Unfair Incarceration: Minorities’ Plight in the U.S. Judicial System

DeVry University

Cultural Diversity in the Professions SOCS 350N

Spring 2013

Abstract The United States is well known as the Land of Opportunity, but if you’re a minority that opportunity maybe a greater chance of being incarcerated in the state and federal penal systems. Civil rights battles have raged for the greater part of the last century in this country. With milestone victories in the early and mid 1960’s equality under the law seemed to be a foregone conclusion. There are numerous laws, policies and even a Constitutional Amendment that address the matter that race should never be a factor. With this is all in play and in mind, you would think that statistics of the U.S. penal systems racial analysis has to be completed with a huge margin in error because it is not near equality. In a cursory search of this topic one can find a deluge of graphs, tables, and statistical analysis. The one thing you cannot find is a quantitative or qualitative consensus of why this has occurred or why it is still occurring. A preponderance of the evidence is anecdotal and offers suggestions of policies and attitudes that have led to this epidemic in contemporary American society. In this review, an endeavor to gather the gist of the issue and attempt to answer why or how this came about and the numerical extent. Followed by the consequences to the affected groups and the whole of society. Finally, a proposal of possible resolution based on the evidence available. The intent is not to convince people this is happening because it is scientifically undeniable. The intent is to recognize cause, effect, and solutions to inherent structural inequality of The United States Judicial System.
Unfair Incarceration: Minorities’ Plight in the U.S. Judicial System

