Bias, Race, and Sentencing

In The New Jim Crow, Michelle Alexander explains how racial bias has impacted our criminal justice system, particularly in regard to prosecutorial discretion. Our nation has begun to realize that arrest rates for black and white people are motivated by race, but we have work to do to address bias and race relations beyond initial arrests.  How we prosecute and charge individuals who have been arrested is incredibly consequential and can still be impacted by racial bias. How we view someone once they have been arrested often determines the level and type of justice the individual receives, and we do not always base our judgements on rational facts. Alexander highlights this by quoting a study conducted by George Bridges and Sara Steen that was published in the American Sociological Review. Alexander writes, “In the state of Washington, for example, a review of juvenile sentencing reports found that prosecutors routinely described black and white offenders differently. Blacks committed crimes because of internal personality flaws such as disrespect. Whites did so because of external conditions such as family conflict.”

Whether we are aware of it or not, race influences how we see other people. If we think someone is like us or has a similar background to us, we are more likely to associate with that individual and feel more inclined to give that person a break. If we feel that the other person is not like us and we feel somehow threatened by the other individual, our natural tendency is to protect our tribe by being more punitive of the other. Many of the decisions about who we will charge with what crimes are made outside of the courtroom by individual prosecutors. Before a judge has had a chance to review a case and before anyone has heard evidence in a trial, prosecutors can decide whether to drop a charge, whether to seek full penalties, or whether an individual can take a plea bargain to avoid a trial. The power of the prosecutor is addressed in Alexander’s book, but what she first describes is how our experiences and our conscious and unconscious biases affect the way we see the world and how emotional biases tie into the ways we make decisions.

Alexander continues, “The risk that prosecutorial discretion will be racially biased is especially acute in the drug enforcement context, where virtually identical behavior is susceptible to a wide variety of interpretations and responses and the media imagery and political discourse has been so thoroughly racialized. Whether a kid is perceived as a dangerous drug-dealing thug or instead is viewed as a good kid who was merely experimenting with drugs and selling to a few of his friends has to do with the ways in which information about illegal drug activity is processed and interpreted. In a social climate where drug dealing is racially defined.”

White, middle-class, college men are one of the social groups that is the most likely to use drugs, but the rates of arrest and prosecution for male college drug users far lower than the rate at which this group uses drugs. Alternatively, black men in our country make up a smaller percentage of the population and of overall drug users, but are arrested and prosecuted at much higher levels. Our nation is much more likely to assume that white college men make honest mistakes in college and will behave better in the future, allowing white college men to face fewer consequences for crimes related to drugs and other offenses. Alexander’s argument in the quotes I have shared is that we view black people as more dangerous and threatening, and we associate their crimes with personality flaws which makes us more likely to arrest and punish them. Other groups however, which may be more likely to violate drug laws and other laws, we view as having more potential and we see individuals as having made an honest mistake and deserving a second chance. We must be honest about the crimes we punish people for, and we must recognize when we are reacting to an individual based on appearance and racial bias as opposed to reacting to the crime itself.

This reminds me of a few events from the recent world. Marijuana legalization has been gaining steam across the country, but our nation’s Attorney General has instructed federal law enforcement officers to be more strict in following federal marijuana laws. Despite race being a manufactured concept, a congressional representative recently said that it was important to maintain marijuana restrictions because black people reacted to marijuana so negatively, as if there was a true biological difference between white and black people that made them more susceptible to addiction to marijuana. This comment came at about the same time that Alabama won the national championship for college football. The day after Alabama won, a meme was shared across the internet. The photo featured a high school picture from a future white pro football player next to a high school picture of a current black Alabama football player. The two were the same age, but the Alabama player was much more physically developed in high school, more muscular, and much larger. Seeing the photo, a colleague of mine remarked, “Yep, that’s a man right there.” But in reality these were two young boys. One may have looked older and his physical size and development may lead us to ascribe more maturity to him, but he still had the mind of a junior in high school. I share this just to demonstrate that many people across our nation see black people as different from white people, and see black people as being older and than white people. In the case of the congressman, we see a white man generalize a group of people with no scientific backing, and in the case of my colleague we see physical size create an image of black people that not fully representative of who the individual is.

Our Vision of Criminals and Drug Users

In the United States we have a habit of conflating racial minorities with criminality, drug use, and poverty. When we think about the poor areas of our town, when we think about welfare beneficiaries, and when we think about the people in our jails and prisons we mostly imagine minority individuals and groups. This is not a vision that happened by chance and it is not exactly representative of the populations that live in poverty, have been incarcerated, or use drugs. Our nation built this vision slowly but surely over time starting with the Reagan administration’s war on drugs and rhetoric that established an us versus them mentality in regard to welfare, drug use, and poverty. Very deliberately, the administration and media in the 1980s and 1990s portrayed poor blacks as “them” while suburban whites were cast as the threatened “us”.

