block
• As a source of information (ensure proper referencing)
• As a template for you assignment

Introduction

Racism in u.s. criminal justice system, clinton and incarnation, race discrimination in courts, recommendation, works cited.

In ensuring that people interact and live in harmony there are rules and regulations that are usually stipulated. This is usually the case for all countries around the world.

The police are the ones who are mostly entitled to arrest the offenders before taking them to courts. In most countries, parliament is the ones mandated to formulate the laws. The laws are usually approved by the president of a country. Once one has been arrested by the police and taken to court, he or she can be released on bond or remanded before their case is over depending on the type of crime they have committed.

In administering their duties, the courts are supposed not to discriminate people according to their race, religion or economic wellbeing. This is not usually the case and discrimination is usually evident in many cases. This paper seeks to examine racism and racial disparity in the criminal justice system with special reference to the United States of America justice system.

Racism, which has been persistent in the United States of America, dates from the time of slavery. African American and Native Americans among others were highly discriminated against by the whites (Love, 2004). Racism has been found to be evident in all aspects from schooling to the administering of justice by the courts.

There has been continuous fight against racism in the US but it has not yet been totally eradicated. This is mainly because it is deep rooted in the administration structure and thus requires total cooperation from all parties involved in the success of its eradication (Cronkhite, 2007). The election of Obama as the US president irrespective of his roots in Africa is a good indicator of the good progress achieved so far although much more has to be done.

A country administration is mainly mandated in maintain law and order in all aspects of human interaction. In the United States of America, Clinton was the only president who passed very strict law on drug trade. These laws led to the arrest of more people who were charged at courts and imprisoned.

During his term, more tough penalties were formulated and more prisons constructed. This led to more African American being on the increase in comparison the whites. This raised query on the possible cause of the difference despite them being the minority in population.

The treatment given to blacks in the United States is different from that offered to the whites. This is evident in the administering of justice. Despite the small number of African American in comparison to the whites in the United States, the number of blacks imprisoned is very high.

It is said that the number of blacks and white men participating in drug trade is almost equal. The number of blacks arrested and charged for drugs is higher than that of the whites raising questions about the way justice is administered in courts. In courts, the blacks and Latinos usually do not get fair trial. The drug policy in US is biased so that it does not favor small groups of people such as the blacks and Latinos.

The problem of racism gets its roots from the policy makers whose minds are filled with the notion that the minority are the ones who usually commit crimes. This has brought failure in the fight against drugs. To ensure that justice prevails, there must be appropriate changes in the judicial system. The provision of proper education on drugs could give positive results in drug fight. Fair award of punishment should be done irrespective of one’s skin color or financial status.

In the recent years the number of people in jails or undergoing correction measures has been increasing. Out of this large number, the blacks form the majority despite them forming the minority in the population. There have been questions on how this can be a possibility which has led to a general feeling that double standards are being applied on some races.

In the courts, the suspects are supposed to be well informed about their rights. The availability of public defenders is found to be mainly influenced by race with the African American and the Latinos being discriminated. According to Gerhard Falk (2004):

The bureau of justice statistics reported in 2008 that in 2007 there were 4618 black males sentenced to prison for violent crimes for every 100,000 black male citizens. This number compares to 1,747 Hispanic males and 773 Euro-American males per 100,000 in the population. Since the African American population is only 13 percent of all Americans and the Hispanic population is just 12 percent of all Americans, there is indeed a great overrepresentation of blacks and Hispanics in our prisons. (Falk 2)

The issue of racism in the US criminal justice system is evident in all its levels. This stems down from the judges offering at the courts to the way the police interact with the citizen (Young, Greene and Gabbidon 153). It has been shown that the police interact with the whites better than with the blacks.

This is evident through the large number of blacks and Latinos being stopped and frisked in comparison to the whites. Over the years it has been observed that the probability of a black man being stopped and frisked is much higher than that of the white. In all these cases, the male is usually at higher chances of being harassed by the police than the females.

The judges depend on the law in administering justice. In courts, there are groups of people who are usually mandated by the court to argue a case from facts. In the US, there has been discrimination in the administration of jury services to the African Americans. This indicates a big failure in the judicial system in administering justice to all.

According to the law, any person is entitled to undergo a trial before they are sentenced by the court. A large number of African Americans usually do not get tried in accordance with the constitution in fear of being given heavier penalties on the crimes committed.

Generally speaking it is possible that most of the colored and black people get involved in committing crimes due to their financials status. Most of them might not have some means of livelihood and therefore as a means of sustaining themselves they resort to criminal and criminal related activities. The government should find a solution to empower these people instead of passing strict laws on drugs. By empowering this population, the problem of drug trafficking would have been solved automatically.

The racial discrimination in the US is observed as a way of social control. The issue of overlooking the African American and the Latinos as criminals has been used as a great weapon in the discrimination. This could be viewed as an internal war on the marginalized. The main reason behind all these is dominance by the whites in almost all the organs of justice.

The best way of overcoming this problem is through intensive revolution of values. This thus requires looking into the root cause of the problem and finding the best way to handle the situation. Increasing the number of prisoners in our jail does not ensure our security but a better approach should be undertaken.

Cronkhite, Clyde. Criminal justice administration: strategies for the 21st century . Massachusetts: Jones & Bartlett Learning, 2007. Print.

Falk, Gerhard. The American criminal justice system: how it works, how it doesn’t, and how to fix it. California: ABC-CLIO, 2010. Print.

Love, Eric. Race over empire: racism and U.S. imperialism, 1865-1900 . North Carolina: UNC Press Books, 2004. Print.

Young, Vercetta., Greene, Helen and Gabbidon, Shaun. African American classics in criminology & criminal justice . California: SAGE, 2002. Print.

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IvyPanda. (2018, December 27). Racism in U.S. Criminal Justice System. https://ivypanda.com/essays/racism-in-u-s-criminal-justice-system/

"Racism in U.S. Criminal Justice System." IvyPanda , 27 Dec. 2018, ivypanda.com/essays/racism-in-u-s-criminal-justice-system/.

IvyPanda . (2018) 'Racism in U.S. Criminal Justice System'. 27 December.

