African Americans and the Criminal Justice System:

An Imbalance of Justice

Mary Cryer

Final Project

CJ246-02 – Human Relations in a Diverse Society

Imbalance of Justice 1

African Americans and the Criminal Justice System: An Imbalance of Justice

In the fifty-plus years since Rosa Parks first took a stand against racial injustice and

segregation when she refused to give up her seat on a bus to a white man, the African American

community has made great strides in achieving equality among all Americans. Especially

significant is the equality gained with the white community in the United States. Blacks and

whites – once completely segregated – now live in the same communities, attend the same

schools, worship in the same churches, and work for the same companies. The black population

is still considered a minority in America, with whites outnumbering blacks by 176.8 million

people (U.S. Census Bureau, 2001). However, there is a great inequality in the criminal justice

system between whites and minorities, particularly with African American individuals on death

row. Is this just a coincidence or is it yet another example of racial injustice?

The prison population in the United States was nearly 1.5 million inmates housed in State

and Federal prisons as of the end of 2005 (Harrison & Beck, 2006). Of the overall prison

population in 2005, 34.6 percent of inmates were white, 39.5 percent were black and 20.2

percent were Hispanic [Table 1] (Harrison & Beck, 2006). Compared to the general population

of the United States as of the year 2000 (the most recent data available), whites made up 75.1

percent of the population while blacks numbered 12.3 percent and Hispanics totaled 12.5 percent

[Table 2] (U.S. Census Bureau, 2001). According to the Bureau of Justice Statistics, "8.1% of

black males age 25 to 29 were in prison" at year-end 2005 (Harrison & Beck, 2006, p. 8). This

translates to one in every thirteen black men in this age category. Compare that to the

percentages of Hispanic males and white males in the same age group (2.6 percent and 1.1

percent, respectively) and you can see the inconsistency in the criminal justice system (Harrison

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& Beck, 2006). Furthermore, the number of black males age 45 to 54 imprisoned at year-end

2005 was 3.1 percent which is "higher than the highest rate among Hispanic males [. . .] and

more than twice the highest rate among white males" (2.6% age 25-29 and 1.2% age 30-34,

respectively) (Harrison & Beck, 2006, p. 8). This is not consistent with statistical data that

shows that incarceration rates decline as the age of the prisoner increases (Harrison & Beck,

2006).

There is a large disparity in the numbers between representation of African Americans in

the general public and those in prison. This is particularly true for prisoners convicted of violent

offenses such as murder, manslaughter, rape and sexual assault. For those convicted of violent

offenses that were serving time at the end of 2005, 34.9 percent were white while 45.2 percent

were black [Table 3] (Harrison & Beck, 2006). This shows that the percentages of whites in

prison and those convicted for a violent offense are consistent (34.6 percent and 34.9 percent,

respectively), while the percentages for blacks are not (39.5 percent and 45.2 percent,

respectively). The numbers are also off balance when death row inmates are considered. Of the

total number of executions carried out between 1977 and 2005, 58.2 percent were white and 33.8

percent were black [Table 4], and the total number of death row inmates at the end of 2005 were

55.5 percent white and 42.2 percent black [Table 5] (Snell, 2006). While there is a lot of

statistical data open to interpretation, what is clear is that there is a discrepancy across the board

between the population of African Americans in the United States as a whole and the percentage

represented in prison and on death row.

The Bureau of Justice Statistics says that twenty-eight percent of black men will either be

in jail or prison "at some point in their life" (Coker, 2003, p. 832). Additionally, about one of

Imbalance of Justice 3

every three African American men between 20 and 29 years of age are imprisoned, in court, on

probation, or on parole "on any given day" (Coker, 2003, p. 832; Horne, 1996). Much of this

stems from tougher drug laws which tend to focus on small, inner city drug dealers along with

the sentencing gap between dealers of crack and powder cocaine, a 100 to 1 ratio (Coker, 2003).

