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Write at least 400 words on Chap 10 “MINORITY YOUTH AND CRIME: Minority Youth in Court” . The book is attached below. Please write an analysis/summary of chapter 10 in the book. You can also include what you found interesting, questions you had and or connect it to current issues happening in the justice system/world 

This is due on Tuesday May 4th at 10:00 AM EASTERN New York TIME 

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The Color of Justice
RACE, ETHNICITY, AND CRIME IN AMERICA

Sixth Edition

SAMUEL WALKER
University of Nebraska at Omaha

CASSIA SPOHN
Arizona State University

MIRIAM DELONE
Fayetteville State University

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The Color of Justice: Race,

Ethnicity, and Crime in

America, Sixth Edition

Samuel Walker, Cassia Spohn,
Miriam DeLone

Product Director: Marta

Lee-Perriard

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Carolyn Henderson-Meier

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© 2018, 2012, 2009 Cengage Learning

ALL RIGHTS RESERVED. No part of this work covered by the

copyright herein may be reproduced or distributed in any form or

by any means, except as permitted by U.S. copyright law, without

the prior written permission of the copyright owner.

Library of Congress Control Number: 2016956505

Student Edition:

ISBN: 978-1-337-09186-2

Loose-leaf Edition:

ISBN: 978-1-337-09293-7

Cengage Learning

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iii

About the Authors

SAMUEL WALKER is Professor Emeritus at the University of Nebraska at
Omaha, where he taught for 31 years. He has published 14 books on criminal
justice history and policy, policing, police accountability, and civil liberties. In
addition to his writings, he speaks and consults widely on police accountability
issues. In January 2015, he was invited to testify before the President’s Task Force
on 21st Century Policing. The Task Force accepted in part his recommendation
for eliminating offensive language by police officers in encounters with the pub-
lic. He also testified before the U.S. Commission of Civil Rights regarding the
national police–community relations crisis. Professor Walker’s primary research,
writing and consulting interests involve federal investigations of civil rights viola-
tions by police departments. He is quoted frequently in the national news media
on this issue. He also continues his interest in early intervention systems for police
departments, and the effectiveness of those systems for identifying officer perfor-
mance problems. Finally, Professor Walker has developed an expertise on police
unions and union contract provisions that impede holding officers accountable
for their conduct.

CASSIA SPOHN is a Foundation Professor and Director of the School of Crim-
inology and Criminal Justice at Arizona State University. She received her PhD
in political science from the University of Nebraska-Lincoln. She is the author
or coauthor of seven books, including Policing and Prosecuting Sexual Assault: Inside
the Criminal Justice System, which was published in 2014. Her research interests
include prosecutorial and judicial decision making, the intersections of race, eth-
nicity, crime and justice, and sexual assault case processing decisions. In 2013, she
received ASU’s Award for Leading Edge Research in the Social Sciences and was
selected as a Fellow of the American Society of Criminology.

MIRIAM DELONE has a PhD in Criminology from the College of Criminol-
ogy and Criminal Justice at Florida State University. She is currently Professor of

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iv A B O U T T H E A U T H O R S

Criminal Justice at Fayetteville State University. Dr. DeLone is currently serving
as Interim Associate Dean of the College of Arts and Sciences. She is working
on projects with Dr. Greg DeLone, Associate Professor of Public Administration
at Fayetteville State University, that recognize the intersectionality of race, ethnic,
gender, and class in order to offer effective crime prevention from a public health
perspective. Dr. DeLone has published in the areas of race, ethnicity and sentenc-
ing, as well as, the political economy of crime. Her publications appear in the
Journal of Quantitative Criminology, Social Problems, Justice Quarterly, Criminal Justice
Review, and Journal of Ethnicity in Criminal Justice. She is an active member of the
American Society of Criminology and past Editor of The Criminologist.

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v

A B O U T T H E A U T H O R S iii

P R E FA C E xviii

1 Race, Ethnicity, and Crime: American’s Continuing Crisis 1

2 Victims and Offenders: Myths and Realities about Crime 43

3 Race, Ethnicity, Social Structure, and Crime 113

4 Justice on the Street? The Police and People of Color 149

5 The Courts: A Quest for Justice during the Pretrial
Process 197

6 Justice on the Bench? Trial and Adjudication in Criminal
Court 251

7 Race and Sentencing: In Search of Fairness and Justice 293

8 The Color of Death: Race and the Death Penalty 359

9 Corrections in America: A Portrait in Color 419

10 Minority Youth and Crime: Minority Youth in Court 461

11 The Color of Justice 511

S E L E C T E D B I B L I O G R A P H Y 521

I N D E X 547

Brief Contents

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vii

A B O U T T H E A U T H O R S v

P R E FA C E xvii

1 Race, Ethnicity, and Crime: American’s
Continuing Crisis 1

The National Race Crisis, 2014–2016 1

Race, Ethnicity, and Justice in America 3

Is Discrimination Just a Myth? 4

Objectives of the Book 6

The Colors of America: Racial and Ethnic Categories 8

The Official U.S. Census Categories 9

Race 10

Ethnicity 11

Problems with Traditional Racial and Ethnic Categories 13

Problems with Criminal Justice Data on Race

and Ethnicity 20

Case Study: How Many People Are Shot and Killed

by the Police? 20

Counting Race and Ethnicity in Criminal Justice Data 21

The Crime and Immigration Controversy 22

Sorting Out the Facts on Immigration 23

The Immigration and Crime Controversy 24

Problems with Immigration Enforcement 25

Contents

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viii C O N T E N T S

“Insecure Communities”: The Impact of Immigration Enforcement

on the Hispanic Community 26

The Geography of Racial and Ethnic Justice 27

Disparity versus Discrimination 28

Disparity 28

Discrimination 29

The Problem of Unconscious Bias 30

The Law of Discrimination 31

The Discrimination–Disparity Continuum 31

A Theoretical Perspective on Race, Ethnicity, and Crime 33

Alternative Theories 34

Conclusion 35

Discussion Questions 35

Notes 36

2 Victims and Offenders: Myths and Realities
about Crime 43

Media and Crime 44

Racial Hoaxes 44

Race and Gender of Crime Victims 45

A Broader Picture of the Crime Victim 47

The National Crime Victimization Survey 49

Household Victimization 51

The Effect of Urbanization 52

Personal Victimization 53

The Effects of Urbanization 55

Prevalence of Crime Victimization 59

Lifetime Likelihood of Victimization 61

Homicide Victimization 62

Summary: A More Comprehensive Picture of the Crime Victim 64

Picture of the Typical Offender 64

Official Arrest Statistics 67

Problems with UCR Data 68

Arrest Data 70

Perceptions of Offenders by Victims 76

Problems with NCVS Offender Data 76

Perceptions of Offenders 76

Self-Report Surveys 79

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ixC O N T E N T S

Problems with Self-Report Surveys 79

Characteristics of Offenders 80

Theoretical Explanations for the Racial Gap in Offending 80

Community Influence on the Racial Gap in Offending Rates 81

Drug Offenders 83

Mass Shooting Offenders 84

Summary: A Picture of the Typical Criminal Offender 86

Crime as an Intraracial Event 87

National Crime Victimization Survey 87

Uniform Crime Report Homicide Reports 88

Summary 88

Crime as an Interracial (Hate) Event 88

Ethnic Youth Gangs 94

Gang Myths and New Realities 95

Varieties of Ethnic Street Gangs 99

African American 99

Native American 99

Asian American 100

Hispanic 101

White 101

Conclusion 102

Discussion Questions 103

Notes 104

3 Race, Ethnicity, Social Structure, and Crime 113

A Snapshot of Coming Home from Prison: Social Inequality

and Criminal Justice 114

Inequality and Crime 115

It’s Not Just the Criminal Justice System 115

Inequality in America: Long-Term Trends and the Recession 116

Two Societies? 116

Economic Inequality 117

Income 117

Wealth 118

The “Family Thing”: Emergency Assistance and Inheritance 121

The Growing Gap between the Very Rich and

the Rest of Americans 121

Unemployment 122

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x C O N T E N T S

Poverty Status 124

Insurance Coverage 124

Social Capital and Cultural Capital 125

The Debate over the Underclass 127

Community Social Structure 128

Residential Segregation 128

“Distressed Communities”: The Growing Gap

in Community Well-Being 129

Crime and Neighborhood Deterioration 129

Well-Being 131

Theoretical Perspectives on Inequality and Crime 131

Social Strain Theory 132

Applying the Theory 133

Differential Association Theory 133

Applying the Theory 133

Social Disorganization Theory 134

Applying the Theory 135

Culture Conflict Theory 136

Applying the Theory 136

Conflict Theory 137

Applying the Theory 137

Routine Activity Theory 137

Applying the Theory 138

The Limits of Current Theories 138

Inequality and Social Reform 139

The Impact of the Civil Rights Movement 140

Conclusion 142

Discussion Questions 142

Notes 143

4 Justice on the Street? The Police and People
of Color 149

Unequal Justice? The National Police Crisis 150

The Post-Ferguson Events 150

A Long History of Conflict 151

A Contextual Approach to Policing Communities

of Color 151

The African-American Community 151

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xiC O N T E N T S

The Hispanic Community 152

The Native American Community 152

Asian, Native Hawaiian, and Pacific Islanders 153

The Arab-American Community 153

Public Attitudes about the Police 154

How Police Officer Conduct Shapes Attitudes 156

Police Use of Deadly Force 156

The Lack of National Data on Police Shootings 157

Patterns in Police Shootings 157

Controlling Police Use of Deadly Force 159

The Role of Unconscious Bias in Police Shootings 160

Does Skin Tone Matter? 160

“Police Brutality”: Police Use of Physical Force 161

What Is “Police Brutality?” 161

The Prevalence of Force and Excessive Force 161

Race, Police–Community Relations, and Disrespect

for the Police 162

Force in Traffic and Pedestrian Stops 163

The Control of Police Use of Force 164

De-Escalation: A New Approach to Reducing Police

Use of Force 165

Discrimination in Arrests? 166

Arrests and the War on Drugs 167

Traffic Stops: Racial Profiling 169

Profiling Contexts 170

The Data on Traffic Enforcement 171

“A Deep Racial Chasm”: The Experience of Traffic Stops 172

Legitimate and Illegitimate Use of Race and Ethnicity in Policing:

The PERF Model Policy 173

Eliminating Bias in Traffic Enforcement 174

How Formal Policies Can Reduce Bias in Stops and Searches:

The Case of the Customs Bureau 175

The Stop and Frisk Controversy 176

The Problem of Stereotyping and Routine Police Work 177

Verbal Disrespect and Abuse 177

Police Officer Attitudes versus Institutional Practices 178

Police Corruption and Communities of Color 178

Improving Police–Community Relations 179

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xii C O N T E N T S

Citizen Complaints against the Police 180

Citizen Oversight of the Police 182

Police Employment Practices 182

“Not Your Father’s Police Department” 182

Trends in African-American and Hispanic Employment 183

Discrimination in Assignment 184

Does the Composition of a Police Department Make

a Difference? 185

Do Officers of Color Perform Better? 185

Conclusion 186

Discussion Questions 187

Notes 188

5 The Courts: A Quest for Justice during
the Pretrial Process 197

African Americans in Court: The Case

of the Scottsboro Boys 198

The Situation Today 200

Decisions Regarding Counsel and Bail 202

Racial Minorities and the Right to Counsel 202

Racial Minorities and Bail Decision Making 212

Charging and Plea Bargaining Decisions 224

Prosecutors’ Charging Decisions 224

Prosecutorial Discretion in the Context of Mandatory

Minimum Sentences and Habitual Offender Laws 228

The Effect of Offender Race and Victim Race

on Charging Decisions 229

Prosecution of Pregnant Women Who Abuse Drugs:

Racial Discrimination? 234

Race and Plea Bargaining Decisions 236

Conclusion 239

Discussion Questions 239

Notes 241

6 Justice on the Bench? Trial and Adjudication
in Criminal Court 251

Race/Ethnicity and the Criminal Trial 252

Trial and Adjudication in the Twenty-First Century 252

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xiiiC O N T E N T S

Selection of the Jury Pool 255

Racial Discrimination in Selection of the Jury Pool 255

The Exclusion of Mexican Americans from Jury Service 257

Techniques for Increasing Racial Diversity of the Jury Pool 259

The Peremptory Challenge: Racial Profiling in the

Courtroom? 263

The Supreme Court and the Peremptory Challenge:

From Swain to Batson and Beyond 265

Race and Jury Selection in the Twenty-First Century 274

Exonerating the Innocent: Rape, Race, and Mistaken

Eyewitness Identification 277

Rape, Race, and Misidentification 278

Playing the “Race Card” in a Criminal Trial 279

Race-Conscious Jury Nullification: Black Power

in the Courtroom? 284

Randall Kennedy’s Critique 286

Conclusion 287

Discussion Questions 288

Notes 288

7 Race and Sentencing: In Search of Fairness
and Justice 293

Race and Sentencing: Is the United States Moving

Forward or Backward? 294

Racial Disparity in Sentencing 296

Five Explanations for Racial Disparities in Sentencing 297

Empirical Research on Race and Sentencing 300

Reviews of Recent Research 300

When Does Race/Ethnicity Matter? 303

Race/Ethnicity and Sentencing: Direct and Indirect Effects 304

Are Hispanics Sentenced More Harshly Than

All Other Offenders? 306

Are Illegal Immigrants Sentenced Differently Than

U.S. Citizens? 307

Are Asian Americans Sentenced More Leniently Than

All Other Offenders? 310

Native Americans and Sentencing Disparity: Disparity in

State and Federal Courts 311

Race/Ethnicity, Gender, Age, and Employment:

A Volatile Combination? 312

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xiv C O N T E N T S

Differential Treatment of Interracial and Intraracial Sexual

Assault 316

Offender–Victim Race and Sentences for Sexual Assault 319

The Effect of Race on Sentencing for Various Types

of Crimes 323

The Liberation Hypothesis and Offenders Convicted

of Violent Felonies 324

Racial Discrimination in the Sentencing of Misdemeanor

Offenders? 326

Sentencing and the War on Drugs 327

Racial Disparities in Sentences Imposed for Drug Offenses 328

Sentencing of Drug Offenders in State Courts 330

Sentencing of Drug Offenders in Federal Courts 335

Racial Minorities and Cumulative Disadvantage 337

Recent Research: The Effect of Skin Tone on Punishment 338

Summary: Research on Race and Sentencing 339

Does It Make a Difference? A Comparison of the Sentencing

Decisions of African American, Hispanic, and White Judges 339

Decision Making by African-American and White Federal

Judges 341

Decision Making by African-American

and White State Court Judges 343

Reasons for Similarities in Decision Making 345

Conclusion 347

Discussion Questions 348

Notes 349

8 The Color of Death: Race and the Death Penalty 359

The Constitutionality of the Death Penalty 361

Furman v. Georgia 361

Post-Furman Decisions 363

Attitudes toward Capital Punishment 364

Race and the Death Penalty: The Empirical Evidence 368

Statistical Evidence of Racial Disparity 368

Pre-Furman Studies 374

Post-Gregg Studies 378

Race and the Federal Capital Sentencing Process 387

Explanations for Disparate Treatment 391

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xvC O N T E N T S

McClesky v. Kemp: The Supreme Court and Racial
Discrimination in the Application of the Death Penalty 392

The Aftermath of McCleskey: Calls for Reform or Abolition

of the Death Penalty 397

The Racial Justice Act 398

The Death Penalty in the Twenty-First Century 400

The Movement to Reform the Death Penalty 402

The Movement to Abolish the Death Penalty 403

Conclusion 406

Discussion Questions 407

Notes 408

9 Corrections in America: A Portrait in Color 419

The Incarcerated: Prison and Jail Populations 423

Minority Overrepresentation 423

Intersectionality with Gender and Age 425

Security Level of Facilities 428

Historical Trends 430

Conclusion 431

Race, Ethnicity, and Recidivism 431

The Age of Mass Incarceration 432

Offender Reentry 433

Community Corrections 434

Parole: Early Release from Prison 434

Success and Failure on Parole 436

Probation: A Case of Sentencing Discrimination? 437

Community Corrections: A Native American Example 438

Adjustment to Prison 443

Hostility among Released Inmates 445

Prisoner Visitation and Successful Reentry 446

Race and Religion 446

Prison Gangs 448

Aryan Brotherhood 449

Black Guerilla Family 450

Mexican Mafia 450

Neta 450

Texas Syndicate 451

Women in Prison 453

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xvi C O N T E N T S

Conclusion 454

Discussion Questions 454

Notes 455

10 Minority Youth and Crime: Minority Youth
in Court 461

The Juvenile Population in the United States 463

Young Racial Minorities as Victims of Crime 464

Property Crime Victimization 464

Violent Crime Victimization 465

Victimization of Young African-American Girls 468

Homicide Victimization 469

Young Racial Minorities as Offenders 470

Juvenile Arrests 471

Juveniles of Color and the Police 477

Race/Ethnicity and the Juvenile Justice System 481

Race/Ethnicity, Gender, and Age: Juvenile Justice

in Nebraska 493

Transfer of Juveniles to Criminal Court 495

Explaining Disparate Treatment of Juvenile Offenders 498

Juveniles under Correctional Supervision 500

Conclusion 501

Discussion Questions 502

Notes 503

11 The Color of Justice 511

Explaining Persistent Racial and Ethnic Disparities 513

Explaining the Disparities: Systematic Discrimination? 514

Past and Present 515

The Stubborn Persistence of Racial and Ethnic Disparities 516

Notes 518

S E L E C T E D B I B L I O G R A P H Y 521

I N D E X 547

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xvii

B
eginning with the highly publicized shooting of Michael Brown in Ferguson,
Missouri, on August 9, 2014, the United States has been in the midst of a

national crisis over policing and race. Deaths of African Americans at the hands of
the police, followed by angry protests, have been regular occurrences. The situa-
tion took another dramatic turn in July 2016 with the deliberate assassination of
police officers in Dallas, Texas, and Baton Rouge, Louisiana. The national crisis is
not confined to the police. The refusal of grand juries in Ferguson and other cities
to indict police officers on criminal charges has raised a related controversy over
how the courts deal with racial issues. Additionally, the United States continues to
stand alone internationally because of its enormous prison population, and what
critics label the policy of “mass incarceration.”

Since the first edition of The Color of Justice 20 years ago, this book has
addressed the key issues related to race, ethnicity, and crime. Over that period,
there have been many changes. Crime dropped significantly across the country,
although in the last year or two homicides have risen in a number of large cit-
ies. Immigration emerged as a national political controversy. Public opinion on
imprisonment has also been changing. Beginning around 2009 the prison popu-
lation began a small but notable decline, reversing the imprisonment boom that
began in the 1970s. Finally, attitudes toward the death penalty have begun to
change, and the number of executions has fallen. The sixth edition of The Color
of Justice continues to provide the most up-to-date information on this contin-
ually changing subject. The book includes some information that became avail-
able only weeks before the manuscript went to the printer.