IvyPanda . 2018. "Racism in U.S. Criminal Justice System." December 27, 2018. https://ivypanda.com/essays/racism-in-u-s-criminal-justice-system/.

1. IvyPanda . "Racism in U.S. Criminal Justice System." December 27, 2018. https://ivypanda.com/essays/racism-in-u-s-criminal-justice-system/.

Bibliography

IvyPanda . "Racism in U.S. Criminal Justice System." December 27, 2018. https://ivypanda.com/essays/racism-in-u-s-criminal-justice-system/.

Black people are still seeking racial justice – why and what to do about it

Subscribe to how we rise, kwadwo frimpong kwadwo frimpong research associate.

November 12, 2020

On July 9 th 2020, in the wake of nation-wide protests over George Floyd and other Black victims of police violence, David M. Rubenstein Fellow in Governance Studies Rashawn Ray joined actor and producer Boris Kodjoe to talk about policy solutions to address systemic racism and police brutality. Below are highlights from their conversation for the Instagram podcast series #19for20 , which aims to inspire public dialogue about difficult topics in social justice. You can watch the full interview here .

What is different about today’s climate compared to prior national uprisings around race?

Ray highlighted how both the visceral public display of George Floyd’s murder and COVID-19 had engulfed the nation in a manner markedly distinct from Ferguson, Black Lives Matter (BLM) and other previous nation-wide racial justice movements.

“George Floyd is the twenty first century Emmett Till, a moment similar to [his] murder in 1955 [and] by his mother having the foresight and also the bravery to show his decomposed body in that casket”, he said.

The gruesome imagery of witnessing another human being lose their life , with their neck buried under the knee of a police officer for roughly 8 minutes and 46 seconds languishes us psychologically, emotionally and physically. At the same time, with the globe and mainstream media gripped in the sweeping standstill of the pandemic, BLM took to social media, unleashing raw footage of Floyd and other Black victims to signify that they were not isolated, but were the remnants of a larger scourge of racially charged police violence rippling across the country.

https://www.instagram.com/tv/CCcTIIUIu1K/?igshid=ri56lt8dfddf

Why do Black Lives continue to be devalued and over-criminalized?

Ray remarked on how the nation’s historical legacy of slavery continues to be the foundational epicenter of racial discrimination against Blacks and other minorities. “Bad apples often times come from a rotten tree. And that tree in the United States of America is rooted in systemic racism, particularly when it comes to law enforcement that has roots back to slavery”, he explained. What’s more, according to recent research , disturbing levels of white nationalism and domestic extremist groups have been shown to have infiltrated law enforcement.

Kodjoe described a personal encounter he had had with a white businessman in his own neighborhood while dressed in a hoodie and flip flops to illustrate what he referred to as “ the magic pause ”: how Black individuals continually internalize and deflect a series of micro-aggressions and discriminatory behavior from white individuals. The man was initially disdainful towards Kodjoe but after noticing that he owned one of the most opulent houses in the community, he sharply reversed his tone, adopting a more friendly and positive demeanor. “And that criminalization of Black people is the direct result of the lack of those muscles and the lack of consideration for the fact that I’m a father, I’m a husband, I’m a professional, I have family, I have a job,” Kodjoe emphasized.

Ray concurred, remarking that “ the magic pause ” also reflects the collective memory of traumatic experiences that Blacks have undergone in the past, triggering fresh waves of encounters that either did or could have ended fatally, but also revealing how a white person will attempt to code-switch according to the perceived social class of a Black person. “And I think fundamentally it highlights that we can’t outclass racism. It doesn’t matter if you’re Boris Kodjoe [and] that you have the biggest house on the street….all that matters is that in that moment, he’s seen your skin tone and his skin tone, [which gives] him the script for how to make sense of what was going on,” he added.  In essence, these racial attitudes undergird and perpetuate the over-policing and dehumanization of Black people and the long-standing perceptions that they are not only one-dimensional but are more likely to engage in crime. Conversely, crime is inherently racial but there is a tendency to zero in on Black related violence. “ 94% of Black people kill other Blacks, 86% of white people kill other whites. But we never say white-on-white crime. It’s only talking about Black-on-Black crime,” Ray underscored.

What remedies can help shape the path forward?  

1.  Re-allocate and re-invest in police departments

Simply assigning more police officers to these crises will not solve the underlying issues. Further, not only is crime hovering at historic lows but existing law enforcement funds are not being utilized efficiently: Roughly 40% of homicides and 70% of robberies go unresolved and  9 out of 10 response calls handled by law enforcement stem from non-violent issues, ranging from mental health to homelessness. Defunding the police or re-assigning non-violent crimes to entities better equipped to handle these societal challenges will help to boost efficiency and augment the clearance rate for resolving violent crimes.

2.  Implement accountability & transparency in law enforcement

Not only does the status quo reward police officers who ratchet up the highest quotas of tickets and arrests but taxpayers routinely foot the bill for civil payouts involving victims of police brutality and even then, the culpable officers are rarely held financially or criminally liable.

• Institute police department liability insurance: By shifting the source of funds for civilian payouts from taxpayers to police budgets , police departments will not only have a greater incentive to hold police officers accountable for misconduct but the aggrieved families will receive more just recompense for the loss of their loved ones, through the parties that are directly responsible as opposed to through their own hard-earned tax dollars.
• Create a national registry : This will allow police officers to be terminated for misconduct or if they resigned under trial for misconduct as outlined in the George Floyd Justice in Policing Act .
• Remove qualified immunity : This is a legal safeguard currently upheld by the Supreme Court which shields police officers from criminal liability and being sued financially, however, recently enacted state led reforms such as in Colorado can serve as a promising model.

3.  Active civic engagement, particularly down ballot

Activism across the electoral spectrum is paramount but local politics largely determines the policies and outcomes within one’s immediate community. Rallying and electing local officials such as state representatives and attorney generals who can impact the judicial system can yield concrete pathways towards significant results.

