Potential bias in crime policies and practices exist across a large number of possible groups and categories, including race, class, age, gender, gender expression, sexual orientation, nationality, and religion. Rather than simple or one-dimensional, the role of bias in criminal justice policies and practices is multidimensional and intersecting, with biases of different origins finding different points to seep into the process and compound one another. For instance, police practices that make it more likely for members of some groups to come into contact with the criminal justice system are compounded by prosecutorial and judicial policies that use prior contact with the criminal justice system as a strike against defendants.
By far the most research on criminal justice bias in the U.S. context has involved race; thus, this discussion focuses on race. After discussing common explanations for disparities in the U.S. criminal justice system, this entry briefly describes the history and sources of racial bias in the U.S. context and then provides a brief overview of what is known about bias in different specific criminal justice policies and practices.
Explanations for Disparities
A person’s chances of involvement in the U.S. criminal justice system depend in large part on their race, class, age, and gender. Young impoverished African American men are disproportionately more likely to be involved in essentially all levels of the system. These disparities are easy to see upon even a cursory glance at the data released by the Bureau of Justice Statistics. Less immediately apparent, however, is an explanation for these differences in the likelihood of criminal justice system involvement. At least three broad types of explanations exist for why disparities in the criminal justice system exist, each pointing to a different source of bias. Each explanation is also more complicated than it initially appears.
One explanation is that agents within the criminal justice system—police officers, lawyers, judges, corrections officers, and others—act in biased and prejudiced ways. This bias may be conscious and intentional, or it may be enacted without conscious awareness that the bias exists. In other words, addressing bias is not as simple as identifying those actors who are acting in obviously and overtly racist, classist, or sexist ways.
A second explanation has to do with crime policies themselves. Laws and the policies through which they are enforced constitute a significant source of bias. Negligent or unethical actions by the wealthy and by large corporations may do more to harm U.S. citizens both economically (e.g., wealth fund managers who take risks with the retirement accounts of others for their own personal gain) and physically (e.g., through pollution or the intentional suppression of information about the negative health effects of products) than do many street criminals. Yet, several of these actions are not legally prohibited. Even among actions clearly against the law, existing policies make it more likely that the law will be enforced against some groups rather than others. For instance, as a consequence of living in smaller spaces, poor urban residents tend to be more likely to both purchase and use illegal narcotics in public spaces, while the wealthy—who by selfreport measures use illegal narcotics at similar rates—tend to both acquire and use them indoors. Antidrug policies that involve police sweeps of public places, then, will unsurprisingly pick up more poor than wealthy people.
A final explanation is that members of these groups commit more crime. There is some evidence that this is the case for some crimes, and it accounts for some—though not all—of the disproportionalities in exposure to the criminal justice system. However, this story too is not quite as simple as it seems. Research suggests that few biological differences exist across racial lines, especially those that would predict differences in behaviors like crime. Instead, racial differences in offending are a product of socioeconomic factors largely rooted in the radically different and substantially more disadvantaged contexts in which racial minorities live, the strains caused by historical and contemporary mistreatment, and cultural adaptations to this differential social structure and mistreatment. If crime is a symptom of poverty or inequality, then the social policies that maintain intergroup economic inequalities are also an important source of bias.
History of and Sources of Bias
In perhaps the most famous sociological essay on prejudice, Herbert Blumer suggests that prejudice emerges as a feeling among members of a dominant group toward subordinate groups when two conditions are met: when the members of the dominant group identify with or see their fortunes as depending on the overall status of that group and when they perceive a subordinate group as interested in a greater share of the resources or privileges believed to rightly belong to that dominant group. These feelings help justify the differential treatment of members of these other groups. Dominant groups are likely to use their disproportionate influence over laws and the criminal justice system to ensure status quo group hierarchies—in other words, to ensure that those disproportionately benefiting from the current system continue to do so. Thus, biases that disadvantage members of subordinate groups are likely to emerge when dominant groups perceive their group membership as important and perceive other groups as interested in some of their group’s privileges and resources.
As a result, there is a long history of racial biases in the legal and criminal justice systems. The legality of chattel slavery based on race is among the earliest and most egregious, accompanied by a series of complementary justice policies and practices, including the Fugitive Slave Act of 1850. The abolition of slavery during the civil war marked the beginning of a series of openly racially biased policies and practices designed to preserve the existing racial caste system, including the Black Codes and the practice of convict leasing in which many former slaves were imprisoned for crimes—enforced by policy or practice only on African Americans—and then sold to companies desiring their labor, in some cases back to the same plantations from which they had recently been freed. Following this, Jim Crow laws were established throughout the South, legalizing racial discrimination and de jure segregation.
