The Issue: Racial Disparities in the Criminal Justice System; is Discrimination the Cause?

The Essay: Does Disparity in the Criminal Justice System Indicate Discrimination?

In recent years, American law has struggled with discrimination and disparity in the Criminal Justice system.

An African-American child at a segregated drin...
An African-American child at a segregated drinking fountain on a courthouse lawn, North Carolina, 1938. (Photo credit: Wikipedia)

News accounts sensationalize the issue, blurring the line between the discrimination and disparities. These do so to such an extent that many believe that the existing disparities are conclusive proof of discrimination.  The issue is further compounded by numerous studies that seem to both prove AND disprove discrimination in the criminal justice system (Crutchfield, Fernandez, & Martinez, 2010).  The reason for the failure of these studies is twofold:

  1.  most studies rely primarily on statistical analysis and
  2.  most studies fail to consider the role of motive in disparities

Disparities in the Criminal Justice System

Disparities in the criminal justice system in America have always existed, but until the 1950s, little research was conducted to understand the reasons and ramifications (Crutchfield, Fernandez, & Martinez, 2010).  In recent decades, this issue has escalated to the extent that many states and the Federal Government have considered legislation aimed at correcting the problem (Toth, Crews, & Burton, 2008). After the 2014 murder of Eric Gardner by NYPD officers, society began to revisit the idea that African-American males are treated very different from whites. This issue really grew after those police involved were not indicted despite the medical examiner ruling Gardner’s death a homicide.

Black men in prison. Afrcian American males greatly outnumber all other races, though crime rates are largely equal. This indicates that racism is the cause of such disparities.
Black men in prison. Afrcian American males greatly outnumber all other races, though crime rates are largely equal. This indicates that racism is the cause of such disparities. source buzzfeed.com

To those who study the phenomena of disparities, males and African Americans are clearly overrepresented in the prison populations, but the causes elude researchers (MacNamara & Burns, 2009).  One reason is that much of the focus has been on African-Americans. This often results in emotionally charged news features that do little to solve the problem if one exists.  Another reason is presumption and faulty logic, as illustrated by Kamalu, Coulson-Clark, and Kamalu who stated,

Aggregate data and statistics compiled supports the assumption that African Americans are disproportionately subjected to conditions such as racial profiling, traffic stops leading to searches, and seizures yielding minor offenses that lead to incarceration, rather than probation or rehabilitation” (2010, p. 2).

Statistically, the incarceration figures for African American males are 13 times that of White males (Toth, Crews, & Burton, 2008).  Although the data do support disproportionate rates of incarceration, the reasoning used by these researchers is faulty logic known as cherry picking (Klass, 2008).  As noted by Garland, Spohn, and Wodahl, “disparity is not necessarily tantamount to discrimination. Disparity only denotes a difference in outcomes, indicating that discrimination might be present” (2008, p. 5).

Is Discrimination Present in the Criminal Justice System?

There can be little doubt that discrimination does exist within the criminal justice system. The field is composed of individuals who have their own beliefs and attitudes.  However, of interest to researchers is whether or not discrimination occurs as a result of faulty practices and procedures.  If the fault is with individuals, the issue must be handled on an individual basis as it occurs; this would require training and discipline. But if the fault is systematic, legal overhauls would be needed (Roberts, 2007). As of this update, several states around the nation are assuming the problem to be systemic–hence, criminal justice reforms have become a buzz-word for 2016.

Judges hold considerable discretion when sentencing that may contribute to discrimination against males and African Americans (Kamalu, Coulson-Clark, & Kamalu, 2010).  Davis suggested that Prosecutors could unwittingly encourage and advance discriminatory practices through their use of discretion (2007). In addition, police officers hold considerable discretion in their roles, which could also inadvertently advance discriminatory practices.  Finally, even the arrestees can behave in ways that can encourage discrimination against them, as noted by Crutchfield, Fernandez, and Martinez:

“In 1964, Cross published ‘Negro, Prejudice, and the Police’ calling for police officers to recognize the social circumstances of blacks and for the fair treatment of individuals. That same year, Piliavin and Briar published their now classic paper, reporting that demeanor, which is related to race, was an important factor determining when police exercised the discretion to formally arrest.22 Black and Reiss followed with their report that demeanor was important, but less so than the wishes of victims, and that there are racial differences in the preferences of those victims; black victims more frequently demanded arrest” (2010, p. 906).

