America Becoming Racial Trends and Their Consequences: Volume II (2001) / Chapter Skim
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3. Commentary on Randall Kennedy's Overview of the Justice System
3. Commentary on Randall Kennedy's Overview of the Justice System
Pages 32-51
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From page 32... ...
This paradox the overall social and economic progress of Blacks in contrast to the lack of improvement, and possibly a worsening of their plight, within the context of the American justice system forms the basis for Randall Kennedy's thoughtful and critical assessment of American criminal law and justice during the l990s (Kennedy, 1998~. Kennedy notes that administration of the criminal law in the United States has changed substantially.
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From page 33... ...
He cites a 1995 Gallup Poll which reported that one-half of Blacks questioned believe the American criminal justice system is biased against them, and two-thirds believed the police to be anti-Black (Kennedy, 1998:1~. For Kennedy, these public perceptions reveal one of two significant dimensions of the racial divide in American justice; the other significant dimension is the racial demographics of both crime and criminal law enforcement in the United States.
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From page 34... ...
He observes that, contrary to expectations, the reforms have neither significantly altered the level of racial disparity nor ended racial bias in the operation of the criminal law (Kennedy, 1997~. Much of the racial bias with which his essay is concerned can be traced to relatively recent changes in the criminal law and law enforcement, many of which were put in place during the 1980s and early 1990s.
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From page 35... ...
On the other hand, given the focus on race relations, which is an integral part of the President's Initiative on Race, Kennedy might have provided more discussion of racial differences in perceptions of the American criminal justice system and the effects of those perceptual differences on the likelihood of achieving social change in criminal law and its enforcement. His introductory remarks highlighted public opinion among Blacks, but did so without explicit reference to the views of Whites and members of other races.
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From page 36... ...
Kennedy sees little chance that such racialist law enforcement procedures will be struck down by the courts, or that legislative remedies aimed at their delegitimization will be approved at the local, state, or federal levels, inasmuch as support for the use of racial profiles in policing has come from the federal courts (United States v. Weaver, 966 F
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From page 37... ...
But how can either supporters or critics of racial profiling use criminal justice system data to bolster their argument and, at the same time, avoid the Catch 22-like conundrum to which use of such data would lead? On one hand, it may be argued that if racial disproportionality is the yardstick, official crime data for a variety of offenses, including drug law violation, could arguably be used to support racial profiling Blacks have high rates of reported crime, thus justifying greater scrutiny of them.
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From page 38... ...
Further, even when drug sales and purchases are more publicly visible, citizens observing sales of drugs often "look the other way." Such patterns of offending obviously mean that direct police surveillance of suspected criminals is often the only viable means of law enforcement. Although suspected drug offenders have been the most frequent targets of police surveillance, it is clear that the use of racial profiles is not limited to drug offenses.
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From page 39... ...
Nevertheless, they do suggest that, in most locales, a practice of racial profiling aimed at Blacks for the purposes of detecting those committing DUI or forgery will be less rational and potentially less successful than one aimed at robbery. For the offense categories at which racial profiling is typically aimedpossession, use, or trafficking of drugs research findings suggest that use of official crime data (arrests, prosecution, and punishment)
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From page 40... ...
Further, although the police may be expected to use their experiences within given communities to help disentangle the effects of "race" and criminal involvement, some research suggests that their attitudes toward race and crime may stem as much from social forces found in the wider society as from their police work. For example, some early studies of the police in large urban areas found that even seasoned officers overestimated the extent of racial disproportionality in criminal involvement, even in the neighborhoods that they patrolled, and adhered to many of the traditional racial stereotypes (National Advisory Commission on Civil Disorders, 1968~.
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From page 41... ...
prohibition against the use of race in peremptory challenges, has relevance for the persistence of racial differences in sentencing, the subject Kennedy tackles in the last part of his essay. Because I believe that few Americans disagree as to the inherent unfairness of jury-selection procedures designed to deny the participation of specific racial groups, I will limit my remaining comments to the question of racial bias in sentencing and criminal punishment.
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From page 42... ...
Two important studies published by the Sentencing Commission show the extent of racial differences in criminal justice system control of 20 to 29 year olds in the United States. Between 1989 and 1994, the percentage of White young adults who were either in jail, in a state or federal prison, or on probation or parole, grew from 6.2 to 6.7 percent of all U.S.
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From page 43... ...
reported that the minority juvenile custody population increased between 1983 and 1991, while the White custody population decreased. By 1991, the long-term custody rate for Black youth in public institutions was 424 per 100,000 Black juveniles in the population five times the custody rate for White juveniles.
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From page 44... ...
The Success of Public Policies Aimed at the Exclusion and Marginalization of Non-Black Racial Minorities Although both American Indians and persons of Asian ancestry were likely to be overrepresented among the nation's prisoners prior to the turn of the century, several governmental policies minimized the likelihood of their continued disproportionate presence; these include the restriction of the immigration of persons of Asian ancestry from the late 1800s into the early decades of the twentieth century. Coupled with the fact that many of the earliest Asian immigrants, like White ethnics, experienced less residential and social segregation, allowing them greater entry to the American economic mainstream, populations of Asian Americans now tend to be underrepresented within the nation's justice system.
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From page 45... ...
, the increased risk of Black crime and punishment in the urban context is a result of the well-developed institutions of social control found in cities, compared to small towns or rural areas. The Mainstreaming of White Southerners Apart from its obvious benefits for Black Americans, among the legacies of the American Civil Rights Movement and the changes it wrought are the social and political reforms that have enabled greater access to the American economic mainstream by Whites living in the South.
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From page 46... ...
Follow-up studies have also shown significant racial differences in arrest and imprisonment rates for the use and sale of drugs that do not appear to be explained by arrest rates alone (Hawkins, 1986; Blumstein, 1993; Tonry, 1996~. Recent statistics reveal that greater levels of racial disproportionality for drug offenses, compared to other types of offending, are not limited to adult offenders.
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From page 47... ...
Thus, given the reality and long-term expectation of high rates of property and violent offending by young Black males, the current regime of mandatory and extremely punitive sentencing guidelines for drug offenses may have more to do with the concern of law enforcement and the American public for the prevention of nondrug crime and violence than with the protection of the public's health or economic productivity goals often cited as justification for punitive stances toward drug use and sales. Indeed, one of the consequences perhaps both intended and unintended of drug law enforcement is the incapacitation through incarceration of legions of lower-class, minority youth who are perceived as having little chance in their lifetimes of joining the economic and social mainstream of American society.
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From page 48... ...
Kennedy's emphasis on racial bias in the administration of justice should not be seen as inconsistent with accounts of race, crime, and justice that attribute the extreme racial disparities in rates of criminal involvement found in the United States today to the operation of other social forces that disdvantage Black Americans. To his credit, nowhere in his essay does Kennedy suggest that currently high rates of homicide, assault, robbery, and property offenses found in many Black communities can be significantly reduced merely through the implementation of the race-neutral justice administration policies he advocates.
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From page 49... ...
49 1982 On the racial disproportionality of United States' prison populations. Journal of Criminal Law and Criminology 73:1259-1281.
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From page 50... ...
Paper prepared for the Research Conference on Racial Trends in the United States, Washington, D.C., October 15-16. Krisberg, B., ed.
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From page 51... ...
Oliver, M., and T Shapiro 1995 Black Wealth-White Wealth: A New Perspective on Racial Inequality.
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