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date: 21 November 2018

Racial Disparities in the Criminal Justice System

Abstract and Keywords

Social work and criminal justice have a shared history in the United States dating back to the 19th century when their combined focus was rehabilitation. But with an increase in crime, this focus shifted to punishment and incapacitation, and a schism resulted between social work and criminal justice. Given current mass incarceration and disparities in criminal justice, social work has returned in force to this important practice. The latest Bureau of Justice Statistics research reports that 1% of all adult males living in the United States were serving a prison sentence of a year or longer (Carson & Anderson, 2016) and rates of diversion, arrest, sentencing (including the death penalty), incarceration, etc., vary considerably by race/ethnicity (Nellis, 2016). This entry explores race and ethnicity, current population demographics, and criminal justice statistics/data analysis, plus theories and social work-specific strategies to address racial and ethnic disparities in the criminal justice system.

Keywords: race, ethnicity, criminal justice, racial/ethnic disparity, disproportionate minority contact, smart decarceration

Introduction

Social work and criminal justice have a shared history in the United States dating back to the 19th century. This history is associated with organizations such as the National Conference on Charities and Corrections (1879), Chicago Women’s Club (1899) (assisting with the formation of the first juvenile court in Cook County), Juvenile Psychopathic Institute (1909), and Los Angeles Coordinating Councils (1932) (Popple & Leighninger, 1996). Their combined early focus was rehabilitation. But when the nation experienced a marked increase in crime rates in the 1980s and 1990s, criminal and juvenile justice advocates suggested that states “get tough” on crime (especially for drug offenses), and the focus became punishment and incapacitation. This resulted in a schism between social work and the justice systems. Since the spike in the 1990s, U.S. crime rates have generally been trending downward, yet Americans are incarcerated at comparatively unparalleled rates. The International Centre for Prison Studies reports that in 2013, of all those incarcerated around the world (more than 10.2 million) nearly half were held in the United States (United States = 2.24 million, China = 1.64 million [sentenced prisoners], and Russia = 0.68 million) and the United States maintains the highest incarceration rate per capita as well (United States = 716/100,000; China = 121/100,000 [for sentenced prisoners], and Russia = 475/100,000) (Walmsley, 2014). The Bureau of Justice Statistics reports that in December 2015, 1% of all adult males living in the United States were serving a prison sentence of a year or longer (Carson & Anderson, 2016). And in the United States, the rates of diversion, arrest, deferred judgment, conviction, sentencing (including the death penalty), incarceration, etc., vary considerably by race/ethnicity. This chapter explores the concepts of race and ethnicity, current population demographics, and criminal justice statistics and data, as well as theories to explain and strategies to address racial and ethnic disparities in the criminal justice system.

Race, Ethnicity, and Multiracial Identity

Race

Race is often associated with physical characteristics such as skin color, bone structure, hair texture, and eye color. But these characteristics are the evolutionary reactions to human beings’ proximity and exposure to the sun (e.g., skin pigmentation in Africa, India, Australia) and not to differences of “biological race.” The American Sociological Association defines race as “physical differences that groups and cultures consider socially significant.” In The Myth of Race: The Troubling Persistence of an Unscientific Idea, Sussman presents the history of racial classifications and reasons why they persist. Finally, Bobo and Fox (2003) suggest that race is a “historically contingent social construction” that varies “in configuration and salience over time” and intersects with “age, class, gender, and sexuality” and should not be examined without the context of government policies and practices since they “play a major role in the understanding and social effects” of racial categories (p. 319). Thus, an examination of race is one with social evidence, not biological evidence (See UNESCO’s Four Statements on the Race Question).

In 1997, the U.S. Office of Management and Budget (OMB) set the standards of classification of federal data on race and ethnicity as “American Indian or Alaska Native,” “Asian,” “Black or African American,” “Native Hawaiian or Other Pacific Islander,” and “White.” In 2016–2017, however, OMB decided to consider revising these classifications for the first time since they were originally published. The changes explore using a combined question to identify race/ethnicity instead of two separate questions, creating a separate racial subcategory for Middle Eastern/North African respondents, clarifying that minimum collection data collection standards do not limit agencies from gathering more detailed demographic data, and revising terminology used for race and ethnicity classifications.

To catalogue U.S. demographics over time, the Census Bureau has typically used six racial categories, including “American Indian” and “Alaska Native” alone, “Asian” alone, “Black or African American” alone, “Native Hawaiian and Other Pacific Islander” alone, “White” alone, and “Some Other Race” alone (with 57 possible combinations of the above six categories, for a total of 63 racial categories).1

Ethnicity

The American Sociological Association defines ethnicity as “shared culture, such as language, ancestry, practices, and beliefs.” OMB requires federal agencies to use a minimum of two ethnicities: Hispanic or Latino and Not Hispanic or Latino. The U.S. Census Bureau defines Hispanic or Latino origin as “a person of Cuban, Mexican, Puerto Rican, South or Central American, or other Spanish culture or origin regardless of race” (Humes et al., 2011, p. 2). (Note: The author appreciates the rich multiplicity of Latin, Hispanic, Chicano, Puerto Rican, Cuban, Dominican, etc., ethnic identities, but for consistency in this chapter, the term “Latinx” is used as a gender-neutral noun to refer to those who identify as any of the Hispanic or Latin ethnicities.)

