You are here: Home Legal Research Guides Race in the Criminal Justice System

Race in the Criminal Justice System

First posted Jan. 31, 2011. Updated Oct. 10, 2013.
Prepared by Mary Whisner, Reference Librarian, whisner [at] uw.edu

Why are people of color overrepresented in Washington State prisons and jails? Does the criminal justice system treat people of color differently than whites? Are there stages in the process that -- intentionally or unintentionally -- disadvantage African Americans, Hispanics, Asian Americans?

A note about vocabulary: Although some people discussing these issues use the words "disproportionality" and "disparity" interchangeably, there is an important distinction between the two. Disproportionality occurs when groups are represented unequally relative to their numbers in the general population. Disparity occurs when two offenders who are similarly situated are treated unequally.

The Task Force on Race and the Criminal Justice System was created in Nov. 2010 to address these issues. Click here for more information.

This guide gathers Washington studies. (If you know of published studies that are not listed, please send me a note.) It lists some national organizations working in the area and selectively lists books, articles and reports that are not focused on Washington State.


Washington State Studies and Commentary

More Washington State Studies: General . . . Investigation . . . Prosecution . . . Sentencing . . . Legal Financial Obligations . . . Imprisonment . . . Juvenile Justice

General

Symposium, Race and Criminal Justice in the West, Gonz. L. Rev., vol. 42, no. 2 (2011) (articles are also listed separately in this guide).

Symposium on Racial Bias and the Criminal Justice System, Seattle U. L. Rev., vol. 35, no. 3 (2012) (articles are also listed separately in this guide).

Task Force on Race and the Criminal Justice System, Preliminary Report on Race and Washington’s Criminal Justice System, published on the Task Force's website, at 47 Gonz. L. Rev. 251 (2011), and at Seattle U. L. Rev. 623 (2012)

Robert. D. Crutchfield, Racial Disparity in the Washington State Criminal Justice System: Executive Summary and Racial Disparity in the Washington State Criminal Justice System (2005). Review of research in Washington, placed in context of national studies, prepared for case challenging felony disenfranchisement law (Farrakhan v. Gregoire).

Summary of Police Studies
There is not evidence of a broad pattern of racial profiling in the State of Washington, but there are substantial reasons to believe that Native Americans, blacks and Latinos are at elevated risk that cannot be justified by differential involvement in crimes likely to lead to arrests. . . . [P]olice stops of Native Americans, blacks and Hispanics are more likely to result in searches . . . and . . . [D]rug enforcement patterns differentially affect these groups in ways that cannot be justified by drug use or distribution patterns. What are not included among these studies are statewide investigations of policing and race, or research on how offenses beyond traffic offenses and drug possession and distribution, might be associated with race and ethnicity. This is especially important because we know that the use of police discretion can make a very large difference in producing racial disparity in later stages of the criminal justice process. For example, evidence of the importance of police recommendations in bail decisions will be reported below. What we can conclude from the limited extant studies of policing in Washington State is that there is credible evidence that there are significant racial disparities that are not fully warranted by racial or ethnic differences in illegal behavior. -- Executive Summary, p. 2
Summary of Prosecutors’ Studies
Three studies of prosecution and racial disparities have been identified, all completed in King County, Washington . . . . All three studies report that legally relevant factors such as offense seriousness and offenders’ criminal histories are important determinants of decision outcomes during prosecution. Hewitt (1977) finds no significant racial differences in case outcomes after these and other factors that he considers to be legally relevant have been taken into account. Crutchfield et al. (1995) and Bridges (1997) do find significant racial differences even after taking legally relevant factors into account.
These studies found no “smoking gun” where officials are intentionally disadvantaging minority defendants, but in a state with statutorily dictated standards for rendering sentencing decisions researchers have found that racial disparities can be observed in earlier stages (than the more frequently studied sentencing process) of the criminal justice process. -- Executive Summary, pp. 2-3
Summary of Court and Sentencing Studies
This group of studies reported important racial and ethnic differences in the processing of criminal cases in Washington State. A not inconsequential proportion of these differences can be explained by including legally relevant factors, such as the seriousness of offenses, the criminal histories of offenders, and legislatively established aggravating factors such as the presence of a weapon in the commission of a crime. But even when these legally relevant factors have been taken into account, racial and ethnic differences have been repeatedly observed in the processing of felony cases in Washington State. . . .
. . . These differences appear in different decision points in different jurisdictions of the state. Some of these differences appear to be small, but this reviewer concludes that these small differences in what a person is charged with, whether they are released pre-trial, if they are convicted, and what sentence is given are very consequential to the individuals processed and they add up to substantial impacts for minority communities within the state. -- Executive Summary, pp. 3-4
Causes of Racial Disparity in Criminal Justice Processing
The studies of racial and ethnic disparity in Washington State have generally not been designed to uncover the causes of observed differences. Two explanations are described: discriminatory actions of criminal justice decision makers (either intentional or unconscious), and structural or institutional causes (ways of doing business, such as decision rules that are theoretically race-neutral, but are not in practice). -- Executive Summary p. 4

Melisa D. Evangelos, Comment, Bias in the Washington Courts: A Call for Reform, 16 U. Puget Sound L. Rev. 741 (1993), available on HeinOnline (subscription database).

Because of the documented threat that racial and gender bias pose to the effective administration of justice in Washington, this Comment advocates amending the Washington Rules of Professional Conduct to explicitly make intentional gender and racial bias an act of attorney misconduct and to discipline any attorney who engages in such behavior. Section I of this Comment identifies and describes instances of attorney behavior that result in gender and racial bias and explains the impact of such bias on attorneys, clients, and the judicial system. Section II explores similar anti-bias rules proposed or in place in other states. Section III introduces the rule advocated in this Comment, compares this proposal to the approaches taken by other states, and explains the operation of the rule. Section IV examines the constitutionality of the proposed rule of professional conduct (RPC), concluding that the rule would withstand First Amendment scrutiny. Finally, Section V argues that the proposed RPC would be an effective and necessary tool in combating racial and gender bias in the Washington court system and concludes that the Washington State Supreme Court shoudl adopt the proposed amendment to the Washington Rules of Professional Conduct. -- pp. 742-43

J. Morgan Kousser, Expert Report (for Farrakhan v. Gregoire). Summarizes historical patterns of discrimination and current racial disparities in Washington State.

Charles Z. Smith, Washington State Minority and Justice Task Force Final Report (1990).

GENERAL PERCEPTIONS ABOUT THE TREATMENT OF MINORITY LITIGANTS
Many minorities, some lawyers and a few judges hold similar perceptions about the treatment of minority litigants. These general perceptions, however are not necessarily shared by all persons working in the courts. The Task Force lists below the more significant and disturbing perceptions held by minorities, some lawyers and a few judges:
1. Minorities believe that bias pervades the entire legal system in general and hence they do not trust the court system to resolve their disputes or administer justice even-handedly.
2. There is a perception that in criminal proceedings, minorities receive disparate treatment and harsher sentences despite the guidelines set out in the Sentencing Reform Act (especially with regard to the first offender waiver and the exceptional sentence provisions.
3. There is a perception that a lack of uniformity exists in prosecutorial decision-making regarding criminal cases involving minority persons.
4. Minorities believe that some law enforcement officials tend to treat minority persons with disrespect and engage in offensive behavior toward minority persons.
5. Those working in the judicial system believe that the quality of justice delivered to minority litigants who require the services of an interpreter for legal proceedings are adversely impacted by the unavailability of a sufficient number of competent and trained interpreters int he court system.
6. Those minorities who must rely on public defender organizations perceive themselves to be disadvantaged because those agencies remain understaffed, poorly funded, and lack sufficient available resources.
7. There is a perception that minorities are underrepresented, if represented at all, on most juries.
8. There is a perception that some judges, lawyers, other officers of the court, and court staff have made offensive remarks and have demonstrated other biased attitudes toward minorities appearing in court.
9. Minorities perceive that they do not have access to rehabilitation programs as readily as non-minority defendants.
10. There is a perception that the criminal justice system provides inadequate protection, access, support, and services to minority victims of crime.
-- pp. 10-11
Criminal Matters
1. A majority of county prosecutors and public defenders in Washington State agree that people who have fewer economic resources are disadvantaged in the criminal justice system. For instance, they are less able to make bail and to afford alternatives to incarceration.
2. Based on responses to questionnaires sent to prosecutors and public defenders, it was concluded that systemic institutionalized bias may negatively impact those who lack financial resources, many of whom are minorities. In addition, the existence of bias in the criminal justice system may infrequently be the result of racial and ethnic bias on the part of individual actors.
3. The majority of county prosecutors do not appear to have specific procedures for filing criminal charges.
4. A sample of out-of-custody and in-custody defendants showed that minorities are more likely to be held in custody following conviction and prior to sentencing. Consequently, minority defendants are less likely to give positive assistance in the pre-sentence investigation.
5. Language and cultural barriers between community corrections officers and minorities may adversely impact the ability of community corrections officers to do adequate presentence investigations, particularly in cases involving non-English speaking minority offenders.
-- pp. 11-12

[top]

—————————

Investigation

Washington State Studies: General . . . Investigation . . . Prosecution . . . Sentencing . . . Legal Financial Obligations . . . Imprisonment . . . Juvenile Justice

Mario L. Barnes & Robert S. Chang, Analyzing Stops, Citations, and Searches in Washington and Beyond, 35 Seattle U. L. Rev. 673 (2012)

Racial disproportionality in the criminal justice system is a fact. But the fact of racial disproportionality is the beginning and not the end of the conversation. The fact that blacks are overrepresented in stop, arrest, charge, pretrial detention, conviction, and incarceration statistics demonstrates only correlation and not causation. A number of commentators caution that disproportionality and the overrepresentation of blacks, Native-Americans, and Hispanics in Washington State’s prisons do not prove racial discrimination. Further, the fact of disproportionality at each stage of criminal justice processing does not prove that racial discrimination occurs at each particular stage. For example, the observed disproportionality at imprisonment might merely be a downstream artifact of disproportionality at conviction, which might in turn be a downstream artifact of pretrial detention, charge, arrest, or stop. Closer analysis of each stage is required in order to determine whether observed disproportionality is a product of legally relevant factors as opposed to suggesting more strongly that race plays an illegitimate role. This Article seeks to examine more closely the disproportionality with regard to traffic stops, citations, and searches. We focus on three reports produced by a team of researchers from Washington State University (WSU) that examine Washington State Patrol traffic stops, citations, and searches.