Although African Americans do not use illegal drugs at a higher rate than whites do, more than

57 percent of drug offenders in prison are black (Coker, 2003). Moreover, African Americans

account for about 40 percent of drug arrests overall (Coker, 2003). For crack cocaine offenses,

ninety percent of the defendants are African American but make up only 38 percent of crack

users (Horne, 1996). In comparison, whites consist of 46 percent of crack users but only make

up 3.5 percent of crack convictions (Horne, 1996). Clearly there is a discrepancy in law

enforcement procedures that allows more lenience for white drug offenders over black drug

offenders.

According to the Department of Justice, between 1995 and 2000 there were 682

defendants indicted for federal crimes in which capital punishment could potentially be carried

out (as cited in Coker, 2003). Of the 682 defendants, 48 percent were African American, 29

percent were Hispanic and 20 percent were white (Coker, 2003). Many of the cases were

subsequently approved by the Attorney General to try as death penalty cases, and many of the

defendants in these cases entered into plea bargains that freed them from "a death penalty

prosecution" (Coker, 2003, p. 838). Of those who entered plea agreements, nearly half (48

percent) were white, while only a fourth were African American or Hispanic (about 25 percent

each) (Coker, 2003). Furthermore, nineteen defendants were "under a federal death sentence" at

Imbalance of Justice 4

that time, of which thirteen were African American, four were white, one was Hispanic, and one

of another race (Coker, 2003, p. 838).

When a defendant is charged with a capital offense – a so-called "death-eligible" crime –

he or she can possibly receive the death penalty for the crime (Coker, 2003). When looking at

cases that could have been prosecuted as such, a disparity exists between those who are charged

with a "death-eligible offense" and those who are not. Of the 973 cases considered for capital

punishment in 20011 in the federal system, 42 percent were African American defendants, 36

percent were Hispanic defendants and a mere 17 percent were white defendants [Table 6] (Coker,

2003).

In an effort to exonerate those convicted of crimes they did not commit, the Innocence

Project was founded by Berry Scheck and Peter Neufeld of Cardozo Law School (Coker, 2003).

This project has brought public recognition to the imperfections in the criminal justice system,

particularly the wrongful conviction of African Americans (Coker, 2003). In its review of

clemency cases in 2000, the Innocence Project found that 55 percent of the sexual assault and

murder cases that were exonerated included "African American male defendants and white

victims", which is "four times the rate" that African Americans are arraigned on the murder, rape,

or both of white victims (Coker, 2003, p. 873). According to the Innocence Project, about 70

percent of those found to be innocent through DNA testing are from minority groups (2007).

This lends credibility to the notion that cases such as these are more erroneous, with a minority

defendant being convicted for crimes he or she did not commit (Coker, 2003).

Imbalance of Justice 5

1 An additional 291 cases were added in 2001 over the 682 from 2000, totaling 973 cases (Coker, 2003).

Research conducted in several studies indicates that those who murder white victims are

more likely than those who murder black victims to receive the ultimate punishment of death (as

cited in Eberhardt, Davies, Purdie-Vaughns, & Johnson, 2006). The so-called "race of the victim

effect" is "remarkably consistent across data sets, states, data collection methods, and analytic

techniques" (U.S. General Accounting Office [GAO] as quoted in Eberhardt et al., 2006). The

race of the victim and the race of the accused were found to greatly impact a jury's verdict and

ensuing punishment of the defendant (Eberhardt et al., 2006). Three factors seem to come into

play when a sentence is handed down:

• The murder of a white person rather than a black person increases the probability of the

defendant receiving the death sentence (Eberhardt et al., 2006).

• Black defendants are more likely to receive capital punishment than white defendants

(Eberhardt et al., 2006).

• Black murderers of white victims are "fifteen times more likely" to receive the death

penalty than if the murderer and victim were both black ("Blacks much more likely",

2003).