“Demanded arrest?” While on the surface these words sound strange and ominous, the fact is that our behavior towards police can make a difference. However, in recent years video footage has shown many black persons acting respectfully and still being on the receiving end of police abuse. Little wonder that many today show less respect for law enforcement than in times past. However, studies do show that attitude plays a key role from an initial stop to incarceration.

To be sure, at virtually every level of the Criminal Justice and legal system, those in charge hold considerable latitude that could easily result in discrimination disparities.  The challenge for researchers then is to determine first if the problem is systemtic and if so how to combat the situation.

The Need to Understand Motives

As suggested by Reiss, demeanor or attitude can play a significant role in causing disparities; this applies to both the arresting officer and the suspect.  Anecdotal evidence likewise suggests this is the case; one Louisiana State Trooper interviewed stated that smiling in driver’s license photos will benefit people who have been pulled over because it can put the officer in a calmer state of mind (Oakes, 1984). There is a growing body of research to indicate this is true. As a result, some states are banning smiles when taking driver’s license photos.

An attempt at a discrimination graphic.
An attempt at a discrimination graphic. (Photo credit: Wikipedia)

Motivation is the foundation of a new theory of human behavior that suggests that all behavior, criminal or otherwise is driven by internal need.  This theory states that “needs are motivating factors in human behavior” and “abberant behavior is nothing more than a clash of values” (Oakes, 2011, p. 4).  In addition, values developed by groups of people often create the circumstances that lead to supression by other groups.

When this suppression involves the implementation of justice and law, it can appear to be or in reality be discrimination.  For example, the national Drug War has contributed significantly to prison populations, especially for African Americans; 80% of all those in prison on drug charges are African American (Toth, Crews, & Burton, 2008).   The prisoners of war in this theater tend to be low-level dealers, the majority of which are African American.

Former President Reagan’s stated purpose for getting tough in the Drug War was to elimiminate high-level dealers. A huge irony here is that instead, the high-level dealers can afford the best attorney’s and seldom go to prison; instead, low-level dealers and users make up the majority of those incarcerated for drugs. As previously noted, the majority of these are black.

Read Also Racial Disparities and Discrimination: The Sentencing Pendulum

Hence, to fully understand whether the disparities within the Criminal Justice system are discriminatory or not would require a study to understand first the motives of all players. This includes the politicians who pass the laws affecting those arrested, police, police supervisors, judges, prosecutors, and others.


Although disparities do exist, current research is tenuous in proving a correlation between the disparities and discrimination.  Because racial issues in America have an emotionally charged element, some research has fallen into the trap of beginning with false assumptions. False assumptions always deliver false conclusions.

The issue of disparities in the criminal justice and legal system is complex. It involves every player in the Criminal Justice and Law arena including defendants and politicians; any attempt to determine if discrimination is systemtic therefore must either encompass every possible element (which may be impossible) or focus on the dynamics of motives.  To settle this issue with finality will require more than data analysis; empirical studies are needed.

The Politics of Disparities in the Criminal Justice System

I wrote the preceding essay for a Criminal Justice class several years ago.  Since that time, I have conducted additional research. Although as stated in the conclusion, the issue is far to complex to draw empirical conclusions (and will likely always be the case), I do believe after exhaustive research that there is a clear pattern of discrimination in the criminal justice system. As for the distinct causes and solutions, these are evasive unless one considers the political connections.

We must note that the criminal justice system does not exist within a vacuum: All elements of the criminal justice system are related to poilitics and political maneuvering. This is done both for power and personal gain.

The essay was written in such a way as to take a non-political position. 

Now for the political side…

A man lynched from a tree. Face partially conc...
A man lynched from a tree. Face partially concealed by angle and headgear. (Photo credit: Wikipedia). The southern states used systemic fear to maintain “family values” and the racial status quo. Richard Nixon promised a return to family values and delivered the Drug War, which effectively uses the same tactics though with a different tool. Rather than rope, the Criminal Justice and Law system was deployed on a national scale.

A book I wrote some time ago is bringing many “good” Republicans out of the wood-works to decry my so-called “lack of intellectual honesty” among other claims.  I find this both amusing and ironic because one of the major hurdles to creating a criminal justice system that is just is the fact that many in Congress and the Media simply refuse to listen to facts even when facts ARE abundantly clear.