The role of bias and discrimination in these policies and practices is readily apparent: Differential rules or treatment on the basis of race is explicitly mandated or allowed in the laws themselves. These explicitly biased policies and practices were challenged and in many cases overturned in the 1950s and 1960s by a series of legal decisions and legislative acts. At the same time, the civil rights movement was changing social norms about race, making explicit and overt animus toward other races less socially acceptable.
Ironically, these successes have also served to obscure the role of bias in policies and practices. Mary Jackman has suggested that dominant groups change the ideology that supports their disproportionate privileges and resources based on whether intergroup inequalities are being effectively challenged. When inequalities are accepted, the dominant group can advocate policies that explicitly benefit them as a consequence of their group membership, as was the case with many racial policies before the civil rights movement. When they are challenged, however, dominant groups adapt their ideology by embracing individualism and eschewing the notion of groups, while simultaneously ignoring that members of different groups may not have equal opportunities based on historical or contemporary discrimination.
Many White Americans were uncomfortable with the social and legal changes sought by the civil rights movement. Some politicians, knowing that explicit appeals to racism were becoming less socially acceptable, began using code words or dog-whistle issues to activate these feelings without explicitly referring to race. Importantly, crime was one such topic, and support for tough on crime policies and practices became important components of the strategy to recruit White voters uncomfortable with racial change known as the Republican Southern Strategy. The strategy was so successful that Democrats also adopted tough on crime rhetoric, particularly in the aftermath of a racially charged political advertisement attacking 1988 presidential candidate Michael Dukakis for supporting a purportedly soft on crime policy (the Willie Horton ad).
Relative to earlier eras, in the contemporary era, the role of bias is more difficult to see. A number of scholars have suggested that evidence of continued bias can be seen in support for policies that maintain inequalities even among some who would explicitly deny such motivations. In the area of economic policy, this phenomenon has been described as symbolic, laissez-faire, or colorblind racism. Several scholars have developed implicit measures of racial bias, using tests to tap into automatically activated associations or biases that the subject either may not be aware of or may be consciously trying to conceal, even as it is relevant to his or her behavior. In the area of criminal justice practice and policy, research has found evidence of implicit biases among the police in their decisions to shoot, among potential jurors in the decision to convict, and among the general population in their support for harsh punitive policies and practices that are disproportionately applied to racial minorities. Importantly, many of the people holding biases toward Blacks and acting in biased ways would explicitly deny being motivated by bias. This means that understanding and addressing bias in the modern era must begin by dispensing of older notions of bias as something which is explicit and easy to see.
Bias in Policies
Researchers have identified racial bias in a wide variety of criminal justice policies that are purportedly nonracial. The most severe sentencing options added as part of tough on crime policies— mandatory minimums, truth-in-sentencing, threestrikes laws—have been disproportionately applied to young Black men. The war on drugs has been criticized for targeting the kinds of methods of drug use and distribution in Black communities rather than White communities, most notoriously in the 100-1 crack-to-cocaine sentencing disparity. The war on gangs has been accused of a similar bias in focus.
In addition to these policies explicitly focused on criminal justice policies, a variety of other social policies are relevant to understanding bias in the criminal justice system. These include the legal decisions and legislation that ignored de facto segregation and its consequences while outlawing de jure segregation. This also includes an interlocking system of disparities and bias in a broad system including schools, health care, and the labor, housing, and credit markets, a phenomenon Barbara Reskin has referred to as uber- or meta-discrimination. The disproportionate punishment of people of color is similarly not confined to the criminal justice system: Black students are more likely than White students to be disciplined or suspended as are Black welfare recipients relative to Whites.
Bias in Criminal Justice Practice
Police
The police are often the primary point of contact between the criminal justice system and the public. The police possess a wide power of discretion in where they are deployed, what they investigate, and how they respond or act within situations. By some measures, this discretion exceeds that available to actors at later stages in the criminal justice process, meaning that biases at this stage can have particularly large effects. The result of this discretion is disproportionate levels of police contact, arrest, and mistreatment.
Deployment and spatial strategies are one source of bias on the part of the police. Research has suggested that police tend to focus drug enforcement efforts on open-air drug markets in poor and largely non-White communities. Arrests are easier in this environment, but the result is racial disproportionalities relative to actual law violation. Similarly, research has suggested the police target Black and Latino neighborhoods when conducting stop and frisks and for other enforcement activities. At the individual level, research indicates that Black and Latino pedestrians and motorists are more likely to be stopped and once stopped more likely to be searched than Whites. Research on street stops in New York reports that Black suspects were not more likely to be arrested, suggesting Blacks are unnecessarily stopped at higher rates.