Katherine Beckett, Race and Drug Law Enforcement in Seattle (2004) (Prepared on behalf of the Defender Association’s Racial Disparity Project)

Key findings include:
• In Seattle, a majority of recent users of serious drugs, with the possible exception of crack cocaine, are white. All available data sources indicate that blacks comprise a smaller percentage of recent users of these drugs, again with the possible exception of crack.
• The majority of Seattle needle exchangers surveyed obtained their drugs (primarily heroin, methamphetamine, and cocaine) from a white person; much smaller percentages reported obtaining those substances (especially heroin and methamphetamine) from a black person.
• 64.2% of those purposefully arrested7 for delivery of serious drugs, including heroin, methamphetamine, powder cocaine, crack cocaine, and ecstasy, in Seattle from January 1999-April 2001 were black.
• Approximately one-third of Seattle’s outdoor drug transactions involve crack cocaine.
• By contrast, the vast majority (over 74%) of purposeful drug delivery arrests involved crack cocaine, and 79% of those purposefully arrested for delivering crack cocaine were black. This focus on crack is thus a leading cause of racial disparity in drug delivery arrests.
• Blacks are also over-represented among heroin delivery arrestees given evidence regarding the rate at which blacks deliver that substance.
-- pp. 6-7
In sum, the available evidence indicates that the majority of those who deliver serious drugs in Seattle are white, and that a smaller percentage of those who do so are black. And yet, according to Seattle Police Department arrest records, 64.2% percent of those purposefully arrested for this crime from January 1999-April 2001 were black; 14.1% were Latino, and 17.6% were white . . . . This disparity assumes even greater significance in light of evidence that the Seattle Police Department conducts significantly more drug delivery arrests than comparably sized cities around the United States . . . . p. 7
Analyses of arrest patterns indicate that the SPD’s concentration on racially diverse outdoor drug markets and on deliverers of crack cocaine, its lack of attention to predominantly white heroin markets and to whites involved in heroin delivery, and its targeting of black individuals in a variety of settings are the primary causes of racial disparity in delivery arrests. -- p. 8
[Neither] crime rates [nor] community complaints . . . explains racially disparate arrest rates. -- p. 8
[N]either the focus on crack nor the over-representation of blacks among arrestees more generally can be explained in racially neutral terms. -- p. 9

Katherine Ann Beckett, Declaration and Report (2005) summarizes the 2004 study for use in Farrakhan v. Gregoire.

Katherine Beckett, Race and Drug Law Enforcement in Seattle: Report for the American Civil Liberties Union and the Defender Association (2008)

The majority of those who use and deliver serious drugs in Seattle are white.
• Data from multiple sources – surveys of public school students, needle exchange clients, and the general Seattle population; mortality data; drug treatment admission data; and an observational study of two outdoor Seattle drug markets – all support the conclusion that a majority of those who use and deliver serious illegal drugs with the possible exception of crack cocaine in Seattle are white.
--p. 1
The majority of those purposefully arrested for delivering a serious drug in Seattle are black, and blacks are over-represented among drug arrestees to a greater degree than in nearly all other mid-sized cities.
• Although the city population is 8 percent black, two-thirds (67 percent) of those arrested in Seattle for delivery of a serious drug in a four-month sample from 2005–2006 were black.
• The black drug arrest rate in 2006 was more than 13 times higher than the white drug arrest rate.
• The black drug arrest rate for delivery of a serious drug is more than 21 times higher than the white arrest rate for the same crime.
• In 2006, only one of 38 comparable mid-sized cities had a higher degree of racial disproportionality in drug arrests than Seattle.
-- p. 1
The focus on crack cocaine is the fundamental cause of racial disparity in Seattle drug delivery arrests.
• The over-representation of blacks among drug delivery arrestees is not primarily a function of racial differences in drug delivery.
o Blacks delivering drugs downtown are 13.6 times more likely to be arrested than whites engaging in the same behavior in the same geographic area.
o Blacks are over-represented by a statistically significant margin among those arrested in the Capitol Hill and University District neighborhoods. • Most blacks who are arrested for delivering serious drugs are arrested downtown and outdoors. However, the majority of those arrested in other parts of the city and indoors are also black.
• The focus on crack cocaine is a fundamental cause of racial disparity in Seattle drug delivery arrests.
o Nearly three-fourths (72.9 percent) of those purposefully arrested for delivery of a serious drug in 2005–2006 were arrested for delivering crack cocaine. Nearly three-fourths (73.4 percent) of those purposefully arrested for delivering crack cocaine in 2005– 2006 were black.
o By contrast, fewer than 20 percent of those arrested for delivery of a serious drug other than crack were black.
-- p. 2
The focus on crack cocaine is not a function of race-neutral policy considerations.
• Powder cocaine and ecstasy are the most widely used serious drugs in Seattle.
• More Seattle residents are admitted to public drug treatment programs for heroin abuse than for crack cocaine abuse. Heroin users also report making more frequent purchases than crack cocaine users. The frequency with which crack cocaine is exchanged thus does not explain the over-representation of crack cocaine among Seattle drug arrestees.
• The focus on crack cocaine is not a function of public health considerations. Although crack cocaine use poses health risks, other serious drugs, especially heroin and other opiates, are more likely to be associated with drug-related mortality and infectious disease.
• The focus on crack cocaine is not a function of public safety risks. Among Seattle serious drug arrestees, those involved with crack cocaine were least likely to have a dangerous weapon in their possession at the time of their arrest.
• The focus on crack is not a consequence of civilian complaints about that particular substance: there is little geographic correspondence between complaints and delivery arrests, and most complainants do not identify the drug involved. Moreover, most civilian complaints about drug activity do not result in arrest, and most arrests do not involve a civilian complainant.
-- p. 3

Tal Klement & Elizabeth Siggins, A Window of Opportunity: Addressing the Complexities of the Relationship between Drug Enforcement and Racial Disparity in Seattle, 1 Seattle J. Soc. just. 165 (2002).

Our analysis suggests that there is a relationship between police drug enforcement and racial disparity that is complex and indirect, but not impossible to address. This relationship does not mean that the police are intentionally targeting persons of color. Instead, drug enforcement practices focus on visible street-level markets, which tend disproportionately to involve persons of color, but which are not necessarily reflective of all drug markets in Seattle. There are a number of factors that contribute to this complex relationship:
The Seattle Police Department’s mandate with respect to drug enforcement is unclear. . . .
The response-driven nature of drug enforcement does not necessarily fit the complex realities of drug markets. . . .
Seattle Police Department enforcement efforts target a limited conception of the harm of drug use and markets. . . .
The current focus on “sellers” versus “buyers” is problematic.
There is an important window of opportunity to address these issues. -- pp. 169-70

Clayton Mosher et al., The Importance of Context in Understanding Biased Policing: State Patrol Traffic Citations in Washington State, 9 Police Practice and Research 43 (2008).

Abstract: Several studies have provided evidence that racial profiling on the part of law enforcement agencies in the USA is a widespread problem. In contrast to most extant analyses of biased policing, our multivariate analyses of approximately 1.6 million traffic stops by the Washington State Patrol disaggregate the data from the state level to smaller jurisdictions and examine differences in rates of citation for several minority groups. The analyses reveal that, when racial/ethnic differences in the commission of traffic violations are taken into account, the initial effects of race/ethnicity on the probability of receiving a citation are greatly attenuated.

Clayton Mosher & J. Mitchell Pickerill, Methodological Issues in Biased Policing Research with Applications to the Washington State Patrol, 35 Seattle U. L. Rev. 769 (2012)

Racial profiling violates the United States Constitution’s premise that all people are equal under the law, as well as the Fourth Amendment’s guarantee that people should be free from unreasonable searches and seizures. Racial profiling has been found to result from individual officer racism or stereotyping, from institutionalized biases, and from the organizational culture of law enforcement agencies. We begin this Article by discussing the history of racial profiling before proceeding to consider various studies from a select number of American jurisdictions. We then examine important methodological and theoretical issues in conducting research on racial profiling and racially biased policing, including a detailed discussion of our research with the Washington State Patrol (WSP). These issues are important to consider because if studies of racial profiling are not based on sound scientific principles, then those who deny the existence of the problem can attribute revelations of bias to faulty research methodology. The Article concludes with a response to the critiques of our methodology and conclusions presented by Professors Mario Barnes and Robert Chang.