This edition of The Color of Justice continues to address the multira-
cial and multiethnic character of American society and even expands that cover-
age. There is a significantly growing body of information on the fastest-growing
minority segment of the American population and the Hispanic and Latino com-
munities, and this edition incorporated this new knowledge. The coverage of
other racial and ethnic groups has also been expanded.

Preface

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xviii P R E F A C E

Finally, and particularly important, The Color of Justice continues to pro-
vide a critical perspective on all the controversial issues related to race, ethnicity,
and criminal justice. Much of what appears in the news media is incomplete or
even wrong. The Color of Justice will help readers gain a clear and fact-based
understanding of the controversial issues of police shootings, racial profiling, pat-
terns of criminal behavior and victimization, the prosecution of offenders, plea
bargaining, and the death penalty. By the end of the book, readers will be able
to knowledgeably discuss the difficult issues of racial or ethnic disparities in how
people are treated and whether or not there are patterns of discrimination.

O R G A N I Z AT I O N

This book is divided into eleven chapters. The organization is designed to guide
students through a logical exploration of the subject, beginning with a discussion
of the broader social context for race and ethnicity in American society and then
moving to the different components of the criminal justice system: police, courts,
corrections, the death penalty, and juvenile justice.

N E W T O T H I S E D I T I O N

For the sixth edition, we have significantly updated research and included the
most current statistics available, particularly regarding Hispanic groups. We have
also included material on some of the most important recent developments in the
field—racial profiling in the context of homeland security, for instance, as well
as hate crime legislation, the disproportionate attention given to crime victims
according to race, minority youth victimization rates, the intersection of race and
domestic violence, the impact of the financial crisis on the criminal justice system,
and much more:

■ Chapter 1, “Race, Ethnicity, and Crime,” has been revised to reflect changes
in the state of the racial and ethnic composition of the United States and
how those changes affect the criminal justice system.

■ Chapter 2, “Victims and Offenders,” includes a reexamination of media
depictions of crime victims, especially the race of victims, and also includes
expanded discussions of environmental racism, immigration and crime, and
additional theoretical perspectives on the causes of criminal violence and
hate crime.

■ Chapter 3, “Race, Ethnicity, Social Structure, and Crime,” features the
most recent data on the social and economic status of African Americans,
Hispanics, and white Americans. Particular attention is paid to the impact

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xixP R E F A C E

of the economic recession that struck the nation in 2008 and the growing
inequalities of income and wealth in America.

■ Chapter 4, “Justice on the Street,” covers the national police crisis that began
in 2014 and the public response. There is important new information of
police shootings. Attention is given to the issue of procedural justice, one of
the most important new concepts in policing. It also covers the recommen-
dations of the 2015 President’s Task Force on 21st Century Policing. Finally,
some of the promising innovations regarding police accountability designed
to curb police misconduct are covered.

■ Chapter 5, “The Courts,” includes new material reflecting recent research on
the relationship between race/ethnicity, pretrial detention, and sentencing,
as well as a discussion of the treatment of illegal immigrants in federal courts
and expanded coverage of the ways in which race and ethnicity influence
prosecutorial charging and plea bargaining decisions. It also includes a dis-
cussion of the Duke Lacrosse case and the case of the Jena Six.

■ In Chapter 6, “Justice on the Bench,” there is expanded coverage of race
and ethnicity in the jury selection process, with a focus on the 2010 report
by the Equal Justice Initiative that documented disparities in eight southern
states. There also is a new section on racial profiling in the courtroom, which
examines the use of cultural stereotypes of the Hmong people.

■ In Chapter 7, “Race and Sentencing,” there are new sections on sentenc-
ing illegal immigrants and Asian Americans in federal courts, as well as new
material on Devah Pager’s work on the “mark of a criminal record” and a
discussion of unconscious racial bias among judges. Chapter 7 also includes
new research exploring the direct and indirect effects of race and ethnicity
on sentencing in state and federal courts.

■ Chapter 8, “The Color of Death,” covers the decline in the use of the
death penalty. It also covers gendered racism in the use of the death penalty,
updated material on Supreme Court decisions that affect the use of capital
punishment, and a discussion of the racial justice acts that have been recently
enacted. Also in Chapter 8 is a new section focusing on race and the proba-
bility of execution.

■ Chapter 9, “Corrections in America,” addresses the issue of “mass incarcer-
ation.” There is updated information on federal and state incarceration, jail
populations, and tribal jails. The chapter also provides updated information
for international incarceration rates and prison gangs and presents new
research that addresses the role of race in parole board decision making and
in post-release hostility.

■ Chapter 10, “Minority Youth and Crime,” includes a more extensive discus-
sion of explanations for the higher violent victimization rate among racial
and ethnic minority youth and new material on racial and ethnic disparities
in arrests of juveniles; it also features a new section that discusses the victim-
ization of African-American girls.

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xx P R E F A C E

List of Reviewers:

Gail Beaudoin, University of Massachusetts at Lowell

Brenda Berretta, Middle Tennessee State University

Michele P. Bratina, Indiana University of Pennsylvania

T. D. Coleman, Rochester, South University

Ken Ezell, Fort Valley State University

Angelina Forde, University of Tennessee

Jay Gilliam, University of Illinois Springfield

Lora Lempert, University of Michigan-Dearborn

Faith Lutze, Washington State University

James P. Mayes, North Carolina A&T State University

Kathleen Rettig, Creighton University

Mike Seredycz, University of Wisconsin-Parkside

Susan F. Sharp, University of Oklahoma

Karen Sternheimer, University of Southern California

Quanda Stevenson, The University of Alabama

Rob Tillyer, University of Texas at San Antonio

S U P P L E M E N T S

Cengage Learning provides a number of supplements to help instructors use
The Color of Justice: Race, Ethnicity, and Crime in America in their courses and to aid
students in preparing for exams. Supplements are available to qualified adopters.
Please consult your local sales representative for details.

MindTap® for Criminal Justice The most applied learning experience
available, MindTap is dedicated to preparing students to make the kinds of rea-
soned decisions they will have to as criminal justice professionals faced with
real-world challenges. Available for virtually every Criminal Justice course, Mind-
Tap offers customizable content, course analytics, an e-reader, and more—all
within your current learning management system. With its rich array of assets—
interactive visual summaries, decision-making scenarios, and quizzes—MindTap
is perfectly suited to today’s students of criminal justice, engaging them, guid-
ing them toward mastery of basic concepts, and advancing their critical thinking
abilities.

Online Instructor’s Manual with Lesson Plans The manual includes
learning objectives, key terms, a detailed chapter outline, a chapter summary, les-
son plans, discussion topics, student activities, “What If ” scenarios, media tools,
and sample syllabi. The learning objectives are correlated with the discussion top-
ics, student activities, and media tools.

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xxiP R E F A C E

Downloadable Word Test Bank The enhanced test bank includes a vari-
ety of questions per chapter—a combination of multiple-choice, true-false, com-
pletion, essay, and critical thinking formats, with a full answer key. The test bank is
coded to the learning objectives that appear in the main text, and identifies where
in the text (by section) the answer appears. Finally, each question in the test bank
has been carefully reviewed by experienced criminal justice instructors for quality,
accuracy, and content coverage so instructors can be sure they are working with
an assessment and grading resource of the highest caliber.

Cengage Learning Testing Powered by Cognero, the accompanying assess-
ment tool is a flexible, online system that allows you to:

■ import, edit, and manipulate test bank content from the text’s test bank or
elsewhere, including your own favorite test questions;

■ create ideal assessments with your choice of 15 question types (including
true/false, multiple-choice, opinion scale/Likert, and essay);

■ create multiple test versions in an instant using drop-down menus and famil-
iar, intuitive tools that take you through content creation and management
with ease;

■ deliver tests from your LMS, your classroom, or wherever you want—plus,
import and export content into other systems as needed.

Online PowerPoint Lectures Helping you make your lectures more
engaging while effectively reaching your visually oriented students, these
handy Microsoft PowerPoint® slides outline the chapters of the main text in a
classroom-ready presentation. The PowerPoint slides reflect the content and
organization of the new edition of the text and feature some additional examples
and real-world cases for application and discussion.

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1

1

RACE, ETHNICITY, AND CRIME:

American’s Continuing Crisis

L E A R N I N G O B J E C T I V E S

After you have read this chapter:

1. You will understand the basic goals of the book as a whole.

2. You will have an understanding of how race and ethnicity are central
to understanding crime and criminal justice in America.

3. You will be able to discuss recent trends in criminal justice, the current
crime situation in America, emerging problems in the criminal justice
system, and how all of these factors affect race, ethnicity, and justice.

4. You will be familiar with the difference between race and ethnicity.
You will also understand whether or not these are really scientific
categories, and how they are used by the U.S. Census Bureau and by
criminal justice agencies.

5. You will understand the quality of commonly used criminal justice
data (e.g., arrests) and whether they provide an accurate picture of what
actually happens in the justice system.

6. You will be able to discuss the difference between disparities and
discrimination with regard to race and ethnicity.

T H E N AT I O N A L R A C E C R I S I S , 2 0 1 4 – 2 0 1 6

On August 9, 2014, police officer Darren Wilson of the Ferguson, Missouri,
police department shot and killed Michel Brown, an unarmed 18-year-
old African American. The shooting touched off protests, which eventually

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2 C H A P T E R 1

escalated into looting and violence. Missouri authorities mobilized military
equipment that only inflamed the protests. Sympathy demonstrations occurred
around the country, and the events in Ferguson were carried live on cable televi-
sion stations.

The tragic events in Ferguson touched off a two-year period of events that
escalated into a national crisis over policing and race relations, to a degree not
seen since the urban riots of the 1960s. The other events included:

■ Three weeks before the shooting of Michael Brown, on July 17, 2014,
New York City police officers arrested Eric Garner, an African American,
on Long Island for selling illegal cigarettes. Officers sat on him and held him
down, not responding to Garner’s repeated cries, “I can’t breathe!” Garner
died of suffocation. The events were captured on a cell phone video, which
was broadcast over national television.

■ On April 4, 2015 in North Charleston, South Carolina, Walter Scott,
a 50-year-old African American, was shot in the back and killed by a police
officer as he was running away from the officer. The shooting was captured
on a cell phone video and clearly showed the lack of any justification for the
shooting.

■ A week later, on April 12, 2015, Freddie Gray, a 25-year-old African
American, died in a Baltimore police van of neck injuries. Scott’s death
touched off protests and then arson and looting. Six officers were indicted
for crimes related to his death (although three were acquitted and charges
were dropped against the other three).

■ On the evening of June 17, 2015, Dylan Root, a 21-year-old avowed white
racist, walked into the Emanuel African Methodist Episcopal Church,
an African-American church, during a prayer meeting, opened fire, and shot
and killed nine members of the church. Root later confessed that he hoped
to start a “race war.”

The sequence of events provoked a national race crisis. Civil rights activists
protesting deaths at the hands of the police organized around the slogan “Black
Lives Matter.” President Barack Obama in December 2014 appointed a President’s
Commission of 21st Century Policing.1 It was the first-ever presidential commis-
sion or task force devoted exclusively to the police. After a series of hearings around
the country, the Commission’s Final Report contained a sweeping set of recom-
mendations for improving policing and addressing the police-race relations crisis.

In response to the Charleston, South Carolina, church shooting and Dylan
Root’s goal of starting a “race war,” the state of South Carolina on July 10,
2015, removed the Confederate flag from in front of the state Capitol Building.
For African Americans, the Confederate flag is a symbol of slavery. Soon after,
Walmart announced that it would no longer sell items bearing the Confederate
flag. Amazon.com and Ebay followed suit. And the four largest flag makers in the
United States said they would no longer produce the flag.2

The Confederate flag controversy dramatized the significance of flags and other
symbols in conveying social and political messages. Particularly important, when

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3R A C E , E T H N I C I T Y , A N D C R I M E

a government agency displays a particular symbol, it conveys the message that the
meaning behind that symbol is approved by the state of federal government.

Race, Ethnicity, and Justice in America

More than 100 years ago, the great African-American scholar W. E. B. Du Bois
declared, “The problem of the twentieth century is the problem of the color
line.”3 Racism and racial discrimination, he argued, were the central problems
facing modern society.

As the events of 2014–2016 clearly indicate, issues of race and ethnicity con-
tinue to be volatile issues today. Criminal justice is one of major focal points of
those issues. Nearly every problem in the criminal justice system involves matters
of race and ethnicity: Who gets stopped by the police? Who gets arrested? Who
goes to prison? Who gets the death penalty? Some of the bare facts of the admin-
istration illustrate these issues.

■ In 2014, the incarceration rate for African-American males in state and
federal prisons was six times the rate for white males (2,724 vs. 465 per
100,000 respectively). The incarceration rate for Hispanic American males
was 2.3 times greater than that for non-Hispanic white males (1,091 vs.
465 per 100,000).4 There were also disparities in the incarceration of white
and African-American females, but not as great as for males.

■ The unemployment rate for African Americans in late 2014 was twice the
figure for white Americans: 11.3 percent vs. 5.20 percent. The figure for
Hispanic Americans was 7.4 percent.5 As we will explain later in this chap-
ter, criminologists have always recognized unemployment as a risk factor for
involvement in crime. Long-term or even periodic unemployment contrib-
utes to poverty and unstable families, both of which are also risk factors for
crime.

■ The National Congress of American Indians reported in 2013 that Native
Americans and Alaska Natives are 2.5 times more likely to experience vio-
lent crime and “at least two times more likely to experience rape or sexual
assault crimes” than other racial or ethnic groups.6

■ The Innocence Project reported that as of January 2016, 336 people con-
victed of crimes had been exonerated by DNA evidence: 61 percent were
African American; 31 percent non-Hispanic white; 7 percent Hispanic; and
0.5 percent Asian American.7

Public Attitudes about Race, Ethnicity, and Criminal Justice The American
people are deeply divided along racial lines on issues of crime, race, and ethnicity.
A 2016 Pew Research Center report found that blacks and whites were “worlds
apart” in their view of race in America, including the criminal justice system.
The survey found that 84 percent of African Americans believed that “blacks are
treated less fairly than whites in this country … in dealing with the police”, com-
pared with 50 percent of white Americans. The divide was almost the same with
respect to the courts, with 75 percent of African Americans believing that African

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4 C H A P T E R 1

Americans were treated less fairly by the courts, compared with 43 percent of
whites.8

Fear of crime is an extremely complex subject, and there is an important
difference between actual victimization and the fear of crime. The National
Crime Victimization Survey found that in 2014 African Americans were far more
likely to be the victims of a “serious violent crime” (defined as rape, robbery, and
aggravated assault) than whites or Hispanics (African Americans, 10.1 per 1,000;
Hispanics, 8.3 per 1,000; whites, 7.0 per 1,000).9 Serious violent crimes are par-
ticularly destructive, inflicting far more personal and social harm than property
crimes, in terms of personal injury and psychological trauma, and in creating fear
of crime in the neighborhood.

Yet, fear of crime among whites has been politically very powerful for over
50 years. Fear of crime has been the driving force behind harsher criminal sen-
tences and the enormous increase in the American prison population since the
mid-1970s. Michelle Alexander has labeled this policy “mass incarceration.”10

In fact, the prison population continued to rise in the 1990s even though crime
rates experienced a historic decline that has lasted for two decades in many cities
(although a number of cities experienced significant increases in crime in 2015).11

The subject of immigration and crime has been a particularly volatile polit-
ical issue. Many Americans believe that immigrants, particularly undocumented
immigrants, are involved in high rates of crime. Yet, as we will discuss later in this
chapter, research has consistently found that immigrants have lower involvement
in crime than nonimmigrants.

For many whites, “crime” is a political code word for fears of social change,
and fears of racial change in particular. A study of community crime control
efforts in Chicago, for example, found that neighborhood organizations usually
were formed in response to perceived changes in the racial composition of their
neighborhoods.12

In short, crime and fear of crime pervade virtually every aspect of American
society, from the day-to-day lives of people in their neighborhoods to national
politics.

I S D I S C R I M I N AT I O N J U S T A M Y T H ?

Some commentators argue that the criminal justice system is not racist and that
allegations of systematic discrimination are based on myth. One of the most force-
ful advocates of this position is Heather MacDonald, a fellow at the Manhattan
Institute. She argues that the primary cause of the high rate of incarceration of
African Americans is involvement in criminal behavior, not discrimination by the
criminal justice system.13

MacDonald’s argument helps to frame the issues we will examine in The Color
of Justice. What are the facts regarding criminal behavior and the performance of
the criminal justice system? Does discrimination exist? If so, how serious is it?
Is it systematic discrimination, or not? If discrimination exists but is not system-
atic, how do we characterize it? What accounts for racial and ethnic disparities in

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5R A C E , E T H N I C I T Y , A N D C R I M E

arrest rates and imprisonment rates? If discrimination does not exist at all, what
accounts for the disparities in arrests and imprisonment?

In her article, “Is the Criminal-Justice System Racist?” MacDonald makes the
following arguments:

■ African Americans represent 81 percent of all homicide victims, and 90 per-
cent of the offenders in those cases are also African Americans.14 Since mur-
der is the crime most likely to result in incarceration (98 percent sentenced
to prison; 2 percent to jail in 2009), MacDonald and others argue that this
explains part of the imprisonment disparity.15

■ African Americans represent 56 percent of all robbery arrests (2014 FBI
data).16 Robbery is also a crime that usually results in incarceration (86 per-
cent of all convicted offenders sentenced to either prison or jail in 2009),
and this also contributes to the imprisonment disparity.17

■ The National Crime Victimization Survey finds that victims’ reports of the
race of robbers and offenders committing aggravated assault are roughly
equal to the race of persons arrested for these crimes. This suggests that there
is no discrimination in arrests for these crimes.18

MacDonald’s points are based on good criminological data, and for that rea-
son they must be taken seriously. But are they the last word on the subject? After
all, statistics can be interpreted in many different ways. One of the main issues we
will deal with in this book is that “facts” do not speak for themselves. On all of
the most important issues, there are often conflicting data and legitimate differ-
ences of opinion among experts about how data should be interpreted.