4.  Corporate America needs to embrace meaningful action, not just slogans and words

Black assets and intellectual property have been systematically disenfranchised and under-invested in and members of the C-suite and other large conglomerates have a significant role to play in not only reshaping the narrative and incentive structure around business but by also leveraging the existing resources within the Black community to drive sustainable and meaningful change. ”[We] don’t need handouts, we need real partnerships and corporate allies that are ready to invest in us,” Kodjoe reiterated.

• Invest in minority-owned small businesses . Roughly 40% of black small businesses went under because 90% didn’t receive relief funds, however, large corporates can leverage their existing sub-contracts to combat this area.
• Diversity upper management; there is a rich pool of untapped talent to be capitalized upon.
• Compensate individuals for doing the emotional work of anti-racism; they are not there to do it for free.
• Institute bi-annual surveys for minorities to capture their experiences in the workplace and promote greater equity.
• Implement reparations to close the racial wealth gap.

In essence, Black people don’t want a seat at the table, they want their own table, apportioned with equal weight and size to be acknowledged, seen, and heard across all spectrums of society. W.E.B Dubois encapsulated this enduring plight of Black individuals over a century ago as “ double consciousness ”, a longing to be both Black and American without having the doors of opportunity closed roughly in one’s face. And yet Blacks are still clamoring for that promise of equal justice and opportunity to be recognized as fully equal citizens in America.

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Overcoming social exclusion: Addressing race and criminal justice policy in the United States

February 18, 2020.

Economic Inequality

Economic Mobility

Economic Wellbeing

Race & Ethnicity

This essay is part of Vision 2020: Evidence for a stronger economy , a compilation of 21 essays presenting innovative, evidence-based, and concrete ideas to shape the 2020 policy debate. The authors in the new book include preeminent economists, political scientists, and sociologists who use cutting-edge research methods to answer some of the thorniest economic questions facing policymakers today. 

To read more about the Vision 2020 book and download the full collection of essays, click here .

The United States incarcerates more people than any other country in the world, at a rate of 860 per 100,000 U.S. residents age 18 or older. 1 The majority of the growth in the nation’s prison population can be attributed to changes in public policies . 2 By the mid to late 1970s, American society became more punitive, and the shift in demand for more retributive policies led to an exponential increase in the incarceration rate.

Specifically, many states moved from indeterminate sentencing systems to determinate ones. Determinate sentencing systems set fixed or narrow ranges for statutory terms outlined for each crime, which replaced the sentencing discretion of judges, where the exact sentence is unknown but typically has a wider range, and discretionary parole boards. Determinate sentencing led to more draconian sentencing policies such as mandatory minimums (state statutes requiring individuals to be imprisoned for a definite amount of time), truth-in-sentencing laws (which limit the possibility of early release by requiring those imprisoned to serve a significant proportion of their prison sentence), and three-strikes laws (which result in more severe prison punishments after a third criminal offense).

These policies resulted in more individuals being incarcerated for less serious offenses, as well as individuals being incarcerated for longer periods of time. While incarceration is the most visible representation of the misaligned U.S. criminal justice system, less discussed is the number of individuals who have a criminal record in general, and a felony conviction in particular, within the United States. According to the 2014 Bureau of Justice Statistics Survey of State Criminal History Information Systems, there are more than 100 million recorded criminal records in the United States. 3 University of Georgia sociologist Sarah K.S. Shannon and her co-authors estimate that by 2010, there were 18 million Americans with a felony conviction compared to a little more than 7 million who have been incarcerated. 4

While it is generally accepted that changes in public policy are responsible for the expansion of the modern U.S. penal system over the past five decades, what is less clear is how ostensibly colorblind policies led to the concentrated incarceration we see today within minority communities and especially African American communities. Harvard University historian and African American studies professor Elizabeth Hinton persuasively argues that the infrastructure necessary for the growth in incarceration began during an era of liberal reform amid the Civil Rights period with the passage of the 1965 Law Enforcement Assistance Act, which marshalled in an era of law enforcement and a focus on fighting racial and economic inequality through the vehicle of law enforcement instead of social programming. 5

Largely in response to the civil unrest that stemmed from urban protests against police brutality, targeted crime-control policies led to increased supervision of black urban communities, especially black youth, which ultimately led to mass incarceration. Racialized perceptions of crime and poverty led the federal government to use a punitive approach to poverty alleviation and racial economic justice. 6 Indeed, an often overlooked topic within the mass incarceration discussion is the national crime-control policies that provided the funding and incentives that guided state governments to adopt more punitive laws. As Hinton asserts:

The federal government’s long mobilization of the War on Crime promoted a particular type of social control, one that signals that the targeted arrest of racially marginalized Americans and the subsequent creation of new industries to support this regime of control are among the central characteristics of domestic policy in the late twentieth century. 7

This last point should not be lost, as many localities in the nation unsuccessfully used prison construction as economic growth engines. 8

The purpose of this essay is twofold. The first is to argue for a shift in focus away from dealing with economic inequality through the lens of the criminal justice system—which is ill-equipped to address the root causes of poverty and racial inequality, and may actually increase social costs in the long run. The second is to argue for a widespread audit of current federal crime-control policies and funding, not only to understand whether their social benefits outweigh their social costs, but also to determine and eradicate the policies that are leading to greater racial disparities within the criminal justice system.

The essay begins with a brief discussion of race and crime, then moves on to discuss the relationship between federal crime-control policies and racial disparities in the criminal justice system. I then conclude with some policy recommendations, among them concerted federal efforts to understand and document the historic and still-prevalent role of racial bias in our criminal justice system, and the education of the American public on the persistence and consequences of these biases.

Understanding our past: Race and the criminal justice system in the United States

Toward the end of his life, Dr. Martin Luther King, Jr. began fighting for economic justice because he understood that up to that point, American society had paid very little to enact civil rights legislation, and there could be no true social justice and inclusion of African Americans without economic justice. 9 King also seemed to realize that an important component in the fight for equity, justice, and social inclusion was for white people to “reeducate themselves out of their racial ignorance.” 10

Specifically, he noted that black people were putting in a mass effort to overcome the oppression that had hindered their progress over the years. Yet white people, King pointed out, were not as determined to overcome their racial obliviousness, arguing that considerable investments were required to close the racial gap, to accommodate black neighbors, and to enforce bona fide school integration—all of which were still terrifying for many white Americans.