J. Mitchell Pickerill, Clayton Mosher & Travis C. Pratt, Search and Seizure, Racial Profiling, and Traffic Stops: A Disparate Impact Framework, 31 Law & Policy 1 (2009).

Abstract: In response to nationwide attention to the issue of racial profiling, numerous law enforcement agencies have reexamined their policies and collected data on the racial demographics of motorists stopped and searched by police. This article advocates a disparate impact framework for understanding the relationship between race and searches and seizures. Using data on the Washington State Patrol, analysis indicates that disparities in the proportions of racial minorities searched by the Patrol are likely not the result of intentional or purposeful discrimination. Additionally, factors such as age, sex, time of day, and the number of violations that motivated the stop affect the likelihood of a search.

[top]

—————————

Prosecution

Washington State Studies: General . . . Investigation . . . Prosecution . . . Sentencing . . . Legal Financial Obligations . . . Imprisonment . . . Juvenile Justice

Michael Callahan, Note, “If Justice Is Not Equal For All, It Is Not Justice”: Racial Bias, Prosecutorial Misconduct, and the Right to a Fair Trial in State v. Monday, 35 Seattle U. L. Rev. 827 (2012)

This Note argues that of the three opinions from Monday, Washington state courts should follow Chief Justice Madsen’s concurring opinion. The Monday decision also raises three questions that none of the opinions adequately answer: who does Monday apply to, what conduct does Monday forbid, and what is the legal source of the rules from Monday? The court will have to answer these questions in the future to determine the scope of its new rules. Part II of this Note discusses how Washington courts previously addressed the issue of prosecutorial misconduct and appeals to racial bias in trials. Part III analyzes the three opinions from Monday. In Part IV, this Note argues in favor of Chief Justice Madsen’s concurrence. Part V looks at the three questions that the Monday opinion raises, and Part VI concludes.

Robert D. Crutchfield, Racial and Ethnic Disparities in the Prosecution of Felony Cases in King County : Final Report (Olympia, Wash.: Washington State Minority and Justice Commission, Office of the Administrator for the Courts,[1995])

Abstract (from National Criminal Justice Reference Service): The study attempted to determine whether and under what circumstances the race and ethnicity of adult persons accused of felony crimes in King County influenced, either directly or indirectly, prosecutorial decisionmaking and the processing of felony criminal cases by the prosecuting attorney. Procedures and standards which the King County Prosecuting Attorney's Office adopted, which are reevaluated and changed regularly, appeared to produce cases handled in a systematic way based on legally relevant factors. Even so, there were some observable differences by race of offenders in case processing outcomes. The study could not draw definite conclusions as to the sources of those differences. Racial and ethnic differences in criminal justice are not necessarily the result of individuals making biased decisions, but may appear because of the adoption of laws and policies that differentially affect segments of the population. Notes, bibliography, tables, appendix.

Rodney L. Engen et al., The Impact of Race and Ethnicity on Charging and Sentencing Processes for Drug Offenders in Three Counties of Washington State: Final Report (1999).

Larry Michael Fehr, Racial and Ethnic Disparities in Prosecution and Sentencing: Empirical Research of the Washington State Minority and Justice Commission, 32 Gonz. L. Rev. 577 (1997), available on HeinOnline and Westlaw (subscription databases).

This article summarizes the findings from two recent studies of the [Washington State Minority and Justice] Commission focusing on racial and ethnic disparities in the prosecution of adult felony cases in King County and racial/ethnic disparities and exceptional sentences in Washington State. -- p. 578

Krista L. Nelson & Jacob J. Stender, Note, “Like Wolves in Sheep’s Clothing”: Combating Racial Bias in Washington State’s Criminal Justice System, 35 Seattle U. L. Rev. 849 (2012)

Despite their differences, both the majority and concurring opinions in Monday present new ways to address prosecutorial misconduct, deter the injection of racial bias into courtroom proceedings, and create substantively similar outcomes. Part II of this Note discusses the traditional prosecutorial misconduct test in Washington State, as well as the rules articulated by the Monday majority and concurrence. Part III discusses the implications of both the majority and concurring opinions, the primary differences in their approaches to deterrence, the degree of racial bias they require to warrant reversal of a conviction, and the discretion they afford the judiciary. Part III also suggests that courts must consider both the rights of criminal defendants and the aggregate impacts of racial bias on society at large when fashioning a rule to combat racial bias.

[top]

—————————

Sentencing

Washington State Studies: General . . . Investigation . . . Prosecution . . . Sentencing . . . Legal Financial Obligations . . . Imprisonment . . . Juvenile Justice

Robert D. Crutchfield et al., Racial / Ethnic Disparities and Exceptional Sentences in Washington State : [Final Report] (Olympia, Wash.: Washington State Minority and Justice Commission, Office of the Administrator for the Courts,[1993])

We conclude that exceptional sentences, both above and below the standard range, are used infrequently and that the relationship between race/ethnicity and the imposition of these sentences is very complex. Therefore, even though it appears that race has a modest effect on sentencing outside the standard range, simplistic notions about race and exceptional sentencing should be avoided. -- p. 3

Rodney L. Engen et al., The Impact of Race and Ethnicity on Charging and Sentencing Processes for Drug Offenders in Three Counties of Washington State: Final Report (1999).

Two central findings emerge from this study. First, this study demonstrates that charges are routinely changed between initial filing and conviction, suggesting that the decision-making that occurs prior to sentencing often has a greater impact on the punishment that offenders receive than does the exercise of discretion in sentencing. If there are differences in the way these decisions are made for different racial and ethnic groups, such differences could contribute to sentencing disparities that would be masked by “legal” factors (i.e., attributed to differences in offending behavior) at the sentencing stage. The second finding central to this report is that these changes in the severity of charges are, for the most part, not related to race or ethnicity. While we found some small differences in charging decisions, those did not consistently advantage or disadvantage any particular group of offenders. We conclude, therefore, that the data provide no evidence that race and ethnicity are important factors affecting charging
decisions for drug offenders. -- p. 2

Rodney L. Engen et al., Racial and Ethnic Disparities in Sentencing Outcomes for Drug Offenders in Washington State : FY 1996 to Fy 1999 (1999).

Two general findings of this study emerge as most central. First, while legally-relevant factors are the primary determinants of sentencing decisions, those factors do not entirely explain differences between white and minority offenders in sentencing outcomes. Second the relationship between race/ethnicity and sentencing varies across county courts. This study provides evidence that race and ethnicity continue to affect the sentencing of drug offenders in Washington State. This is true both for the severity of the sanction and the use of alternative sanctions. The use of those different types of sanctions varies by county class across the state and to some extent the relationship between race and ethnicity and sentencing varies across counties. This study clearly demonstrates that the process through which race and ethnicity affect sentencing is extremely complex, and further research must be conducted that takes a wide range of issues into account. -- p. 4

Larry Michael Fehr, Racial and Ethnic Disparities in Prosecution and Sentencing: Empirical Research of the Washington State Minority and Justice Commission, 32 Gonz. L. Rev. 577 (1997), available on HeinOnline and Westlaw (subscription databases).

This article summarizes the findings from two recent studies of the [Washington State Minority and Justice] Commission focusing on racial and ethnic disparities in the prosecution of adult felony cases in King County and racial/ethnic disparities and exceptional sentences in Washington State. -- p. 578

Paula Ditton Henzel, Disproportionality and Disparity in Adult Felony Sentencing 2003 (Wash. State Sentencing Guidelines Comm'n, [2003]).

People of color are over-represented at every stage of Washington’s criminal justice system, from arrest through sentencing and incarceration. In 2002, African Americans made up 21.3% of the state prison population, but just 3% of the state’s adult population. Hispanics accounted for 11% of the prison population, but just 7% of the state population. -- p. 3
People of color are over-represented in all three components of the justice system. In 2000, persons of color were represented in felony sentencing at nearly twice (1.8) their proportion in the population. By 2002, over-representation had decreased to 1.4. The overrepresentation of people of color is slightly greater in county jail bookings (1.6). Disproportionality is most severe in prison admissions. In 2002, people of color were represented in prison admission at twice their proportion in the population. -- p. 3

Nella Lee, Edward M. Vukich, Representation and Equity in Washington State : An Assessment of Disproportionality and Disparity in Adult Felony Sentencing : Fiscal Year 2000 (Olympia: State of Washington Sentencing Guidelines Commission,[2001])

This report examines both disproportionality (unequal representation of groups relative to their numbers in the general population) and disparity (unequal sentencing of similarly situated offenders) in adult felony sentencing . . . .Because the Commission’s sentencing data are limited in terms of demographic and extra-legal variables, and these data are neither readily available or easily obtainable, the Commission can only report on whether or not disproportionality and disparity are present in adult felony sentencing, not why they are or are not present.
The principal findings of this report are as follows:
* For total adult felony sentencing, statewide, African American females and males are the most overrepresented groups, followed by Native American females and males and Hispanic males.
* Asian/Pacific Islander females and males are the most underrepresented groups, followed by Hispanic females and Caucasian males, and Caucasian females.
* African American, Caucasian and Native American females are generally overrepresented to a greater extent than their male counterparts.
. . .
* Disparity is present in sentencing to alternatives and in exceptional sentences, though the groups receiving the disparate treatment vary with the type of sentence.
* African Americans receive life and death sentences at rates higher than those for every other group. The most egregious disparity is in sentencing for “Three-Strike” life sentences. African Americans are sentenced at a rate 6.0 times higher than that for Native Americans, 17.0 times higher than that for Hispanics, 18.6 times higher than that for Caucasians and 133.3 times higher than that for Asian/Pacific Islanders.
. . .
Because the findings reveal that disproportionality is prevalent in adult felony sentencing, and that disparity is present in certain facets of adult felony sentencing, further investigation is highly recommended.