In addition to differential exposure to the criminal justice system, bias also results in the differential mistreatment of suspects along racial lines. Black suspects are more likely to be the victims of excessive force charges, and racial and ethnic minorities are more likely to die in police custody. As a result, racial and ethnic minorities tend to have substantially less faith in the police and be more likely to perceive the police as biased. One paradoxical consequence is that despite the disproportionate levels of criminal justice system contact, minority communities often feel underpoliced in that they lack faith in the police’s ability to address local crime problems.
Courts and Sentencing
A variety of tough on crime policies have acted to disadvantage Black suspects and defendants at the judicial stage of the justice process. A variety of work has suggested pretrial detention procedures disadvantage racial and ethnic minorities, including public defender programs, the bail system, and prosecutorial decisions.
Juries are also a major source of bias, even when, as in the case of implicit bias, they may not be aware of their own biases. A variety of work has suggested that jurors are less likely to act favorably toward defendants from other racial groups: Defendants are more likely to be convicted and receive harsher sentences including the death penalty when the juries have greater numbers of out-group members. Relatedly, juries are more likely to blame external factors for criminal behavior by in-group defendants but internal factors for the same behavior by defendants of other races. This is especially important given that prosecutors may use peremptory challenges to systematically excuse Black potential jurors, especially in cases involving Black defendants.
Race seems to influence jurors in a variety of subtle ways: They are more likely to interpret ambiguous evidence as being indicative of guilt when a suspect has darker skin and more likely to view prosecution witnesses as being more credible in cases involving Black defendants. Jurors are also more likely to render guilty verdicts and recommend harsh sentences when defendants are accused of committing crimes that are stereotypically associated with their racial or ethnic group.
As a consequence of bias in the judicial stage of the justice process, there are substantial disparities in the punishment meted out by race and ethnicity. This includes imprisonment, which is substantially higher among Latino and especially among Black men than it is among White men. One outcome of this is that incarceration appears to have devastating consequences for the individuals, families, and communities that experience it, including actually increasing the likelihood of further crime and criminal justice system involvement for the individual who has been incarcerated, for the children of the incarcerated, and for the communities experiencing the highest levels of incarceration. Thus, bias in criminal justice policies and practices acts to sustain future disparities in contact with the criminal justice system.
Bias also appears to play a role in the decision to invoke society’s harshest punishment: the death penalty. Both the race of the offender and especially the race of the victim appear to play powerful roles in the decision to invoke the death penalty, with cases involving White victims and Black defendants being the most likely. Latino defendants accused of killing White victims are also disproportionately likely to receive the death penalty. Once again, juries are an important source of bias in this process, as are prosecutors in their decision to seek the death penalty in the first place and in their exclusion of non-White jurors who are less likely to support the death penalty and more likely to give more weight to mitigating evidence.
Finally, there is also evidence of bias in the juvenile justice system, which was another target of punitive reforms during the tough on crime era, spurred in part by a popular discussion of the existence of superpredators—a notion that played on racial fears to make predictions about a wave of youth violence that never materialized. Bias and disparities in the juvenile justice system are especially consequential as they are likely to compound over the life course of the juveniles caught up in them.
References:
- Blumer, H. (1958). Race prejudice as a sense of group position. Pacific Sociological Review, 1, 3–7. Retrieved from https://doi.org/10.2307/1388607 Drakulich, K. (2015). The hidden role of racial bias in support for policies related to inequality and crime. Punishment & Society, 17, 541–574. Retrieved from https://doi.org/10.1177/1462474515604041
- Hunt, J. S. (2015). Race, ethnicity, and culture in jury decision making. Annual Review of Law and Social Science, 11, 269–288.
- Javdani, S., Sadeh, N., & Verona, E. (2011). Gendered social forces: A review of the impact of institutionalized factors on women and girls’ criminal justice trajectories. Psychology, Public Policy, and Law, 17(2), 161.
- Provine, D. M. (2011). Race and inequality in the war on drugs. Annual Review of Law and Social Science, 7, 41–60. Retrieved from https://doi.org/10.1146/ annurev-lawsocsci-102510-105445
- Reskin, B. (2012). The race discrimination system. Annual Review of Sociology, 38, 17–35. Retrieved from https://doi.org/10.1146/annurev-soc-071811-145508
- Rosich, K. J. (2007). Race, ethnicity, and the criminal justice system. Washington, DC: American Sociological Association.
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