More than 50 years later, there has been no meaningful racial education and only limited inclusion of black people within the social and economic fabric of the United States. Schools are just as racially segregated , if not more, than they were 25–30 years ago. 11 Neighborhoods and communities across the country are still broadly divided along racial lines . 12 Moreover, the racial wealth gap has persisted over time and is about the same level it was in 1962 . 13

Along the way, the United States has achieved the highest incarceration rate in the world, with its prisons disproportionately filled with black descendants of their enslaved ancestors: African American men born in 2001 have roughly a 1 in 3 chance of being imprisoned (roughly 5.5 times their white counterparts), while an African American woman born in 2001 has a 1 in 18 chance of being imprisoned (roughly 6 times their white counterparts). 14 (See Figure 1.)

Consider the disproportionality in state and federal prison admissions rates from 1926 to 1993 by race. It should be noted that even in 1926, African American state and federal prison admission rates were more than twice the admission rates of white people, and this continued to increase over time. Yet admission rates began to increase at a much steeper rate for black Americans than for white Americans beginning in the mid-1970s through 1993, such that black admission rates were 7.6 times the white rate by 1993. Imprisonment rates by race from 1988 to 2010 show a similarly large disparity between black people and white people. (See Figure 2.)

Political science research suggests a duality in the way that society chooses to punish based on who is punished. Professors Jon Hurwitz at the University of Pittsburgh and Mark Peffley at the University of Kentucky find that when white people are asked about how to address violent crime in general, and violent “inner city” crime in particular, respondents are more likely to prefer to build prisons to combat violent “inner city” crime—and this is true particularly among white people who hold negative stereotypes about black people and who view the criminal justice system as racially fair. 15 In this context, “inner city” is used as a codeword for black.

Mainstream society’s view of black people as a degenerate race of inferior intellect, prone to criminal behavior, and incapable of governing themselves is a long-held belief that predates mass incarceration or even the unrest during the civil rights era. 16 These highly racialized views and perspectives played an important role in the intellectual history of the United States in the 19th and early 20th centuries. American Polygeny, or the belief that human races stem from different species, was one of the primary theories to gain recognition on the international science arena at that time. 17 This scientific movement developed right before the American Civil War, during a time of uncertainty when the country was fervent about establishing racial inequalities. 18

Indeed, the legacy of these racist beliefs spurred the intellectual and political foundation that time and time again led to social investment in policies that reinforced racial inequality and social control, such as black codes and convict leasing. It also laid the groundwork for the Jim Crow laws that took root at the end of Reconstruction in 1877 to limit the full participation of African Americans in the U.S. labor market, voting, residential preferences, and education. These regulations, along with the civil unrest protesting police brutality and other marginalizing institutions in black communities, paved the way in the 20th century for the integration of crime control and equal opportunity programs. 19

Specifically, it was during President Lyndon Johnson’s “Great Society” in the 1960s that anti-poverty programs became intertwined with anti-crime programs, thereby setting the foundation for the mass incarceration policies of the past several decades. In fact, President Johnson’s Law Enforcement Assistance Act ended 200 years of domestic law-enforcement policy by instituting federal authority over local policing procedures. 20

Federal crime-control policies and racial disparities in the criminal justice system

This section of the essay reviews some of the unintended consequences of these major crime-control policies—such as the Edward Byrne Memorial State and Local Law Enforcement Assistance Program, or Byrne Program, which provided federal funding for state and local drug law enforcement efforts—to show how colorblind policies could lead to racially biased results. Conceivably, financial incentives from intergovernmental grant programs and civil asset forfeiture laws, together with U.S. Supreme Court decisions awarding police extraordinary power to stop and search residents with minimal to no probable cause, contributed to the disproportionate policing and imprisonment of African Americans. 21

A 1993 report by the congressional General Accounting Office (now the Government Accountability Office) found that federal grants provided under the Byrne Program were “the primary source of federal financial assistance for state and local drug law enforcement efforts.” 22 These types of grants could lead to changes in policing and prosecution—if, for example, they enhanced collaboration between police and prosecutors—for drug and violent crimes. 23

In fact, one of the key policing innovations stemming from the Byrne Program was multijurisdictional drug task forces. But some of these multijurisdictional task forces—such as the South Central Narcotics Task Force in Texas, which, at one point, arrested 15 percent of the young black men in the city of Hearne in one drug raid—have become infamous for their selective enforcement of African Americans. 24

The case of Hearne, Texas is especially egregious: The South Central Narcotics Task Force conducted raids in the black community each year for 15 years under the direction of District Attorney John Paschall with the intent to “round up the n*****s.” 25 Even though white and Hispanic people in the community were participating in drug activity at the same rates, there was a deliberate focus on the black community, according to an American Civil Liberties Union legal complaint. 26 In fact, the same ACLU legal complaint specifically states that Paschall was open about his desire to rid Hearne of its black population using incarceration.

I and my co-author, Jamein Cunningham at the University of Memphis’ Department of Economics, investigate the effect of the Byrne Program on crime and black and white arrests. 27 We find this program significantly increased the number of drug sales arrests for white and black people, although the marginal effect on drug sales arrests for African Americans is much larger, suggesting that this program may have exacerbated already-present racial disparities in arrests. Although the Byrne Program also targeted violent crime, there is little evidence of significant changes for violent crime arrests.

While our analysis cannot specifically pinpoint the mechanism through which police increased arrests for drug sales by black people, such as by selective enforcement due to racial animus or implicit bias, sociologists Katherine Beckett, Kris Nyrop, and Lori Pfingst at the University of Washington find evidence of selective enforcement of African Americans in Seattle. Their research finds that selective enforcement was due to organizational practices established by policies driven by implicit racial bias and not the more common reasons provided for differences in arrests, such as differences in the structure of drug markets between drugs used and sold by black and white people or greater community complaints by black people. 28 University of Chicago economist Derek Neal and Cornell University management professor Armin Rick also find that due to historical differences in arrest rates, mass incarceration policies disproportionately affect African American communities. 29

Similarly, Emily Weisburst at UCLA’s Luskin School of Public Affairs, using data from Texas, finds that federal grant funds for school police from the Community Oriented Policing Services’ Cops in Schools program raises middle school discipline rates by 6 percent per year, and this increase is mostly driven by low-level infractions. 30 Moreover, black students experience the greatest increase in their discipline rates. She estimates that a student who attends a school district that received one 3-year grant is 2.5 percent less likely to graduate high school and has a 4 percent reduced chance of enrolling in college.