Wash. State Sentencing Guidelines Comm'n, Disproportionality and Disparity in Adult Felony Sentencing Fiscal Year 2007 ([2008]).

In Calendar Year 2000, 2002, Fiscal Year 2005 African and Native Americans were the most over-represented groups in adult felony sentencing. This trend continued in fiscal year 2007 (Figure 3). Asian/ Pacific Islanders were under-represented during this same period. The most significant changes over the past 5 years include a steady increase in over-representation for Native Americans and a steady decrease in representation of Hispanic. The representation of Asian/Pacific Islands continued at the lowest rate and decreased in the last 7 years. -- p. 2

Wash. State Sentencing Guidelines Comm'n, Disproportionality and Disparity in Adult Felony Sentencing Fiscal Year 2005 (2005).

[top]

—————————

Legal Financial Obligations

Washington State Studies: General . . . Investigation . . . Prosecution . . . Sentencing . . . Legal Financial Obligations . . . Imprisonment . . . Juvenile Justice

Katherine Beckett, Alexes Harris & Heather Evans, The Assessment and Consequences of Legal Financial Obligations in Washington State (Olympia: Wash. State Minority & Justice Comm'n, 2008)

For the purposes of this study, LFOs include the fees, fines and restitution orders assessed by judges at the time of criminal conviction. Persons assessed LFOs for offenses committed after July 1, 2000 may remain under the court’s jurisdiction “until the [financial] obligation is completely satisfied, regardless of the statutory maximum for the crime.” -- p. 1
The results of the study indicate that the assessment of LFOs is characterized by a high degree of variability that cannot be attributed solely to the seriousness of the offense or the offender. -- p. 2
The analysis of court records also indicates that defendant, case and county characteristics significantly influence LFO assessment even after the seriousness of the offense and offender are taken into account. Specifically, convictions involving Hispanic defendants are associated with significantly higher fees and fines than those involving white defendants, even after controlling for relevant legal factors. Drug convictions are associated with significantly higher fees and fines than convictions involving violent offense charges. Convictions that result from a trial rather than a guilty plea are also associated with significantly higher fees and fines. Finally, cases involving male defendants are assessed higher fees and fines than cases involving female defendants. The assessment of LFOs also varies by jurisdiction. That is, even among cases involving identical charges and defendants with similar offense histories, there is significant county-level variation in the assessment of fees and fines. Counties characterized by smaller populations, higher drug arrest and violent crime rates, and/or comparatively small proportions of their budgets devoted to law and justice assess significantly higher fees and fines. The evidence thus indicates that defendants with similar criminal histories and charges may accrue very different amounts of legal debt depending upon where they are convicted. -- pp. 2-3
LFOs are an important barrier to the reintegration process. p. 3

Michael L. Vander Giessen, Note, Legislative Reforms for Washington State’s Criminal Monetary Penalties, 47 Gonz. L. Rev. 547 (2011)

Balancing the present racial and ethnic disparities in Washington’s criminal justice system requires state legislators to carefully assess contributing factors and seriously consider sentencing reforms. One contributing factor can be found in Washington’s laws governing criminal monetary penalties, known as legal financial obligations (“LFOs”). Many have criticized LFOs as creating de facto debtors’ prisons that disproportionately impact racial and ethnic minorities. These critics have also identified potential reforms but offered little practical guidance on how to implement them in Washington. As a complement to their work, this note offers a discussion draft of proposed legislation. Specifically, this note proposes that the Washington State Legislature alleviate the negative effects of LFOs by enacting legislation with four results: first, structuring the amount of nonrestitution LFOs to reflect the seriousness of the offense and the offender’s ability to pay; second, repealing the interest accrual on nonrestitution LFOs; third, reducing the annual interest rate on restitution LFOs from twelve percent to six percent; and finally, empowering the sentencing court to modify or convert nonrestitution LFOs when the offender’s financial circumstances change.
In Part II, this note explains the current law on LFOs and the challenges these standards present for criminal offenders and their families, especially racial and ethnic minorities. Part III explores the various historical responses to these problems, including the issues that have been litigated, the policy recommendations that have been made, and the legislative action that has resulted. Part IV proposes significant changes, explains their underlying policies, and considers how they would fit in with existing law. Part V concludes this note with a call for a comprehensive legislative response. The appendix sets forth a discussion draft of the proposed legislation. -- pp. 547-48 (footnotes omitted)

[top]

—————————

Imprisonment

Washington State Studies: General . . . Investigation . . . Prosecution . . . Sentencing . . . Legal Financial Obligations . . . Imprisonment . . . Juvenile Justice

George S. Bridges & Robert D. Crutchfield, Racial and Ethnic Disparities in Imprisonment : Executive Summary and Final Report (Seattle: University of Washington. Institute for Public Policy and Management, 1986). Available in libraries.

—————————

Juvenile Justice

Washington State Studies: General . . . Investigation . . . Prosecution . . . Sentencing . . . Legal Financial Obligations . . . Imprisonment . . . Juvenile Justice

Nella Lee, Juvenile Offenders: A Study of Disproportionality and Recidivism (Wash. State Sentencing Guidelines Comm'n, Olympia: 2001)

Michael D. Pullmann et al., Washington State Disproportionate Minority Contact Assessment (2013) (report by University of Washington Medical School Division of Public Behavioral Health and Justice Policy and the Washington State Partnership Council on Juvenile Justice)

Wash. State Sentencing Guidelines Comm'n, Disproportionality and Disparity in Juvenile Sentencing Fiscal Year 2005 ([2005]).

Wash. State Sentencing Guidelines Comm'n, Disproportionality and Disparity in Juvenile Sentencing Fiscal Year 2007 (2008).

Washington State Ctr. for Court Research, Disproportionate Minority Contact in the Juvenile Justice System (2012)

Task Force on Race and the Criminal Justice System, Supreme Court Presentation on Race and the Juvenile Justice System (TVW video) (March 28, 2012)

[top]


National Organizations

Race and Criminal Justice

ACLU Racial Justice Program

American Society of Criminology Division on People of Color and Crime. Books by members are listed here. Official journal is Race and Justice.

Center on Race, Crime and Justice (John Jay College of Criminal Justice, City University of New York)

Charles Hamilton Houston Institute for Race & Justice (Harvard Law School). Projects:

Equal Justice Initiative (Alabama)

McCleskey v. Kemp: 25 Years Later. McCleskey v. Kemp, 481 U.S. 279 (LII link), decided April 22, 1987, upheld the death sentence of an African-American man convicted of killing a white police officer, despite statistical evidence that Georgia's capital sentencing system had a disparate impact on blacks. This website, supported by 10 partner organizations, provides information about the case and its impact on criminal justice.

National Center for Mental Health and Juvenile Justice, Annotated Bibliography: Youth of Color (April 2008)

National Center for State Courts

National Council on Crime and Delinquency

National Criminal Justice Reference Service

  • Law Enforcement: Profiling
  • Juvenile Justice: Gender/Race/Ethnicity
  • NCJRS Abstracts Database – “contains summaries of the more than 200,000 criminal justice, juvenile justice, and substance abuse resources housed in the NCJRS Library collection. “ Search for racial disparity retrieved 500 records (the maximum). Consider using these subject headings in thesaurus search: Race; Race relations; Race-crime relationships; Race-punishment relationship; Racial discrimination; Racial/ethnic profiling; Racially motivated violence; Ethnic groups; Sentencing disparity

Racial Disparity Initiative (a project of the Council on Crime and Justice) (Minnesota)


The Sentencing Project

[top]

—————————

Youth Issues

ACLU School-to-Prison Pipeline

Children's Defense Fund Cradle to Prison Pipeline® Campaign

Civil Rights Project (UCLA) School-to-Prison Pipeline

schooltoprison.org ("provides a password-protected forum for impact litigators, direct services attorneys and other legal advocates across the nation to share ideas and strategies to challenge the push-out of children from schools and into the juvenile and criminal justice systems")

—————————

Race Generally

Kirwan Institute for the Study of Race and Ethnicity (Ohio State University). Institute does not appear to have projects directly related to criminal justice, but site has helpful materials about structural racism and how to talk about race.

University of Kentucky College of Law conference (Feb. 25, 2011), Structural Racism: Inequality in America Today. Bibliography.

Legal Services of Northern California Race Equity Project

Reading List and Annotated Bibliographies

American Psychological Association Office of Ethnic Minority Affairs, Annotated Bibliography of Psychology and Racism. Covers 1974-96

[top]


Bibliographies, Reading Lists, Indexes

Annotated Bibliography: Racial Disparities in the Criminal Justice System (from The Sentencing Project) (2003)

Annotated Bibliography: Youth of Color (April 2008), from National Center for Mental Health and Juvenile Justice.

Criminal Justice and Race. Readings compiled by Vernellia R. Randall Professor of Law, The University of Dayton

National Council on Crime and Delinquency, Publications Database includes 21 items under “Race and Justice.”

NCJRS Abstracts Database (from National Criminal Justice Reference Service) – “contains summaries of the more than 200,000 criminal justice, juvenile justice, and substance abuse resources housed in the NCJRS Library collection. “ Search for racial disparity retrieved 500 records (the maximum). Consider using these subject headings in thesaurus search: Race; Race relations; Race-crime relationships; Race-punishment relationship; Racial discrimination; Racial/ethnic profiling; Racially motivated violence; Ethnic groups; Sentencing disparity.