Marc Maurer, director of The Sentencing Project, argues that there are
four important factors that contribute to racial disparities in the criminal jus-
tice system. They include: (1) disproportionate involvement in crime (which is
MacDonald’s principal focus); (2) disparities in criminal justice processing (which
she ignores, and which is a major focus of this book); (3) the “overlap of race and
class effects” (which we discuss in detail in Chapter 3); and (4) “the impact of ‘race
neutral policies’ of criminal justice agencies.” A “race neutral” policy, we should
explain, is a policy that does not refer specifically to race or ethnicity, but which
has a disparate effect on people of a certain race or ethnicity. An extreme example
would be a police department that had a policy of stopping young men with very
baggy pants. The effect would be many stops of young African-American men.
(We will discuss this issue in more detail later.)19

There are some important issues that MacDonald ignores, and which present
a very different picture. They include:

■ With respect to drugs, the National Survey on Drug Use and Health found
only slight differences in illicit drug use by race and ethnicity in 2013.
Among people 12 years and older, 9.5 percent of whites had used an illicit
drug in the previous 12 months, compared with 10.5 percent of African
Americans, and 8.8 percent of Hispanics.20 Yet, an ACLU report on mari-
juana arrests found that African Americans were 3.73 times more likely to be
arrested for marijuana possession than whites.21 In addition to the pain and

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6 C H A P T E R 1

suffering of an arrest itself, the collateral consequences of an arrest impose
further harm, including inability to go to work while in jail, possible loss
of that job, inability to get future jobs, and so on. The Sentencing Project
points out that “a criminal conviction creates a barrier to securing steady
employment, and those with felony drug convictions are disqualified from
public assistance and public housing in many areas.”22

■ The Justice Department investigation of Ferguson, Missouri, found that
the city was using the police department to generate revenue for the city’s
budget, by pressuring it to make traffic stops. The city’s “law enforcement
practices,” it found, “are shaped by the City’s focus on revenue rather than by
public safety needs.” These practices, moreover, “both reflect and exacerbate
existing racial bias, including racial stereotypes.”23

■ The fact that African Americans arrested for felonies are less likely to
be prosecuted and less likely to be convicted at trial than whites may be
explained by the fact that they may be arrested on weaker evidence. Joan
Petersilia’s examination of racial disparities in the justice system found that
the apparent “leniency” at the prosecution stage of the system occurred in
part to correct for inappropriate arrest decisions.24

■ Perhaps most important, the higher rates of offending among African
Americans and Latinos can be explained by inequalities in the American social
system that are criminogenic: disparities in education, employment, health care,
and so on. We will discuss the major theories of crime later in this chapter, and
we will examine social and economic inequalities in detail in Chapter 3.

The issue of social and economic inequalities raises a point that is central to
this book. The Color of Justice takes a big picture view of race, ethnicity, and crime,
looking at all the social and economic factors that criminologists know to be risk
factors in criminal behavior. What criminal justice agencies do is important, but it
is only one part of the larger picture.

O B J E C T I V E S O F T H E B O O K

Race, ethnicity, and criminal justice are in the news week after week. But what
are the facts behind the headlines? The Color of Justice looks beyond today’s news
events and the myths surrounding race, ethnicity, and criminal justice and pro-
vides an accurate picture of the situation.

First, The Color of Justice offers a comprehensive treatment of all the issues on
crime and the administration of criminal justice, which no other book does.
There are many excellent articles and books on particular topics (e.g., the death
penalty, police use of deadly force), but none covers the full range of topics in a
complete and critical fashion. As a result, there is usually no discussion of whether
relatively more discrimination exists at one point in the justice system than at
others. Our comprehensive approach allows us to link the different parts of the
criminal justice system: connecting issues of arrest decisions by the police with

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7R A C E , E T H N I C I T Y , A N D C R I M E

prosecutors’ decisions to charge offenders. Is there discrimination at both points?
How do they reinforce each other?

Second, The Color of Justice examines both race and ethnicity in criminal jus-
tice. As this chapter will explain later, race and ethnicity are not the same, and
differences are very important to understanding how the criminal justice system
works. Most criminal justice textbooks do a very poor job in their treatment of
race and ethnicity.25 Most do not identify race and ethnicity as a major issue, or
clarify the difference between race and ethnicity. The Color of Justice makes race
and ethnicity central to understanding criminal justice in America.

Additionally, this book covers all racial and ethnic groups. We have chosen
to title this book The Color of Justice because it covers all people of color. Most
other books focus entirely on African Americans. Coramae Richey Mann points
out that “the available studies focus primarily on African Americans and neglect
other racial minorities.”26 Although research on Hispanic Americans has been
growing in recent years, there are still major gaps in our knowledge. There is still
little good research on Native Americans or Asian Americans. The Color of Justice
includes material on all groups, including Native Americans and Asian Americans.
Our examination highlights the significant differences between the experiences
of various racial and ethnic groups with respect to crime and justice.

As we will learn, non-Hispanic whites, African Americans, and Hispanics have
very different experiences with the police. The experience of Native Americans
who live on reservations, where the nearest police officer may be many miles
away, is completely different from that of most other Americans.

Third, The Color of Justice offers a critical perspective on the available evidence,
something that few other books on the subject do. Is there systematic discrimination
in the criminal justice system? Or are there simply disparities that can be explained by
factors other than race or ethnicity? Can patterns of discrimination be explained bet-
ter in terms of contextual discrimination? What does that term mean? If this pattern
exists, where do we find it? How serious is it? What are the causes? Have any reforms
succeeded in reducing disparities and discrimination? Data on arrests and sentenc-
ing, for example, are extremely complex. Interpreting traffic stop data to determine
if there is racial profiling presents a major challenge for criminologists. Later in this
chapter, we discuss the crucial distinction between disparities and discrimination.

Fourth, this book presents the best and most recent research on the relevant
topics: the patterns of criminal behavior and victimization, police practices, court
processing and sentencing, the death penalty, and prisons and other correctional
programs. New research continually deepens our understanding of important
issues, and this book stays current with the best new research.

Fifth, this book is up-to-date, incorporating important recent developments
in criminal justice. As a result of the national police crisis of 2014–2016, we
learned that the official FBI data on the number of persons shot and killed by
the police every year count only about half of the actual number. The FBI data
reported in 2014 that police shot and killed 444 people. Yet, the Washington Post,
in a study using all available sources (e. g., news media accounts, social media),
found that the annual figure is actually twice what the FBI reports: 986 in 2015.27

Also, beginning in 2011, the American prison population began to decline for the

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8 C H A P T E R 1

first time in 40 years.28 The decline is still small, but compared with the explosion
in imprisonment since the mid-1970s, it is a historic shift. The Color of Justice
reports these and other recent changes, which have important implications for a
complete and up-to-date picture of race, ethnicity, and crime in America.

Sixth, The Color of Justice takes a contextual approach to crime and criminal jus-
tice and emphasizes the unique historical, political, and economic circumstances of
different crimes, different parts of the justice system, and the different experiences
of each racial and ethnic group. Alfredo Mirandé, author of Gringo Justice, argues
that historically “a double standard of justice” has existed, one for Anglo Americans
and one for Chicanos. Marianne O. Nielsen, meanwhile, argues that the subject of
Native Americans and criminal justice “cannot be understood without recognizing
that it is just one of many interrelated issues that face native peoples today,” includ-
ing “political power, land, economic development, [and] individual despair.”

Regional and local variations in crime and criminal justice also exist. Serious
crime has fall sharply over the past 15 years in New York City and San Diego, but
not in Baltimore. The death penalty is most widely used in just a few states. In 2013,
Texas (16), Florida (7), and Oklahoma (6) conducted 29 of the 39 executions in the
entire country.29 The federal sentencing guidelines prescribe very harsh sentences,
while the Minnesota sentencing guidelines result in a very low incarceration rate.
All of these variations complicate the overall picture of criminal justice in America.

Finally, building on the importance of contextual factors, The Color of Justice
offers a contextual theory of race, ethnicity, and criminal justice. We have already
rejected Heather MacDonald’s argument that the idea that the criminal justice sys-
tem is racist a “myth.” We also argued that it is simplistic to say that the system is
completely racist in every decision all the time. Our view is that racial and ethnic
disparities exist throughout the criminal justice system (even after taking into account
all the variations we have discussed). It is a mistake, however, to view disparities in
particular parts of the criminal justice system in isolation from the larger crimi-
nal justice process. As Kimberly Kempf-Leonard persuasively argues in a review of
20 years of juvenile justice reform, an arrest can have “a cumulative effect that may
grow like a downhill snowball to disadvantaged minority youths”; it can “create an
inequity,” which “can influence decisions at subsequent stages” in the justice sys-
tem.30 Arrests and confinement of juveniles can affect later decisions when someone
is an adult. The cumulative effects of disparities in policing, plea bargaining, sentenc-
ing, incarceration, and the use of community-based corrections result in a larger
pattern of injustice based on race and ethnicity. Later in this chapter, we will explain in
greater detail the important difference between disparities and discrimination.

T H E C O L O R S O F A M E R I C A :

R A C I A L A N D E T H N I C C AT E G O R I E S

The United States is increasingly a multiracial, multiethnic society. In 2014,
according to a mid-census estimate, the composition of the American popula-
tion by households was 62.2 percent non-Hispanic white, 17.4 percent Hispanic,

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9R A C E , E T H N I C I T Y , A N D C R I M E

13.2 percent African American, 6 percent Asian or Pacific Islander, 1 percent
Native American, and 2 percent who reported being of two or more races. By
2040, the census estimates that the population will be 76.1 percent non- Hispanic
white, 21.7 percent Hispanic, 14.9 percent African American, and 7.9 per-
cent Asian.31 These figures represent significant changes from 30 years ago, and
demographers are predicting steady changes in the immediate future. As Figure
1.1 indicates, Hispanics and Asians are the two fastest-growing racial or ethnic
groups in the United States, increasing from a combined 12 percent of the pop-
ulation in 1990 to an estimated 29.9 percent by the year 2040. As we will discuss
later in a section on “The Geography of Justice,” racial and ethnic groups are
unevenly distributed, with important effects on crime and justice.

The Official U.S. Census Categories

Race and ethnicity are extremely complex and controversial subjects, and we do
not always have accurate data on important issues. The commonly used categories
for race and ethnicity are those developed by the federal Office of Management
and Budget (OMB) and are used by the U. S. Census Bureau and other govern-
ment agencies.32 Unfortunately, these categories are extremely problematic and
do not necessarily reflect the social reality of American life: the reality of how
people define themselves; how they are defined by other people; and how they
interact with other people on a day-to-day basis. Let’s sort our way through this
complex issue.

It is very important to understand that the census is based on self-reported identity.
Are you “African American” or “white”? For the census, it depends on what you
tell the census. Are you “Hispanic” or not? It depends on your own self- identity
and what you tell the census. The census allows people to identify themselves by
race and ethnicity. A person can, for example, self-identify as “white” [race] and
“Hispanic” [ethnicity], or as “American Indian” [race] and “Hispanic” [ethnicity].
A person can also identify himself or herself by race with no ethnic identification.

A Pew Center report, Who’s Hispanic, explains the self-reporting pro-
cess used by the U.S. Census works through a series of questions and answers.

Percentage of the total U.S. population

White African American Hispanic American Indian Asian

1990 83.9 12.3 9.0 0.8 3.0

2000 82.1 12.9 11.4 0.9 4.1

2010 80.5 13.5 13.8 0.9 5.1

2020 79.0 14.0 16.3 1.0 6.1

2040 76.1 14.9 21.7 1.1 7.9

F I G U R E 1.1 Changing Composition of the U.S. Population, by Race and
Ethnicity, 1990–2040
SOURCE: Bureau of the Census, Population Projections of the United States by Age, Sex, Race, and Hispanic Origin:
1995-2050 (Washington, DC: Department of Commerce, 1996), Table J, p. 13.

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10 C H A P T E R 1

For example: “Q. My mom is from Chile and my dad is from Iowa. I was born in
Des Moines. Am I Hispanic? A. You are if you say so.”33

In short, a person who is very dark-skinned can tell the census that he or she
is “white.” And that is how that person will be recorded in the census. Another
person who is very light-skinned can tell the census that he or she is “African
American,” and that is what the census will record.

Now let’s take a closer look at the different racial and ethnic classifications
used by the U.S. Census.

Race

Traditionally, race has referred to the “major biological divisions of mankind,”
as distinguished by color of skin, color and texture of hair, bodily proportions,
and other physical features.34 The traditional approach identifies three major racial
groups: Caucasian, Negroid, and Mongoloid.

Anthropologists and sociologists, however, do not accept the traditional strict
biological definition of race. Because of intermarriage and evolution over time,
it is virtually impossible to find people who are entirely within one racial cate-
gory. Also, scientists have not been able to determine meaningful differences in
behavior, intelligence, or other capabilities among people who are commonly
referred to as “white,” “black,” or “Asian.” J. Milton Yinger maintains that “we
cannot accept the widespread belief that there are a few clearly distinct and nearly
immutable races. Change and intermixture are continuous.”35

Experts regard the concept of race as “primarily a social construct.” That is to say,
groups define themselves and/or have labels applied to them by other groups. Tradi-
tionally, the politically and culturally dominant group in any society defines the labels
that are applied to other groups. At times, however, subordinate groups assert them-
selves by developing their own labels. As we will discuss shortly, racial designations
have changed over the centuries as a result of changes in both political power and
racial attitudes. In short, the commonly used terms for different races are socially and
politically constructed. This includes such terms as “colored,” “Negro,” and Oriental.”
They have no scientific basis, however. Yinger argues that the critical categories for
social analysis are the “socially visible ‘racial’ lines, based on beliefs about race and on
administrative and political classifications, rather than genetic differences.”36

The cultural designation of who is an African American in American history
was driven by the racist “drop of blood” principle. It held that if a person is even
of a slight African-American heritage—a great-grandfather, for example—that
person was considered an African American. The principle was racist because it
did not work the other way around: one “drop” of white blood did not make
someone white.37

The term nonwhite was once widely used and is still used by some people.
The census now forbids the use of the term. “Nonwhite” implies that people
in this category lack something important and are “less than” the majority or
the ideal. In a subtle way it is demeaning, and the Association of MultiEthnic
Americans and related groups are particularly concerned about the impact of
classifications and labels on children.38

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11R A C E , E T H N I C I T Y , A N D C R I M E

A brief look at a few families highlights the problems with traditional racial
categories. Many people have mixed ancestry. What, for example, is the “race”
of the child whose father is African American and mother is of Irish-American
descent? Or the child whose mother is Japanese American and whose father is of
European background? Or the child whose maternal grandmother was Native
American, paternal grandfather was English, and whose father is Hispanic? Many
“white” Americans have some ancestors who were African American or Native
American. Few African Americans have ancestries that are purely African.

The Different Census Categories of Race and Ethnicity The OMB has over
the years revised the categories (and the names) used for some of the racial and
ethnic groups. The current categories are (1) American Indian or Alaska Native;
(2) Asian; (3) black or African American; (4) Hispanic or Latino; (5) Native  Hawaiian
or Other Pacific Islander; and (6) white. Previously, OMB used only the term black;
the new category is black or African American. Persons may also identify them-
selves as Haitian or Negro. Previously, only the term Hispanic was used. The new
guidelines use Hispanic or Latino. The OMB considered, but rejected, a proposal to
use Native American and retained the old term American Indian.

The OMB defines a black or African-American person as anyone “having
origins in any of the black racial groups of Africa.” It defines a white person as
anyone “having origins in any of the original peoples of Europe, the Middle East,
or North Africa.” Accordingly, a person who is from Morocco or Iran is classified
as “white,” and someone from Nigeria or Tanzania is classified as “black.” (But, as
we have pointed out, the choice of race is up to each individual.) The category
of American Indians includes Alaska Natives and “original peoples of North and
South America (including Central America).” Asian includes people from the Far
East, Southeast Asia, or the Indian subcontinent. Pacific Islanders are no longer in
the same category with Asians and are now included with Native Hawaiians in a
separate category.39

The OMB explains that the racial and ethnic categories it created “are not
anthropologically or scientifically based.” Instead, they represent “a social-political
construct and should not be interpreted as being primarily biological or genetic
in reference.”40

Ethnicity

Ethnicity is not the same as race. Ethnicity refers to differences between groups of
people based on cultural customs, such as language, religion, foodways, music, family
patterns, and other characteristics. Among white Americans, for example, there
are distinct ethnic groups based primarily on country of origin: Irish Americans,
Italian Americans, Polish Americans, and so on. Yinger uses a three-part defini-
tion of ethnicity: (1) The group is perceived by others to be different with respect
to such factors as language, religion, race, ancestral homeland, and other cultural
elements; (2) the group perceives itself to be different with respect to these factors;
and (3) members of the group “participate in shared activities built around their (real
or mythical) common origin and culture” [italics added].41

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12 C H A P T E R 1

The terms Hispanic and Latino refer to ethnicity, not race. As we mentioned
earlier, the U.S. Census is a self-report system, and a person may identify as Hispanic
and then also as a member of a racial category. Someone, for example, can identify
himself or herself as “white” and “Hispanic,” or “Native American” and “Hispanic.”

The census is a self-report system. The practices of criminal justice agencies,
however, are mixed, and different agencies use their own systems of classification.
Historically, most have classified Hispanics as white but have not also collected
data on ethnic identity. As a result, most criminal justice data sets do not provide
good longitudinal data on Hispanics. We will discuss this issue in more detail later.

The Hispanic American population is extremely diverse in several respects.
Hispanics are divided among native-bor n Amer icans and foreign-bor n.
Foreign-born may be naturalized citizens, permanent residents with a Green Card,
immigrants with a visa, or undocumented. Hispanics often identify themselves
primarily in terms of their country of origin. The Pew Hispanic Research Center
found that in 2013, of the 53.9 million Hispanics in the United States, 64 per-
cent were of Mexican background. (“Background” in this analysis does not mean
immigrant; it includes people whose family arrived in the United States from
Mexico two or three generations ago, but were from Mexico.) The next largest
group was Puerto Ricans, who represented 9.5 percent of all Hispanics. People
of Cuban and Salvadoran background were tied at 3.7 percent of all Hispanics.42

Classifying Middle Eastern, Arab Americans, and Muslim Americans Arab
Americans are an extremely diverse group. The Arab American Institute estimated
that there are about 3.5 million people in the United States of Arab descent and
describes them as an ethnicity. About 82 percent are U.S. citizens. The national
origins of Arab Americans include Lebanon, Egypt, Syria, and other countries of

B o x 1.1 Who Is “Juanita”?

With respect to race and ethnicity. Who or what am I? Am I white? Black? Latino?
How would I know? Is it just what I say I am? Or is it what someone else calls me?
Or what label the government places on me? These questions are fundamental to an
intelligent discussion of race, ethnicity, and justice in America. We cannot begin to
discuss whether or not there are inequalities or whether discrimination exists unless
we have accurate data on how people of different races or ethnicities are treated in
the justice system.

Many people mistakenly think the answers to these questions are easy. They are
not. Consider, for example, the case of “Juanita,” as discussed in the report Donde
esta la justicia? Her father is Puerto Rican and her mother is African American.
How would she be classified if she were arrested? In Arizona, she would define her
own race or ethnicity. In California, she would be counted as African American. In
Michigan, she would be classified as Hispanic and then be assigned to a racial group.
In Ohio, she would be recorded as biracial.

In short, we have a serious problem. This chapter is designed to help navigate
our way through this very complex but very basic issue.

SOURCE: Adapted from Building Blocks for Youth, Donde esta la justicia? (East Lansing, MI: Michigan State
University, 2002).

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13R A C E , E T H N I C I T Y , A N D C R I M E

North Africa and southwestern Asia. The census classifies most Arab Americans
as “Caucasian,” but that label does not adequately describe the diversity of the
community. With respect to the physical features that are popularly (but incor-
rectly) used to define “race,” such as skin color or hair texture, Arab Americans
are as diverse as are “white” and “black” Americans. The term Arab Americans is,
in fact, a social construct that includes people of many different national origins,
religions, and ethnicities.

