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There’s racial bias in our police systems. Here’s the overwhelming proof. [1]
['Radley Balko', 'Opinion Writer Focusing On Civil Liberties', 'The Drug War', 'The Criminal-Justice System', 'Radley Balko Blogs', 'Reports On Criminal Justice', 'Civil Liberties For The Washington Post. Previously', 'He Was An Investigative Reporter For The Huffington Post', 'A Writer', 'Editor For Reason Magazine. His Most Recent Book Is']
Date: 2018-09-18
This article has been updated since its original publication in September 2018. If you know of a study I’ve missed or are aware of a forthcoming study, email me.
In 2016, Sen. Tim Scott (R-S.C.) gave a powerful speech on the floor of the U.S. Senate. Scott talked about how he had been repeatedly pulled over by police officers who seemed to be suspicious of a black man driving a nice car. He added that a black senior-level staffer had experienced the same thing and had even downgraded his car in the hope of avoiding the problem. Given that Scott otherwise has pretty conservative politics, there was little objection or protest from the right. No one rose up to say that he was lying about getting pulled over.
The thing is, most people of color have a similar story or know someone who does. Yet, there’s a deep skepticism on the right of any assertion that the criminal justice system is racially biased. In early August 2018, National Review editor and syndicated columnist Rich Lowry wrote a column disputing the notion that our system is racist. Andrew Sullivan wrote something similar in New York magazine. (Interestingly, both Lowry and Sullivan cite criminologist John Pfaff to support their positions. Pfaff has since protested on Twitter that both misinterpreted what he wrote.) And attempting to refute the notion that the system is racist has become a pretty regular beat for conservative crime pundit Heather Mac Donald.
Of particular concern to some on the right is the term “systemic racism,” often wrongly interpreted as an accusation that everyone in the system is racist. In fact, systemic racism means almost the opposite. It means that we have systems and institutions that produce racially disparate outcomes, regardless of the intentions of the people who work within them. When you consider that much of the criminal justice system was built, honed and firmly established during the Jim Crow era — an era almost everyone, conservatives included, will concede rife with racism — this is pretty intuitive. The modern criminal justice system helped preserve racial order — it kept black people in their place. For much of the early 20th century, in some parts of the country, that was its primary function. That it might retain some of those proclivities today shouldn’t be all that surprising.
In any case, after more than a decade covering these issues, it’s pretty clear to me that the evidence of racial bias in our criminal justice system isn’t just convincing — it’s overwhelming. But because there still seems to be some skepticism, I’ve attempted below to catalog the evidence. The list below isn’t remotely comprehensive. And if you know of other studies, please send them to me. I would like to make this piece a repository for this issue.
I, of course, can’t vouch for the robustness or statistical integrity of all of these studies. I’m only summarizing them. But for the most part, I’ve tried to include either peer-reviewed studies or reviews of data that tend to speak for themselves and don’t require much statistical analysis. I will note that most (but not all) of these studies do factor in variables that address common claims such as that the criminal justice system discriminates more by class than by race, or that racial discrepancies in sentencing or incarceration can be explained by the fact that black people commit more crimes. And I’ve also included a section for studies that do not find bias in various aspects of the criminal justice system. There are far fewer of these, though I’m open to the possibility that I missed some.
Finally, none of this is to say that race is the only thing we need to worry about in the criminal justice system. Certainly, lots of white people are wrongly accused, arrested and convicted. Lots of white people are treated unfairly, beaten and unjustifiably shot and killed by police officers. White people too are harmed by policies such as mandatory minimums, asset forfeiture, and abuse of police, prosecutorial and judicial power.
There are problems here that are inextricable from race. And there are problems that aren’t directly related to race. But even the latter set of problems tend to be exacerbated when you factor race into the equation. On to the evidence.