Multiracial

In addition to identifying as one of the over 60 racial and ethnic categories, starting with the 2000 U.S. Census, individuals are now provided with the option of choosing a multiracial identity. For the 2015 Population Estimate, almost 10 million people (3.1% of the U.S. population) identified as “Two or More Races.” So, if given the option to identify as multiracial (which some would argue, describes all of humanity), is the United States then in a postracial society where the classification of individuals based on the dynamic, imprecise, and non-scientific social construct of race/ethnicity should be discontinued? Wise (2010) suggests that as long as these categories continue to significantly impact people’s life outcomes, they remain important data to collect and analyze.

Current U.S. Demographics and Criminal Justice Figures

Current U.S. Demographics

The U.S. Census estimated the national population to be 321,418,820 in 2015. Of those 321 million people, approximately 61.6% were classified as “White/Caucasian” alone (not Hispanic or Latino), 17.6% as “Hispanic/Latino,” 13.3% “Black/African American,” 5.6% “Asian,” 2.6% “Two or More Races,” 1.2% “American Indian or Alaskan Native,” and .2% were classified as “Native Hawaiian or Other Pacific Islander.”

Racial Disparities in the Criminal Justice SystemClick to view larger

Figure 1. 2015 racial/ethnic composition of the United States.

Source: U.S. Census Bureau: State and County QuickFacts.

Current U.S. Criminal Justice Figures

The latest justice figures available suggest that by the end of that same year (2015), there were an estimated 1,526,792 individuals under U.S. state and federal correctional jurisdiction—the fewest prisoners on record since 2005 (and a rate of 458 per 100,000 residents of all ages) (Carson & Anderson, 2016). Of those 1.5 million justice-involved individuals, 1,415,297 (92.7%) were men and 111,495 (7.3%) were women. Despite their representation in the United States by race/ethnicity in 2015 (White/Caucasian = 61.6%, Hispanic/Latino = 17.6%, Black/African American = 13.3%), the percentage of sentenced prisoners that same year was White/Caucasian = 33.8%, Hispanic/Latino = 21.6%, and Black/African American = 35.4%. And the rate of imprisonment in 2015 was 312 per 100,000 Whites/Caucasians in the United States aged 18 or older, 820 per 100,000 Hispanics/Latinos, and 1,745 per 100,000 blacks/African Americans (Carson & Anderson, 2016).

Racial Disparities in the Criminal Justice SystemClick to view larger

Figure 2. 2015 State and Federal prisoners in the United States.

Source: Bureau of Justice Statistics, Prisoners in 2015, December 2016 - NCJ 250229

Criminal Justice Data

Most criminal justice data emanates from law enforcement agencies within the U.S. Department of Justice, including the Federal Bureau of Investigation (FBI). The FBI produces the most widely cited source of crime data in the Uniform Crime Reports (UCRs). UCRs include law enforcement arrest data as well as crime reports made to law enforcement. But as with any data source, the UCR has its limitations. Victim surveys suggest that fewer than half of all crimes are reported to the police for reasons such as privacy, fear, lack of trust, and a sense of culpability. Also, the UCR only records the most severe crime committed in instances where multiple charges are filed. To address some of these issues, the FBI has implemented the National Incident-Based Reporting System (NIBRS): containing data also collected by law enforcement but including all charges in a single incident and additional data such as information on victims, victim/offender relationships, and property involved in the crimes. Currently only about a third of law enforcement participates in the NIBRS, but the plan is to move all UCR to NIBRS by 2021.

Self-report data are considered better indicators of crimes committed since official crime reports and arrest data include multiple contact/decision points. But self-report data are not collected as frequently and consistently with adults as they are with adolescents. Also, with self-reported data, some respondents will always overestimate their criminal activity, and others will underestimate the number of crimes committed; that said, researchers have been able to relatively accurately estimate the over- and under-estimators. Finally, with self-report data come self-selection biases such that some respondents may choose not to answer, and any systematic indicators of those non-responses ideally, are calculated.

One valuable source of self-report data does not capture crimes committed but instead documents victimization. The National Crime Victimization Survey (NCVS) is administered by the Justice Department in collaboration with the U.S. Census Bureau. Based on its nationally representative sample, response rate, and annual implementation NCVS is considered to be a relatively valid estimate of crime victimization in the United States. Because it is self-reported, the NCVS also shows incidence of over- and under-reporting, as well as sampling challenges.

Finally, the most significant limitation of U.S. criminal justice data is that they are not standardized. This is one challenge that the NIBRS seeks to address at the federal level, but currently state and local jurisdictions across the country collect, analyze, and report data differently. This is often most evident in demographic and offense categories, for example. Some agencies bifurcate their data into “White” and “non-White” categories whereas others either include ethnicity within “African American” and “Caucasian” categories (which over-reports the Caucasian figures and under-reports the African American figures). And jurisdictions often have local or regional “classifications” of crime offense categories. Consider the effect that differences in data may have on the validity, reliability, and ability to compare crime data over time and geography.