Many people assume that Arab Americans are religiously all Muslim, but this
is not true. Arab Americans include Muslim, Christian, Druze, and other reli-
gions. Even Christian Arabs are divided among Protestant, Catholic, and Greek
Orthodox. In terms of national origins, Arab Americans trace their heritage to
Lebanon, Syria, Iraq, Kuwait, Morocco, Algeria, and other countries. (Many peo-
ple assume that Turkish people are Arabs. In fact, Turkish is a national identity,
referring to people who are citizens of Turkey, and they consist of several differ-
ent ethnic identities.) Finally, with regard to ethnicity, Arab Americans may be
Kurds, Berbers, Armenian, Bedu, or members of other groups.43

We do not know exactly how many Muslims there are in the United States
because the U.S. Census does not collect data on religious affiliation. Religious
affiliation is regarded as a highly personal and sensitive issue, about which the
government should not collect information. There are, however, private surveys
and estimates of religious affiliation and observance. Estimates of the total number
of Muslims in the United States range from 1.3 million (the 2008 American Reli-
gious Identification Survey, a private and not a governmental survey) to 7 million
(the Council on American-Islamic Relations). About 25 percent of all Muslims in
the United States are converts, most of whom are African Americans. Malcolm X
is probably the most famous person to have fallen in this category. Religious ser-
vices are sometimes given in several languages: Urdu, Arabic, or English.44

Problems with Traditional Racial and Ethnic Categories

Understanding the basic racial and ethnic categories used in the United States is
only the beginning. We also need to look at some important problems associated
with these categories.

Multiracial Americans Many Americans do not fit into the strict racial cat-
egories of race that have been traditionally used because they are multiracial or
mixed-race. Beginning in 2000 the census allowed people to identify themselves
as being of two or more races. In the 2010 census, 2.1 percent of all respondents
identified themselves as multiracial.

The Pew Research Center challenges to Census Bureau’s 2.1 percent esti-
mate. Their own survey estimated that the real figure was 6.9 percent. (The survey
involved 21,224 adults. While far smaller than the census, the sample was large
enough to make reliable estimates.) The Pew Survey reached the larger figure
by asking questions the census does not. It asked people first, how they iden-
tified themselves. Then it asked about the respondent’s parents and whether they
were of different races. Finally, it asked about the respondent’s grandparents. The
survey found that 1.4 percent chose two or more races to describe themselves;

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14 C H A P T E R 1

2.9 percent described their parents as of different races; and 2.6 percent described
their grandparents as of different races (for a total of 6.9 percent).45

Which figure is more accurate? In terms of self-identification in everyday life,
the lower census estimate of 2.1 is more accurate. In terms of a more objective
estimate of extended family identification, the PEW estimate is more accurate.

Being multiracial is in large part a matter of self-identity. The Association of
MultiEthnic Americans (AMEA), which fought for the OMB changes that allow
people to designate a multiracial or multiethnic identity, declares that “we believe
that every child, every person who is multiethnic/multiracial has the same right
as any other person to assert a personal identity that embraces the fullness and
integrity of their actual ancestry, and that every multiethnic/multiracial family,
whether biological or adoptive, has the same right to grow and develop as any
other, and that our children have the right to love and respect each of their par-
ents equally.”46

The Uses of Racial and Ethnic Categories Classifying multiracial and mul-
tiethnic people are not abstract issues. Census estimates have very real personal,
legal, and economic consequences.

An article in the New Yorker magazine highlighted the case of Susan Graham
of Roswell, Georgia, who complained, “When I received my 1990 census form, I
realized that there was no race category for my children.” She is white, and her hus-
band is African American. She called the Census Bureau and was finally told that
children should take the race of their mother. No rational reason was given about
why the race of her husband, the children’s father, should be arbitrarily ignored.
Then, when she enrolled the children in kindergarten, the school classified them
as “black.” Thus, she pointed out, “My child has been white on the United States
census, black at school, and multiracial at home—all at the same time.”47

Whether a school counts a child as “black” or “white” has important con-
sequences in terms of the school’s racial balance. Counting the child (and many
others) as “white” might create the appearance that a problem of racial segrega-
tion in the school system exists. Counting many mixed-race children as “black”
will make the school system appear racially integrated.

The 1965 Voting Rights Act outlaws voter disenfranchisement by “race or
color.” If we want to know if a state or county discriminates against voters on
the basis of race, we need accurate data on the voting age population in the juris-
diction. If the census undercounts African Americans in a particular country, for
example, it would disguise possible discrimination in voting.

Preferred Labels within Groups Members of the major racial and ethnic
groups are divided among themselves about which term they prefer. A 2013
Gallup Poll found that 17 percent prefer “African American,” 173 percent pre-
fer “black,” and 65 percent say it “does not matter.” A 2012 report by the Pew
Hispanic Center found complex patterns of self-identification among Hispanics.
When asked, what is the first term they use to identify themselves, slightly more
than half replied they use their country of origin (i.e., Mexico, Nicaragua). About
one third (34 percent) prefer “Hispanic” and 13 percent prefer “Latino.” 48

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15R A C E , E T H N I C I T Y , A N D C R I M E

FOCUS ON AN ISSUE

The Bell Curve Controversy: Race and IQ

A national storm of controversy erupted

in the fall of 1994 over a book titled

The Bell Curve by Richard J. Herrnstein

and Charles Murray.49 The authors argue

that success in life is determined largely by

IQ: the smarter people succeed, whereas

those with lower intelligence, as measured

by standard IQ tests, fail and end up at the

bottom of the social scale. The authors

contend that those at the low end of the

IQ scale do poorly in school and are more

likely to be unemployed, receive welfare,

and commit crime.

The Bell Curve is now over 20 years

old, but the issue continues to resurface

as some people continue to argue that

some races or ethnic groups are inferior

to whites of European descent. Let’s sort

our way through the myths and misunder-

standings and get at the truth.

The most provocative and controver-

sial parts of Herrnstein and Murray’s thesis

are the points that intelligence is inherited

and that there are significant differences in

intelligence between races. The authors cite

data indicating that Asian Americans consis-

tently score higher on IQ tests than white

European Americans, who, in turn, score

higher than African Americans. Herrnstein

and Murray are very clear about the policy

implications of their argument. They argue

that because intelligence is mainly inher-

ited, social programs designed to improve

the performance of poor children, such

as Head Start, are doomed to failure and

should be abandoned.

The Bell Curve was attacked by psy-

chologists, anthropologists, and sociol-

ogists.50 Critics disputed the authors’

assumptions that there is a genetic entity

that constitutes “intelligence” that is

inherited, and also that IQ tests are a valid

measure of intellectual capacity.

Critics also disputed the authors’

handling of the evidence regarding intel-

ligence tests, the impact of environmental

factors as opposed to inherited factors, and

the effect of programs such as Head Start.

There is evidence, for example, that Head

Start does improve IQ test scores in addi-

tion to children’s later success in life.51

The authors of The Color of Justice

reject Herrnstein and Murray’s argument

on the grounds that the vast majority of

anthropologists and sociologists do not

accept the idea of separate races as distinct

biological entities. If there are no scientifi-

cally valid racial differences, the basic argu-

ment of The Bell Curve falls apart.

In response to the long controversy,

the American Anthropological Associ-

ation (AAA) in 1994 issued an official

“ Statement on ‘Race’ and Intelligence.” It

is important to note in this statement and

the one cited in Box 1.3, the AAA places

the word “race” in quotation marks as a

way of indicating that the concept does

not have any scientific validity. The AAA

makes the following statement:

The American Anthropological

Association (AAA) is deeply concerned

by recent public discussions which

imply that intelligence is biologically

determined by race. Repeatedly chal-

lenged by scientists, nevertheless these

ideas continue to be advanced. Such

discussions distract public and scholarly

attention from and diminish support for

the collective challenge to ensure equal

opportunities for all people, regardless

of ethnicity or phenotypic variation.

(Continued )

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16 C H A P T E R 1

Who Is the Minority? Who Is the Majority? The Problem with Labels The
term minorities is widely used as a label for people of color. The United Nations
defines minority groups as “those nondominant groups in a population—which
possess and—wish to preserve stable ethnic, religious or linguistic traditions or
characteristics markedly different from those of the rest of the population.” The
noted sociologist Louis Wirth adds the element of discrimination to this defini-
tion: minorities are those who “are singled out from the others in the society in
which they live for differential and unequal treatment, and who therefore regard
themselves as objects of collective discrimination.”52

Use of the term minority is increasingly criticized. It has a pejorative con-
notation, suggesting “less than” something else, which in this context means

B o x 1.2 Donde está la justicia?

The term Hispanic has been used to refer to people of Spanish descent. The term
refers, in part, to people with ties to nations where Spanish is the official language.
The U.S. government and legal system historically have insisted on categorizing
all Spanish-speaking people as Hispanic and treating them as a monolithic group,
regardless of cultural differences.

The term Latino, however, generally refers to people with ties to the nations
of Latin America and the Caribbean, including some nations where Spanish is not
spoken such as Brazil. It also encompasses people born in the United States whose
families immigrated to this country from Latin America in the recent past and those
whose ancestors immigrated generations ago. Like the term Hispanic, the catego-
rization Latino is a general one that does not recognize the diversity of ethnic sub-
groups (e.g., Puerto Rican, Dominican, Guatemalan, Peruvian, and Mexican).

SOURCE: Adapted from Francisco A. Villarruel and Nancy E. Walker, Donde está la justicia? A Call to Action on
Behalf of Latino and Latina Youth in the U.S. Justice System (East Lansing, Ml: Institute for Youth, Children, and
Families, 2002).

Earlier AAA resolutions against racism

(1961, 1969, 1971, 1972) have spoken to

this concern. The AAA further resolves:

WHEREAS all human beings are

members of one species, Homo sapi-

ens, and

WHEREAS, differentiating spe-

cies into biologically defined “races”

has proven meaningless and unscien-

tific as a way of explaining variation

(whether in intelligence or other traits),

THEREFORE, the American

Anthropological Association urges the

academy, our political leaders and our

communities to affirm, without dis-

traction by mistaken claims of racially

determined intelligence, the common

stake in assuring equal opportunity, in

respecting diversity and in securing

a harmonious quality of life for all

people.

The full AAA statement is available on the organizations
website (http://www.aaanet.org).

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17R A C E , E T H N I C I T Y , A N D C R I M E

less than some other groups. The new OMB guidelines for the Census Bureau
and other federal agencies specifically “do not identify or designate certain pop-
ulation groups as ‘minority groups’.”53 Many people today prefer to use the
term people of color, instead of “minority” when referring to African Americans
and Hispanics.

The changing American population makes the term minority inaccurate in
some geographic areas. In California in 2014, for example, non-Hispanic whites
were only 39 percent of the population, with almost as many, 38 percent, being
Hispanic. Asians were 15 percent and African Americans were 5 percent of the
population. In Texas, non-Hispanic whites were 44 percent of the population,
with Hispanics 38 percent, African Americans 12 percent, and Asians 4 percent.54

Some American cities are now majority African American or Latino. Miami,
Florida, for example, was 69 percent Hispanic in 2015, while Los Angeles was
48 percent. The Pew Research Center reported that between 2000 and 2013,
78 counties across the country shifted from majority non-Hispanic white to
where no racial or ethnic group was a majority, including Mecklenburg County,
North Carolina, and Broward County, Florida.55 Atlanta, Georgia, was 54 percent
African American, and Detroit was 82 percent in 2015. In these situations, which
group is the “majority” and which is the “minority”? From a national perspective,
you get one answer. A local perspective gives you a different one.

Diversity within Racial and Ethnic Groups Another important complicating
factor is the diversity that exists within racial and ethnic groups. As our previ-
ous discussion indicates, both the Latino and the Arab-American communities
include people of very different national origins.

African Americans and African Immigrants. The African-American community,
meanwhile, consists of people whose families have been in the United States for
hundreds of years along with recent immigrants from Africa. In 2015, there were
a record number of 3.8 million “black” immigrants in the United States, repre-
senting almost 9 percent of the “black” population. In the Miami, Florida, metro-
politan area, “black” immigrants represented 34 percent of the “black” population.
Some immigrants from Africa do not wish to be labeled African Americans
because they identify themselves as Africans.56

The Hispanic Community. The Hispanic community is extremely diverse. (See
our earlier discussion above at pp. 16.) It includes native-born Americans and
immigrants. Among the native born, some families have been in the United States
for many generations, whereas others are first-generation Americans. Immigrants
include both legal and unauthorized or undocumented persons. Some immi-
grants speak English fluently, others speak only their native language, and many
are bilingual.

Native Americans and Alaska Natives. Native American and Alaska Native people
numbered 5.2 million in 2010 and were divided among 566 tribal governments
recognized by the Bureau of Indian Affairs (which does not necessarily include

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18 C H A P T E R 1

all tribes), some of which have very different languages, cultural traditions, and
tribal political institutions. About half, 2.9 million, identified themselves as mul-
tiracial. The Cherokee tribe is the largest, with 468,082 members according to
the 2010 census. The second largest is the Navajo tribe, with 286,731 mem-
bers. About one-third (31 percent) of Native Americans live on reservations or
designated areas.57

The census category of Asian, Native Hawaiian, and Pacific Islanders includes
many diverse groups. For example, Asian Americans include many people of
Chinese or Japanese origin whose families have been in the United States for
generations and also many very recent immigrants. The economic status of these
different groups is often very different. Many Native Hawaiians, meanwhile,
are also well established economically, socially, and politically. Bureau of Justice
Statistics (BJS) data on crime victimization, however, collapse these very different
people into a single category. The National Council on Crime and Delinquency
argues that it is important, where possible, to disaggregate the Asian-American
population into its different components because some may have greater involve-
ment with the justice system than the group as a whole.58

Diversity has many impacts on criminal justice. A Vera Institute of Justice
report on police relations with immigrant communities in New York City con-
cluded that “immigrant groups are not monolithic, [but] are made up of ethni-
cally, culturally, socio-economically, and often linguistically diverse subgroups ….”
This has important implications for criminal justice agencies. The report advised
that police departments must “reach out to a variety of community representa-
tives,” even within one racial or ethnic group.59

Many recent arrivals to the United States do not fully understand our legal
system. As some scholars put it, they do not share the “legal consciousness” that
long-time American residents have.60 This legal consciousness includes a sense
of “inherent rights” and entitlements regarding the legal system. In practice, this
includes a sense of your right to call the police if you have a problem, a right to be
treated respectfully by the police and other officials, and a right to file a complaint
against the police if you are not treated properly, and do so without a lawyer.

Not calling the police is an important issue for the criminal justice system.
In communities with significant numbers of undocumented immigrants, there is
a reluctance to call the police for fear that undocumented family or friends will
be arrested or reported to immigration authorities. But not calling the police
means that crime victims will not receive the benefit of police protection. This is
particularly serious in the case of domestic violence incidents. Additionally, if the
police are not called, the official crime rate will undercount the amount of actual
crime.61

The Politics of Racial and Ethnic Labels There has always been great contro-
versy over the proper term for different racial and ethnic groups. The term African
American, for example, is relatively new and became widely used only in the 1980s.
For many people, it has replaced black as the preferred designation, which replaced
Negro in the 1960s. Negro, in turn, replaced colored in the late 1940s and 1950s.
The leading African-American civil rights organization is the National Association

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19R A C E , E T H N I C I T Y , A N D C R I M E

for the Advancement of Colored People (NAACP), which reflects the year of its
founding, 1909. Ironically, colored replaced African much earlier. In short, we have
come full circle in the past 150 years. As John Hope Franklin, the distinguished
African-American historian, points out in the 1994 edition of his classic history
of African Americans, From Slavery to Freedom, the subjects of his book have been
referred to by “three distinct names … even during the lifetime of this book.”62

The controversy over the proper label is political in the sense that it often
involves a power struggle among groups. It is not just a matter of which label
but who chooses the label. Eric R. Wolf argues that “the function of racial catego-
ries within industrial capitalism is exclusionary.”63 The power to label another
group is a form of control over that group. Labels, particularly unflattering ones,
have historically been used to discriminate against different groups. Conversely,
the power to reject the existing label and choose a new one is an assertion of
power and autonomy.

The term black emerged as the preferred designation in the late 1960s as part
of an assertion of pride in blackness and quest for power by African Americans
themselves. The African-American community was making a political statement
to the majority white community: This is how we choose to describe ourselves.
In a similar fashion, the term African American emerged in the 1980s through a
process of self-designation on the part of the African-American community. In
this book, we use the term African American. It emerged as the preferred term by
most spokespeople for the African-American community and was adopted by
the OMB for the 2000 Census and continued for 2010 (and can be used along
with black, Negro, and Haitian). It is also consistent with terms commonly used
for other groups: Irish Americans, Polish Americans, and Chinese Americans,
for example.

The term black is actually not appropriate as the label for a group for the
simple reason that it refers to a color. In fact, people who identify themselves as
African Americans come in a full range of colors, from the darkest black to essen-
tially white. The term white, moreover, is as inaccurate as black. People who are
commonly referred to as white have a wide range of skin colors, from very pale
white to a dark olive or brown. The term Caucasian is a somewhat more accurate
label for people generally referred to as white (but even its accuracy is disputed by
some experts).64

A similar controversy exists over the proper term for Hispanic Americans
(see Box 1.3). Not everyone, including some leaders of the community itself,
prefers this term. Some prefer Latino, and others use Chicano. A 2012 Pew His-
panic Center survey found that 33 percent prefer the term Hispanic, 14 percent
prefer Latino, and half have no preference.65 Many Hispanic Americans refer to
themselves in terms of their country of origin. Many non-Hispanics incorrectly
refer to Hispanics as Mexican Americans, ignoring the many people who have a
different country of origin.

In this book, we use the term Native Americans to designate those people who
have historically been referred to as American Indians. The term Indians, after all,
originated through a misunderstanding, as the first European explorers of the
Americas mistakenly thought they had landed in Asia.

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20 C H A P T E R 1

P R O B L E M S W I T H C R I M I N A L J U S T I C E D ATA

O N R A C E A N D E T H N I C I T Y

Case Study: How Many People Are Shot and Killed by the Police?

How many people do the police shoot and kill every year? In 2015, Americans
discovered that we don’t really know. The major source has always been the offi-
cial FBI Uniform Crime Report, which reported that 444 people had been killed
by law enforcement officers in 2014.66 Some major news media began investi-
gating, compiling all such shootings reported in the media. (And it is unlikely
that any police shooting goes completely unreported.) They found that the figure
is twice the official FBI figure, that is, 984 in 2015, according to a pioneering
national survey by the Washington Post.67

The lack of good, official data on persons shot and killed by the police is a
scandal. We have very detailed information about deaths from all forms of cancer
and from traffic accidents, and we should have the same quality of data on police
shootings. The problem is that the FBI system is a voluntary one, and many police
departments do not submit their data.