While these crime-control policies were seemingly colorblind, they were certainly not race neutral in their effect.

Effective criminal justice policy

The United States’ history of racial bias and animus is so engrained in the soul of the country that failure to acknowledge and atone for its presence in the intellectual, political, and cultural fabric of our society allows for its continued reproduction. 31 What’s more, the failure to recognize the intricate connection of racial bias to systems of social control, such as the criminal justice system, leads to challenges to the implementation of race-neutral public policy and causes additional social costs to society. Specifically, ignoring racism as an important policy variable leaves federal, state, and local policies vulnerable to be misused as a tool to oppress and disenfranchise historically oppressed groups.

The failure to recognize the role of race and racial bias as a key policy variable through which the United States arrived at the state of mass incarceration, as well as the role that race plays in criminal justice system outcomes in general, will only reproduce historically racially biased social structures, racial disparities in the criminal justice system, and social exclusion, regardless of any reforms we choose to implement. 32 The impact of these racial disparities on earnings is telling. 33 But the collateral consequences of mass incarceration policies are far reaching and have been devastating to the black community. These consequences include greater health disparities, the destruction of the black family, greater obstacles to employment and human capital investment, and the forfeiture of citizenship status and political exclusion through felon disenfranchisement laws. 34

Recent research on the consequences of racial bias in U.S. incarceration rates makes manifest many of these connections. University of California, Berkeley public policy professors Rucker Johnson and Steven Raphael observe that male incarceration explains the bulk of the difference in HIV/AIDS rates between black and white women. 35 And I and my co-author Sally Wallace, an economist at Georgia State University’s Andrew Young School of Policy Studies, find that the financial shock of an incarceration raises the likelihood that households with children will become food insecure. 36 In fact, it is estimated that families with an incarcerated loved one incur almost $14,000 in debt, paying for court-related costs and fines, and that 1 in 3 families go into debt to maintain contact with an incarcerated family member. 37

Action at the federal level is now required to undo the harm caused by racially biased mass incarceration policies. To begin addressing these concerns, the federal government should first seek to re-educate the public about the history of race in the United States in order to break flawed perceptions in the association between race and crime. The first step in this strategy would be reconciliation and atonement, which may include reparations for past and current oppressive policies enacted against historically marginalized groups in general and African Americans in particular.

As part of this strategy, the government should allocate funding to state and local governments for initiatives that will educate the public on the history of race in the United States and how this history affects social outcomes and our beliefs about others. This should be incorporated throughout Kindergarten through grade 12 public school curriculums in all subjects.

Moreover, the federal government should encourage and promote policies that work against the dehumanizing effect of racial biases by providing incentives for the development of programs that produce empathy toward others. 38 As part of this strategy, these policies should address racial biases in the criminal justice system and their root causes, such as racial biases that persist in news media reports of criminals and victims. Research finds that the news media portray false accounts about the racial distribution of criminals, victims, and arbitrators of justice, and that these characterizations perpetuate false racial stereotypes about crime. 39 To the extent that these racial stereotypes impede the execution of unbiased criminal justice policy, racial biases in the media should be addressed. 40

The federal government also should conduct an audit of federal crime-control programs and policies (such as plea bargaining) to understand their impact on historically marginalized groups, encourage state and local governments to do the same, and then defund programs that inadvertently lead to greater net social harm, that increase racial disparities, or that have a disproportionate burden on historically marginalized communities. Such a benefit-cost analysis should be undertaken to determine how these policies not only influence crime but also their external costs (or benefits) to society. Policymakers can no longer condone partial equilibrium analyses that only consider the direct crime-fighting benefits of a program without also considering all of its direct and indirect costs to society, which includes determining the extent to which a policy is race neutral and its effect on marginalized groups.

These sets of recommendations would require unbiased data collection by the states and local governments of quality criminal justice data in order to understand why there are persistent racial disparities in the criminal justice system, including documentation not only for policing but also for prosecution, since prosecutors also are important gatekeepers to the criminal justice system. 41 This effort also would require better data collection on arrests, convictions, and incarcerations in national datasets, such as the U.S. Census, in order to improve population estimates of the impact of incarceration on individuals, families, and communities.

Theoretically, crime-control policies include programs that promote economic justice and the elimination of racial disparities. Yet investments in economic opportunities should be done on the front end through social services organizations, not on the back end through the criminal justice sector, which may only serve to increase the contact of young minorities with the criminal justice system. In other words, federal and state governments should stop using the criminal justice system to address economic inequities. This would require decreasing the correctional population, both juvenile and adult, which could be done, for example, by placing a moratorium on incarceration for non-violent offenses and redirecting the cost savings to social programs. The federal government could provide monetary incentives to states that reduce their correctional population. These social programs should not be administered by law enforcement agencies. Examples of these programs are early childhood education, subsidized childcare programs, summer programs for youth, improving K–12 school quality, and more equitable healthcare—all targeted toward the most marginalized groups in society.

Finally, the federal government should tie federal funding for criminal justice programs to states’ eradication of felon disenfranchisement laws. Although African Americans’ right to vote became protected by law with the Voting Rights Act of 1965, the racial disparities in felony convictions suggest that they disproportionately bear the burden of felon disenfranchisement laws, and through these laws, many have effectively lost their right to vote. 42 Most states prohibit individuals in prison or on probation or parole from voting, and although numerous states have developed protocols for restoring voting privileges to ex-offenders, these procedures are so burdensome that many of them do not seek to restore their rights. 43

Failure to address racial biases in our society risks democracy for all Americans. Failure to address the systematic racial biases in state, local, and federal policies in general, and the criminal justice system in particular, will only lead to the perpetuation of racial inequality and the overrepresentation of marginalized groups within sectors of social exclusion, especially the criminal justice system. While there is undoubtedly a behavioral aspect to crime, too much focus on the individual will not address the root causes of crime in our society or the structural barriers that have led to the social exclusion of historically marginalized individuals and communities.