Disproportionality, Disparity, Discrimination, and Minority Overrepresentation

Disproportionality

When the number of items measured in a specific category is greater or less than the number of those items typically occurring, overrepresentation/underrepresentation is said to occur. This discrepancy is also referred to as “disproportionality,” since the occurrence suggests a statistic that is not proportionate to the expectation. In a mathematical sense, neither of these terms is pejorative and judgment regarding disproportionality would depend on context, purpose, goals, and/or desired outcomes.

Disparity

Disparity indicates an unequal status or unequal treatment and this inequality can result in disparate outcomes (e.g., rural-urban health disparities, male-female income disparities). Unlike the term “disproportionality,” disparity often includes the expectation that outcomes are just and/or fair.

Discrimination

Social workers Marsiglia and Kulis (2016, p. 48) suggest that discrimination results when the disproportionality and/or disparity found can be attributed to actions (either conscious or not/explicit or implicit) taken by a dominant group that are harmful to members of the non-dominant group at either the individual or the institutional level.

Minority Overrepresentation in the Criminal Justice System

This chapter will examine minority overrepresentation and allow the reader to consider the roles of disproportionality, disparity, and discrimination. Mathematically, individuals of color in the criminal justice system exceed their proportion in the general population in a variety of ways (Carson & Anderson, 2016), some of which will be explored here. In addition to enforcing the law and ensuring public safety, according to the Department of Justice’s mission statement, they are responsible for ensuring “fair and impartial administration of justice for all Americans.” This mission statement suggests that the goal and expectation for criminal justice services are that they are just and/or fair. Is this the case? What evidence is there to support or challenge this statement?

Racial Disparities in the Criminal Justice SystemClick to view larger

Figure 3. U.S. rate of imprisonment by race/ethnicity per 100,000 residents 18+ in 2005, 2010, and 2015.

Source: Bureau of Justice Statistics, Prisoners in 2015, December 2016: NCJ 250229

The imprisonment rate of persons under the jurisdiction of state or federal correctional authorities per 100,000 U.S. residents aged 18 or older, by race and Hispanic origin, shows a consistent pattern. (Please note that NCRP data used changed in their completeness and timeliness during the years included. Scholars should use caution when comparing totals and imprisonment rates over time.)

The reason racial and ethnic disparities in criminal justice are of concern for social work is because of the profession’s commitment to the ethical principles of service, social justice, dignity and worth of the person, and integrity: and because of social work’s history and connection to juvenile and criminal justice. The majority of American systems are designed to treat individuals based on their behavior/merit or on what the justice system refers to as “legal variables” versus treating people based on elements beyond their control or “extra-legal variables.” The education system is to educate all regardless of race/ethnicity—but there is an achievement gap. The health-care system is supposed to deliver health care to all regardless of race/ethnicity—but there are health disparities. Social services are to be delivered regardless of race/ethnicity—but there is minority overrepresentation. Are these outcomes based on individual behaviors or systemic behaviors, legal variables, or extralegal variables—or some kind of combination? And what can social workers do about these outcomes?

Theories to Explain Minority Overrepresentation in the Criminal Justice System

Two branches of theory have been used to explain racial and ethnic disparities in criminal justice. Theories of “differential involvement” contend that individuals of color commit more and/or more serious crime than Whites (Blumstein, 1993; Blumstein & Wallman, 2006). Meanwhile, theories of “differential selection” suggest that law enforcement and justice systems treat racial and ethnic minorities differently than their White counterparts (e.g., differential policing practices, sentencing laws, and explicit and implicit racial bias) (Chambliss, 1995; Tonry, 1995, 2004). When considering differential policing or racial profiling arguments, the differential involvement theorists would suggest that police substations should be located/or increased patrol should occur in “crime hotspots” (often neighborhoods of color) because that is where more crimes occur. On the other hand, differential selection theorists would contend that more arrests occur in neighborhoods of color because they are policed more often.

Differential Involvement

According to Bureau of Justice statistics, the majority of those serving sentences of a year or longer in 2014 for violent offenses (number of offenses—not rates) were African Americans (263,800), followed by Caucasians (210,400), and then Latinx offenders (152,900) (Carson & Anderson, 2016). For that same year, Caucasians were serving more sentences for public order offenses (57,500) as compared to African Americans (50,000) or Latinx (35,400). Caucasian offenders also comprised the majority of those sentenced in state facilities for rape/sexual assault and property crimes (71,600 and 111,800) as compared to African Americans (36,600 and 72,900) and those identifying as Latinx (31,300 and 42,600). The proportion of offenders sentenced in state prison for drug offenses was roughly equal for Caucasians (67,800) and African Americans (68,000), whereas 28,000 were Latinx (Carson & Anderson, 2016). These statistics support differential involvement by suggesting that the number of those serving year or more sentences in state corrections facilities does vary by race and ethnicity.