Without reliable, detailed data, however, we cannot speak authoritatively
about racial and ethnic disparities in shootings. How great are the disparities,
relative to the local population? If we don’t have good population data, we can-
not accurately answer that question. Are the disparities greater in some jurisdic-
tions or regions? If so, why? Could reliable data help us to identify causal factors,
for example, local crime rates or police department policies on deadly force?
The lack of good data is central not just to this book but to the national issue of
racial and ethnic justice in our society. Is there discrimination? If so, how much?

B o x 1.3 American Anthropological Association, Statement on “Race,”
1998 (excerpt)

In the United States, both scholars and the general public have been conditioned
to viewing human races as natural and separate divisions within the human species
based on visible physical differences. With the vast expansion of scientific knowledge
in this century, however, it has become clear that human populations are not unam-
biguous, clearly demarcated, and biologically distinct groups. Evidence from the
analysis of genetics (e.g., DNA) indicates that most physical variation, about 94%,
lies within so-called racial groups. Conventional geographic “racial” groupings differ
from one another only in about 6% of their genes. This means that there is greater
variation within “racial” groups than between them. In neighboring populations,
there is much overlapping of genes and their phenotypic (physical) expressions.

Throughout history whenever different groups have come into contact, they
have interbred. The continued sharing of genetic materials has maintained all of
humankind as a single species.

SOURCE: The full statement, along with other materials, can be found on the website of the American
Anthropological Association (http://www.aaanet.org).

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21R A C E , E T H N I C I T Y , A N D C R I M E

If so, have we made any progress in eliminating disparities and discrimination?
Are there important differences among racial and ethnic groups? If so, how wide
are the gaps?

Counting Race and Ethnicity in Criminal Justice Data

The FBI’s Uniform Crime Reports (UCR) data on arrests use the categories of
“white” and “black,” with no category of Hispanic or other ethnic groups. It does
report American Indian or Alaska Native and Asian or Pacific Islander as separate
races. By including Hispanics as “white,” the UCR overreports the number of
arrests of non-Hispanic whites and gives us no data at all on Hispanic arrests.68

The National Crime Victimization Survey (NCVS), on the other hand, does col-
lect data on Hispanics and non-Hispanics, and it is a rich source of data on rates
of victimization by race and ethnicity.69

Because the NCVS uses a census-style self-identification system with regard
to race and ethnicity, the following problem exists.70 What if the NCVS calls the
multiracial Graham household we discussed earlier (pp. 14). The NCVS reports
data by household. Would their household be classified as “white” or “black”?
It depends on which member of the family answers the phone and how that
person self-identifies. What if one of their mixed-race children were the victim
of a robbery? Would the victimization survey record that as a “white” or “black”
victimization?

The BJS Police-Public Contact Survey, which is conducted in cooperation
with the National Crime Victimization Survey and uses its technique, interviews
people about their experience with the police and therefore contains data about
race and ethnicity. The 2011 survey, for example, reports whether the police offi-
cer gave a reason for the stop and whether the respondent thought the stop was
legitimate.71 Thus, unlike FBI data on arrests, it provides useful data on, for exam-
ple, traffic stops of whites, African Americans, and Hispanics.

The Bureau of Justice Statistics National Prisoner Statistics (NPS) program
reports data on white, black, and Hispanic prisoners as separate categories. The
categories are exclusive, however, meaning that you are one or the other (unlike
the Census in which someone can be white/Hispanic or Native American/His-
panic). The BJS report on Prisoners in 2014, however, explains that “not all NPS
[data] provides information systems categorize race and Hispanic origin in this
way.” Thus, data from different states are not completely comparable. The report
added that in 1991 “only a few states were able to provide information on His-
panic origin separately from race,” and so we do not have any reliable data on
Hispanic prisoners or imprisonment rate until about the late 1990s.72

Official data on people under sentence of death use the National Prisoner
Statistics data. In mid-2015, there were 2,959 people under sentence of death
in the United States. Of those, 43 percent were white, 42 percent were black,
13 percent were Hispanic, and 2 percent were of other race or ethnicity.73

Counting Hispanics as “white” has a major impact on official data
and the resulting picture of the criminal justice system. Barry Holman ana-
lyzed how using a “white/black” classification system results in an overcount

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22 C H A P T E R 1

of non-Hispanic whites in prison and an undercount of Hispanics. In 2009,
57.2 percent of all federal prisoners were “white.” But 32 percent were His-
panic, meaning that only about 25 percent were non-Hispanic whites (39 per-
cent were African American), so if you only used the “white” category you
would give a misleading picture of federal prisoners. In New Mexico, the mis-
representation was even worse. Official data indicated that 83 percent of prison-
ers were white, when in fact only 28.9 percent were non-Hispanic white and
54.1 percent were Hispanic.74

The situation with regard to Native Americans is especially complex. Gary
LaFree points out that they “fall under the jurisdiction of a complex combination
of native and nonnative legal entities” that render the arrest data “problematic.”75

Zoann K. Snyder-Joy characterizes the Native American justice system as “a juris-
dictional maze” in which jurisdiction over various criminal acts is divided among
federal, state, and tribal governments.76 It is not clear, for example, that all tribal
police agencies report arrest data to the FBI’s UCR system. Thus, Native Ameri-
can arrests are probably significantly undercounted.

Data on crime on Native American reservations (also referred to as Indian
Country) are also seriously inadequate. The National Congress of American Indi-
ans argues that this is due to both the underreporting of crimes to tribal authori-
ties and underreporting to federal authorities.

The reporting of race and ethnicity by state and local criminal justice agen-
cies is not clear and probably varies considerably across the country. Does an
arresting officer make his or her judgment about an arrested person? Or do
officers ask the person (in which case if would be a reliable self-report)? Do
other agencies rely solely on the documents they receive from other agencies
(e.g., corrections officials relying on police or court documents related to a new
prisoner)? Or do officials make their own judgments, without asking each per-
son? They may be poorly trained and may rely on their own stereotypes about
race and ethnicity.

In short, the official data reported by criminal justice agencies are very prob-
lematic, which creates tremendous difficulties when we try to assess the fate of
different groups at the hands of the criminal justice system. The disparities that we
know to exist today could be greater or smaller, depending on how people have
been classified. We will need to be sensitive to these data problems as we discuss
the various aspects of the criminal justice system in the chapters ahead.

In the end, be on guard whenever you see data on “white” and “black” or
“nonwhite” people in the justice system. These data do not accurately reflect the
reality of crime and justice in America.

T H E C R I M E A N D I M M I G R AT I O N C O N T R O V E R S Y

Immigration is a major political controversy in the United States today and has
been for many years. The political debates include a number of proposals that
many people find offensive and discriminatory. Let’s begin by sorting out the
basic facts of immigration.

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23R A C E , E T H N I C I T Y , A N D C R I M E

Sorting Out the Facts on Immigration

The 2010 Census reported that there were 40,000,000 foreign-born people in the
United States, representing 13 percent of the U.S. population. The foreign-born
population includes naturalized citizens, legal permanent residents, temporary
migrants, humanitarian migrants (e.g., refugees), and undocumented migrants.
Forty-four percent of all foreign-born were naturalized citizens by 2010.77

Twenty-nine percent of the foreign-born were from Mexico (11.9 million
people), and another 8 percent were from other Central American countries. The
next largest country of origin was China, with 2.2 million people (or 5 per-
cent of all of the foreign-born). Canada, with 0.8 million people, was the largest
non-Central or South American or Asian country of origin, ranking eleventh
among all countries.78

There were an estimated 11,300,000 unauthorized or undocumented immi-
grants in 2014 (down from a peak of 12.3 before the recession of 2008), and
the number had been stable for about five years. About half of the unauthorized
immigrants, 5.6 million people, were from Mexico. That number had declined
from a peak of 6.9 million in 2007, mainly because the recession that struck the
United States in 2008 discouraged many people from migrating in search of jobs.
There were also 1,300,000 unauthorized immigrants from Asia in 2014, 525,000
from Europe or Canada, and 190,000 from the Middle East.79

Humanitarian migrants, or refugees, represent a special case. The U.S. State
Department defines a refugee as “someone who has fled from his or her home
country and cannot return because he or she has a well-founded fear of persecu-
tion based on religion, race, nationality, political opinion or membership in a par-
ticular social group.”80 Since 1975, the United States has admitted over 3 million
people as refugees. Because they are admitted under a formal State Department
program, with elaborate procedures for determining the validity of their claims of
persecution, refugees are in the country legally.

Hispanics and Asians have been the two fastest-growing racial/ethnic groups
in America in recent decades, with Asians holding the lead since 2010. But there
are significant differences in the sources of growth between the two groups. Most
of the increase among Hispanics has been due to natural increase (measured in
terms of births minus deaths). The growth among Asians, by contrast, has been
more due to immigration.81

B o x 1.4 A Note on “Generations”

There is a lot of confusion over the proper terms for different “generations” of
Americans. Someone who immigrates to the United States is a “first-generation”
American. His or her children are “second generation.” A separate issue involves citi-
zenship. A “second-generation” person would be a “first-generation citizen,” unless
of course his or her parents became naturalized, in which case the parents would
be “first-generation citizens.” There is no such thing as a “second-generation immi-
grant”; only one generation can immigrate.

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24 C H A P T E R 1

Immigration from Africa has changed the composition of the black popu-
lation in the United States. By 2015, there were a record number of 3.8 mil-
lion black immigrants, representing 8.7 percent of the entire black population. In
the Miami, Florida, metropolitan area, for example, black immigrants represented
34 percent of the entire black population, while in New York City the figure was
28 percent.82

Public Attitudes about Immigration Public opinion polls consistently indi-
cate that Americans are very concerned about illegal immigration. A 2015 survey
found that 50 percent of Americans felt that immigrants had made the U.S. econ-
omy worse, while 28 percent thought it made the economy better and 20 percent
felt that it had “not much effect.” Fifty percent also felt that immigrants had made
the crime problem worse, and only 7 percent felt it made crime conditions better.
With respect to science and technology, however, 29 percent felt that immigrants
made the United States better and only 12 percent felt that it made the United
States worse. Half of Americans felt that immigrants made the United States bet-
ter in terms of “food, music, and the arts,” while 11 percent felt they made the
United States worse.83

The Immigration and Crime Controversy

Although half of all Americans believe that immigration has an adverse impact
on crime, research has consistently not supported that view. A 2015 report by the
Cato Institute concluded that “with few exceptions, immigrants are less crime
prone than natives or have no effect on crime rates.”84

Researchers have used different methodologies to investigate immigration
and crime. Butcher and Piehl studied the imprisonment rates for men between
the ages 18 and 40 in 1980, 1990, and 2000. Using census data, they found that
in each of those years, immigrants were less likely to be incarcerated than native-
born Americans. Additionally, the gap widened in more recent years.85 Graham C.
Ousey and Charis E. Kubrin studied cities with populations greater than 100,000
between 1980 and 2000. They found that immigration negatively affected crime;
cities that experienced increases in immigration experienced decreases in crime.
It should be noted that the time period included both years of rising violent
crime rates (1980s) and years of sharply falling crime rates (1993–2000).86 Tim
Wadsworth also found that between 1999 and 2000, cities that experienced the
largest increases in immigration (of all types) had the largest decreases in homi-
cide and robbery in the same time period. His study involved FBI UCR data
for 459 cities with populations greater than 50,000 people. The period studied
included the years of the great “crime drop,” when serious crime experienced a
tremendous decline. 87

In short, public attitudes about the impact of immigration on crime are sim-
ply not supported by the evidence. All of the studies, including others not cited
here, find less crime among immigrants than nonimmigrants.

How do we explain the negative impact of immigration on crime? Ousey
and Kubrin suggest that recent immigrant families have lower rates of divorce

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25R A C E , E T H N I C I T Y , A N D C R I M E

and single-parent households. Criminologists have long established that both of
those factors are associated with higher rates of delinquency and crime. The 2009
Pew Hispanic Center report on young Hispanics, Between Two Worlds, found that
immigrant Hispanics were less likely to be involved in a gang, or know someone
who is, than American-born Hispanics. Young Hispanics are more likely to be
incarcerated than young non-Hispanic whites, but only half are as likely to be
incarcerated as young African Americans.88

Problems with Immigration Enforcement

Immigration is covered by federal and not state or local law. Being an undoc-
umented immigrant is also not a crime; it is a civil offense, not punishable by
imprisonment. Immigrants who commit a crime, whether federal or state, can be
deported immediately.

Some local law enforcement agencies engage in immigration enforcement.
Under Section 287(g) of the 1996 immigration reform act, local police and sher-
iffs can establish written agreements with the federal Immigration Control and
Enforcement (ICE) agency. The agreement specifies that local officers are trained
in immigration enforcement and then authorized to cooperate with federal offi-
cials under their direction. Local offices are then authorized to question people
about their immigration status, arrest suspects without a warrant for suspected
immigration violations, and five other actions. A 2008 PERF report found that
only 4 percent of local agencies had signed such an agreement, however. Some
states have a rule that local police cannot enter into 287(g) agreements because
officers in the state do not have authority to enforce federal civil laws.89

Many people, including law enforcement leaders, believe that immigration
enforcement invites discrimination by police officers. How would an officer, for
example, suspect that a driver was an undocumented immigrant? There is no
behavior that clearly suggests that a person is undocumented. The result would be
traffic stops or street stops of people he believes are undocumented. But the offi-
cer would probably be wrong in many, if not most, cases, and that would involve
discriminatory enforcement.

Immigration enforcement by local police also damages police-community
relations, as members of the community will come to fear the police. (See our
discussion of “Insecure Communities,” pp. 26). Many police chiefs believe this
would happen. In 2008, the Police Chiefs Executive Research Forum (PERF),
a professional association of chiefs and top managers, issued a policy statement
opposing immigration by local law enforcement.90 Several chiefs pointed out that
immigrants, both legal and unauthorized, are victims of crime. They are more
likely to be paid in cash, which makes them easy prey for robbers. Because they
fear being questioned about their immigration status, they are very reluctant to
call the police and report the crime. Also, many immigrants are victims of domes-
tic violence but do not call the police because they are afraid that they or other
family or friends will be subject to immigration enforcement. Many immigrants
are witnesses of crime but are reluctant to come forward to help the police. For
all these reasons, the Police Foundation in 2009 concluded that local agencies

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26 C H A P T E R 1

“should employ community-policing and problem-solving tactics to improve
relations with immigrant communities and resolve tension caused by expanding
immigration.”91

Police chiefs are also concerned that giving police officers responsibility for
immigration enforcement will strain their resources and make it difficult to per-
form their basic responsibilities. This problem has become worse in the economic
recession of 2008–2014, when police departments were unable to hire to replace
retiring officers and in some cases have been forced to lay off officers. Local jails,
moreover, often do not have the space to hold large numbers of unauthorized
immigrants. (Remember, there are about 11.3 million undocumented immi-
grants across the country [2014 estimate], down from 12.2 a peak of 12.2 in
2007.) Local courts are also overburdened with cases, and they are facing cutbacks
because of the recession. Iowa state courts, for example, were closed one day a
week as a cost-saving measure. In short, many police chiefs fear that immigration
enforcement could harm their traditional law enforcement mission. In 2009, the
Police Foundation, after an extensive review, concluded that the various costs of
participating in federal immigration enforcement “outweigh the benefits.”92

“Insecure Communities”: The Impact of Immigration

Enforcement on the Hispanic Community

A 2013 report found that immigration enforcement had an adverse effect on
the attitudes of Hispanics toward law enforcement and public safety among His-
panic Americans.93 The study was based on a telephone survey of 2004 Latinos in
the Chicago, Houston, Los Angeles, and Phoenix metropolitan areas. The survey
found that:

■ 44 percent of Hispanics were less likely to contact the police if they were
the victims of crime, because they were afraid that the responding officers
would ask about their immigration status or the status of people they know.

■ 45 percent of Hispanics were less likely to “voluntarily offer information
about crimes, because the officer might ask about their immigration status.”

■ 70 percent of undocumented immigrants said they were less likely to con-
tact the police if they were the victims of a crime.

■ 28 percent of U.S.-born Hispanics said they were less likely to contact the
police if they were the victims of crime, because they were afraid the police
would inquire about immigration status.

Not calling the police puts both individuals and communities at risk. It is well
established in American policing that the police cannot serve the public alone.
They depend on members of the public to report crimes, to provide information
about criminal activity or disorder in their neighborhoods, and to serve as wit-
nesses in criminal cases. The important role of citizens in working with the police
is called the “co-production” of police services.94 Co-production is one of the
foundations of community policing, and the need to build good relations, trust,
and cooperation. The victim of a domestic assault who does not call the police is

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27R A C E , E T H N I C I T Y , A N D C R I M E

more likely to be assaulted again by the same person. Burglars and robbers will
remain at large and be able to commit more crimes.

T H E G E O G R A P H Y O F R A C I A L A N D E T H N I C J U S T I C E

The “geography of justice” in the United States with respect to race and eth-
nicity var ies across the country. Afr ican Amer icans, Hispanics, Asians, and
Native Americans are very unevenly distributed. The population of California
was estimated to be 38 percent Hispanic in 2010, compared with 5 percent for
Iowa and 1.3 percent for Maine. Mississippi was 37 percent African American
in 2010, compared with less than one percent for Vermont and Montana. Asian
Americans represented 57 percent of the population of Hawaii, 15 percent of
California, and 9 percent of Nevada, the state with the third highest percentage.
As a result, issues of race and ethnicity are far more salient in some areas com-
pared with others.

One study concluded that “most communities lack true racial and ethnic
diversity.”95 In 1996, only 745 of the 3,142 counties or county equivalents had
a white population that was below the national average. Only 21 metropolitan
areas qualified as true “melting pots” (with the percentage of the white popula-
tion below the national average and at least two minority groups with a greater
percentage than the national average).

The uneven distribution of the major racial and ethnic groups is extremely
important for criminal justice. Crime is primarily the responsibility of state and
local governments. Thus, racial and ethnic issues are especially salient in those cit-
ies where racial minorities are heavily concentrated. For example, the context of
policing is very different in Detroit, which is 82 percent African American, than
in Minneapolis, where African Americans are only 18 percent of the population.
Similarly, Hispanic issues are different in San Antonio, which is 59 percent His-
panic, than in many other cities where few Hispanics live.

These disparities illustrate the point we made earlier that in some areas the
traditional “minority” has become the majority. This has important implications
for criminal justice. Population concentration translates into votes, political power,
and the ability to control police departments, sheriff ’s departments, courts, and
correctional agencies. Mayors, for example, appoint police chiefs. If a county is a
majority African American or Hispanic, those groups are able to control the elec-
tion of the sheriff. African Americans have served as mayors of most of the major
cities: New York; Los Angeles; Chicago; Philadelphia; Detroit; Atlanta; Washington,
DC; and others.