Race and Crime: An Annotated Bibliography, by Katheryn Russell Brown et al. (2000). Available in libraries.

Race & Ethnic Fairness Initiative: “database of the main findings and recommendations of the various commissions and task forces established by state judicial branches to investigate and improve racial and ethnic fairness in their courts,” from National Center for State Courts

Race and Justice Clearinghouse (from The Sentencing Project): “a resource for information, analysis, and commentary on race and ethnicity as they interact with the criminal justice and juvenile justice systems.”

Race, Crime and the Criminal Justice System: A Bibliography, by Joan Nordquist (1997). Available in libraries.

Race, Ethnicity, and the Criminal Justice System, by Katherine J. Rosich (2007). Research brief from American Sociological Association. Bibliography at pp. 24-31.

Racial Fairness Resource Guide, from National Center for State Courts

Research Bibliography (from Racial Disparity Initiative) – 14 pp. Bibliography is undated; latest item cited is from 2006.

[top]


Books on Crime, Race, and Society (General)

Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010). Available in libraries. Publisher's page.

Alexander examines the great disproportionality of people of color in prison, its causes, and its impacts. She argues that many practices add up to create the disproportionality, such as law enforcement stopping people based on race, raiding black neighborhoods, and relying on informants who only know people of their own race; prosecutors exercising their discretion to "load up" charges to get plea bargains; and mandatory minimum sentences and three strikes rules creating incredibly long sentences. Extensive footnotes back up her claims.

See multimedia links.

Katherine Beckett, Making Crime Pay: Law and Order in Contemporary American Politics (2000). Available in libraries. Publisher's summary:

Most Americans are not aware that the US prison population has tripled over the past two decades, nor that the US has the highest rate of incarceration in the industrialized world. Despite these facts, politicians from across the ideological spectrum continue to campaign on "law and order" platforms and to propose "three strikes"--and even "two strikes"--sentencing laws. Why is this the case? How have crime, drugs, and delinquency come to be such salient political issues, and why have enhanced punishment and social control been defined as the most appropriate responses to these complex social problems? Making Crime Pay: Law and Order in Contemporary American Politics provides original, fascinating, and persuasive answers to these questions.

According to conventional wisdom, the worsening of the crime and drug problems has led the public to become more punitive, and "tough" anti-crime policies are politicians' collective response to this popular sentiment. Katherine Beckett challenges this interpretation, arguing instead that the origins of the punitive shift in crime control policy lie in the political rather than the penal realm--particularly in the tumultuous period of the 1960s.

Katherine Beckett & Theodore Sasson, The Politics of Injustice: Crime and Punishment in America (2d ed. 2004). Available in libraries. Publisher's page.

David Cole, No Equal Justice: Race and Class in the American Criminal Justice System (10th Anniversary ed. 2010). Publisher's summary:

First published a decade ago, No Equal Justice is the seminal work on race- and class-based double standards in criminal justice. Hailed as a “shocking and necessary book” by The Economist, it has become the standard reference point for anyone trying to understand the fundamental inequalities in the American legal system. The book, written by constitutional law scholar and civil liberties advocate David Cole, was named the best nonfiction book of 1999 by the Boston Book Review and the best book on an issue of national policy by the American Political Science Association.

No Equal Justice examines subjects ranging from police behavior and jury selection to sentencing, and argues that our system does not merely fail to live up to the promise of equality, but actively requires double standards to operate. Such disparities,Cole argues, allow the privileged to enjoy constitutional protections from police power without paying the costs associated with extending those protections across the board to minorities and the poor.

For this new, tenth-anniversary paperback edition, Cole has completely updated and revised the book, reflecting the substantial changes and developments that have occurred since first publication.

Randall Kennedy, Race, Crime and the Law (1997). Available in libraries. Publisher's summary:

In this groundbreaking, powerfully reasoned, lucid work that is certain to provoke controversy, Harvard law professor Randall Kennedy takes on a highly complex issue in a way that no one has before. Kennedy uncovers the long-standing failure of the justice system to protect blacks from criminals, probing allegations that blacks are victimized on a widespread basis by racially discriminatory prosecutions and punishments, but he also engages the debate over the wisdom and legality of using racial criteria in jury selection. He analyzes the responses of the legal system to accusations that appeals to racial prejudice have rendered trials unfair, and examines the idea that, under certain circumstances, members of one race are statistically more likely to be involved in crime than members of another.

Catherine Y. Kim, Daniel J. Losen & Damon Hewitt, The School to Prison Pipeline: Structuring Legal Reform (2010). Available in libraries. Publisher's page.

Marc Mauer, Race to Incarcerate (New York: New Press in conjunction with the Sentencing Project, 2d ed. 2006) . Available in libraries. Publisher's page.

Charles Ogletree, The Presumption of Guilt: The Arrest of Henry Louis Gates, Jr. and Race, Class, and Crime in America (2010). Available in libraries. Publisher's summary:

Shortly after noon on Tuesday, July 16, 2009, Henry Louis Gates, Jr., MacArthur Fellow and Harvard professor, was mistakenly arrested by Cambridge police sergeant James Crowley for attempting to break into his own home. The ensuing media firestorm ignited debate across the country. The Crowley-Gates incident was a clash of absolutes, underscoring the tension between black and white, police and civilians, and the privileged and less privileged in modern America. Charles Ogletree, one of the country’s foremost experts on civil rights, uses this incident as a lens through which to explore issues of race, class, and crime, with the goal of creating a more just legal system for all.
Working from years of research and based on his own classes and experiences with law enforcement, the author illuminates the steps needed to embark on the long journey toward racial and legal equality for all Americans.
See multimedia link.

Alexander Papachristou, ed., Blind Goddess: A Reader on Race and Justice (2011). Available in libraries. Publisher's page.

Nicolle Y Parsons-Pollard, ed., Disproportionate Minority Contact: Current Issues and Policies (2011). Available in libraries. Publisher's page.

Mark Peffley & Jon Hurwitz, Justice in America: The Separate Realities of Blacks and Whites (2010). Available in libraries. Publisher's summary:

As reactions to the O. J. Simpson verdict, the Rodney King beating, and the Amadou Diallo killing make clear, whites and African Americans in the United States inhabit two different perceptual worlds, with the former seeing the justice system as largely fair and color blind and the latter believing it to be replete with bias and discrimination. The authors tackle two important questions in this book: what explains the widely differing perceptions, and why do such differences matter? They attribute much of the racial chasm to the relatively common personal confrontations that many blacks have with law enforcement – confrontations seldom experienced by whites. More importantly, the authors demonstrate that this racial chasm is consequential: it leads African Americans to react much more cynically to incidents of police brutality and racial profiling, and also to be far more skeptical of punitive anti-crime policies ranging from the death penalty to three-strikes laws.

Doris Marie Provine, Unequal Under Law: Race in the War on Drugs (2007) Available in libraries. Publisher's summary:

Race is clearly a factor in government efforts to control dangerous drugs, but the precise ways that race affects drug laws remain difficult to pinpoint. Illuminating this elusive relationship, Unequal under Law lays out how decades of both manifest and latent racism helped shape a punitive U.S. drug policy whose onerous impact on racial minorities has been willfully ignored by Congress and the courts.

Doris Marie Provine’s engaging analysis traces the history of race in anti-drug efforts from the temperance movement of the early 1900s to the crack scare of the late twentieth century, showing how campaigns to criminalize drug use have always conjured images of feared minorities. Explaining how alarm over a threatening black drug trade fueled support in the 1980s for a mandatory minimum sentencing scheme of unprecedented severity, Provine contends that while our drug laws may no longer be racist by design, they remain racist in design. Moreover, their racial origins have long been ignored by every branch of government. This dangerous denial threatens our constitutional guarantee of equal protection of law and mutes a much-needed national discussion about institutionalized racism—a discussion that Unequal under Law promises to initiate.

Michael Tonry, Punishing Race: A Continuing American Dilemma (2011). Available in libraries. Publisher's page.

Michael Tonry, Thinking about Crime:Sense and Sensibility in American Penal Culture (2006). Available in libraries. Publisher's summary:

In this wide-ranging analysis, Michael Tonry argues that those responsible for crafting America's criminal justice policy have lost their way in a forest of good intentions, political cynicism, and public anxieties. American crime control politics over time have created a punishment system no one would knowingly have chosen yet one that no one seems able to change. Prevailing sensibilities rather than timeless truths govern the American war on crime, resulting in policies both wasteful and harsh. U.S. crime trends closely resemble those of other nations, yet American policies, shaped by different sensibilities, are much more punitive.

Seamlessly blending history with an easy presentation of day-to-day realities and empirical evidence, Tonry proposes tangible, specific solutions that can serve as a platform for criminal justice reform. We know how to create an effective and humane criminal justice system. Now we must have the courage to do so, by abandoning the current status quo, which is both costly and cruel in favor of practices that will move America closer to the mainstream of contemporary Western values.

[top]


Articles, Reports, and Books (by Topic)

General . . . Gangs . . . History . . .  Incarceration . . .  Investigation . . . Judges . . . Prison Labor . . . Remedies . . . Socio-Economic Factors . . . Stereotype and Bias . . .

General

American Civil Liberties Union of Northern California, Race & Ethnicity in America: Turning a Blind Eye to Justice (2007).