Table 1. Number of Sentenced Prisoners under the Jurisdiction of U.S. State Corrections, by Most Serious Offense, Sex, Race, and Hispanic Origin on December 31, 2014

Most Serious Offense

All Prisoners

Male

Female

African

American

Caucasian

Latinx

Total

1,316,409

1,222,873

93,536

456,600

451,100

261,000

Violent

696,900

663,600

33,500

263,800

210,400

152,900

Murder

171,700

161,500

10,300

68,100

46,000

43,700

Manslaughter

17,100

15,000

2,100

3,700

6,400

3,300

Rape/sexual assault

162,800

160,900

2,000

36,600

71,600

31,300

Robbery

168,600

161,200

7,500

88,600

33,500

26,700

Aggravated/simple assault

134,400

126,600

7,800

51,200

39,000

36,400

Other

42,200

38,500

3,800

15,500

14,000

11,400

Property

249,900

223,700

26,000

72,900

111,800

42,600

Burglary

132,600

126,000

6,700

44,500

53,700

22,800

Larceny-theft

47,000

39,400

7,500

12,900

23,400

7,400

Motor vehicle theft

11,100

10,300

800

2,400

4,600

3,400

Fraud

29,700

21,500

8,000

7,200

15,300

4,300

Other

29,500

26,500

3,000

5,900

14,700

4,800

Drug

206,300

182,700

23,500

68,000

67,800

28,800

Drug possession

46,000

39,900

6,100

16,100

17,400

5,700

Other

160,300

142,900

17,300

51,800

50,500

23,100

Public order

152,800

143,300

9,500

50,000

57,500

35,400

Weapons

51,100

49,400

1,700

23,600

11,300

9,100

DUI

27,900

25,200

2,700

3,400

13,700

11,700

Other

73,900

68,700

5,100

23,100

32,600

14,600

Other/unspecified

10,600

9,500

1,100

2,00

3,500

1,300

Total number of sentenced prisoners

1,316,409

1,222,873

93,536

456,600

451,100

261,000

Source: Bureau of Justice Statistics, Prisoners in 2015, December 2016: NCJ 250229.

One limitation of differential involvement theory is that the evidence is largely based on official arrest records or, as in the aforementioned example, incarceration records. Using incarceration records to examine variation in offense commission introduces multiple contact/decision points that certainly affect outcomes including (but not limited to): offenses with offenders who were caught; where officers elected to charge alleged offenders versus release them; those where offenders were not offered official diversion or alternative programs; those who were not offered a plea deal to a lesser charge; and those who were actually convicted, sentenced, and are serving time.

Differential Selection

Drug offense data can be triangulated from multiple sources including some self-report data. In 2013, the Substance Abuse and Mental Health Services Administration (SAMHSA) reported that 24% of individuals who use crack cocaine identify as African American whereas 72% identify as Caucasian or Latinx; yet for the same year, more than 80% of those sentenced for crack cocaine offenses were African American (SAMHSA, 2014, p. 7). For overall drug use by race/ethnicity, the National Survey on Drug Use and Health reported current illicit drug usage percentages as: 3.1% for Asians, 8.8% for Latinx, 9.5% for Caucasians, 10.5% for African Americans, 12.3% for American Indians/Alaska Natives, 14.0% for Native Hawaiians and Pacific Islanders, and 17.4% for individuals identifying as “Two or More Races” (SAMHSA, 2014). That same year, the American Civil Liberties Union (ACLU) compiled a report called The War on Marijuana in Black and White: Billions of Dollars Wasted on Racially Based Arrests (ACLU, 2013). Using data from SAMHSA and the FBI’s Uniform Crime Reports, they found that despite the fact that African Americans and Caucasians use marijuana at similar rates, African Americans are 3.73 times more likely to be arrested for marijuana possession than Caucasians. The African American marijuana possession arrest rate is 716 per 100,000, whereas the arrest rate for Caucasians is 192 per 100,000. In the United States, an individual was arrested for marijuana possession every 37 seconds in 2010, for a total of 889,133 arrests—300,000 more than for all violent crimes combined and at an overall cost of $3.6 billion dollars spent enforcing marijuana possession laws (ACLU, 2013).

Meanwhile, the first state to require that law enforcement collect demographic data on all motorists stopped by law enforcement was North Carolina (see NC General Statutes § 114-10-1). Researchers Baumgartner and Epp (2012) analyzed these traffic stop data with over 13 million incidents. Their findings suggest that African American and Latinx drivers are consistently more likely to be stopped, searched, and arrested compared to Caucasian drivers for all types of traffic stops including speeding or running a stoplight, for instance. National traffic stop data suggest that although motorists of color were more likely to be stopped and searched, they were less likely to have contraband in their cars when compared to Caucasian motorists in all jurisdictions except Rhode Island (LaFraniere & Lehren, 2015).

The North Carolina data found the most significant disparities occurred when an officer’s discretion was the highest (e.g., seat belts, vehicle equipment, tag/registration issues). The disparity continued to be evident in the resolution of the traffic stops as Caucasian drivers were more likely to receive a warning and motorists of color more likely to be arrested for the same category of offenses (Baumgartner & Epp, 2012). For those who subscribe to the theory of differential selection, little in the aforementioned SAMHSA or traffic stop research probably comes as a surprise. But Baumgartner and Epp (2012) added a rather innovative analytic element to their traffic stop study. First, they identified the officers with the most disproportionate rates of stopping drivers of color. And they removed those cases—the ones involving the proverbial “bad apples.” Then they reanalyzed the data, only to find the exact same results. So even though some who believe that minorities are treated differently by law enforcement and the criminal justice system may attribute racial disparities to a few “bad apples” or “racist cops,” Baumgartner and Epp’s work suggests that one must look beyond the individual level to the institutional level when addressing racial and ethnic disparities in the criminal justice system (2012). But a certain limitation to the differential selection theory is that although discretion and disproportionality maintain a positive predictive relationship, removing all discretion (e.g., zero tolerance policies) also has a positive predictive relationship with disproportionality.