The concentration of African Americans in the Southeast has at least two
important effects. This concentration gives this group a certain degree of polit-
ical power that translates into elected African-American sheriffs and mayors.
These officials, in turn, may appoint African-American police chiefs. By 2002, for
instance, Mississippi had 950 elected African-American officials, more than any
other state, including several elected sheriffs. As a result, criminal justice in Missis-
sippi is vastly different from what it was in the segregation era.96

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28 C H A P T E R 1

The number of Hispanic elected officials, meanwhile, is growing rapidly. The
National Latino Elected Officials Organization reported that there were 6,084
Hispanic elected officials in 2014, a 25 percent increase since 2004. Population
growth leads to more voting and political power, particularly at the local level,
and greater influence over criminal justice policy and practices.97

D I S PA R I T Y V E R S U S D I S C R I M I N AT I O N

Perhaps the most difficult question we will encounter throughout this book is
whether certain data indicate a pattern of racial or ethnic discrimination. Debates
over discrimination are often unproductive because of confusion over the meaning
of “discrimination.” It is, therefore, important to make two important distinctions.
First, there is a significant difference between disparity and discrimination. Second,
discrimination can take different forms and involve different degrees of seriousness.
To help clarify this issue, Box 1.5 offers a schematic diagram of a disparity/discrimi-
nation continuum, which illustrates the various forms that each of the two can take.

Disparity

A disparity involves a difference, but one that does not necessarily involve dis-
crimination. Look around your classroom. If you are in a conventional college
program, almost all of the students will be relatively young (between the ages 18
and 25). This represents a disparity in age compared with the general population.
There are no children, few middle-aged people, and probably no elderly students.
This is not a result of discrimination, however. No law, policy or person keeps

B o x 1.5 Discrimination–Disparity Continuum

Definitions

Systematic discrimination—Discrimination at all stages of the criminal justice system,
at all times, and at all places.

Institutionalized discrimination—Racial and ethnic disparities in outcomes that are
the result of the application of racially neutral factors, such as prior criminal record,
employment status, and demeanor.

Contextual discrimination—Discrimination found in particular contexts or circumstances
(e.g., certain regions, particular crimes, or special victim–offender relationships).

Individual acts of discrimination—Discrimination that results from the acts of par-
ticular individuals but is not characteristic of entire agencies or the criminal justice
system as a whole.

Pure justice—No racial or ethnic discrimination at all.

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29R A C E , E T H N I C I T Y , A N D C R I M E

older people from enrolling in the class. Older groups are not enrolled in the class
mainly because of the typical life course of most people, which involves attending
college immediately after high school. The age disparity, therefore, is the result of
factors other than discrimination.

The example of education illustrates the point that a disparity is a difference
that can be explained by legitimate factors that are reasonable and do not raise
any legal issues.

In criminal justice, there is a crucial distinction between legal and extralegal
factors. Legal factors are those embodied in the law. They include the seriousness
of the offense, aggravating or mitigating circumstances in a crime, or an offend-
er’s prior criminal record. The criminal law defines murder as a more serious
crime than burglary by setting more severe punishments. The law reflects the
accepted social norm that taking someone’s life is far more serious than taking
someone’s property. Thus, sentencing most murderers to prison and the majority
of burglars to probation is a legitimate, legally based difference, and not a case of
discrimination.

Extralegal factors are those that have no legitimate legal basis. They include
race, ethnicity, gender, social class, and lifestyle (e.g., clothing, grooming, and
dress). Because they are not recognized in the law, they are not legitimate bases
for decisions by criminal justice officials. It is not legitimate, for example, for the
police to stop only African-American drivers for suspected crimes and to not stop
white drivers. When that happens, we call it racial profiling. It is not legitimate
for a judge to sentence all convicted male burglars to prison but place all con-
victed female burglars on probation, despite the fact that both groups had similar
criminal records (a legal factor). In short, differences based on extra-legal factors
constitute discrimination.

Discrimination

Discrimination involves a difference in outcome based on differential treatment of
individuals or groups without reference to behavior, qualifications, or some other
legal factor. Excluding women, African Americans, or Hispanics from juries is dis-
crimination based on gender, race, or ethnicity, respectively. Sentencing all males
to prison for possession of a gram of cocaine, while sentencing all women to pro-
bation for possessing the same amount of the drug, is discrimination.

Many debates over discrimination turn on the distinction between intent and
result. Where there is a clear intent to treat groups of people differently, discrim-
ination clearly exists. If a prosecutor clearly intended to exclude Hispanics from
juries during jury selection—and there was evidence to support that—that would
be intentional discrimination.

Many controversies, however, involve allegations of discrimination based on
disparities in the results. The National Police-Public Contact Survey has consis-
tently found racial disparities in traffic stops. In 2011, for example, 12.8 percent of
African-American drivers were stopped by the police, compared with 10.4 per-
cent of Hispanic drivers and 9.8 percent of white drivers.98 Clearly, racial and eth-
nic disparities exist. The difficult question is whether these disparities constitute

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30 C H A P T E R 1

discrimination in violation of the law. Several factors could explain the dispari-
ties. It is possible that African-American and Hispanic drivers speed, drive while
drunk, or otherwise violate the law more often than whites. Or, given the higher
rate of poverty among both African Americans and Hispanics, it is possible that
they more often drive cars with expired license plates, broken tail lights, or other
violations that would justify a traffic stop. But it is also possible that the police
department in a city has an aggressive anticrime or antigang policy that involves
a high rate of traffic stops. It is also possible that officers have unconscious biases
regarding race, ethnicity, and crime and are more likely to see potential “danger”
in drivers of color.99

Courts have found discrimination on the basis of extreme disparities in out-
comes in some cases. The most famous recent example is the 2013 decision in
Floyd v. New York City, where a federal court found that the disparities in African
Americans and Hispanics violated the Equal Protection Clause of the Fourteenth
Amendment. (It needs to be said, however, that proving discrimination based on
statistical disparities is extremely difficult and requires both extreme disparities
and powerful statistical analyses.)100

We should add that the word discrimination has at least two different mean-
ings. One has a positive connotation. It is a compliment to say that someone has
“discriminating taste” in music, food, or clothes. The person discriminates against
bad food and bad music. Our choices in music, food, or clothes, however, are not
covered by the law. The other meaning of discrimination has a negative conno-
tation. When we say that someone “discriminates” against African Americans or
Hispanics, we mean invidious distinctions based on negative judgments about an
entire group of people. That is, someone treats Hispanics differently without any
reference to a person’s qualifications (as in a job application) or conduct (as in an
arrest). Acts that involve racial or ethnic discrimination in employment, housing,
or the administration of justice are illegal.

The Problem of Unconscious Bias

Not all forms of bias are conscious. People often act on the basis of unconscious
assumptions or stereotypes that are the result of their upbringing or are deeply
embedded in American culture. This problem is particularly true with respect
to race, ethnicity, and crime. Deeply embedded stereotypes that equate young
African-American men with “crime” and “dangerousness” are widespread. Sim-
ilarly deeply embedded stereotypes about Hispanics and “illegal immigrants” are
also common. Unconscious stereotypes also operate in the other direction, for
example, in equating females with no threat of danger. Lorie Fridell, who directs
the Fair and Impartial Policing project, explained that in their training scenar-
ios police recruits “are consistently under-vigilant with women—not finding the
gun in the small of the back.” That is, they do not associate women with danger-
ousness and a threat to their safety.101

The President’s Task Force on 21st Century Policing strongly endorsed offi-
cer training on unconscious or implicit bias in order to avoid discriminatory
actions by the police.102

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31R A C E , E T H N I C I T Y , A N D C R I M E

The Law of Discrimination

Discrimination occurs whenever people are treated differently in violation of a
local, state, or federal law, or a constitutionally protected right. Several different
parts of the American legal system make discrimination illegal. The Equal Protec-
tion Clause of the Fourteenth Amendment to the Constitution declares that “nor
shall any state … deny to any person within its jurisdiction the equal protection
of the law.” If a state barred African Americans or women from serving on juries
(as some states once did), it would be a violation of the Fourteenth Amendment.

A number of federal laws also forbid discrimination. The most important is
Title VII of the 1964 Civil Rights Act, which holds that “It shall be an unlawful
employment practice for an employer to fail or refuse to hire or to discharge
any individual, or otherwise to discriminate against any individual with respect
to his compensation, terms, conditions, or, privileges of employment, because of
such individual’s race, color, religion, sex, or national origin ….” This law cov-
ers employment discrimination by private employers and government agencies,
which would include police, court, and correctional agencies. Other federal laws
prohibit other forms of discrimination, such as in housing (the 1968 Fair Housing
Act), age (the 1967 Age Discrimination Act), or disability (the 1990 Americans
with Disabilities Act).

State constitutions and laws also prohibit discrimination. The constitution of
each of the 50 states has a provision similar to the Fourteenth Amendment guar-
anteeing equal protection of the laws. All states also have laws prohibiting discrim-
ination in employment, housing, and other areas. Finally, cities have municipal
ordinances that also make various forms of discrimination illegal.

When someone feels that he or she has been discriminated against on the
basis of race, ethnicity, or other factor covered by the law, that person bears the
burden of proving in court that the disparate treatment involved illegal discrimi-
nation. The person’s attorneys need to enlist experts in, for example, police policy
and the law to prove that the disparities cannot be explained by legitimate factors.

The Discrimination–Disparity Continuum

To help clarify the debate over disparity versus discrimination, let us examine
Box 1.5, which puts the different possible outcomes on a continuum.

Systematic discrimination means that discrimination occurs at all stages of the
criminal justice system, in all places, and at all times. That is to say, there is dis-
crimination in arrest, prosecution, and sentencing (stages); in all parts of the coun-
try (places); and without any significant variation over time. The clearest example
of systematic discrimination involved the southeastern states prior to the Civil
Rights Era of the 1950s and 1960s. There was systematic discrimination against
African Americans in voting, employment, education, housing, and all phases of
the criminal justice system.

Institutionalized discrimination involves disparities in outcomes that are based
on an organization’s policies. Marc Maurer of the Sentencing Project lists this
as one of the four major factors contributing to racial disparities in the criminal
justice system.103 One example would be the old police department employment

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32 C H A P T E R 1

standards that required recruits to be at least five feet, six inches tall. This policy
reflected the now discredited belief that if officers were too short they would
not have a commanding presence, and their authority would be more likely to
be challenged. A more recent example is the aggressive “stop and frisk” policy
of the New York City Police Department. In 2011, the NYPD stopped 685,724
people. Over half (52.9 percent) were African American and 33.7 percent were
Hispanic. The NYPD policy did not mention either race or ethnicity, but a U.S.
District Court in 2013 found that the result of the policy violated the Fourteenth
Amendment Equal Protection Clause.104 In Chapter 4 (pp. 155), we will discuss
an important recent study of traffic stops in the Kansas City metropolitan area, in
which investigatory stops (where the police are looking for guns, weapons, or an
outstanding warrant) disproportionately affect African Americans. Investigatory
stops are typically part of an institutionalized crime-fighting strategy of a police
department, and the resulting racial disparities do not reflect bias on the part of
individual officers.105

Bail policies in most criminal courts institutionalize preferences in grant-
ing nonmonetary pretrial release for defendants who are currently employed.
This policy is based on the reasonable assumption that an employed person has
a greater stake in the community and is less likely to flee than an unemployed
person. Yet, the policy discriminates against people who are unemployed or have
been intermittently employed. And because African Americans experience higher
unemployment rates, they are more likely to be denied bail.106 Thus, the bail pol-
icy has a race effect: a racial disparity in the outcomes that is the result of a cri-
terion other than race. We will discuss bail-setting policies in detail in Chapter 5.

Contextual discrimination involves discrimination in certain situations or con-
texts. There are a number of examples of different practices within the same
agency. Racial profiling involves discrimination in the context of traffic enforce-
ment. A police department’s anticrime program may include a high level of traf-
fic stops, which in practice has the effect of racial profiling. This was the case
in the NYPD stop and frisk policy we discussed above. That same department,
however, may have no pattern of race discrimination in arrests or the handling
of domestic violence incidents. The federal sentencing guidelines had very harsh
sentences people convicted of possession and/or sale of the drug crack, which
was very controversial. The result was a pattern of sentencing that had a very
adverse effect on African Americans (who are more likely to use that drug than
whites). Research on the death penalty has consistently found racial disparities
in death sentences for African Americans compared with whites to a degree that
does not exist with noncapital crimes.107

Individual acts of discrimination involve those carried out by particular person: a
police officer, a judge, a parole officer, and so on. These are discriminatory acts by
a person, and they do not represent general patterns of how the criminal justice
system operates.

Finally, at the far end of the spectrum in Box 1.5 is the condition we label
pure justice. This means that there is no discrimination at any time or place in the
criminal justice system. No one seriously argues that, in an imperfect world, such
a situation exists anywhere in the American criminal justice system.

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33R A C E , E T H N I C I T Y , A N D C R I M E

As we discussed earlier, MacDonald argues that the idea that the criminal
justice system is racist is a “myth.” Using our discrimination–disparity continuum,
her analysis concedes individual discrimination but not broader patterns of dis-
crimination in the criminal justice system.

Throughout the chapters in The Color of Justice that follow, we will grapple
with the question of whether the disparities that exist represent discrimination.
For example, there are racial and ethnic disparities in arrests by the police. In
Chapter 4, we examine the evidence on whether these data indicate a clear pat-
tern of discrimination, and if so, what kind of discrimination (contextual, individ-
ual, or systematic). Chapter 4 also examines the difficulties in interpreting traffic
stop data to determine whether there is a pattern of illegal racial profiling. There
is also evidence of disparities in plea bargaining and sentencing. Chapters 5, 6,
and 7 wrestle with the problem of interpreting the data to determine whether
there are patterns of discrimination. Chapter 8 examines the data on the death
penalty and the race of persons executed.

A T H E O R E T I C A L P E R S P E C T I V E O N R A C E ,

E T H N I C I T Y, A N D C R I M E

There are many different theories of crime and criminal justice. We believe that
the available evidence on race, ethnicity, and crime is best explained by a theoret-
ical perspective known as conflict theory.108

The basic premise of conflict theory is that the law is used to maintain the
power of the dominant group in society and to control the behavior of individuals
who threaten that power.109 A classic illustration of conflict theory involves the
law of vagrancy. Vagrancy involves merely being out in public with little or no
money and no clear “purpose” for being there. Vagrancy is something engaged in
only by the poor. To make vagrancy a criminal act and to enforce vagrancy laws
are means by which the powerful attempt to control the poor.110

Conflict theory explains racial disparities in the administration of justice as
products of broader patterns of social, economic, and political inequality in U.S.
society. These inequalities are the result of prejudicial attitudes on the part of
the white majority and discrimination against minorities in employment, edu-
cation, housing, and other aspects of society. Chapter 3 explores these inequali-
ties in detail. Conflict theory explains the overrepresentation of racial and ethnic
minorities in arrest, prosecution, imprisonment, and capital punishment as both
the product of these inequalities and an expression of prejudice against minorities.

Conflict theory has often been oversimplified by both advocates and oppo-
nents. Criminal justice research has found certain “anomalies” in which racial
minorities are not always treated more harshly than whites. For example, there are
certain situations in which African-American suspects are less likely to be arrested
than white suspects. Hawkins argues that these anomalies can be explained
through a revised and more sophisticated conflict theory that takes into account
relevant contingencies and contests.111

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34 C H A P T E R 1

One contingency is crime type. Hawkins claims that African Americans
may be treated more leniently for some crimes because officials believe that
these crimes are “more normal or appropriate for some racial and social class
groups than for others.” In the South during the segregation era, for example,
African Americans often were not arrested for certain crimes, particularly crimes
against other African Americans. The dominant white power structure viewed
this behavior as “appropriate” for African Americans.112 The fact that minority
offenders were being treated leniently in these situations is consistent with con-
flict theory because the outcomes represent a racist view of racial minorities as
essentially “childlike” people who cannot control their behavior. Leniency also
represents another form of discrimination, in the form of denying justice to
African-American victims.

A second contingency identified by Hawkins involves the race or ethnicity
of both the offender and the victim. Much research has found that the criminal
justice system responds more harshly when the offender is a person of color
and the victim is white, particularly in rape and potential death penalty mur-
der cases. According to conflict theory, such crimes are viewed as challenges
to the pattern of racial dominance in society. The same crime is not perceived
as a threat when it is intraracial (e.g., white offender/white victim, African-
American offender/African-American victim). A relatively lenient response to
crimes by minorities against minorities or crimes in which a racial or ethnic
minority is the victim is explained by conflict theory in terms of devaluing of
the lives of minority victims.

There may also be important contingencies based on population vari-
ables. It may be that crimes by racial minorities are treated more harshly when
minorities represent a relatively large percentage of the population and there-
fore are perceived as a social and political threat. A substantial body of research
has explored the “minority threat” thesis, which holds that racial or ethnic dis-
parities will be greater where the white majority feels threatened by a large or
growing racial or ethnic minority population in that jurisdiction.113 At the same
time, some research on imprisonment has found that the disparity between white
and African-American incarceration rates is greatest in states with small minority
populations.114 In this context, minorities have little political power.

Alternative Theories

Conflict theory is a sociological explanation of criminal behavior and the admin-
istration of justice in that it holds that social factors explain which kinds of
behavior are defined as criminal; which people commit crime; and how crimes
are investigated, prosecuted, and punished. Sociological explanations of crime are
alternatives to biological, psychological, and economic explanations. These other
factors may contribute in some way to explaining crime but, according to the
sociological perspective, do not provide an adequate general theory of crime.
Conflict theory also differs from other sociological theories of crime. Consensus
theory, for example, holds that all groups in society share the same values and
that criminal behavior can be explained by individual acts of deviance. Conflict

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35R A C E , E T H N I C I T Y , A N D C R I M E

theory does not see consensus in society regarding the goals or operation of the
criminal justice system.

Conflict theory also differs from Marxist theory, although there are some
areas of agreement. Conflict theory and Marxist theory both emphasize differ-
ences in power between groups. Marxist theory, however, holds that there is a
rigid class structure with a ruling class.115 Conflict theory, meanwhile, maintains a
pluralistic view of society in which there are different centers of power—business
and labor, farmers and consumers, government officials and the news media, reli-
gious organizations, public interest groups, and so forth—although they are not
necessarily equal. The pluralistic view also allows for changes in the relative power
of different groups.

C O N C L U S I O N

The question of race and ethnicity is a central issue in American criminal justice—
perhaps the central issue. The starting point for this book is the overrepresentation
of racial and ethnic minorities in the criminal justice system. This chapter sets the
framework for a critical analysis of this fact about contemporary American soci-
ety. We have learned that the subject is extremely complex. First, the categories of
race and ethnicity are extremely problematic. Much of the data we use are not as
good as we would like. Second, we have learned that there is much controversy
over the issue of discrimination. An important distinction exists between disparity
and discrimination. Also, there are different kinds of discrimination. Finally, we
have indicated the theoretical perspective about crime and criminal justice that
guides the chapters that follow.

D I S C U S S I O N Q U E S T I O N S

1. Is there systematic discrimination in the criminal justice system or not? You
have read brief statements on two sides of the issue. Which ones did you find
most interesting? What do you most want to learn more about in the chap-
ters ahead?