The youth of this nation once said a pledge every morning before school started. This pledge was meant to reaffirm what it meant to live in America and more importantly to be an American. The last prose, “…indivisible with liberty and justice for all.” (Bellamy, 1892) It is a basic tenant that holds true that everyone should be treated equal and just no matter what his or her race, color, or creed may be. This is so important that a reference to the need for equality and justice have made it to the Constitution of the United States in it original form and amplified in the Fourteenth Amendment. However, this is not currently the case when it comes to minorities in this country. Minorities are over represented in the U.S. Penal System given their relative population density. According to the NAACP, (2013) there are as of 2008 some 2.3 million people in the United States in correctional custody. Of that number they cite that 1 million of those are African Americans. If you where to add in the incarcerated Hispanic population it would tally some 58% of the total. The disparity is that African Americans only represent approximately 13% of the total population and Hispanics roughly 16%. (Mauer & King, 2007 p 2) Whites account for about 70% of the total population in the U.S. and 35 % of inmates, which is significantly less of the incarcerated population per capita. (Bobo & Thompson, 2006 p. 451) Mauer & King, (2007 p. 2) cite several statistics that report African Americans are incarcerated at a rate of nearly six times that of Whites and Hispanics are nearly double the White rate.
This phenomenon is not evenly distributed across the country. The highest rates are disproportionality distributed to the North East and Midwest of the United States, with the highest rate belonging to Iowa at 13.6 to 1. (Mauer & King, 2007 p.3) The only commonality across the data is that the African Americans incarcerated are in 86% of the cases male, 83% are young with a median age of 27, and the median sentence served is 20 months. (Abrams, Bertrand, & Mullainathan, 2010)
The interesting sociologic question is not to debate the numbers, but to understand why this has occurred and is still occurring. Overt racism is clearly outlawed in the United States by all accounts, but much more prevalent and insidious is institutional racism. Institutional racism is less visible, elusive, and unidentifiably multifaceted. (Cole, 2008) This defines the sometimes-unintentional affects of policies, system structure, and processes that disproportionately target certain peoples. Studying this is difficult due to it’s covert nature so researchers are forced to make inferences and correlations. It seems that for every study there is a counter study or a caveat at the end to avoid slanderous content.
The facts are that the institutions and policies are such that the minorities are not well represented in the administration of the system and its policy formation which indirectly targets its populace. A majority of judges who interpret these policies are White middle-aged males with a history of 70% being prior prosecutors. (Abrams, Bertrand, & Mullainathan, 2010 p. 10) Crime it’s prosecution and incarceration has increased dramatically since the War on Drugs and its policies. (Bobo & Thompson, 2006) The polices associated with the War on Drugs such as, minimum sentencing, zero tolerance, and habitual offender codes such as three strikes have decimated minorities. (NAACP, 2013) The sentencing for African American increased by almost 40% (Cole, 2008) and Hispanics incarceration has increased 43% since 1990. (Mauer & King, 2007)
Why this affects the African and Hispanic American communities so harshly is that they are perceived to be involved in such crimes more often because of the interplay of economic, political, and cultural factors. (Bobo & Thompson, 2006) High crime rates equate into high incarceration rates. (Pettit & Western, 2004) This is true for most inner cities where urban decentralization has left these communities as prime targets for the policing officials to use enhanced policing to show quick results or arrests in the campaign. (Bobo & Thompson, 2006) To exacerbate this concern the reality is that representation for criminal proceedings is directly linked to financial ability. Cole, (2001) touts that there will be no equality in justice if lack of financial ability has an adverse affect on representation.
The consequences of the inequality in institutions of justice and its policies to the minority community have been and remain to be an epidemic of hardship. It manifests in multiple ways that has continuing consequences. First, the culture of the black community has been shaped so much by this inequality, that it is socially accepted in the community that males will likely spend at least a portion of their life incarcerated for a period. (Bobo & Thompson, 2006) This belief is founded on the fact that of males born in the last decade has a one in six chance of being incarcerated. (Mauer & King, 2007) The impact of facts like these can cause a self-fulfilling prophesy among the youth and those associated with the community. So much so that they attribute every action in false belief that there is no hope because it will happen causing actions that make the target reality. (Madon, Willard, & Scherr, 2011) From the outside it renders a fundamental attribution error where external factors [polices] are disregarded and the internal ones such as race are falsely confirmed by the outcome [crime/incarceration]. (Bell, 2007)
When the rubber meets the road it is hard to determine which comes first when determining the profile of the incarcerated criminal. Does the system make the criminal or the criminal make institution? For instance, the substantial majority population of incarcerated criminals is poor, uneducated, and from an unstable home environment no matter the race. (Pettit & Western, 2004) This is evidenced by a 40% illiteracy rate and 67% have not held full time employment. (Cole, 2001) On the flip side, with incarceration being so prominent in the society and there being a direct correlation to a history of criminal records reducing the likelihood of obtaining meaningful full time employment. (Bobo & Thompson, 2006) Pawasarat & Quinn, (2013) state that prison time is the most serious barrier to employment. The NAACP, (2013) claims that jail time reduces work time by 25-30% in the Black community. This incarceration has additional second and third effects in addition to unemployment such as family instability and chronic low wages in jobs that can be obtained. (Pettit & Western, 2004) This instability and economic hardship intertwined with the fact that 35% of Black children grades 7-12 have been suspended or expelled at some point in their school career. (NAACP, 2013) Sets the stage for which came first the criminal or the system that creates criminals.
Significant barriers and hardships that the cycle of incarceration and the minority community are forced to endure is truly sinister. A criminal record can suspend or negate the ability for the individual to obtain or renew a valid driver’s license. Drivers license are paramount to job application and forms of full time employment. Absence of a driver’s license also induces further investigations, which can lead to additional charges and further incarceration. (Pawasarat & Quinn, 2013) Another unintended consequence is the high probability of contracting an infectious disease, which is in high concentration in correctional institutions. (NAACP, 2013) Finally, a felony record can rescind the individuals right to vote in many local, state, and federal elections that impact the community in which they and their families live.
The issue with finding a solution is that the majority rules. Most of the policies that are in place where made with the intention of doing the most good for the most people. One issue is that it is very difficult to link to causes and effects with a definite degree of certainty. (Abrams, Bertrand, & Mullainathan, 2010) In the current research there is no magic pill that will make everything equal and bring every ghetto and its inhabitants to a level middle class playing field, but there are certain avenues that should be explored to a greater extent.
Motivation is the key to turning the tables on institutional racism and disproportionate criminal prosecution. The minority community must motivate itself to stop the vicious self-repeating cycle. It is more two times more likely for an African American male to go jail than it is for graduating with a bachelor degree. (Pettit & Western, 2004) Bobo & Thompson, (2006) suggest that the minority community is not together or politicized about these issues. The commonsense in the community is disillusionment and a feeling of failure of the Civil Rights Act of 1964. A cultural undermining of positive engagement with the system has caused the other side of fundamental attribution error to mirror the institution prospective.
The motivation on the other side is an easy economic sell. More than $70 billion dollars annually is spent on corrections, which is a growing part of the $200 billion spent on public safety. If African American males were incarcerated at the same rate as Whites the population would decrease 50%. (NAACP, 2013)
Policy change and law revision is the other aspect that could be altered without tremendous effort. Mandatory sentencing and other drug related prosecution could be overhauled so that the time fits the crime. (Cole, 2001) Other policies that fit suburbia and rural areas do not apply in the same manner to tightly packed areas of minorities in the inner cities. (Mauer & King, 2007) In these areas community services are more cost effective at rehabilitating and preventing criminal behavior. (Cole, 2008).
Conclusion
Every issue that deals with race, ethnicity, and religious affiliation is charged with emotion. The issue of a disparity of incarceration of minorities in the United States is no different. The issue came to the forefront of national attention in October 3, 1995 when the verdict was read for the OJ Simpson murder trial. For the black community it was seen as a sign of hope or least payback for historical injustice. (Cole, 2001) In reflection, it did not offer hope of change as much as it highlighted that the system of justice is marred with a scar of institutional racism. It is well documented that race cannot play a part in any discrimination, but when the evidence is reviewed it is apparent that some laws and policies inadvertently and disproportionality affect minorities. For example, in the state with the highest rate of White incarceration it is still 15% higher than the state with the lowest incarceration rate of blacks. (Mauer & King, 2007)
There is no benefit to incarcerate individuals at the rate in which we do in the United States. Prison is not proven to rehabilitate criminals as two out of three individuals reoffend. (NAACP, 2013) The real issue is how do we stop the cycle in which for every Black college graduate a hundred Black males are arrested. (Cole, 2001) We must stop the cycle of urban decentralization that is a harbor for criminal activities because of the class inequality and economic hardship. (Pettit & Westren, 2004) The answer lies in engaging stereotypes, challenging fundamental attribution errors, and energizing community services to tackle the issue. In the end, it makes sense and cents to end the unfair incarceration of minorities in the United States.

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