Debating between differential involvement and differential selection, a National Academy of Sciences panel concluded in 2001 that in trying to confirm one or the other, the “behavior [differential involvement] versus justice [differential selection]” has resulted in a “conceptual and methodological impasse” (McCord, Widom, & Crowell, 2001, p. 229). Moreover, more recent findings dispute racial differences in offending (Piquero & Brame, 2008), and still other studies concede that although some racial differences exist in offending, those differences cannot explain the extent of the current racial and ethnic disparities in the criminal justice system (Nellis, 2016; Walker, Spohn, & Delone, 2004).

Racial and Ethnic Disparities (RED) Analysis Strategies

Regardless of why disproportionality occurs, assessing it is the first step in addressing it. To measure disproportionate minority contact (DMC), the Office of Juvenile Justice and Delinquency Prevention employs statistical calculations called Relative Rate Indices (RRIs). RRIs are calculated by comparing the instances of crime committed by minorities at various decision points or for various offenses with the instances of crime committed by other youth at the same decision points, taking into account the demographics of the general population. To calculate the RRI, the minority rate is divided by the majority rate. If the rates are the same, the RRI = 1. If the RRI is < 1, individuals of color are underrepresented, and if the RRI is > 1, individuals are overrepresented relative to the context of the general population. RRIs are sensitive to high or low rates of crime or high or low numbers of particular racial/ethnic groups. In addition, RRIs have no indicator of statistical significance. Regardless, the RRI is a standard metric used to evaluate minority overrepresentation and some states have recently, voluntarily applied the RRI metric to examine their criminal justice population.

As part of the MacArthur Foundation Safety and Justice Challenge initiative, Multnomah County, Oregon, sought to examine racial and ethnic disproportionality. First, they calculated the rates of those individuals currently incarcerated in their jails on June 30, 2014, by race/ethnicity and then calculated the corresponding RRI using Caucasians as the reference group.

Racial Disparities in the Criminal Justice SystemClick to view larger

Figure 4. Rate of those incarcerated per 1,000 in Multnomah County.

Source: Multnomah County and Jennifer Ferguson for the Safety and Justice Challenge

So, for every 1,000 African Americans in Multnomah County, Oregon, 9.2 were in the county jail on June 30, 2014, and for every 1,000 individuals who identify as Asian or Pacific Islander, there were 0.4 in the county jail, etc. Using these rates, Multnomah officials then calculated RRIs to find that African American adults are 6.0 times more likely than Caucasians to be in jail (9.2/1.5 = 6.0), Native Americans are 1.8 times more likely, Latinx adults are 1.2 times more likely than Caucasians to be in jail, and Asian/Pacific Islanders are less likely to be in jail than Caucasians.

Table 2. RRI Calculations for the Multnomah County Jail Population, June 30, 2014

Caucasian

African American

Asian/Pacific Islander

Latinx

Native American

Total County Population 18+

475,446

34,161

50,892

56,765

6,041

# in jail on 06/30/14

730

313

19

102

17

Rate of those in jail, per 1000

1.5

9.2

.4

1.8

2.8

RRI

6.0

.2

1.2

1.8

Source: Multnomah County and Jennifer Ferguson for the Safety and Justice Challenge.

Whereas percentages can provide ratios that help determine proportionality/disproportionality, RRIs add the layer of context to general population figures as well as comparison between majority and minority offenders and thus speaks to evaluating disparities in the system.

Reducing Disproportionality, Disparity, and Discrimination—Implications for Practice and Policy

With their combined history with juvenile and criminal justice and their distinctive skill set, social work is poised to make significant contributions to the reduction of racial and ethnic disparities in the criminal justice system. Three consistent recommendations are presented throughout the extant literature: (1) improve data collection and mandate DMC assessment in the criminal justice system; (2) increase awareness of race/ethnicity, legal and extra-legal variables that contribute to RED; and (3) promote smart decarceration. Social work can lead efforts towards all three.

Improve Data Collection and Mandate DMC Assessment in the Criminal Justice System

Disproportionate minority confinement/contact (DMC) has evolved as an area of concern and attention in the juvenile justice system over decades beginning with the addition of DMC to the Juvenile Justice and Delinquency Prevention Act of 1974 (Public Law §93-415, 42 U.S.C. 5601 et seq.) in 1988 and then by making it a core requirement/federal mandate with financial consequences in 2002 (McCarter, 2011). States must participate in five sustained DMC efforts: (1) identification—catalogue the extent to which DMC exists; (2) assessment/diagnosis—evaluate the reasons for DMC, if it exists; (3) intervention—develop an intervention plan to address the identified reasons; (4) evaluation—assess the effectiveness of strategies to address DMC; and (5) monitoring—track DMC trends over time (DMC TA Manual, 2009). But no such policy or federal initiative exists in the criminal justice system, and few states volunteer to examine their system’s minority overrepresentation.