— Robynn Cox is an assistant professor at the University of Southern California Suzanne Dworak-Peck School of Social Work.

Back to Vision 2020 full essay list .

1. Danielle Kaeble and Mary Cowhig, “Correctional populations in the United States” (Washington: U.S. Department of Justice, 2016), available at https://www.bjs.gov/content/pub/pdf/cpus16.pdf .

2. Steven Raphael and Michael Stoll, Why are so many Americans in prison? (New York: Russell Sage Foundation, 2013), available at https://www.russellsage.org/publications/why-are-so-many-americans-prison .

3. This number does not account for individuals who show up in the system more than one time.

4. Sarah K.S. Shannon and others, “The Growth, Scope, and Spatial Distribution of People With Felony Records in the United States, 1948–2019,” Demography 54 (1) (2017): 795–1818, available at http://users.soc.umn.edu/~uggen/Shannon_Uggen_DEM_2017.pdf .

5. Elizabeth Hinton, From the War on Poverty to the War on Crime (Cambridge, MA: Harvard University Press, 2016), available at https://www.hup.harvard.edu/catalog.php?isbn=9780674979826 .

6. Robynn J. Cox, “Where do we go from here: Mass incarceration and the struggle for civil rights” (Washington: Economic Policy Institute, 2015), available at https://www.epi.org/publication/where-do-we-go-from-here-mass-incarceration-and-the-struggle-for-civil-rights/ ; Hinton, From the War on Poverty to the War on Crime .

7. Ibid., p. 334.

8. For a discussion, see Cox, “Where do we go from here: Mass incarceration and the struggle for civil rights.”

9. “There are no expenses, and no taxes are required, for negroes to share lunch counters, libraries, parks, hotels, and other facilities with whites.” Martin Luther King Jr., Where do we go from here: Chaos or community? (1968), p. 197.

10. Ibid, p.43.

11. Sean F. Reardon and Ann Owens, “60 Years after Brown: Trends and Consequences of School Desegregation,” Annual Review of Sociology (2014), available at https://cepa.stanford.edu/content/60-years-after-brown-trends-and-consequences-school-segregation .

12. Bradley B. Hardy, Trevon D. Logan, and John Parman, “The Historical Role of Race and Policy for Regional Inequality” (Washington: The Hamilton Project, 2018), pp. 43–69, available at https://www.hamiltonproject.org/papers/the_historical_role_of_race_and_policy_for_regional_inequality .

13. Dionissi Aliprantis and Daniel R. Carroll, “What is Behind the Persistence of the Racial Wealth Gap,” (Cleveland, OH: Federal Reserve Bank of Cleveland, 2019), available at https://www.clevelandfed.org/newsroom-and-events/publications/economic-commentary/2019-economic-commentaries/ec-201903-what-is-behind-the-persistence-of-the-racial-wealth-gap.aspx .

14. T.P Bonczar, “Prevalence of Imprisonment in the US Population, 1974-2001” (Washington: U.S. Department of Justice, 2003), pp. 81–83, available at https://www.bjs.gov/content/pub/pdf/piusp01.pdf .

15. Jon Hurwitz and Mark Peffley, “Playing the Race Card in the Post-Willie Horton Era: The Impact of Racialized Code Words on Support for Punitive Crime Policy,” Public Opinion Quarterly 69 (1) (2005): 99–112, available at https://academic.oup.com/poq/article-abstract/69/1/99/1911587?redirectedFrom=fulltext .

16. Stephen Steinberg, “The liberal retreat from race during the post-civil rights era.” In W. Lubiano, ed., The house that race built: Original essays (New York: Random House, 1998), pp. 13–48, available at https://trove.nla.gov.au/work/32723585?q&versionId=39927489 ; Angela Y. Davis, “Black Americans and the punishment industry.” In W. Lubiano, ed., The house that race built: Original essays , pp. 264–279, available at https://trove.nla.gov.au/work/32723585?q&versionId=39927489 ; Steven Jay Gould, The mismeasure of man . (New York: WW Norton & Company, 1996).

17. Gould, The mismeasure of man .

18. Terrence D. Keel, “Religion, polygenism and the early science of human origins,” History of the Human Sciences 26 (2) (2013): 3–32, available at https://doi.org/10.1177/0952695113482916 .

19. Elizabeth Hinton, “A War within Our Own Boundaries: Lyndon Johnson’s Great Society and the Rise of the Carceral State,” The Journal of American History 102 (1) (2015): 100–112; Hinton, From the War on Poverty to the War on Crime .

21. Jefferson E. Holcomb and others, “Civil asset forfeiture laws and equitable sharing activity by the police,” Criminology & Public Policy 17 (1) (2018): 101–127, available at https://doi.org/10.1111/1745-9133.12341 ; Kathleen R Sandy, “The discrimination inherent in America’s drug war: Hidden racism revealed by examining the hysteria over crack,” The Alabama Law Review 54 (2003): 665–694; Bruce L. Benson and David W. Rasmussen, “Predatory public finance and the origins of the war on drugs 1984–1989,” The Independent Review 1 (2) (1996): 163–18; J.H. Tieger, “Police discretion and discriminatory enforcement,” Duke Law Journal (4) (1971): 717–743; K. Russell, “Driving while black: Corollary phenomena and collateral consequences,” Boston College Law Review 40 (1998): 717.

22. U.S. Government Accountability Office, “War on Drugs: Federal Assistance to State and Local Drug Enforcement,” (1993), p. 2.

23. T. Dunworth, P. Haynes, and A.J. Saiger, “National assessment of the Byrne formula grant program” (Washington: U.S. Department of Justice, 1997), vol. 1.

24. Tim Carman and Steve McVicker, “Drug Money,” Houston Press, September 6, 2001, available at https://www.houstonpress.com/news/drug-money-6560746 .

25. Kelly v. Paschall , Texas Civ. 02-A-02-CA-702 JN (ACLU, 2003), available at http://www.aclu.org/FilesPDFs/2nd%20amended%20complaint%20in%20kelly%20v%20paschall.pdf .