Michelle Alexander explains how this started and was fueled in her book The New Jim Crow. She discusses the ways in which incarceration became our answer for drug use, poverty, and growing minority populations. Casting minorities as bad and dangerous people was necessary to build support for greater government control over minority populations. Over time, with continued rhetoric and continued attacks from political elites, race and criminality became entwined so closely that “colorblind” individuals could discuss race and champion policies that would lead to disparate impacts for racial groups without having the appearance of ever discussing race. Alexander shares examples in her book.

She quotes an interview with Jerome Miller, the former executive director of the National Center for Institutions and Alternatives, “There are certain code words that allow you to never have to say ‘race,’ but everybody knows that’s what you mean and ‘crime’ is one of those… so when we talk about locking up more and more people, what we’re really talking about is locking up more and more black men.” Alexander also quotes Melissa Hickman Barlow from Time and Newsweek in 1989, “It is unnecessary to speak directly of race [today] because speaking about crime is talking about race.” And finally, Alexander cites a journal article from 1995 written by Betty Watson Burston, Dionne Jones, and Pat Robertson-Saunders in the Journal of Alcohol and Drug Abuse to describe the way that America had come to see black people and drug use. Alexander writes, “A survey was conducted in 1995 asking the following question: ‘Would you close your eyes for a second, envision a drug user, and describe that person to me?’ The startling results were published in the Journal of Alcohol and Drug Education. Ninety-five percent of respondents pictured a black drug user, while only 5 percent imagined other racial groups.”

What the examples above show is that our country views racial groups very differently. Black people in our minds are associated with poverty, drug use, and criminality. White people are associated with success and money. It is important to recognize how we view different racial groups so that we understand the subtext of our politicians, friends, neighbors, and Facebook-ranting relatives when they talk about harsh sentences for drug users or about policies to be tough of crime. What they really mean in these situations, based on our shared vision of who uses drugs and who commits crime, is that they will be tough on black people. We must understand also how these visions shape our implicit biases and how these expectations of different races impact the children growing up in communities across the country. White children grow up learning that black people are poor criminals and that they need to be controlled, and black children grow up learning that they themselves are dangerous, violent, and prone to drug use. This shapes how our children approach the world and find their place in society. In a very real way then, the rhetoric we use and the language we share begins to impact the way people understand their role and identity in society, and shapes the outcomes as a sort of self-fulfilling prophecys.

Stop and Frisk

In the 1968 Supreme Court case Terry v. Ohio, the court ruled that stop and frisk laws were constitutional on the grounds that an officer “is entitled for the protection of himself and others in the area” to search individuals for dangerous weapons that could be used against the officer. In The New Jim Crow, Michelle Alexander describes how this ruling came to be, and what it has meant for our nation and particularly black citizens in the United States. The court ruled that stop and frisk laws do not violate the fourth amendment which protects people from unreasonable searches and seizures. While not intended to have racially disparate outcomes, historically stop and frisk laws have targeted minority populations.

 

In 1968 Justice Douglas provided the dissenting opinion in Terry v. Ohio. He argued that the ruling lead the nation down a totalitarian path by granting unreasonable power to the police. Alexander writes that, “He objected to the notion that police should be free to conduct warrantless searches whenever they suspected someone is a criminal, believing that dispensing with the Fourth Amendment’s warrant requirement risked opening the door to the same abuses that gave rise to the American Revolution.” She continues to describe the ways in which stop and frisk rules have been used to search black and latino individuals for drugs and weapons even when those individuals showed no sign of criminal or threatening behavior.

 

Our nation today is struggling to understand just how much power the police should have, and just how much protection citizens should have from the police. A big challenge in the debate, which prevents people from reaching a shared conclusion, has to do with how and where our police are active. Many white people do not experience the same searches that black and latino people experience, so an increase in police power is not a threat to them, but rather a reassurance. Black and latino people, who are more likely to live in concentrated poverty and less likely to own a car, are more vulnerable to searchers from the police, and feel more threatened by increases in police power. Data suggest that white people, black people, and latino people commit crimes at about the same rates, but historical factors shaping housing policy and wealth accumulation have impacted where those crimes take place. Alexander explains that part of the reason stop and frisk rules have been so disparate in their impact on black people is because black people are more likely to commit crimes in public places compared to white people who may be committing the same crimes but from the safety of their homes or gated communities. It is important to note that the types of crimes that we are talking about being committed are low level drug offenses, such as possession, use, or distribution of a controlled substance. The data indicates that our patterns of arrests and policing are shaped by more than a response to crime. Also, where, when, and how crime is committed is influenced by many factors, such as current economic and social conditions. Our past and our decisions have shaped who is stopped, who is searched, and who is protected or disadvantaged by increases in police power. Stop and frisk may have been introduced to help protect officers and individuals from dangerous criminals, but it has instead become a tool to identify and arrest minority drug users who are not able to carry drugs in personal vehicles or use and distribute drugs from the comfort of nice homes or gated communities.