In 2015 the Colorado General Assembly enacted Senate Bill 185, the Community Law Enforcement Action Reporting Act, or the CLEAR Act (Colorado Department of Public Safety, 2016). This legislation was enacted with some understanding of the disparities that were occurring. In their first report following the CLEAR Act, the Colorado Department of Public Safety found that despite comprising 4.2% of the state population, African Americans accounted for 12.4% of arrests/summonses, 10.5% of adult district court filings, and 20.9% of cases sentenced. For those under 18 in Colorado, African Americans comprised 5% of the youth in the state but 16% of the cases in juvenile court. Finally, after controlling for offense type and prior record, African Americans were less likely to receive a deferred judgment as compared to Caucasians who committed the same crime with the same number and types of prior offenses—meaning Caucasians were more likely to avoid a criminal record. Additionally, the department notes that because the judicial branch of the Colorado system classifies “Hispanics in the White race/ethnicity category, it is difficult to draw conclusions about decisions made in cases with Hispanic and White defendants” (Colorado Department of Public Safety, 2016, p. 11).

Thus, the CLEAR Act requires the Colorado Division of Criminal Justice (DCJ) to collect, analyze, and report data disaggregated by race/ethnicity and gender from law enforcement, the courts, and probation/parole. It is now suggested that those data be standardized across offense type and racial/ethnic classifications.

Increase Awareness of Race/Ethnicity, Legal and Extra-Legal Variables Contributing to Racial and Ethnic Disparities (RED)

Few outside of criminal justice, sociology, and social work understand that in the United States even when the severity of offense and prior record are controlled for, African Americans are more likely to be arrested, convicted, and receive harsher and longer sentences (including the death penalty) when compared to Caucasians committing the same crimes with the same level of prior justice involvement (Nellis, 2016). Increasing awareness of RED in the criminal justice system can prompt practice and policy change—as seen in Colorado’s CLEAR Act. But having conversations about race, ethnicity, disproportionality, disparity, and discrimination, can be difficult. Social work education prepares practitioners to facilitate these conversations—and these can happen in any social work setting including—education, health care, social services, housing, justice.

Increasing awareness means examining both explicit and implicit thought and bias. Individuals are aware of their explicit understanding and biases: and because they are accessible through introspection, they are easier to both conceal and to address or eliminate. On the other hand, individuals are not aware of their implicit biases that operate outside of conscious awareness, even though everyone has implicit biases, and those biases affect decision making every day. And cumulatively, these biases can affect systems through all the contact points, decisions, and gatekeeping done within U.S. institutions.

Moreover, though criminologists would love to be able to account for and predict variance in crime commission through differential involvement and selection models, social workers tend to regard human beings and their systems more holistically. The system, with its “lady justice” ideal, is supposed to weigh only the evidence of individuals’ behavior in order to levy their punishment: this is to be carried out while blindfolded to how they look, where they’re from, or how much money they make, for example. However, justice, as most other systems, rarely works accordingly to this ideal (McCarter et al., 2017).

Researchers Steffensmeier and Demuth (2000) found that in addition to crime severity and prior offenses, both age and education level affected individuals’ likelihood of incarceration as well as the length of their sentences. Starr’s study suggests that gender significantly affects justice outcomes, with men more likely to be incarcerated and receive longer sentences than women after controlling for arresting offense, criminal history, and other characteristics. Free (2002) contends that SES, social networks, and characteristics of the defendant, victim, judges, and courts all impact justice outcomes. Schlesinger (2005, p. 83) contends that even after controlling for legal factors and bail amounts, Caucasians are twice as likely to make bail as their African American and Latinx counterparts based on what he describes as their “economic resources and networks.” Finally, a Virginia study examined two legal and five extra-legal predictors of incarceration and found that race (extra-legal) was the strongest predictor followed by whether or not the individual had repeated a grade in school (extra-legal) and only then the 2 legal variables—prior record and severity of the current offense (McCarter, 2009).

In order to reduce RED in the criminal justice system, these legal and extralegal factors and explicit and implicit biases require attention. Implicit bias training and judicial benchcards have demonstrated some positive results at the individual level, and some jurisdictions are implementing Racial Equity Impact Analyses to assess racial and ethnic disparities at the systems level.

Promote Smart Decarceration—With a Specific Focus on Addressing RED

Mass incarceration and its impacts have contributed to the return of social work to forensics, and juvenile and criminal justice. Social work’s collaboration with criminal justice is made more important by the juxtaposition of overcriminalization with current police/community relations and overall race relations across the country. Social work practitioners working in corrections, criminal justice, and the courts are there at a time of solid bipartisan support for smart decarceration—but they are also uniquely qualified to facilitate courageous conversations about race, ethnicity, intersectionality, disproportionality, disparity, and discrimination.

