Is the Criminal Justice System Racist?

American society is becoming more racially and economically polarized. Many poor and minority citizens subscribe to the discrimination thesis (DT) that the criminal justice system is racist. A recent Gallup poll showed that nearly two‐thirds of the African‐Americans surveyed believe that the criminal justice system is rigged against them. Many civil rights advocacy groups agree, but many conservatives deny that the system is racist.

The criminal justice system is not racist

Criminologist William Wilbanks, who wrote The Myth of a Racist Criminal Justice System (1987), is the leading apologist for racial disparities in the American justice system. Wilbanks and others who maintain the system is color blind advance the following arguments:

  1. Most decisions in criminal justice are not based on discrimination. Research demonstrates that decisions throughout the justice systems are based mainly on the seriousness of the crime, the amount of legal evidence proving guilt that is available, and the prior criminal record of the suspect, defendant, or inmate.

  2. There is no systematic racism in criminal justice. Wilbanks coined the phrase “systematic racism” and uses it as an ideal standard against which to measure American criminal justice. In disproving the discrimination thesis, he wraps the complex question of racial discrimination into two bundles labeled “The Criminal Justice System Is Racist” and “The Criminal Justice System Is Not Racist.” He says either there is discrimination in all parts of the criminal justice system (for example, in the police, courts, and corrections) and in all stages of the criminal justice process or there is no racial discrimination in the system. After reviewing the scholarly literature, Wilbanks concludes that the criminal justice system is not racist because the evidence fails to prove that racism is present in all parts of the system during all steps of the criminal justice process.

The criminal justice system is racist

In The Color of Justice (1996), Samuel Walker, Cassia Spohn, and Miriam DeLone avoid what critics see as the mistake of treating the complex problem of racial discrimination as if it could be divided into two simple extremes. They say

  1. “The criminal justice system is neither completely free of racial bias nor systematically biased.” Drawing from hundreds of studies of race and criminal justice, Walker and his colleagues take the middle ground. They argue that racial/ethnic groups are treated more harshly than whites at some stages in the system but no differently from whites at other stages.

  2. Solid evidence of discrimination exists in many stages of the criminal justice process, including the police use of deadly force and the application of the death penalty.

  3. Drug policies constitute the single most significant factor contributing to racial disparities in criminal justice. Federal cocaine laws are a prime example of institutional racism. Under the current law, crimes involving crack‐cocaine are punished much more severely than those involving powder‐cocaine. The federal guidelines consider a given amount of crack the same as a hundred times the amount of powder‐cocaine. This hundred‐to‐one ratio produces sentences for crack defendants that are far more severe than sentences for defendants whose crimes involve powder‐cocaine. The problem is that black cocaine users prefer crack, while white users like powder. African‐American defendants have argued in federal courts that the guidelines discriminate on the basis of race and violate the equal protection clause of the Fourteenth Amendment. Among the statistics offered in support of this claim are those showing that of all the persons charged with possession of crack‐cocaine, most are black; in contrast, of those charged with possession of powder‐cocaine, most are white.

Understanding racism in criminal justice

A consensus about racism exists among criminal justice administrators, policymakers, and academics: there should be zero tolerance for it in the administration of justice. The conclusion that racial discrimination is absolute, complete, or omnipresent in the justice system certainly does not follow from the research on the subject. But a majority of scholars would certainly agree that there is a substantial body of evidence proving that racial bias inheres in certain practices and policies of both the criminal justice and juvenile justice systems.