The book I wrote inflamed Republicans because it focussed on the role played by leaders of that party in advancing the modern Drug War. It also examined the clear motives behind that law…motives made clear by statements of leaders of the party.

The Drug War clearly appears to have been started as a revision of Jim Crow laws. Richard Nixon was hungry for power in Washington. He used the Drug War as a means of gaining power by fear. Ronald Reagan continued the political use of fear as a tool for power.

Nixon even was quoted by his own right-hand man as saying that Black people were the source of the problem. He claimed that they needed to be targeted in the effort to gain power. But his team had to do so in such a way that it would not appear so. His exact words in discussing how to wrench power from the Democrats were,

“The whole problem is really the Blacks.  The key is to devise a system that recognizes this while not appearing to.”

The Drug War was the perfect tool for targeting the Black community politically “while not appearing to.” Millions of African Americans today are permanently excluded from voting because of having felony drug convictions. The GOP continues efforts to further limit the community from voting because statistically, Republican candidates win more seats when fewer people vote. This is especially so when fewer African American voters turn out.

Too, Nixon was seeking favor with disillusioned voters in the South. At the time of his rise to power, the southern states were the only one’s to oppose the Civil Rights legislation of 1964 and 65. Nixon knew that if he could carry the south, he stood a good chance of winning the White House.

The perfect solution was to find a way to disinfranchise black voters (via prison) and restore racial power to southern Democrats, most of whom were very racist. So his campaign focused on crime, placing the blame on drugs. At the same time, code words to draw in racist Southern Democrats were used. These included “family values” and “states rights.”

Is the White Supremacy Movement Logical?

This Issue is Again Rearing its Head in America — This Time in the Guise of Removing Monuments

With Donald Trump in office and the White Supremacist movements seeking to reestablish what they believe to be a failure of their movement to maintain the racial status-quo, demonstrations are being held nationwide under the guise of protecting history.

Oddly, the White Supremacists and others fail to see that Jim Crow remains — in the drug war — and that there is no need to feel the need to push for their agenda. Their addenda was firmly established by the GOP under Richard Nixon and Ronald Reagan and despite efforts to legalize marijuana, there remains not end in sight for the drug war.

Facing facts, as long as there is a drug war in America, the ‘system that recognizes the black “problem” will continue to operate,’ effectively keeping the balance of power in the hands of the few white men who yield the bulk of power today.

And no, White Supremacists, that power is not yours, but the same slave-owners who control everyone, white and black alike. White Supremacy is fighting the wrong people.


As now well-understood, this “Southern Strategy” was effective. The southern voters understood that “States Rights” meant they could make their own laws related to blacks; and “family values” meant they could keep segregation in place (I know. I lived it.)

The Politics of Racism and Discrimination

We can no longer afford as a people to allow such short-sighted, ignorant, racist foolishness.  We need to admit the facts when present. There are serious racial problems with our criminal justice system. The laws supporting the legal system/the associated problems with the criminal justice system, namely disparities, do appear to have roots in politics, primarily Republican politics.  Two glaring facts are:

  1. there ARE gross disparities in the Criminal Justice system and
  2. these disparities are largely a result of the structure of the Drug War

Another fact that cannot be ignored is that this systemtic disparity is falling squarely on the backs of people of color, most notably African-Americans.  This is unacceptable and I fear I did not make this point strongly enough in my recent book.  So allow me to make up for that now.

It is a supreme act of cowardice NOT to put an end to the Drug War. It is destroying the lives of too many of our people.  Black families in our society have been put through enough.  It is time that someone in Washington grow a set and stop the senseless assault on the Black community vis-a-vis the racist Drug War.  Enough is quite enough.

The Solution to the Problem of Racial Disparities in the Criminal Justice System 

Many will find this surprising, but the solution to the problem of racial disparities in the criminal justice system is really quite simple: End the Drug War.

The Drug War has caused more harm to American society and families than any policy in the history of the nation. When will enough be enough? Perhaps we need to arrest another million? maybe we need to make more black children fatherless? Or maybe we simply need to eliminate the cause--power mad politics?
The Drug War has caused more harm to American society and families than any policy in the history of the nation. When will enough be enough? Perhaps we need to arrest another million? Maybe we need to make more black children fatherless? Or maybe we simply need to eliminate the cause–power mad politics and the Drug War itself? Image source, nomoredrugwar.org

The Drug War was a political tool to shift power from the Democrats to the Republicans in Washingon. It has been used as a means of disenfranchising hundreds of thousands of African American voters. In so doing, these votes are lost, effectively shifting the balance of power to the GOP.