In 2013, the American Academy of Social Work and Social Welfare launched 12 “Grand Challenges for Social Work.” One of the 12 challenges is to promote smart decarceration and lists its three interrelated outcomes as:

  1. (1) substantially reduce the incarcerated population in jails and prisons

  2. (2) redress racial, economic, and behavioral health disparities within the criminal justice system

  3. (3) maximize public safety and well-being

The Promote Smart Decarceration Grand Challenge comes at a time when most agree that mass incarceration is not a positive nor a sustainable solution to crime in America. Efforts to depopulate prisons have begun and are resulting in decreased corrections’ populations. To that end, the Federal Bureau of Prisons reports that from 2014 to 2015, six states reduced their prisoner population by more than 1,000 prisoners each: California, Florida, Indiana, Louisiana, New Jersey, and Texas (Carson & Anderson, 2016). But often RRIs show that despite reductions in jail and prison populations, the rate of minority overrepresentation remains unaffected. So, as work commences in this important Grand Challenge to Promote Smart Decarceration, it should be in a way that addresses reducing racial and ethnic disparities at the same time (see New Jersey’s efforts through Assembly Bill 2762.) Tim Wise, for one, contends that addressing a race-based problem requires a race-based solution (2010).

Conclusion

In her book The New Jim Crow: Mass Incarceration in the Age of Colorblindness, Michelle Alexander (2010, p. 196) writes, “Slavery defined what it meant to be black (a slave), and Jim Crow defined what it meant to be black (a second class citizen). In the 21st century, mass incarceration defines the meaning of blackness in America: black people, especially black men, are criminals. That is what it means to be black.” Unless social workers actively, purposefully, and collectively engage in reducing racial and ethnic disparities in the criminal justice system then they, too, are complicit in the outcomes.

Further Reading

Alexander, M. (2010). The new Jim Crow: Mass incarceration in the age of colorblindness. New York: The New Press.Find this resource:

DuVernay, A. (2016). 13th. Kandoo Films. New York: The New Press.Find this resource:

The Leadership Conference Education Fund. (2014). Falling further behind: Combating racial discrimination in America.

The Sentencing Project. (2015). Black Lives Matter: Eliminating racial inequity in the criminal justice system. Washington, DC: The Sentencing Project. Retrieved from http://www.sentencingproject.org.Find this resource:

Stevenson, B. (2014). Just mercy: A story of justice and redemption. New York: Spiegel & Grau.Find this resource:

Toobin, J. (2016, August 22). The legacy of lynching, on death row. The New Yorker, 38–47.Find this resource:

References

Alexander, M. (2010). The New Jim Crow: Mass incarceration in the age of colorblindness. New York: The New Press.Find this resource:

American Civil Liberties Union (ACLU). (2013, June). The war on marijuana in black and white: Billions of dollars wasted on racially based arrests. New York: ACLU Foundation.Find this resource:

American Sociological Association. Retrieved from http://www.asanet.org/topics/race-and-ethnicity.

Baumgartner, F. R. & Epp, D. (2012). North Carolina traffic stop statistics analysis: Final Report to the North Carolina advocates for justice task force on racial and ethnic bias.

Blumstein, A. (1993). Racial disproportionality of U.S. prison populations revisited. University of Colorado Law Review, 64(3), 743–760.Find this resource:

Blumstein, A., & Wallman, J. (2006). The crime drop and beyond. Annual Review of Laws and Social Sciences, 2, 125–146.Find this resource:

Bobo, L. D., & Fox, C. (2003). Race, racism, and discrimination: Bridging problems, methods, and theory. Social Psychology Quarterly, 66(4), 319–332.Find this resource:

Carson, E. A., & Anderson, E. (2016, December). Prisoners in 2015. Bureau of Justice Statistics, Washington, DC: NCJ 250229.Find this resource:

Chambliss, W. J. (1995). The institutionalization of racism through law. In D. Hawkins (Ed.), Race, ethnicity, and crime (pp. 235–258). Albany: State University of New York Press.Find this resource:

Clear, T. R., & Frost, N. A. (2014). The punishment imperative: The rise and failure of mass incarceration in America. New York: New York University Press.Find this resource:

Colorado Department of Public Safety. (2016, December). SUMMARY: Report on the C.L.E.A.R. Act: Community Law Enforcement Action Reporting Act, Pursuant to Senate Bill 2015–185 Presented to the House and Senate Judiciary Committees of the Colorado General Assembly.

DMC TA Manual. (2009, July). Disproportionate minority contact: Technical assistance mannual. 4th ed. U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention.

Fabelo, T., Thompson, M. D., Plotkin, M., Carmichael, D., Marchbanks, M. P., & Booth, E. A. (2011). Breaking schools’ rules: A statewide study of how school discipline relates to students’ success and juvenile justice involvement. New York: Council of State Governments Justice Center.Find this resource:

Federal Bureau of Investigation. NIBRS (The National Incident-Based Reporting System) Overview.