Discusses right to counsel (pp. 50-57), racial and ethnic profiling (pp. 58-68), minority over-representation in criminal justice system (pp. 78-86), race bias in application of death penalty (pp. 106-07).

Robert D. Crutchfield, April Fernandes & Jorge Martinez, Racial and Ethnic Disparity and Criminal Justice: How Much Is Too Much?, 100 J. Crim. L. & Criminology 903 (2010). Reviews literature, including studies of both juvenile and adult criminal justice systems.

This review confirms that racial and ethnic disparities exist in both the American juvenile and adult criminal justice systems. Recent research also confirms that the degree of this disparity varies across jurisdictions, and it appears at different decision points in different jurisdictions. Some studies find moderate to large differences between the ways in which whites, blacks, and Latinos experience justice systems. Others report small differences, some report that they do not uncover evidence of racial and ethnic disproportionality, and still others note disadvantages for whites. Both African Americans and Latinos continue to be overrepresented in prisons, but much of the difference is based on higher levels of involvement by people from these groups in crime. That said, Blumstein, who published the classic paper that concluded that 80% of black/white differences in imprisonment was “warranted” by higher black violent crime rates, has updated that work, looking at crime specific imprisonment rates. He has found great variability; in particular, far less than 80% of black/white differences in imprisonment for drug offenses can be accounted for by behavior differences (in fact, just under 50%). Since so much of America’s three-decade imprisonment binge has been fueled by the War on Drugs, we should be more cautious if we conclude that a great deal of imprisonment differences can be accounted for with legally relevant variables.
What is also clear is that, as we expected, research on data gathered in recent decades provides evidence of disparity, and those disparities are far less than was observed earlier in the twentieth century. . . . It is clear that criminal justice practices in the United States have come a long way towards racial and ethnic justice in the past one hundred years. Unfortunately the evidence indicates that we still have distance to travel to reach that “more perfect union.” -- pp. 928-29 (footnotes omitted)
[T]he aggregate products of differences observed in individual processing amount to real differences to black and brown populations in the United States. Given the massive increase in American imprisonment that has, in part, been fueled by the War on Drugs, these aggregate patterns, especially Blumstein’s more recent work reporting that only one-half of racial disparities in drug imprisonments can be accounted for by behavior, should be particularly alarming.
There is another problem associated with allowing modest or even small racial disparities to persist without challenge. They add substance to the narrative of injustice; a long held belief by many in black and brown communities holds that rules and fair play do not apply to people of color when they are confronted by the state. -- pp. 931-32

Hon. Barbara Madsen, Racial Bias in the Criminal Justice System, 47 Gonz. L. Rev. 243 (2011) (keynote address for symposium, Race and Criminal Justice in the West, Gonz. L. Rev., vol. 42, no. 2 (2012))

Katherine J. Rosich, Race, Ethnicity, and the Criminal Justice System (2007). Research brief from American Sociological Association. Bibliography at pp. 24-31.

William J. Stuntz, Unequal Justice, 121 Harv. L. Rev. 1969 (2008)

Inequality is a core feature of American criminal justice, but its causes remain obscure. Official racism has declined even as the black share of the prison population has risen. The generation that saw the rise of enormous, racially skewed punishment for drug crime followed the generation that saw the rise of civil rights for black Americans and racially integrated police forces. What explains these trends? One answer — the decline of local democracy — has received too little attention in the growing literature on this subject. A century ago outside the South, high-crime city neighborhoods were largely self-governing; residents of those neighborhoods decided how much criminal punishment to impose, and on whom. Those locally democratic justice systems were both remarkably effective and surprisingly egalitarian. During the latter half of the twentieth century, local democratic control over criminal justice unraveled. Residents of high-crime cities grew less powerful; suburban voters, legislators, and appellate judges grew more so. Prison populations fell sharply, then rose massively. The effects of both the fall of criminal punishment and its subsequent rise were disproportionately felt in urban black neighborhoods. The justice system grew less equal, and less just.
Parts I and II of the Article explore these trends. Part III turns to the future, and asks what steps might be taken to reverse them. I suggest three changes: better-funded local police forces, more trials to locally selected juries, and more vaguely defined crimes (to give those juries opportunities to exercise judgment). Those changes would make urban criminal justice more democratic, more lenient — and more egalitarian.
-- Abstract, p. 1979

[top]

—————————

Disenfranchisement

Jennifer Rae Taylor, Constitutionally Unprotected: Prison Slavery, Felon Disenfranchisement, and the Criminal Exception to Citizenship Rights,47 Gonz. L. Rev. 365 (2011)

The disenfranchisement and enslavement of American citizens derives its constitutional legality under the criminal exceptions to the Thirteenth and Fourteenth Amendments. This fact has largely shielded the policies from widespread public
disapproval and obscured their racial roots. -- p. 391

[top]

—————————

Gangs

Charles Hamilton Houston Institute for Race & Justice, No More Children Left Behind Bars A Briefing on Youth Gang Violence and Juvenile Crime Prevention (March 6, 2008).

[top]

—————————

History

Jason A. Gillmer, Crimes of Passion: The Regulation of Interracial Sex in Washington, 1855-1950,47 Gonz. L. Rev. 393 (2011)

[top]

—————————

Incarceration

James Forman, Jr., Why Care About Mass Incarceration?, 108 Mich. L. Rev. 993 ( 2010) (reviewing Paul Butler, Let's Get Free: A Hip-Hop Theory of Justice (2009))

Jacqueline Johnson, Mass Incarceration: A Contemporary Mechanism of Racialization in the United States, 47 Gonz. L. Rev. 301 (2011)

Mass incarceration dominates the social and economic context of life for millions of African Americans, and continues a historical pattern of structural disadvantage that is defined by race. This article examines the broader consequences of prison expansion by focusing on its contribution to contemporary racial ideologies and structures of economic disadvantage. While other scholars have argued that ideological beliefs about African American criminality have facilitated their disproportionately high rates of imprisonment, this article argues that ideological beliefs about race are also informed by African American men’s disproportionately high rates of incarceration. Mass incarceration produces structures of disadvantage, as economic disparities are magnified along racial lines long after ex-inmates are released. Ultimately, this article develops the idea that mass incarceration operates as a contemporary mechanism of racialization—a structure for continuing social stigma and economic marginalization by race—and illustrates this point by examining the impact of incarceration stigma on labor market exclusion.

Pew Center on the States, One in 100: Behind Bars in America 2008 (2008)

Pew Center on the States, One in 31: The Long Reach of American Corrections (2009). Errata sheet.

The escalation of the prison population has been astonishing, but it hasn’t been the largest area of growth in the criminal justice system. That would be probation and parole—the sentenced offenders who are not behind bars. -- p. 1
Looking at the numbers through the lenses of race and gender reveals stark differences. Black adults are four times as likely as whites and nearly 2.5 times as likely as Hispanics to be under correctional control. One in 11 black adults — 9.2 percent—was under correctional supervision at year end 2007. And although the number of female offenders continues to grow, men of all races are under correctional control at a rate five times that of women. -- p. 5

Pew Center on the States, Prison Count 2010: State Population Declines for the First Time in 38 Years (2010). Washington was one of the states whose prison population went up -- 1.7%

Pew Center on the States, Collateral Costs: Incarceration's Effect on Economic Mobility (2010)

[top]

—————————

Investigation

American Civil Liberties Union of Northern California Foundation, The California DWB Report: A Report from the Highways, Trenches and Halls of Power in California (2002)

Ricardo J. Bascuas, Fourth Amendment Lessons from the Highway and the Subway: A Principles Approach to Suspicionless Searches, 38 Rutgers L.J. 719 (2007)

Lenese C. Herbert, O.P.P.: How "Occupy's" Race-Based Privilege May Improve Fourth Amendment Jurisprudence for All, 35 Seattle U. L. Rev. 727 (2012)

This Article submits that Occupy’s race problem could, ironically, prove to be a solution if protesters grow more serious about exposing the injury of political subordination and systems of privilege that adhere to the criminal justice system. Privilege is a “systemic conferral of benefit and advantage [as a result of] affiliation, conscious or not and chosen or not, to the dominant side of a power system.” Accordingly, now that police mistreatment affects them personally, Occupy may finally help kill a fictitious Fourth Amendment jurisprudence that ignores oppression through improper policing based on racial stigma. Occupy may also help usher in an era in which courts are free(er) to produce a more legitimate jurisprudence regarding police conduct that inspires greater confidence in reality-based adjudications of modern (albeit longstanding) police misconduct, irrespective of race, as the current “[s]ystems of privilege maintain hierarchies of inequality, adversely impacting the possibility of full societal participation.”

Tracy Maclin, Black and Blue Encounters -- Some Preliminary Thoughts About Fourth Amendment Seizures: Should Race Matter?, 26 Val. U. L. Rev. 249 (1991)

[top]

—————————

Judges

David S. Abrams, Marianne Bertrand & Sendhil Mullainathan, Do Judges Vary in Their Treatment of Race? (Univ. of Pa. Law Sch. Inst. for Law & Econ. Research Paper No. 11-07), available at http://ssrn.com/abstract=1800840, J. Legal Studies (forthcoming). Study of felony cases in Cook County, IL, finds that, controlling for many factors, black defendants are more likely to be incarcerated than similarly situated white defendants. Part II (pp. 5-8) is a literature review.