End the Drug War and release all those in prison for drug charges. Exonerate them and give them back their right to vote. Test this out and see how long the GOP lasts. As a party, the GOP will fade into obscurity fast because this is the means by which it continues to weild power. Fear and the Drug War.

We have nothing to fear but fear itself – President John F. Kennedy

This is why scholars are having trouble understanding the cause of disparities in the criminal justice system. This is why the issue continues to elude many who are seeking to rectify the problem.

The reason is a failure to recognize the root cause of the issue of racial disparities. There is not a direct effort on the part of most criminal justice officials to be discriminatory. Rather, the structure of the Drug War as it was designed by Richard M Nixon continues to function as it was intended. It was intended to maintain the status-quo in the racist south and in doing so, win the southern states to the GOP.

If we end the drug war, we will end the problem of racial disparities in the Criminal Justice system. It is really that simple.

Recent News Related to the problem of disparities in the Criminal Justice System Highlights the Depth of the Problem

In an article titled, Committee’s report highlights racial disparities in Iowa criminal justice system, published in the Omaha.com online newspaper, an Iowa state committee has been researching the problem of racial disparities in their juvenile justice system. The paper said that the committee admitted,

“Iowa remains among the top states in the nation for disparities between whites and blacks in key areas, despite efforts over the last two decades to make progress.”

The article quoted Jerry Foxhoven, a law professor at Drake University as saying,

“Every little system has tried to address the disproportionality. The problem is that it’s the combination of the systems that do it.”

Indeed, this combination is at a Federal Level, with the structure of the Comprehensize Drug Act of 1972. This Bill was designed and structured by Richard Nixon to make good on his campaign promises to the southern states.

This is a large part of the reason research into the disparities in the criminal justice system continue to fail, even where states such as Iowa attempt to solve the problem.

The simple fact is, politicians are trying to find a band-aid to patch up a gaping wound. The root of the problem is Federal and until that root cause is dealt with, the problem of racial disparities in the criminal justice system will continue. The root is discrimination, but only inasmuch as it relates to politics and political gain.

You may also enjoy reading…

Racial Disparities and Discrimination: The Sentencing Pendulum

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  • Associated Press. (22Nov2014). Committee’s report highlights racial disparities in Iowa criminal justice system. Omaha.com
  • Crutchfield, R. D., Fernandez, A., & Martinez, J. (2010). Racial and Ethnic Disparity and Criminal Justice:  How Much is Too Much? Journal of Criminal Law and Criminology, 100(3), 903-32.
  • Garland, B. E., Spohn, C., & Wodahl, E. J. (2008, Fall). Racial Disproportionality in the American Prison Population:  Using the Blumstein Method to Address the Critical Race and Justice Issue of the 21st Century. Justice Policy Journal, 5(2), 1-42.
  • Kamalu, N. C., Coulson-Clark, M., & Kamalu, K. M. (2010, Spring). Racial Disparities in Sentencing:  Implications for the Criminal Justice System and the African American Community. African Journal of Criminology & Justice Studies, 4(1), 1-31.
  • Klass, G. (2008). Just Plain Data Analysis:  Common Statistical Fallacies in Analyses of Socila Indicator Data. Retrieved from http://polmeth.wustl.edu/media/Paper/2008KlassASA2.pdf
  • MacNamara, R. H., & Burns, R. (2009). Multiculturalism in the criminal justice system. New York, NY: McGraw Hill.
  • Oakes, C. J. (1984). Interview With LouisianaState Trooper Daniel Daugherty. , LA: .
  • Oakes, C. J. (2011, September 9). Why We Do What We Do. Retrieved from http://jeffoakes.wordpress.com/2011/09/15/why-we-do-what-we-do/ (currently unpublished)
  • Roberts, D. (2007, Fall). CONSTRUCTING A CRIMINAL JUSTICE SYSTEM FREE OF RACIAL BIAS:  AN ABOLITIONIST FRAMEWORK. Columbia Human Rights Law Review, 39(1), 261-685.
  • Toth, R. C., Crews, G. A., & Burton, C. E. (2008). In The Margins:  Special Populations and Criminal Justice. Upper Saddle River, NJ: Pearson Prentis Hall.

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