2. What are the differences between race and ethnicity? Give some examples that
illustrate the differences.

3. When social scientists say that the concept of race is a “social construct,”
what exactly do they mean?

4. What are the most recent developments in the debate over immigration and
crime? Search the Web and see if there is any new important evidence.

5. Do you think the U.S. census should have a category of “multicultural” for
race and ethnicity? Explain why or why not. Would it make a difference in
the accuracy of the census? Would it make a difference to you?

6. Explain the difference between discrimination and disparity. Give one example
from some other area of life.

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36 C H A P T E R 1

N O T E S

1. President’s Task Force on 21st Century Policing, Final Report (Washington, DC:
Department of Justice, 2015). http://www.cops.usdoj.gov/pdf/taskforce/taskforce_
finalreport.pdf.

2. For background on this controversy, see John M. Coski, The Confederate Flag:
America’s Most Embattled Emblem (Cambridge: Harvard University Press, 2005).

3. W. E. B. Du Bois, The Souls of Black Folk (New York: W. W. Norton, 1999), p. 17.

4. Nicole D. Porter, Trends in U.S. Corrections (Washington, DC: The Sentencing
Project, 2015). http://sentencingproject.org/doc/publications/inc_Trends_in_
Corrections_Fact_sheet.pdf.

5. United States Department of Labor, Fact Sheet: Estimates of Unemployment Rates by
Race and Ethnicity at the MSA Level for the Third Quarter 2015 (Washington, DC:
Department of Labor, 2015).

6. National Congress of American Indians, Policy Research Center, Statistics on Violence
against Native American Women (February 2013). http://www.ncai.org/attachments/
PolicyPaper_tWAjznFslemhAffZgNGzHUqIWMRPkCDjpFtxeKEUVKjubxfp-
GYK_Policy%20Insights%20Brief_VAWA_020613.pdf.

7. The Innocence Project, DNA Exonerations Nationwide ( January 5, 2016). http://
www.innocenceproject.org/free-innocent/improve-the-law/fact-sheets/dna-
exonerations-nationwide.

8. Pew Research Center, On Views of Race and Inequality, Blacks and Whites Are Worlds
Apart (Washington, DC: Pew Research Center, June 27, 2016). http://www.pew
socialtrends.org/2016/06/27/on-views-of-race-and-inequality-blacks-and-whites
-are-worlds-apart/.

9. Bureau of Justice Statistics, Criminal Victimization, 2014 (Washington, DC: Depart-
ment of Justice, 2015), Table 9. http://www.bjs.gov/content/pub/pdf/cv14.pdf.

10. Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness
(New York: The New Press, 2010).

11. Bureau of Justice Statistics, Criminal Victimization, 2014, Figure 1. Richard
Rosenfeld, Documenting and Explaining the 2015 Homicide Rise: Research Directions
(Washington, DC: National Institute of Justice, 2016). https://www.ncjrs.gov/
pdffiles1/nij/249895.pdf.

12. Dennis Rosenbaum, D. A. Lewis, and J. Grant, “Neighborhood-Based Crime
Prevention: Assessing the Efficacy of Community Organizing in Chicago,” in
Community Crime Prevention: Does It Work? Dennis Rosenbaum, ed. (Newbury Park,
CA: Sage, 1986), pp. 109–139.

13. Heather MacDonald, “Is the Criminal-Justice System Racist?” City Journal 18
(Spring 2008). http://www.city-journal.org/html/criminal-justice-system-
racist-13078.html

14. Federal Bureau of Investigation, Crime in the United States, 2014, Expanded Homi-
cide Data, Table 6. https://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2014/
crime-in-the-u.s.-2014/tables/expanded-homicide-data/expanded_homicide_data_
table_6_murder_race_and_sex_of_vicitm_by_race_and_sex_of_offender_2014.xls.

15. Bureau of Justice Statistics, Felony Defendants in Large Urban Counties, 2009 –
Statistical Tables (Washington, DC: Department of Justice, 2013). http://www.bjs.
gov/content/pub/pdf/fdluc09.pdf.

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37R A C E , E T H N I C I T Y , A N D C R I M E

16. Federal Bureau of Investigation, Crime in the United States, 2014, Table 43A.

17. Ibid.

18. Bureau of Justice Statistics, Criminal Victimization, 2014.

19. Marc Maurer, “Justice for All? Challenging Racial Disparities in the Criminal Justice
System,” Human Rights 37, no. 4 (2010).

A longer discussion is in The Sentencing Project, Black Lives Matter: Eliminating
Racial Inequity in the Criminal Justice System (Washington, DC: The Sentencing
Project, 2015). http://sentencingproject.org/doc/publications/rd_Black_Lives_
Matter.pdf.

20. Substance Abuse and Mental Health Services Administration, Results from
the 2013 National Survey on Drug Use and Health: Summary of National
Findings (2014), pp. 26–27. http://www.samhsa.gov/data/sites/default/files/
NSDUHresultsPDFWHTML2013/Web/NSDUHresults2013.pdf.

21. ACLU, The War on Marijuana in Black and White (New York: ACLU, 2013). https://
www.aclu.org/report/war-marijuana-black-and-white.

22. The Sentencing Project, Black Lives Matter: Eliminating Racial Inequity in the Criminal
Justice System, p. 4. http://sentencingproject.org/doc/publications/rd_Black_Lives_
Matter.pdf.

23. U.S. Department of Justice, Investigation of the Ferguson Police Department (2015),
p. 2. http://www.justice.gov/sites/default/files/opa/press-releases/attach-
ments/2015/03/04/ferguson_police_department_report.pdf.

24. Joan Petersilia, Racial Disparities in the Criminal Justice System (Santa Monica: Rand
Corporation, 1983).

25. Samuel Walker and Molly Brown, “A Pale Reflection of Reality: The Neglect of
Racial and Ethnic Minorities in Introductory Criminal Justice Textbooks,” Journal of
Criminal Justice Education 6 (Spring 1995), pp. 61–83.

26. Coramae Richey Mann, Unequal Justice (Bloomington: Indiana University Press,
1988), viii.

27. “Final Tally: Police Shot and Killed 986 People in 2015,” Washington Post (January 6,
2016). https://www.washingtonpost.com/national/final-tally-police-shot-and-
killed-984-people-in-2015/2016/01/05/3ec7a404-b3c5-11e5-a76a-0b5145e8679a_
story.html.

28. Porter, Trends in U.S. Corrections.

29. Bureau of Justice Statistics, Capital Punishment, 2013—Statistical Tables (Washington,
DC: Department of Justice, 2014). http://www.bjs.gov/content/pub/pdf/cp13st.pdf.

30. Kimberly Kempf-Leonard, “Minority Youths and Juvenile Justice: Disproportionate
Minority Contact after Nearly 20 Years of Reform Efforts,” Youth Violence and
Juvenile Justice 5 (January 2007), p. 80.

31. U.S. Census, Projections of the Size and Composition of the U.S. Population: 2014-2060
(Washington, DC: Census Bureau, 2015).

32. Office of Management and Budget, Standards for Maintaining, Collecting, and Presenting
Federal Data on Race and Ethnicity (from Federal Register, October 30, 1997). https://
www.whitehouse.gov/sites/default/files/omb/assets/information_and_regulatory_
affairs/re_app-a-update.pdf.

33. Jeffrey Passel and Paul Taylor, Who’s Hispanic? (Washington, DC: Pew Research
Center, 2009). http://www.pewhispanic.org/2009/05/28/whos-hispanic/.

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38 C H A P T E R 1

34. The classic study of race is Ashley Montagu, Statement on Race, 3rd ed. (New York:
Oxford University Press, 1972), which includes the text of and commentary of four
United Nations statements on race.

35. J. Milton Yinger, Ethnicity: Source of Strength? Source of Conflict? (Albany: State
University of New York Press, 1994), p. 19.

36. Yinger, Ethnicity, p. 21. Louis Wirth, “The Problem of Minority Groups,” in The
Science of Man in the World Crisis, Ralph Linton, ed. (New York: Columbia University
Press, 1945), p. 123.

37. Scott Malcolmson, One Drop of Blood: The American Misadventure of Race (New York:
Farrar Straus Giroux, 2000).

38. Association of MultiEthnic Americans: http://www.ameasite.org.

39. Office of Management and Budget, Standards for Maintaining, Collecting, and Presenting
Federal Data on Race and Ethnicity.

40. Ibid.

41. James Paul Allen and Eugene James Turner, We the People: An Atlas of America’s Ethnic
Diversity (New York: Macmillan, 1988). Yinger, Ethnicity, pp. 3–4.

42. Renee Stepler, Statistical Portrait of Hispanics in the United States, 1980–2013
(May 12, 2015).

43. Nadine Naber, “Ambiguous Insiders: An Investigation of Arab American Invisibility,”
Ethnic and Racial Studies 23 (January 2000), pp. 37–61. Helen Hatab Samhan, “Who
Are Arab Americans?” Grolier Multimedia Encyclopedia, available on the website of the
Arab American Institute.

44. American Religious Identification Survey: http://commons.trincoll.edu/aris/.
Council on American-Islamic Relations: http://www.cair.com/.

45. Pew Research Center, Multiracial in America (Washington, DC: Pew Research Center,
2015). http://www.pewsocialtrends.org/2015/06/11/multiracial-in-america/.

46. Web site for the Association of Multiethnic Americans: http://www.mixedheritage
center.org/index.php?option=com_content&task=view&id=43&Itemid=29.

47. Lawrence Wright, “One Drop of Blood,” The New Yorker (July 25, 1994), p. 47.

48. Jeffrey M. Jones, U.S. Blacks, Hispanics Have No Preferences on Group Labels (Princeton:
Gallup Poll, 2013. http://www.gallup.com/poll/163706/blacks-hispanics-no-
preferences-group-labels.aspx. Paul Tayler, Mark Hugo Lopez, Jessica Martinez, and
Gabriel Velasco, When Labels Don’t Fit: Hispanics and Their View of Identity (Washing-
ton, DC: Pew Hispanic Center, 2012). http://www.pewhispanic.org/2012/04/04/
when-labels-dont-fit-hispanics-and-their-views-of-identity/.

49. Richard J. Herrnstein and Charles Murray, The Bell Curve: Intelligence and Class
Structure in American Life (New York: The Free Press, 1994).

50. Steven Fraser, ed., The Bell Curve Wars: Race, Intelligence, and the Future of America
(New York: Basic Books, 1995).

51. See the various research reports at U.S. Department of Health and Human
Resources, Early Childhood Learning and Knowledge Center, Research Reports
and Projects. https://eclkc.ohs.acf.hhs.gov/hslc/data/opre .

52. Louis Wirth, “The Problem of Minority Groups,” in The Science of Man in the World
Crisis, Ralph Linton, ed. (New York: Columbia University Press, 1945), p. 123.

53. Office of Management and Budget, Standards for Maintaining, Collecting, and Presenting
Federal Data on Race and Ethnicity.

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39R A C E , E T H N I C I T Y , A N D C R I M E

54. Monica Anderson, A Rising Share of the U.S. Black Population Is Foreign Born
(Washington, DC: Pew Research Center, 2015). http://www.pewresearch.org/
fact-tank/2015/04/08/reflecting-a-racial-shift-78-counties-turned-majority-
minority-since-2000/.

55. Jens Manuel Krogstad, Reflecting a Racial Shift, 78 Counties Turned Minority-Majority
Since 2000 (Washington, DC: Pew Research Center, 2015). http://www.pew
research.org/fact-tank/2015/04/08/reflecting-a-racial-shift-78-counties-turned-
majority-minority-since-2000/.

56. Anderson, A Rising Share of the U.S. Black Population is Foreign Born. http://www.
pewsocialtrends.org/2015/04/09/a-rising-share-of-the-u-s-black-population
-is-foreign-born/.

57. U.S. Census, The American Indian and Alaska Native Population: 2010 (Washington,
DC: Bureau of the Census, 2012). http://www.census.gov/prod/cen2010/briefs/
c2010br-10.pdf.

58. Bureau of Justice Statistics, Asian, Native Hawaiian, and Pacific Islander Victims of Crime
(Washington, DC: Department of Justice, 2009). National Council on Crime and
Delinquency, Created Equal: Racial and Ethnic Disparities in the US Criminal Justice
System (Oakland, CA: NCCD, March 2009), p. 2.

59. Anita Khashu, Robin Busch, Zainab Latif, and Francesca Levy, Building Strong
Police-Immigrant Community Relations: Lessons from a New York City Project (New York:
Vera Institute, 2005). http://www.vera.org.

60. Cecilia Menjivar and Cynthia L. Beharano, “Latino Immigrants’ Perceptions of
Crime and Police Authorities: A Case Study from the Phoenix Metropolitan Area,”
Ethnic and Racial Studies 27 ( January 2004), pp. 120–148.

61. Nik Theodore, Insecure Communities: Latino Perceptions of Police Involvement in Immigration
Enforcement (Chicago: University of Illinois at Chicago, 2013). https://www.policylink.
org/sites/default/files/INSECURE_COMMUNITIES_REPORT_FINAL.PDF.

62. John Hope Franklin and Alfred A. Moss Jr., From Slavery to Freedom: A History of
African Americans, 7th ed. (New York: Knopf, 1994), p. xix.

63. Eric R. Wolf, Europe and the People without History (Berkeley: University of California
Press, 1982), pp. 380–381.

64. Bruce Baum, The Rise and Fall of the Caucasian Race: A Political History of Racial
Identity (New York: New York University Press, 2006).

65. Taylor, Lopez, Martinez and Velasco, When Labels Don’t Fit: Hispanics and Their
Views of Identity. http://www.pewhispanic.org/2012/04/04/when-labels-dont-fit-
hispanics-and-their-views-of-identity/.

66. Federal Bureau of Investigation, Crime in the United States, Expanded Homicide Data,
Table 14, Justifiable Homicide 2010–2014 (2015).

67. “Final Tally: Police Shot and Killed 986 People in 2015, Washington Post
( January 6, 2016).

68. Federal Bureau of Investigation, Crime in the United States, 2014.

69. Bureau of Justice Statistics, Criminal Victimization, 2014.

70. Ibid.

71. Bureau of Justice Statistics, Police Behavior during Traffic and Street Stops, 2011 (Washington,
DC: Department of Justice, 2013). http://www.bjs.gov/content/pub/pdf/pbtss11.pdf.

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40 C H A P T E R 1

72. Bureau of Justice Statistics, Prisoners in 2014 (Washington, DC: Department of
Justice, 2015), pp. 27–28. http://www.bjs.gov/content/pub/pdf/p14.pdf.

73. Death Penalty Information Center, Facts about the Death Penalty (February 3, 2016).
http://www.deathpenaltyinfo.org/documents/FactSheet.pdf. Bureau of Justice
Statistics, Capital Punishment, 2013—Statistical Tables, Figure 1.

74. Barry Holman, Masking the Divide: How Officially Reported Prison Statistics Distort the
Racial and Ethnic Realities of Prison Growth (Alexandria: National Center on Institu-
tions and Alternatives, 2001).

75. Gary LaFree, “Race and Crime Trends in the United States, 1946–1990,” in Ethnicity,
Race, and Crime: Perspectives across Time and Place, Darnell F. Hawkins, ed., (Albany:
State University of New York Press, 1995), pp. 173–174.

76. Zoann K. Snyder-Joy, “Self-Determination and American Indian Justice: Tribal versus
Federal Jurisdiction on Indian Lands,” in Ethnicity, Race, and Crime: Perspectives Across
Time and Place, Hawkins, ed., p. 310.

77. U.S. Bureau of the Census, The Foreign-Born Population in the United States: 2010
(Washington, DC: Department of Commerce, 2012). https://www.census.gov/
newsroom/pdf/cspan_fb_slides.pdf.

78. Ibid.

79. Pew Research Center, 5 Facts about Illegal Immigration in the U.S. (November 19,
2015). http://www.pewresearch.org/fact-tank/2015/11/19/5-facts-about-illegal-
immigration-in-the-u-s/.

80. U.S. State Department, Refugee Admissions. http://www.state.gov/j/prm/ra/.

81. Anna Brown, U.S. Hispanic and Asian Populations Growing, but for Different Reasons
(Washington, DC: Pew Research Center, 2014).

82. Anderson, A Rising Share of the U.S. Black Population Is Foreign Born.

83. Pew Research Center, Modern Immigration Wave Brings 59 Million to U.S., Driving
Population Growth and Change Through 2065 (2015). http://www.pewhispanic.
org/2015/09/28/modern-immigration-wave-brings-59-million-to-u-s-driving-
population-growth-and-change-through-2065/.

84. Alex Nowrasteth, Immigration and Crime—What the Research Says (Washington, DC:
Cato Institute, 2015). http://www.cato.org/blog/immigration-crime-what-
research-says.

85. Ibid.

86. Graham C. Ousey and Charis E. Kubrin, “Exploring the Connection Between
Immigration and Violent Crime Rates in U.S. Cities, 1980–2000,” Social Problems 56
(August 2009), pp. 447–473.

87. Tim Wadsworth, “Is Immigration Responsible for the Crime Drop? An Assessment
of the Influence of Immigration on Changes in Violent Crime Between 1990 and
2000,” Social Science Quarterly 91 (June 2010), pp. 531–553.

88. Pew Hispanic Center, Between Two Worlds: How Young Latinos Come of Age in America
(Los Angeles: Pew Hispanic Center, 2009).

89. Police Executive Research Forum, Police Chiefs and Sheriffs Speak Out on Local Immigration
Enforcement (Washington, DC: PERF, April 2008). http://www.policeforum.org/assets/
docs/Free_Online_Documents/Immigration/police%20chiefs%20and%20sheriffs%20
speak%20out%20on%20local%20immigration%20enforcement%202008.pdf.

90. Ibid.

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41R A C E , E T H N I C I T Y , A N D C R I M E

91. Police Foundation, The Role of Local Police: Striking a Balance between Immigration
Enforcement and Civil Liberties (Washington, DC: Police Foundation, 2009),
pp. 4–5.

92. Police Executive Research Forum, Police Chiefs and Sheriffs Speak Out on Local
Immigration Enforcement (Washington, DC: PERF, April 2008).

93. Nik Theodore, Insecure Communities: Latino Perceptions of Police Involvement in Immi-
gration Enforcement (Chicago: University of Illinois at Chicago, 2013). https://www
.policylink.org/sites/default/files/INSECURE_COMMUNITIES_REPORT_
FINAL.PDF.

94. Wesley G. Skogan and George E. Antunes, “Information, Apprehension, and
Deterrence: Exploring the Limits of Police Productivity,” Journal of Criminal Justice,
7 (Autumn 1979), pp. 217–241.

95. William H. Frey, “The Diversity Myth,” American Demographics 20 (June 1998), p. 41.

96. U.S. Census Bureau, Statistical Abstract of the United States, 2011, Tables 413, 414.

97. NALEO, “At-A-Glance” (August 2016). http://www.naleo.org/at_a_glance.

98. Bureau of Justice Statistics, Police Behavior during Traffic and Street Stops, 2011.

99. The best discussion of how to analyze traffic stop data is Lorie Fridell, By the
Numbers: A Guide for Analyzing Race Data from Vehicle Stops (Washington, DC: Police
Executive Research Forum, 2004).