Adding to this is the fact that death penalty cases involving black victims have to involve

significantly higher "levels of aggravation" than cases involving white victims before the death

penalty is sought by the prosecution (Ross, 1994). This means that although the apparent level

of aggravation in death penalty cases has to be considered excessive, the level of excessiveness

had to be much more extreme for murderers of black victims to be tried under the death penalty

(Ross, 1994). This leads to the conclusion that the discrepancies stem from the prosecution more

so than jury verdicts (Ross, 1994).

Imbalance of Justice 6

The U.S. Supreme Court heard the 1987 case McClesky v. Kemp, a Georgia death

penalty case, to determine if Georgia's capital punishment process was unconstitutional (Ross,

1994). The case focused on the issue of racial discrimination to determine if the State of Georgia

violated the equal protection clause of the Fourteenth Amendment when statistics showed that

the State disproportionately sentenced African Americans to death (Ross, 1994). The Court ruled

5-4 that statistical data by itself does not prove that race influences any death sentencing

judgment "in any one particular case" (Ross, 1994). After the Supreme Court's ruling in the case,

the Racial Justice Act was introduced to Congress (Ross, 1994). The bill was designed to

prohibit racially unbalanced "capital sentencing" and would overturn death sentences that had

been handed down in a racially biased way (Ross, 1994). The bill was debated in the U.S.

Senate and was defeated in October 1988 (Ross, 1994). The bill has been reintroduced on

several occasions in the years following the initial presentation and has been defeated every time

(Ross, 1994).

Supreme Court Justice Harry Blackman said in his dissent from the Court's denial of

certiorari2 in Callins v. Collins, a Texas death penalty case

The arbitrariness inherent in the sentencer's discretion to afford mercy is exacerbated by

the problem of race. Even under the most sophisticated death penalty statutes, race

continues to play a major role in determining who shall live and who shall die. Perhaps it

should not be surprising that the biases and prejudices that infect society generally would

influence the determination of who is sentenced to death, even within the narrower pool

of death-eligible defendants selected according to objective standards (1994).

Imbalance of Justice 7

2 "Writ of Certiorari - a decision by the Supreme Court to hear an appeal from a lower court" (Carney, 2005).

The United States was founded on the idea that "all men are created equal," but the

history of slavery in America and civil rights violations throughout most of this country's history

say otherwise (National Archives, 2006). When looking at the statistics in the criminal justice

system, it appears that there is the tendency – whether deliberate or not – to punish African

Americans for crimes more harshly than whites are punished for identical crimes. Although the

Civil Rights Act of 1964 was to have eliminated discrimination against people based on the color

of their skin, this country has a long road ahead to reaching that goal. Until the criminal justice

system recognizes the disparities in sentencing between blacks and whites, and works to do

something to correct the imbalance, the United States will continue in its struggle to achieve

"liberty and justice for all" on an even plane (Bellamy, 1892).

Imbalance of Justice 8

Tables

Table 1: Sentenced Prisoners Year End 2005 (State or Federal Jurisdiction)

PRISON POPULATION 1,461,100 100.0% White 505,500 34.6% Black/African American 577,100 39.5% Hispanic/Latino 294,900 20.2%Source: Bureau of Justice Statistics (Harrison & Beck, 2006)

Table 2: General Population of the U.S. (2000 Census)

U.S. POPULATION 281,421,906 100.0% White 211,460,626 75.1% Black/African American 34,658,190 12.3% Hispanic/Latino 35,305,818 12.5% Source: U.S. Census Bureau, 2001

Table 3: Prisoners Convicted of Violent Offenses (2003)

PRISONERS CONVICTED OF VIOLENT OFFENSE

650,400 100.0%

White 227,100 34.9% Black/African American 294,000 45.2% Hispanic/Latino 116,600 17.9%Source: Bureau of Justice Statistics (Harrison & Beck, 2006)

Imbalance of Justice 9

Table 4: Executions in the U.S., 1977-2005

TOTAL EXECUTIONS 1,004 100% White 584 58.2% Black/African American 339 33.8% Hispanic/Latino 67 6.7%Source: Bureau of Justice Statistics (Snell, 2006)

Table 5: Prisoners on Death Row Year End 2005

DEATH ROW POPULATION a 3,254 100.0% White 1,805 55.5% Black/African American 1,372 42.2%Source: Bureau of Justice Statistics (Snell, 2006)

a White and Black inmates in this data include those of Hispanic origin.