Policing and profiling
I’ve had more than one retired police officer tell me there is a running joke in law enforcement when it comes to racial profiling: It never happens . . . and it works. But the problem with trying to dismiss profiling concerns by noting that higher rates at which some minority groups commit certain crimes is that it overlooks the fact that huge percentages of black and Latino people have been pulled over, stopped on the street and generally harassed despite the fact that they have done nothing wrong. Stop-and-frisk data, for example, consistently show that about 3 percent of these encounters produce any evidence of a crime. So 97 percent-plus of these people are getting punished solely because they belong to a group that statistically commits some crimes at a higher rate. That ought to bother us.
Misdemeanors, petty crimes and driver’s license suspensions
The drug war
Black people are consistently arrested, charged and convicted of drug crimes including possession, distribution and conspiracy at far higher rates than white people. This, despite research showing that both races use and sell drugs at about the same rate.
Juries and jury selection
Though the Supreme Court made it illegal for prosecutors to exclude prospective jurors because of race in the 1986 case Batson v. Kentucky, that ruling has largely gone unenforced. The New Yorker reported in 2015 that in the approximately 30 years since the ruling, courts have accepted the flimsiest excuses for striking black jurors and that prosecutors have in turn trained subordinates how to strike black jurors without a judicial rebuke. A 2010 report by the Equal Justice Initiative documented cases in which courts upheld prosecutors’ dismissal of jurors because of allegedly race-neutral factors such as affiliation with a historically black college, a son in an interracial marriage, living in a black-majority neighborhood or that a juror “shucked and jived.”
There are no comprehensive national data on the rate at which prosecutors strike black jurors, but there have been quite a few regional studies.
The death penalty
Prosecutors on aggregate don’t seem to seek the death penalty more for black people than white people, though there are definitely some gaping disparities in a few states and in some counties. Instead, the real racial bias when it comes to the death penalty pertains to the race of the victim. Killers of black people rarely get death sentences. White killers of black people get death sentences even less frequently. And far and away, the type of murder most likely to bring a death sentence is a black man who kills a white woman.
Prosecutors, discretion and plea bargaining
Depending on which study you look at, somewhere between 80 and 95 percent of criminal cases are resolved with a plea bargain before ever getting to trial. While most legal observers agree that plea bargaining is widely abused and does little to serve the interests of justice, most also believe believe that if every defendant were to insist on a trial, the system would come grinding to a halt. The bias here comes in when we look at who gets plea bargains, what kinds of deals they’re offered and how many, though innocent, feel pressured to accept.
A 2015 study by the Women Donors Network found that in three-fifths of the states where prosecutors are elected, there isn’t a single black prosecutor. Overall, the study found that in the United States, 95 percent of elected prosecutors are white, and nearly 80 percent are white men. In nine death penalty states (Colorado, Delaware, Idaho, Montana, Oregon, South Dakota, Tennessee, Washington and Wyoming), all of the elected district attorneys were white in 2015.
A 2017 study of about 48,000 criminal cases in Wisconsin showed that white defendants were 25 percent more likely than black defendants to have their most serious charge dismissed in a plea bargain. Among defendants facing misdemeanor charges that could carry a sentence of incarceration, whites were 75 percent more likely to have those charges dropped, dismissed or reduced to a charge that did not include such a punishment.
A 2014 study of Manhattan criminal cases found that black defendants were 19 percent more likely to be offered plea deals that included jail time.
A 2011 summary of the research on race and plea bargaining published by the Bureau of Justice Assistance concluded that “the majority of research on race and sentencing outcomes shows that blacks are less likely than whites to receive reduced pleas,” that “studies that assess the effects of race find that blacks are less likely to receive a reduced charge compared with whites,” and that “studies have generally found a relationship between race and whether or not a defendant receives a reduced charge.”
A 2016 review of nearly 474,000 criminal cases in Hampton Roads, Va., found that whites were more likely to get plea deals that resulted in no jail time for drug offenses. While facing charges of drug distribution, 48 percent of whites received plea bargains with no jail time, vs. 22 percent of blacks. Among those with prior criminal records who pleaded guilty to robbery, 36 percent of whites got no jail time, vs. 8 percent of blacks.
A 2013 study found that after adjusting for numerous other variables, federal prosecutors were almost twice as likely to bring charges carrying mandatory minimums against black defendants as against white defendants accused of similar crimes.