Free, M., Jr. (2002). Race and presentencing decisions in the United States: A summary and critique of research. Criminal Justice Review, 27(2), 203–232.Find this resource:

Humes, K. R., Jones, N. A., & Ramirez, R. R. (2011, March). Overview of race and Hispanic origin: 2010. 2010 Census Briefs. Washington, DC: U.S. Department of Commerce, Economics and Statistics Administration. U.S. Census Bureau. C2010BR-02.Find this resource:

LaFraniere, S., & Lehren, A. W. (2015, October 25). The disproportionate risks of driving while black. New York Times.Find this resource:

Marsiglia, F. F., & Kulis, S. (2016). Diversity, oppression, and change (2nd ed.). New York: Oxford University Press.Find this resource:

McCarter, S. A. (2009). Legal and extralegal factors affecting minority overrepresentation in Virginia’s juvenile justice system: A mixed method study. Child and Adolescent Social Work Journal, 26(6), 533–534.Find this resource:

McCarter, S. A. (2011). Disproportionate minority contact in the American juvenile justice system: Where are we after 20 years, a philosophy shift, and three amendments?. Journal of Forensic Social Work, 1(1), 96–107.Find this resource:

McCarter, S. A., Chinn-Gary, E., Trosch, L. A., Jr., Toure, A., Alsaeedi, A., & Harrington, J., (2017). Bringing racial justice to the courtroom and community: Race matters for juvenile justice and the Charlotte Model. Washington and Lee Law Review, 73(2), 641–686.Find this resource:

McCord, J., Widom, C. S., & Crowell, N. A, (2001). Juvenile crime, juvenile justice. Washington, DC: National Academy Press.Find this resource:

Nellis, A. (2016). The color of justice: Racial and ethnic disparity in state prisons. Washington, DC: The Sentencing Project.

Office of Management and Budget. Retrieved from https://www.whitehouse.gov/sites/whitehouse.gov/files/briefing-room/presidential-actions/related-omb-material/r_e_iwg_interim:report_022417.pdf.

Office of the Surgeon General. (2001). Youth violence: A report of the surgeon general. Rockville, MD: Office of the Surgeon General. Publication 20669522.Find this resource:

Piquero, A. (2008). Disproportionate minority contact. The Future of Children, 18, 60–61.Find this resource:

Piquero, A. R., & Brame, R. W. (2008). Assessing the race-crime and ethnicity-crime relationship in a sample of serious adolescent delinquents. Crime and Delinquency, 54(3), 390–422.Find this resource:

Popple, P. R., & Leighninger, L. L. (1996). Social work, social welfare, and American society (3rd ed.). Needham Heights, MA: Allyn & Bacon.Find this resource:

Schlesinger, T. (2005). Racial and ethnic disparity in pretrial criminal processing. Justice Quarterly, 22(2), 170–192.Find this resource:

The Sentencing Project. (2015). Black Lives Matter: Eliminating racial inequity in the criminal justice system. Washington, DC: The Sentencing Project.Find this resource:

The Sentencing Project. (2016). U.S. prison population trends, 1999–2014: Broad variation among states. Washington, DC: The Sentencing ProjectFind this resource:

Sklansky, D. A. (1995). Cocaine, race, and equal protection. Stanford Law Review, 47, 1283–1286.Find this resource:

Spade, W., Jr. (1995). Beyond the 100:1 Ratio: Towards a rational cocaine sentencing policy. Arizona Law Review, 38, 1233–1238.Find this resource:

Starr, S. B. (2012). Estimating gender disparities in federal criminal cases. University of Michigan Law and Economics, 12-018.Find this resource:

Steffensmeier, D., & Demuth, S. (2000). Ethnicity and sentencing outcomes in U.S. federal courts: Who is punished more harshly? American Sociological Review, 65(5), 705–729.Find this resource:

Substance Abuse and Mental Health Services Administration (SAMHSA). (2014). Results from the 2013 National Survey on Drug Use and Health: Summary of national findings, NSDUH Series H-48, HHS Publication No. (SMA) 14–4863. Rockville, MD: Substance Abuse and Mental Health Services Administration.Find this resource:

Sussman, R. W. (2014). The myth of race: The troubling persistence of an unscientific idea. Cambridge, MA: Harvard University Press.Find this resource:

Tonry, M. (1995). Malign neglect: Race, crime, and punishment in America. New York: Oxford University Press.Find this resource:

Tonry, M. (2004). Thinking about crime: Sense and sensibility in American penal culture. New York: Oxford University Press.Find this resource:

Vallas, R. (2009). The disproportionality problem: The overrepresentation of black students in special education and recommendations for reform. Virginia Journal of Social Policy & the Law, 17(1), 181–208.Find this resource:

Walker, S., Spohn, C. & DeLone, M. (2004). The color of justice: Race, ethnicity, and crime in America. Belmont, CA: Wadsworth.Find this resource:

Walmsley, R. (2014). World prison population list (10th ed.). International Centre for Prison Studies.

Wise, T. (2010). Colorblind: The rise of post-racial politics and the retreat from racial equity. San Francisco: City Lights.Find this resource:

Notes:

(1.) Understanding that the racial categories “Black” and “White” originated from the imprecise and often arbitrary description of human beings’ skin tones, and that the categories African American and Caucasian are, at a minimum, descriptions of geographic heritage, the author uses African American and Caucasian in order to be more precise and respectful than to refer to individuals in terms of color. Whenever possible, the author also lists racial/ethnic categories in alphabetical in order to begin to erase any racial hierarchy.