26. Dunworth, Haynes, and Saiger, “National assessment of the Byrne formula grant program.”

27. Robynn Cox and Sally Wallace, “Identifying the link between food security and incarceration,” Southern Economic Journal 82 (4) (2016): 1062–1077, available at https://doi.org/10.1002/soej.12080 .

28. Katherine Beckett, Kris Nyrop, and Lori Pfingst, “Race, drugs, and policing: Understanding disparities in drug delivery arrests,” Criminology 44 (1) (2006): 105–137. Nyrop currently is a consultant for the Public Defenders Association; Pfingst is chief of programs and policy in the Community Services Division of Washington state’s Department of Social and Health Services.

29. Derek Neal and Armin Rick, “The Prison Boom and the Lack of Black Progress After Smith and Welch.” Working Paper No. w20283 (National Bureau of Economic Research, 2014). They do not discuss the reasons for the racial bias in arrest rates, and instead take them as a given.

30. Emily K. Weisburst, “Patrolling Public Schools: The Impact of Funding for School Police on Student Discipline and Long‐term Education Outcomes,” Journal of Policy Analysis and Management 38 (2) (2019): 338–365.

31. Michelle Alexander, The new Jim Crow: Mass incarceration in the age of colorblindness (New York: The New Press, 2010); Cox, “Where do we go from here: Mass incarceration and the struggle for civil rights”; Hinton, From the War on Poverty to the War on Crime .

32. As Angela Davis wrote: “When the structural character of racism is ignored in discussions about crime and the rising population of incarcerated people, the racial imbalance in jails and prisons is treated as a contingency, at best as a product of the ‘culture of poverty,’ and at worst as proof of an assumed black monopoly on criminality. The high proportion of black people in the criminal justice system is thus normalized and neither the state nor the general public is required to talk about and act on the meaning of that racial imbalance.” See Davis, “Black Americans and the punishment industry,” p.265.

33. B. Western and B. Pettit, “Black-white wage inequality, employment rates, and incarceration,” American Journal of Sociology 111 (2) (2005): 553–578, available at http://dx.doi.org/10.1086/432780 ; Neal and Rick, “The Prison Boom and the Lack of Black Progress After Smith and Welch”; Byron L. Sykes and Michelle Maroto, “A Wealth of Inequalities: Mass Incarceration, Employment, and Racial Disparities in U.S. Household Wealth,” The Russell Sage Foundation Journal of Social Sciences 2 (6) (2016) 129–152, available at https://www.rsfjournal.org/content/2/6/129.abstract .

34. Western and Pettit, “Black-white wage inequality, employment rates, and incarceration”; H.J. Holzer, P. Offner, and E. Sorensen, “Declining employment among young black less-educated men: The role of incarceration and child support,” Journal of Policy Analysis and Management 24 (2) (2005): 329–250, available at https://doi.org/10.1002/pam.20092 ; H. Holzer, S. Raphael, and M. Stoll, “Perceived criminality, criminal background checks, and the racial hiring practices of employers,” Journal of Law and Economics 49 (2006): 451–480, available at https://doi.org/10.1086/501089 ; H.J. Holzer, S. Raphael, and M.A. Stoll, “How Willing are Employers to Hire Ex-Offenders?” Focus 23 (2) (2004): 40–43; B. Western and B. Pettit, “Incarceration and racial inequality in men’s employment,” Industrial and Labor Relations Review 54 (1) (2000): 3–16, available at https://doi.org/10.1177/001979390005400101 ; K.K. Charles and M.C. Luoh, “Male incarceration, the marriage market, and female outcomes,” The Review of Economics and Statistics 92 (3) (2010): 614–627, available at https://doi.org/10.1162/REST_a_00022 ; D. Pager, B. Western, and N. Suggie, “Sequencing disadvantage: Barriers to employment facing young black and white men with criminal records,” The ANNALS of the American Academy of Political and Social Science 623 (2009): 195–213, available at https://doi.org/10.1177/0002716208330793 ; L.M. Lopoo and B. Western, “Incarceration and the formation and stability of marital unions,” Journal of Marriage and Family 67 (3) (2005): 721–734, available at https://doi.org/10.1111/j.1741-3737.2005.00165.x ; B. Western and C. Wildeman, “Punishment, inequality, and the future of mass incarceration,” University of Kansas Law Review 57 (2008): 851, available at https://doi.org/10.17161/1808.20098 ; C. Uggen, J. Manza, and M. Thompson, “Citizenship, democracy, and the civic reintegration of criminal offenders,” The ANNALS of the American Academy of Political and Social Sciences 605 (2006): 281–310, available at https://doi.org/10.1177/0002716206286898 ; H. Lee and C. Wildeman, “Things fall apart: Health consequences of mass imprisonment for African American women,” The Review of Black Political Economy (2011): 1–14, available at https://doi.org/10.1007/s12114-011-9112-4 ; R.J. Cox, “The impact of mass incarceration on the lives of African American women,” The Review of Black Political Economy 39 (2) (2012): 203–212, available at https://doi.org/10.1007/s12114-011-9114-2 ; Cox and Wallace, “Identifying the link between food security and incarceration.”

35. R.C. Johnson and S. Raphael, “The effects of male incarceration dynamics on acquired immune deficiency syndrome infection rates among African American women and men,” Journal of Law and Economics 52 (2) (2009): 251–293, available at https://doi.org/10.1086/597102 .

36. Cox and Wallace, “Identifying the link between food security and incarceration.”

37. S. deVuono-Powell and others, “Who Pays? The True Cost of Incar¬ceration on Families” (Oakland, CA: Ella Baker Center, 2015).

38. Robynn Cox, “Applying the Theory of Social Good to Mass Incarceration and Civil Rights,” Research on Social Work Practice , September 26, 2019, available at https://journals.sagepub.com/doi/10.1177/1049731519872838 .

39. F.D. Gilliam Jr and others, “Crime in black and white: The violent, scary world of local news,” Harvard International Journal of Press/Politics 1 (3) (1996): 6–23.