Theodore Eisenberg, Talia Fisher, & Issi Rosen-Zvi, Actual Versus Perceived Performance of Judges, 35 Seattle U. L. Rev. 695 (2012)

Perceptions of judges ought to be based on their performance. Yet, few studies of the relation between perceived and actual judicial performance exist. Those claiming judicial bias should be especially sensitive to the relation between perception and performance. Judges perceived by the public or by the legal community as disfavoring a group may be regarded as biased, but that perception is unfair if the judges’ votes in cases do not disfavor the group. For example, it may be unfair to accuse an appellate judge of pro-state bias in criminal cases if the judge votes for defendants at a higher rate than several other judges on the same court. This Article addresses whether perception matches reality.Part II of this Article provides background information about the Israeli judiciary. Part III presents survey results regarding the Israeli legal community’s perceptions of sixteen ISC justices’ tendencies in criminal cases. The survey asked respondents the degree to which they believe individual justices are favorable to the state or to defendants. Part IV compares the survey results with justices’ actual voting patterns in criminal cases. Part V explores the differences between perceptions reported in Part III and the reality reported in Part IV. Part VI concludes.

[top]

—————————

Prison Labor

Andrea C. Armstrong, Slavery Revisited in Penal Plantation Labor, 35 Seattle U. L. Rev. 869 (2012)

This Article argues that society must critically examine the types of labor we require our inmates to perform and prohibit the imposition of slavery, even when the enslaved is an inmate. Part II focuses on the text and history of Section 1 of the Thirteenth Amendment11 and argues that the Amendment’s exception allowing forced inmate labor is not as broad as it first appears. Part III examines the Eighth Amendment and how the imposition of slave status on inmates should be considered cruel and unusual punishment. Lastly, Part IV applies these concepts to the history and operation of one such penal plantation, Louisiana State Penitentiary. This Article concludes by cautioning legislatures and prison wardens to be more cognizant of the inherent harms in selecting certain types of labor for inmates and will hopefully spark a broader public discussion on when inmate labor may be another form of slavery.

Jennifer Rae Taylor, Constitutionally Unprotected: Prison Slavery, Felon Disenfranchisement, and the Criminal Exception to Citizenship Rights,47 Gonz. L. Rev. 365 (2011)

The disenfranchisement and enslavement of American citizens derives its constitutional legality under the criminal exceptions to the Thirteenth and Fourteenth Amendments. This fact has largely shielded the policies from widespread public
disapproval and obscured their racial roots. -- p. 391

top
—————————

Prosecution

Justin S. Murray, Re-Imagining Criminal Prosecution: Toward a Color-Conscious Professional Ethic for Prosecutors, 49 Am. Crim. L. Rev. (forthcoming 2012), available at http://ssrn.com/abstract=2018668. —————————

Racial Profiling

Sahar F. Aziz, Caught in a Preventive Dragnet: Selective Counterterrorism in a Post-9/11 America, 47 Gonz. L. Rev. 429 (2011)

This article focuses on three powerful components of the government’s counterterrorism preventive paradigm and the significant risks they pose to civil rights and civil liberties. Part I examines the adverse consequences of the
government’s use of religiosity as a proxy for terrorism. . . .
Part II demonstrates the government’s aggressive use of “material support” laws found in 18 U.S.C. §§ 2339A and B as a prosecutorial fallback against individuals that otherwise cannot be shown to have participated in terrorism. . .
Part III focuses on the most recent and troubling developments in the preventive paradigm—the racial subtext of homegrown terrorism as a “Muslims only” club.
-- pp. 434-35

[top]

—————————

Remedies

Sahar Fathi, Race and Social Justice as a Budget Filter: The Solution to Racial Bias in the State Legislature? 47 Gonz. L. Rev. 531 (2011)

Part I of this article begins with a short explanation of institutional racism. It continues by tying racial bias and the legal system together through the historical implementation of laws and policies that benefit white individuals and act to the detriment of people of color. Part I also identifies legislation that has disproportionately impacted people of color (some of which was intended to do the opposite), and demonstrates disproportionalities in the prison system resulting from such legislation.
Part II of this article examines a handful of jurisdictions that have adopted racial impact statements. Part III looks at jurisdictions that have a high number of individuals in the corrections system and have chosen to reduce corrections budgets. Although available data is limited, the tentative results are surprising—a reduction in the corrections budget does not necessarily lead to an increase in crime. Thus, reducing correctional budgets and implementing less costly alternatives to prison may be both cheaper for states and more racially equitable. Racial impact statements can facilitate this process by enabling legislators, policymakers, and community members to engage in the thorough analysis needed to ensure budget cuts and other important fiscal decisions are appropriately made. -- p. 534

Brooks Holland, Race and Ambivalent Criminal Procedure Remedies, 47 Gonz. L. Rev. 341 (2011)

[C]ourts appear committed to remedying equal protection violations in criminal cases when the violation harms an “innocent” victim, such as a juror during jury selection. But, when the equal protection violation affects only the “guilty” criminal defendant, many courts revert to a position of ambivalence—not outright disregard, but mixed feelings of ambivalence contributing to notably hushed tones in criminal courts on the subject of race.5 This judicial ambivalence, I will suggest, may reflect judicial deference to misguided utilitarian and moral premises about the role of race in our criminal justice system.
This paper will propose that courts instead should commit to remedying all equal protection violations in criminal cases, consistent with the nature and gravity of this wrong. To illustrate, this paper will highlight the concurring opinion of Washington State Supreme Court Chief Justice Barbara Madsen in State v. Monday. In Monday, Chief Justice Madsen argued that “[r]egardless of the evidence of [a] defendant’s guilt, the injection of insidious discrimination . . . is so repugnant to the core principles of integrity and justice upon which a fundamentally fair criminal justice system must rest that only a new trial will remove its taint.” This paper concludes that only this approach properly will curb and sanction intentional discrimination in criminal cases, and ensure that the law engages the important and ongoing story of race in our criminal justice system. -- pp. 342-43 (footnotes omitted)

Jesse J. Norris, State Efforts to Reduce Racial Disparities in Criminal Justice: Empirical Analysis and Recommendations for Action, 47 Gonz. L. Rev. 493 (2011)

A number of states have begun high-level processes to analyze and reduce racial and ethnic disparities in the criminal justice system. This article provides a preliminary empirical evaluation of these efforts, focusing on both the governance and substantive content of the anti-disparities processes. Results indicate that these efforts are not governed in a systematic and transparent manner, and tend to ignore or neglect the most glaring causes of disparity and the most promising measures to reduce them. This article discusses how anti-disparities processes and concerned citizens can stimulate more vigorous and effective strategies to minimize racial disparities. -- p. 493

[top]

Socio-Economic Factors in Criminal Justice

American Civil Liberties Union of Northern California & W. Haywood Burns Institute, Balancing the Scales of Justice: An Exploration into How Lack of Education, Employment, and Housing Opportunities Contribute to Disparities in the Criminal Justice System (2010). County profiles are in a separate supplement. For summary, see press release.

Open Society Institute, Moving Toward a More Integrative Approach to Justice Reform: Policy Report (Feb. 2008)

A defining characteristic of America’s criminal justice system is its disproportionate impact on the poor and people of color, particularly young men of color. Profound connections exist between what has been called a “cycle of incarceration” and such unaddressed social conditions as education, economic opportunity, housing, poverty, race, and health. This cycle of incarceration is fueled by criminal justice policies that emphasize incarceration over the kinds of human service interventions that address the individual, family, school, and environmental risk factors for delinquent or criminal behavior.
This report posits that in order to make real progress in breaking the cycle of incarceration, advocates, researchers, service providers, and academics need to break out of their disciplinary silos, share information, and develop collaborative approaches to abate the disproportionate numbers of the poor and people of color entering into and cycling through the criminal justice system. This report presents a vision of an integrative approach to justice reform – an approach that utilizes multi-disciplinary collaboration to share perspectives on the issues that fuel the cycle of incarceration, to promote public investments in effective intervention strategies, and to advance public safety by decreasing the likelihood that a person will engage in risky or criminal behavior, instead of building more prisons and jails. A more integrative approach to policymaking and resource allocation would help to ensure that the limited pool of available public resources are used most effectively to address the issues of poverty, race, economic opportunity, education, family, and housing inherent in the cycle of incarceration. -- p. 2

[top]

—————————

Stereotypes and Bias

Anthony G. Greenwald & Linda Hamilton Krieger, Implicit Bias: Scientific Foundations, 94 Calif. L. Rev. 945 (2006), available on HeinOnline (commercial database). A prepublication draft that as submitted in Farrakhan v. Gregoire is here.

This Article introduces implicit bias--an aspect of the new science of unconscious mental processes that has substantial bearing on discrimination law. Theories of implicit bias contrast with the "naive" psychological conception of social behavior, which views human actors as being guided solely by their explicit beliefs and their conscious intentions to act. A belief is explicit if it is consciously endorsed. An intention to act is conscious if the actor is aware of taking an action for a particular reason. Of course, actors may dissemble and deny they are taking an action for a particular reason, so conscious intentions based on explicit beliefs may be hard to verify. But a deceitful actor is nevertheless capable of asserting the belief or identifying the intention that provides the basis for action, even when unwilling to do so. In contrast, the science of implicit cognition suggests that actors do not always have conscious, intentional control over the processes of social perception, impression formation, and judgment that motivate their actions. -- p. 946 (footnotes omitted)

Christian M. Halliburton, Race, Brain Science, and Critical Decision-Making in the Context of Constitutional Criminal Procedure, 47 Gonz. L. Rev. 319 (2011)

This article proceeds in three basic parts. Part I provides a brief survey of research depicting a connection between race and neurological functioning. While many features of this connection could be highlighted, Part I focuses on the role of emotion, trust determinations, and bias awareness as particularly salient aspects for purposes of police regulation. Part II turns to identify some of the common perceptual and decision-making scenarios with which the law of criminal procedure must deal. It is these situations where our neurological conditioning can be most influential and our neuroscientific insights can be most useful. Finally, Part III takes a brief look at the social and legal implications of the findings presented herein. It seeks to situate a race-meets-brain-science approach to thinking about criminal procedure within the larger discourse of race as a cultural construct. The article concludes by suggesting ways in which the law might be forced to conform to our new understandings. -- p. 322

Jon Hurwitz & Mark Peffley, Public Perceptions of Race and Crime: the Role of Racial Stereotypes, Am. J. Pol. Sci. 375 (1997) Implicit Racial Bias Across the Law (Justin D. Levinson & Roger J. Smith eds., 2012), available in libraries. Publisher's page.