Table 6: Death Eligible Crimes Resulting in Death Penalty Prosecution (2001)

DEATH PENALTY CASES 973 100.0% White 165 17.0% Black/African American 409 42.0% Hispanic/Latino 350 36.0% Other race 49 5.0%Source: Coker, 2003.

Imbalance of Justice 10

Resources

Bellamy, F. (1892). Pledge of Allegiance. Retrieved February 24, 2007 from http://

www.library.rochester.edu/index.cfm?page=1779

Blackmun, H. (1994, February 22). Dissent of denial of Writ of Certiorari in Callins v. Collins.

U.S. Supreme Court No. 93-7054 (5th Cir. 1994). Cornell School of Law, Legal

Information Institute. Retrieved February 22, 2007 from http://supct.law.cornell.edu/

supct/html/93-7054.ZA1.html

Blacks much more likely to face death penalty, study says – Law & Justice – Amnesty

International. (2003, May 12). Jet. [Electronic version]. Retrieved February 5, 2007

from http://www.findarticles.com/p/articles/mi_m1355/is_20_103/ai_101613577

Carney, D. (2005). Certiorari. Tech Law Journal. Washington, D.C. Retrieved February 23, 2007

from http://www.techlawjournal.com/glossary/legal/certiorari.htm

Coker, D. (2003). Foreword: Addressing the real world of racial injustice in the criminal justice

system. Journal of Criminal Law & Criminology, 93(4), 827-829. Northwestern

University School of Law. Retrieved January 26, 2007 from MasterFILE Premier

database.

Eberhardt, J., Davies, P., Purdie-Vaughns, V., & Johnson, S. (2006). Looking deathworthy:

Perceived stereotypicality of black defendants predicts capital-sentencing outcomes.

Psychology Science, 17(5), 383-386. Retrieved January 26, 2007 from http://

www.deathpenalty.org/pdf_files/Looking-Deathworthy2006.pdf

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Harrison, P. & Beck, A. (2006, November). Prisoners in 2005 (NCJ Publication No. 215092).

U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics.

Retrieved February 20, 2007 from http://www.ojp.usdoj.gov/bjs/pub/pdf/p05.pdf

Horne, M. (1996). Race and the criminal justice system. Crisis (00111422), 103(1). Retrieved

January 26, 2007 from MasterFILE Premier database.

Innocence Project. (2007). Innocence Project Case Profiles. Retrieved February 24, 2007 from

http://www.innocenceproject.org/know/

National Archives. (2006). The Declaration of Independence: A Transcription. U.S. National

Archives and Records Administration. College Park, MD. Retrieved February 24, 2007

from http://www.archives.gov/national-archives-experience/charters/

declaration_transcript.html

Ross, M. (1994). Is the death penalty racist?. Human Rights: Journal of the Section of Individual

Rights & Responsibilities, 21(3), 32-40. Retrieved January 26, 2007 from MasterFILE

Premier database.

Snell, T. (2006, December). Capital punishment, 2005 (NCJ Publication No. 215083). U.S.

Department of Justice, Office of Justice Programs, Bureau of Justice Statistics.

Washington, D.C. Retrieved February 14, 2007 from http://www.ojp.gov/bjs/pub/

pdf/cp05.pdf

U.S. Census Bureau (2001, May). Profiles of general demographic characteristics: 2000. U.S.

Department of Commerce, Economics and Statistics Administration. Washington, D.C.

Retrieved February 17, 2007 from http://www.census.gov/prod/cen2000/dp1/2kh00.pdf

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