40. F.D. Gilliam Jr. and S. Iyengar, “Prime suspects: The influence of local television news on the viewing public,” American Journal of Political Science (2000): 560–573.

41. M.M. Rehavi and S.B. Starr, “Racial disparity in federal criminal sentences,” Journal of Political Economy 122 (6) (2014): 1320–1354.

42. So extensive is the incarceration and felony conviction crisis that it is estimated that had it not been for felon disenfranchisement laws, former Vice President and Democratic Party presidential candidate Al Gore would have won Florida by, at the minimum, approximately 31,000 votes and thus the presidency in the 2000 presidential election. See C. Uggen and J. Manza, “Democratic contraction? Political consequences of felon disenfranchisement in the United States,” American Sociological Review (2002): 777–803; P. Karlan, “Forum.” In G.C. Loury, ed., Race, Incarceration, and American Values (Cambridge, MA: The MIT Press, 2008), pp. 41–56; Uggen, Manza, and Thompson, “Citizenship, democracy, and the civic reintegration of criminal offenders.” More than just its impact on presidential elections, disproportionate felony convictions within the black and other excluded communities could also lead to a lack of political representation for these groups, which may make it more likely that unfavorable laws affecting these marginalized groups are passed.

43. The Sentencing Project, “Felony disenfranchisement laws in the United States” (2013), available at http://www.sentencingproject.org/detail/publication.cfm?publication_id=15 .

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Understanding the Concept and Implications of Recidivism

This essay about recidivism explores its impact on the criminal justice system and society. It examines how individual, social, economic, and systemic factors contribute to the tendency of ex-offenders to reoffend. The text highlights the need for effective rehabilitation, reintegration strategies, and policy reforms to reduce crime rates and support successful reintegration of offenders into society.

How it works

Recidivism, border often clashed in borders kingdoms justice and criminelle sociology, conjures up the memory a tendency types, that the condition precedent taken away stop, for renewable to offend and to return despite a criminelle relation after served border or undergone interference for preceding crime. Understanding concept and importances critical recidivism for a display politics and interferences, aimed in reduction norms crime and improvement reintegration insulteurs in society actual.

In his kernel, recidivism puts the most important appeal despite the system justice criminal, throws open questions from effectiveness punishment, renewal, and strategies reintegration.

Norms the often used recidivism so as key indicator success or abandonment disciplinary programs. High norms offer, that existence balanced, at a case, inadequate in has a crime or entry ex-offenders in advancement open for a crime remains.

A few postmen play in favour of recidivism, does it difficult appearance. Among them are caractéristiques, terms, and systematic problems individual social and économique in borders system justice criminal. Individual postmen include history person, problems abuse substance, health problems, and absence teaching or professional habits intellectuals criminelle. These personal appeals can operate most difficult, for ex-offenders found immobile employment and adjusting, increases possibility return despite criminelle activity so as means survival.

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Desantis vetoes three criminal justice reform bills, the bills, which passed with bipartisan support, would have made it easier for felons who’d served time to re-enter society successfully. but gov. desantis said they would reward criminals..

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Justice department charges nearly 200 people in $2.7b health care fraud.

One case alleges a scheme in Florida to distribute misbranded HIV drugs. Attorney General Merrick Garland says anyone profiting off the unlawful distribution of controlled substances "will be held accountable.”

Nearly 200 people have been charged in a sweeping nationwide crackdown on health care fraud schemes with false claims topping $2.7 billion, the Justice Department said on Thursday.

Attorney General Merrick Garland announced the charges against doctors, nurse practitioners and others across the U.S. accused of a variety of scams, including a $900 million scheme in Arizona targeting dying patients.

“It does not matter if you are a trafficker in a drug cartel or a corporate executive or medical professional employed by a health care company, if you profit from the unlawful distribution of controlled substances, you will be held accountable,” Garland said in a statement.

In the Arizona case, prosecutors have accused two owners of wound care companies of accepting more than $330 million in kickbacks as part of a scheme to fraudulently bill Medicare for amniotic wound grafts, which are dressings to help heal wounds.

Nurse practitioners were pressured to apply the wound grafts to elderly patients who didn't need them, including people in hospice care, the Justice Department said. Some patients died the day they received the grafts or within days, court papers say.

In less than two years, more than $900 million in bogus claims were submitted to Medicare for grafts that were used on fewer than 500 patients, prosecutors said.

The owners of the wound care companies, Alexandra Gehrke and Jeffrey King, were arrested this month at the Phoenix airport as they were boarding a flight to London, according to court papers urging a judge to keep them behind bars while they await trial. An attorney for Gehrke declined to comment, and a lawyer for King didn't immediately respond to an email from The Associated Press.

Authorities allege Gehrke and King, who got married this year, knew charges were coming and had been preparing to flee. At their home, authorities found a book titled “How To Disappear: Erase Your Digital Footprint, Leave False Trails, and Vanish Without a Trace," according to court papers. In one of their bags packed for their flight, there was a book titled “Criminal Law Handbook: Know Your Rights, Survive The System,” the papers say.

Gehrke and King lived lavishly off the scheme, prosecutors allege, citing in court papers luxury cars, a nearly $6 million home and more than $520,000 in gold bars, coins and jewelry. Officials seized more than $52 million from Gehrke's personal and business bank accounts after her arrest, prosecutors say.

In total, 193 people were charged in a series of separate cases brought over about two weeks in the nationwide health care fraud sweep. Authorities seized more than $230 million in cash, luxury cars and other assets. The Justice Department carries out these sweeping health care fraud efforts periodically with the goal of helping to deter other potential wrongdoers.

In another Arizona case, one woman is accused of billing the state's Medicaid agency for substance abuse treatment services that didn't serve any real purpose or were never provided, prosecutors say.

Another case alleges a scheme in Florida to distribute misbranded HIV drugs. Prosecutors say drugs were bought on the black market and resold to unsuspecting pharmacies, which then provided the medications to patients.

In some cases, patients were given bottles that contained different drugs than the label showed. One patient ended up unconscious for 24 hours after taking what he was led to believe was his HIV medication but was actually an anti-psychotic drug, prosecutors say.

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