Table of Contents:
1. Implicit racial bias: a social science overview Justin D. Levinson, Danielle M. Young and Laurie A. Rudman
2. Property law: implicit bias and the resilience of spatial color lines Michele Wilde Anderson and Victoria C. Plaut
3. Criminal law and procedure: coloring punishment: implicit social cognition and criminal justice Charles Ogletree, Robert J. Smith and Johanna Wald
4. Torts: implicit bias inspired torts Deana Pollard Sacks
5. Employment law: implicit bias in employment litigation Nancy Gertner and Melissa Hart
6. Health law: cognitive bias in medical decision making Michele Goodwin and Naomi Duke
7. Education law: unconscious racism and the conversation about the racial achievement gap Charles R. Lawrence, III
8. Communications law: bits of bias Jerry Kang
9. Corporations: biased corporate decision making? Justin D. Levinson
10. Tax law: implicit bias and the earned income tax credit Dorothy A. Brown
11. Intellectual property: implicit racial and gender bias in right of publicity cases and intellectual property law generally Danielle M. Conway
12. Environmental law: a tale of two neighborhoods: implicit bias and environmental decision making Rachel D. Godsil
13. Federal Indian law: implicit bias against native peoples as sovereigns Susan K. Serrano and Breann Swann Nu'uhiwa
14. Capital punishment: choosing life or death (implicitly) Robert J. Smith and G. Ben Cohen
15. Reparations law: redress bias? Eric K. Yamamoto and Michele Park Sonen.

Cynthia Lee, Making Race Salient: Trayvon Martin and Implicit Bias in a Not Yet Post-Racial Society, 91 N.C. L. Rev. (2013), HeinOnline

This Article uses the Trayvon Martin shooting to examine the operation of implicit racial bias in cases involving self-defense claims. Judges and juries are often unaware that implicit racial bias can influence their perceptions of threat, danger, and suspicion in cases involving minority defendants and victims. Failure to recognize the effects of implicit racial bias is especially problematic in cases involving black male victims and claims of self-defense because such bias can make the defendant's fear of the victim and his decision to use deadly force seem reasonable. The effects of implicit racial bias are particularly likely to operate under the radar screen in a society like ours that views itself as post-racial.
Recent social science research on race salience by Samuel Sommers and Phoebe Ellsworth suggests that individuals are more likely to overcome their implicit biases if race is made salient than if race is simply a background factor-known but not highlighted. Making race salient or calling attention to the relevance of race in a given situation encourages individuals to suppress what would otherwise be automatic, stereotypic congruent responses in favor of acting in a more egalitarian manner. In the Trayvon Martin case, race was made salient by the huge public outcry over the Sanford Police Department's failure to arrest George Zimmerman and accusations of racial profiling, which received extensive media coverage. Most criminal cases, however, do not receive the kind of media attention received in the Trayvon Martin case. In most criminal cases involving a minority defendant or victim, race is a background factor but is not something either party tries to highlight. The parties may think race is not relevant, or they may fear that if they call attention to race, they will be accused of playing the race card. Race, however, often is relevant to questions about the reasonableness of fear, and calling attention to race may be the best way to defuse the adverse effects of implicit racial bias.
Building on these insights, this Article suggests that in the run-of- the-mill case, when an individual claims he shot a young black male in self-defense, the police, the prosecutor, the judge, and the jury are likely to find reasonable the individual's claim that he felt he was being threatened by the young Black male unless mechanisms are in place to make the operation of racial stereotypes in the creation of fear salient. The Article concludes with some suggestions as to how prosecutors and defense attorneys concerned about the operation of implicit racial bias can make race salient in the criminal courtroom.

Andrea D. Lyon, Race Bias and the Importance of Consciousness for Criminal Defense Attorneys, 35 Seattle U. L. Rev. 755 (2012)

This Article will begin with a discussion of race bias and will examine who in the criminal justice system has such biases. These concepts will provide a backdrop to the next Part, where I will turn to an analysis about the need for criminal defense lawyers to be conscious of race bias. I focus on two specific circumstances in which awareness of one’s own racial bias is imperative: interacting with clients and voir dire. But first, we must come to an understanding about the nature of race bias itself.

Mark Peffley, Jon Hurwitz & Paul Sniderman, Racial Stereotypes and Whites' Political Views of Blacks in the Context of Welfare and Crime, 41 Am. J. Pol. Sci. 30 (1997)

Robert J. Smith & Justin D. Levinson, The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion, 35 Seattle U. L. Rev. 795 (2012)

The Article is organized as follows: Part II provides an introduction to implicit bias research, orienting readers to the important aspects of implicit bias most relevant to prosecutorial discretion. Part III begins the examination of implicit bias in the daily decisions of prosecutors. The Part presents key prosecutorial discretion points and specifically connects each of them to implicit bias. Part IV recognizes that, despite compelling proof of implicit bias in a range of domains, there is no direct empirical proof of implicit bias in prosecutorial decision-making. It thus calls for an implicit bias research agenda designed to further examine how and when implicit bias affects prosecutorial decision-making, including studies designed to test ways of reducing the harms of these biases. It then begins a necessarily early look at potential remedies for the harms associated with implicit bias in prosecutorial discretion.

[top]


Blogs and Other Current Awareness Tools

6and44 - Blog created by a group of graduate students from Seattle University's Albers School of Business. They explain the name: "African American men make up 6% of the United States population, but 44% of the population in U.S. federal and state penitentiaries. This needs to change."

Race & Crime - Blog by Prof. Paul Butler (George Washington University).

[top]


Multimedia

Michelle Alexander, author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness, has given a lot of lectures and interviews, many available on the Web.

  • Is There Racial Bias in Our Criminal Justice System? (two-minute overview)
  • Alexander's presentation at the University of Washington School of Law April 13, 2010
  • Michelle Alexander appearances on Democracy Now!
  • Broken on All Sides. New (May 2012) documentary. Website includes 5-min. preview.

    Illegal Racial Discrimination in Jury Selection: A Continuing Legacy. Three-minute video from Equal Justice Initiative.

    Juror Number Six (2008). Short documentary (free on Web) explores the media, race, and the criminal justice system. Dozens of clips from television news, drama, and reality programs vividly illustrate how media shapes our perceptions (and jurors' perceptions) of crime and criminals. Crime has been going down, and yet crime is portrayed much, much more. Crime dramas give the false impression that people of color are well-represented in positions of power in the criminal justice.

    McCleskey (2011). Documentary about McCleskey v. Georgia. See above.

    New Frontiers in Race and Criminal Justice. Conference presented by New York University's Center for the Administration of Criminal Justice April 17, 2012.  Keynote address by Michelle Alexander plus three panels.

    Charles Ogletree, author of The Presumption of Guilt: The Arrest of Henry Louis Gates, Jr. and Race, Class and Crime in America (2010), interview on Democracy Now! June 30, 2010 Race and Criminal Justice (July 6, 2010). Aspen Institute panel with Charles Ogletree, Kasim Reed, and Kamala Harris discussing race and the criminal justice system with Jeff Rosen.

    Race and Justice (March 29, 2010). One-hour panel at Howard Law School with Paul Butler (George Washington University School of Law, former prosecutor) and Kurt Schmoke (former Baltimore mayor).

    Race and the American Criminal Justice System (June 29, 2009). One-hour panel discussion at the Aspen Institute. Panelists: Justice Sandra Day O'Connor, Bishop T.D. Jakes (The Potter's House, Dallas), Charles Ogletree (Harvard Law School). Moderator: Linda Wertheimer.

    Race to Execution. Documentary about race and capital punishment. Information here. The Right Focus on . . . Crime, Race, and Justice (Dec. 2006). Program produced by Minnesota Dept. of Human Rights, available as video or audio, "examined why African Americans make up about four percent of our state’s population, but 32 percent of our prison population; why Minnesota’s black-to-white prison ratio is the 12th highest in the nation; and why African Americans in Minnesota are 15 times more likely to be arrested for low-level offenses like loitering, or traffic offenses." Discusses finding of a study by the Council on Crime and Justice.

    We Need to Talk About an Injustice. TED Talk (March 2012) by Prof. Bryan Stephenson who teaches at NYU and also serves at the executive director of the Equal Justice Initiative, which he founded.

    What Color is Justice: Racial Disparities in the Criminal Process. 90-minute panel discussion from Ninth Judicial Conference, Aug. 15, 2012. Speakers:

    • Former district judge Nancy Gertner, who now teaches at Harvard Law School (moderator).

    [top]