A 2008 analysis found that black defendants with multiple prior convictions are 28 percent more likely to be charged as “habitual offenders” than white defendants with similar criminal records. The authors conclude that “assessments of dangerousness and culpability are linked to race and ethnicity, even after offense seriousness and prior record are controlled.”
Judges and sentencing
School suspensions and the school-to-prison pipeline
A 2011 study of school discipline in Texas found that after isolating race by adjusting for 83 other variables, a black student had a 31 percent greater chance of being disciplined than an identical white or Hispanic student.
A study of suspensions in Chicago schools from 2013 to 2014 found that black male students were more than five times more likely to be suspended than white and Asian male students. Black female students were seven times more likely than white and Asian female students. After adjusting for academic level and social disadvantages, black males were still five times more likely to be suspended, while the disparity for black females grew to 13 times more likely.
A Brown Center on Education Policy study released in 2017 found that suspension rates of black students begin to escalate during middle school, and that the racial disparity in suspensions increases dramatically once black students comprise 16 percent or more of a school’s student population.
Data released in 2016 from the Department of Education found that black students were nearly four times more likely to be suspended than white students.
Prison, incarceration and solitary confinement
Black people are of course overrepresented in the prison population. And, as noted in one particular study below, they’re overrepresented even after you account for variables such as the crime rate among blacks.
A 2020 study on prison reform in California found that while the state’s policy changes resulted in a significant depopulation of the state’s prisons, “The Black-White incarceration gap and the Latinx-White incarceration gap both increased.”
Data from the Massachusetts Sentencing Commission released in 2016 found that black people in the state are eight times more likely to be incarcerated than white people. Hispanic people were about five times more likely.
According to a 2018 study by Pew, 1 in 23 black adults in the United States is on parole or probation, versus 1 in 81 white adults. And while blacks make up 13 percent of the U.S. population, they make up 30 percent of those on probation or parole.
A 2018 survey found that 63 percent of blacks have had a family member incarcerated, versus 42 percent of whites.
A 2016 Yale University study of solitary confinement in 48 jurisdictions across 45 states found that black prisoners were more likely to be held in isolation than white prisoners. The discrepancy was even greater among women — black women made up 24 percent of the female prison population but 41 percent of those who had been held in isolation (that figure came from 40 jurisdictions.) A report published in 2018 found that in Texas, black prisoners are much more likely to be sent to solitary confinement, even as Texas prisons are phasing out the practice.
In surveying the research on the topic, the Sentencing Project estimates that 61 to 80 percent of black overrepresentation in prisons can be explained by higher crime rates in the black population. (Of course, those higher crime rates themselves could be due in part to racial bias.) The rest is probably because of racial bias.
The Sentencing Project further estimates that mass incarceration combined with felon disenfranchisement laws have led to severe underrepresentation of black Americans in the voting electorate. From the group’s 2016 study: “One in 13 African Americans of voting age is disenfranchised, a rate more than four times greater than that of non-African Americans. Over 7.4 percent of the adult African American population is disenfranchised compared to 1.8 percent of the non-African American population . . . In four states — Florida (21 percent), Kentucky (26 percent), Tennessee (21 percent), and Virginia (22 percent) — more than one in five African Americans is disenfranchised.” This means that black candidates may get less support than they otherwise would, candidates of all races may pay less attention to issues values by black voters, and black interests in general may be underrepresented in electoral politics.
Bail, pretrial detention, commutations and pardons, gangs and other issues
The dissent — contrarian studies on race and the criminal justice system
Watch the latest Opinions videos:
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Report: Wrongful convictions have stolen at least 20,000 years from innocent defendants
Militarized policing doesn’t reduce crime and disproportionately hits black communities
New York, California bills look to hold police, prosecutors more accountable
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[1] Url:
https://www.washingtonpost.com/news/opinions/wp/2018/09/18/theres-overwhelming-evidence-that-the-criminal-justice-system-is-racist-heres-the-proof/
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