100. Floyd v. New York City (2013). See materials on the case on the web site of the Cen-
ter for Constitutional Rights. www.ccrjustice.org .

101. Police Executive Research Forum, Re-Engineering Training on Police Use of Force
(Washington, DC: Police Executive Research Forum, 2015), pp. 37–38. http://
www.policeforum.org/assets/reengineeringtraining1.pdf. Fair and Impartial Polic-
ing project: http://www.fairimpartialpolicing.com/.

102. President’s Task Force on 21st Century Policing, Final Report, Recommendation 5.9,
pp. 57–58.

103. Maurer, “Justice for All? Challenging Racial Disparities in the Criminal Justice
System.” Also, The Sentencing Project, Black Lives Matter: Eliminating Racial Inequity
in the Criminal Justice System.

104. Data on the case is available at New York Civil Liberties Union, Stop and Frisk 2011
(New York: New York Civil Liberties Union, 2012). Court decision: Floyd, et al., v.
New York City (2013). Decision and additional data available at www.ccrjustice.org.

105. Charles R. Epp, Steven Maynard-Moody, and Donald Haider-Markel, Pulled Over:
How Police Stops Define Race and Citizenship (Chicago: University of Chicago Press,
2014).

106. Theodore Chiricos and William D. Bales, “Unemployment and Punishment:
An Empirical Analysis, Criminology 29 (November 1991), pp. 701–724.

107. Death Penalty Information Center: http://www.deathpenaltyinfo.org/.

108. Ronald L. Akers and Christine S. Sellers, Criminological Theories, 6th ed. (New York:
Oxford University Press, 2012).

109. Darnell Hawkins, “Beyond Anomalies: Rethinking the Conflict Perspective on
Race and Criminal Punishment,” Social Forces 65 (March 1987), pp. 719–745.

110. William J. Chambliss, “A Sociological Analysis of the Law of Vagrancy,” Social
Problems 12 (1) (Summer 1964), pp. 66–67.

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42 C H A P T E R 1

111. Darnell Hawkins, “Beyond Anomalies: Rethinking the Conflict Perspective on
Race and Criminal Punishment,” Social Forces 65 (March 1987), pp. 719–745.

112. Gunnar Myrdal, An American Dilemma: The Negro Problem and Modern Democracy
(New York: Harper, 1944).

113. Malcom D. Holmes, “Minority Threat and Police Brutality: Determinants of Civil
Rights Criminal Complaints in U.S. Municipalities,” Criminology 38 (May 2000),
pp. 343–368.

114. Alfred Blumstein, “Prison Populations: A System Out of Control,” in Crime and
Justice: A Review of Research, Michael Tonry and Norval Morris, eds., Vol. 10
(Chicago: University of Chicago Press, 1988), p. 253.

115. Richard Quinney, The Social Reality of Crime (Boston: Little, Brown, 1970).

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43

2

VICTIMS AND OFFENDERS:

Myths and Realities about Crime

Popular Images of Victims and Offenders:

“Mad Angry Black Woman”

Bethany Storro’s face revealed scars from an incident in September 2010.
This twentysomething, white female reported to police that she was at a
coffee shop when a stranger spoke to her and threw acid in her face. What
type of person would do this? Her report to the police offered a description
of the unnamed offender: black female. An indictment of modern race rela-
tions: it was a racial hoax. Newspaper reports referred to Storro as “obviously
deeply troubled,” but “she was sane enough to make a calculated decision
to maximize sympathy and deflect suspicion. She blamed it on a black per-
son.”1 The “mad black woman imagery” reflects a disturbing imagery present
in modern society about the linkages between race and crime.

The news media exert a powerful impact on how Americans think
about crime and justice. Unfortunately, the image the media create is often
wildly distorted. Even worse, many of those distorted images have serious
racial implications, perpetuating racial stereotypes about criminals and their
victims. This chapter attempts to cut through those distorted images and
present an evidence-based picture of victims and offenders in America.

L E A R N I N G O B J E C T I V E S

In this chapter, we describe the social context of crime in the United States.
The chapter starts with a discussion of the types of crimes and criminals that
catch the attention of the American public and then presents the picture of

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44 C H A P T E R 2

the typical victim and typical offender from government victimization and arrest
reports.

After you have read this chapter:

1. You will be able to sort your way through basic data on crimes and victims
and be able to spot occasions when the news media present a distorted pic-
ture of crime in America.

2. You will understand the basic patterns of who commits major crimes and
who the principal victims are. You will have a solid grasp of the racial- and
ethnic-group patterns related to both victims and offenders.

3. You will understand the concept of “racial hoaxes” and the role they play in
distorting public understanding of crime.

4. You will understand the category of “hate crimes,” with special reference
to race and ethnicity, and how they are different in important respects from
what are called “street crimes” (e.g., robbery and burglary).

5. You will understand the different theoretical explanations for the racial and
ethnic gap in offending and victimization.

6. You will have a good understanding of the racial and ethnic aspects of gangs

in America.

M E D I A A N D C R I M E

Racial Hoaxes

Racial hoaxes have a particularly powerful impact on public images of victims
and offenders. Katheryn K. Russell asserts that a racial hoax occurs “when some-
one fabricates a crime and blames it on another person because of his race OR
when an actual crime has been committed and the perpetrator falsely blames
someone because of his race.”2 Hoaxes receive a lot of publicity because they are
typically sensational and violent crimes that grab media attention. People remem-
ber them because of their sensational character. One infamous racial hoax was
the case of Susan Smith’s assertion that an African-American man stole her car
and kidnapped her children.3 Smith was a white woman. It was later revealed that
she drove her car, with her children trapped in their car seats, into a nearby lake.
Russell argues that such hoaxes have social and psychological consequences for
individuals and the community and significant legal costs.4 In this 1994 case in
South Carolina, state and federal officials spent nine days looking for the alleged
offender before she confessed to driving the car into the lake and killing her chil-
dren. Smith’s attempt to blame someone else for the crime was successful (even
if temporarily) because it tapped in to widely held societal fears about the typical
criminal.

Russell documents known racial hoaxes in the United States from 1987 to
1996. Although she found that racial hoaxes “are perpetrated by people of all

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45V I C T I M S A N D O F F E N D E R S

races, classes, geographic regions and ages,”5 the majority of racial hoax cases were
perpetrated by a white person charging an African-American person (70 per-
cent of the cases), with a smaller number of African Americans charging whites
in racial hoaxes.6 (In this discussion, the “perpetrator” is the person who makes
a false claim of a crime, not a person who actually commits the alleged crime.)
Hoax perpetrators have been charged with filing false police reports, but this
occurs in less than half of the documented cases.7

In her book, The Color of Crime, Russell makes a compelling argument for a
strong legal response to the perpetration of racial hoaxes. She argues that legisla-
tion should be passed, similar to hate-crime legislation, that allows for a sentence
enhancement to such charges as filing a false police report in the case of racial
hoaxes. Such a law would be similar to one proposed in New Jersey in 1995; it
would punish citizens who falsely incriminate another as the perpetrator of a crime
or submit a fictitious report based on race, color, or ethnicity (as well as religion and
sexual orientation).8 In addition to a sentence enhancement (fine, fee, additional
supervision/incarceration), the person convicted would have to reimburse the law
enforcement agencies whose search actions resulted from the racial hoax.

By 2012, the white female by the name of Bonnie Sweeten, who became
known as the “Disney World Hoax Mom,” would receive both state and federal
prison sentences for her actions in 2009. The hoax was a 911 call to police in
Philadelphia that “claimed she and her 9-year-old daughter had been carjacked by
two black men. She said they’d been stuffed into the trunk of another vehicle.”9

The “manhunt” that resulted from another black on white kidnapping charge
ended when the FBI “found the pair unharmed the next day at Disney World.”10

It was revealed that her claim of kidnapping by black men was to cover her taking
money from an elderly relative and the stealing hundreds of thousands of dollars
from the law firm she worked for. Her state and federal prison term of eight years
and the one million dollars in retribution did not result from the racial hoax
abduction story, however, but from the financial fraud crimes. What makes it seem
expedient to make such racially charged claims?

Race and Gender of Crime Victims

Some crime stories capture the attention of the public more than others, arguably
because of the nature of the offense, the type of victim, and the type of offender.
Recently, media outlets have been charged with favoring the presentation of
some crime stories over others. The media consistently portray violent crime as
more common than property crime when in fact violent crimes are only about
10 percent of all reported crimes.11 Additionally, the media often suggest crime is
increasing at astronomical rates when in fact the great American crime drop (see
Chapter 1) brought crime rates to historic lows.

Some critics also charge that the media show bias in the coverage of missing
persons, arguing that print and television coverage of stories focuses on missing white
women and tends to ignore missing women of color. Essence magazine contends, for
example, that “when black women disappear, the media silence is deafening.”12 Spe-
cifically, some media critics charge that attention the media give to cases such as Laci

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46 C H A P T E R 2

Peterson, Natalee Holloway, and Chandra Levy far outweighs the emphasis placed
on cases such as Evelyn Hernandez, LaToyia Figueroa, and Ardena Carter.

Perhaps the typical American recognizes the details of one of the following
pairs of missing person victims but not the other.

The first pair of victims is connected by time and location/geography:

In 2004, Laci Peterson, a missing white female who was eight months pregnant,
was found dead in the San Francisco Bay Area. Most Americans know
not just the details of her disappearance from her home, the search for her
whereabouts, and the subsequent recovery of her body but also that her
husband, Scott Peterson, was charged and convicted of this offense.

Few Americans are aware that a few months before Laci Peterson’s body was
discovered, the decapitated body of a young, pregnant Hispanic woman,
Evelyn Hernandez, was found. Details of her missing person/murder
case were not extensively covered by the national media.

The second pair of victims is connected by time, but not geography:

In May 2005, Natalee Holloway, a white American teenager, was reported
missing in Aruba. Her story made headlines almost from the moment
that she was reported missing. Print and news media covered the inci-
dent extensively for weeks following her disappearance.

In July 2005, 24-year-old LaToyia Figueroa, who was pregnant, was reported
missing. Her body was later recovered, and her boyfriend was charged
with murder. However, her story was initially ignored by the national
media, some suggest because she was not white.

The third pair of victims is connected by time and occupation:

In 2003, Chandra Levy, a white female intern in Washington, DC, disap-
peared on a morning jog. Considerable attention was paid to her search
and recovery in nationwide news stories.13

In 2003, Ardena Carter, a young African American graduate student in
Georgia, went missing on her way to the library. Her disappearance and
the subsequent recovery of her body garnered no more than regional
news coverage.14

Critics of the media coverage of these types of missing person cases argue
that the public is being misled about who is really missing.15 Department of Jus-
tice data, for example, indicate that in California, nearly twice as many Hispanic
women (7,453) are missing than white women (4,032).16 The National Center
for Missing Adults reports that of more than 47,000 reported missing women in a
recent year, 29,553 were white or Hispanic, 13,859 were African American, 1,199
were Asian American, and 685 were Native American.17 Of these missing persons,
53 percent were men.

This pattern of more media emphasis on white, female missing persons is
not necessarily intentional; nonetheless it does signal a devaluation of the lives of
nonwhite victims of crime. Professor Todd Boyd notes that the media’s decision

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47V I C T I M S A N D O F F E N D E R S

to focus on white women and not women of color may be “an unconscious deci-
sion about who matters and who doesn’t.”18 He asserts, “In general, there is an
assumption that crime is such a part of black and Latino culture that these things
happen all the time. In many people’s minds it’s regarded as being commonplace
and not a big deal.”

A B R O A D E R P I C T U R E O F T H E C R I M E V I C T I M

Our perceptions of crime are shaped to a large extent by the highly publicized
crimes featured on the nightly news and sensationalized in newspapers. We read
about young African American or Hispanic males who sexually assault, rob, and
murder whites, and we assume that these crimes are typical. We assume that the
typical crime is a violent crime, that the typical victim is white, and that the typ-
ical offender is African American or Hispanic. As Charles Silberman observes, this
topic is difficult to address:

In the end, there is no escaping the question of race and crime. To say
this is to risk, almost guarantee, giving offense; it is impossible to talk
honestly about the role of race in American life without offending and
angering both whites and blacks—and Hispanic browns and Native
American reds as well. The truth is terrible, on all sides; and we are all
too accustomed to the soothing euphemisms and inflammatory rhetoric
with which the subject is cloaked.25

In short, compelling evidence suggests that the most widely held picture
of crime, criminal, and crime victim in America is at best incomplete and at
worst inaccurate, particularly as it concerns race and ethnicity of crime victims.

FOCUS ON AN ISSUE

Central Park Jogger Case: Update

In 1989, a 28-year-old white female jog-

ging in Central Park was brutally raped.

The perpetrators were identified as young

and African American. The media reports

coined a new term “wilding.” This term

was meant to reflect the super-predator

image of a band of young, probably gang

affiliated, minority males. Shortly after

the incident was reported, a group of five

minority male teenagers (ages 14–16) were

arrested, charged, and convicted of attack-

ing and raping “the Central Park Jogger.”

Four from the convicted group spent

roughly 7 years each in prison, while the

final defendant spent 13 years in prison.

The Central Park Jogger Case has

long been used to illustrate the media over

emphasis on certain types of crimes (violent

crime), with certain types of crime victims

(white females), and with certain types of

offenders (a “gang” of young, minority

males). Does this incident reflect a “typical”

criminal event? Many people believe that

it does: a white victim falling prey to the

(Continued )

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48 C H A P T E R 2

violence of minority gang activity. But the

evidence suggests that it is not the typical

criminal event. First, more than 80 percent

of crimes reported to the police are prop-

erty crimes.21 Second, a disproportionate

number of crime victims are minorities.

Third, interracial (between-race) crimes are

the exception, not the rule. Finally, not all

group activity is gang activity, not all gang

actions are criminal, and not all gang mem-

bers are racial or ethnic minorities.

An article in the New York Times

several weeks after the well-publicized

incident described here helps put this

victimization in perspective. A total of

29 rapes were reported in the city that

week (April 16–22, 1989), with 17 Afri-

can-American female victims, 7 Hispanics,

3 whites, and 2 Asians.22 Thus, the typical

rape victim was in fact a minority female.

Although the 29 reports from the New

York Police Department did not indicate

the race of the offender, other sources,

including the national victimization data

discussed later in this chapter, demonstrate

that rape is predominantly an intrarracial

(within-race) crime.23

Subsequent to the investigation of

this event, five young males of color were

eventually convicted and incarcerated for

perpetrating this attack, each serving up

to 8 years in prison. In 2002, with the

assistance of DNA analysis, it was revealed

that the five convicted youths were not

the actual offenders.24 The actual offender

has now been identified and has confessed

to the offense.25 Note that these details

became known only after the young

offenders had served their sentences. Thus,

this infamous case is an example of wrong-

ful prosecution based on faulty police

work, including very questionable inter-

rogation techniques, that had a devastating

impact on young men of color.

After DNA evidence lead police to

identify the correct assailant in this case,

the five convicted men seek exoneration of

their convictions. In 2002, the Manhattan

District Attorney supported the call that the

original verdict be vacated. It is not always

clear how the state should respond to com-

pensate victims of wrongful conviction. In

their civil suit against the city of New York,

the defendants “accused the city’s police and

prosecutors with false arrest, malicious pros-

ecution and a racially motivated conspiracy

to deprive the men of their civil rights”.25

This case has been in the federal courts for

over a decade.26 How should these men

be compensated for this “wrongful prose-

cution”? Recently, New York City Mayor

Bill de Blasio stated that there is a “moral

obligation to right this injustice.” The New

York Times reports that a settlement has been

reached for $40 million, some 25 years,

after the injustice and that “the settlement

averages roughly $1 million for each year of

imprisonment for the men.”

Victimization data, in fact, reveal that people of color are more likely than whites
in most circumstances to be victimized by crime.

In the sections that follow, we use victimization data to paint a broad pic-
ture of the crime victim, allowing for a view of which racial and ethnic groups
are disproportionately the victims of crime. We begin by discussing the National
Crime Victimization Survey, the source of most data on criminal victimization
in the United States. We then compare the household victimization rates of
Non Hispanic African Americans, Non Hispanic Whites, Non Hispanic Other
and Hispanic. Personal victimization rates (property and violent offense) are then
compared for these groups as well.

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49V I C T I M S A N D O F F E N D E R S

The National Crime Victimization Survey

The most systematic source of victimization information is the National Crime
Victimization Survey (NCVS). The survey, which began in 1973, is conducted
by the Bureau of Census for the Bureau of Justice Statistics (BJS). Survey data are
used to produce annual estimates of the number and rate of personal and house-
hold victimizations for the nation as a whole and for urban, suburban, and rural
comparisons.27

Once a household is selected for the survey, interviews are conducted at
six-month intervals to ask whether household members have been the victims
of selected major household and personal crimes during the last six months.
Information is collected about/from persons aged 12 and older who are mem-
bers of the household selected for the sample. The sample is chosen on the
basis of the most recent census data to be representative of the nation as a
whole. The NCVS data presented here are estimates based on the interviews
that reflect a nationally representative sample of 90,380 households and 158,090
persons, aged 12 years and older. The response rates for the 2014 survey were
very high: 84 percent of eligible households and 87 percent of eligible persons
responded.28

Members of selected households are contacted either in person or by phone
every six months for three years. Household questionnaires are completed to
describe the demographic characteristics of the household (income, number of
members, and so on). The race and ethnicity of the adult completing the house-
hold questionnaire is recorded from self-report information as the race and eth-
nicity of the household. Starting in 2003, respondents can self-report more than
one race. Incident questionnaires are completed for both household offenses and
personal victimizations. The designated head of the household is questioned about
the incidence of household burglary, household larceny, and motor-vehicle theft.
Personal victimization incident questionnaires are administered to household
members aged 12 and older, probing them to relay any victimization incidents
of rape, robbery, assault, and personal larceny. Those who report victimizations
to interviewers are asked a series of follow-up questions about the nature of the
crime and the response to the crime. Those who report personal victimizations
are also asked to describe the offender and their relationship (if any) with the
offender.

Here is a sample of the questions from the NCVS29:

Question 36a. I’m going to read some examples that will give you an idea of the
kinds of crime this study covers. As I go through them, tell me if any of these
happened to you in the last six months, that is since _____________ ________,
20 ________.

Was something belonging to YOU stolen, such as

(a) Things that you carry, like luggage, a wallet, purse, briefcase

(b) Clothing, jewelry, or cell phone

(c) Bicycle or sports equipment …. (etc).

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50 C H A P T E R 2

41a. … has anyone attacked or threatened you in any of these ways

(a) With any weapon, for instance, a gun, or knife …

(d) Any rape, attempted rape of other type of sexual attack …

(g) Any attack or threat or use of force by anyone at all? Please mention it
even if you are not certain it was a crime.

In many ways, the NCVS produces a more complete picture of crime and
the characteristics of those who are victimized by crime than official police
records. Most important, it includes victimizations not reported to the police. As
the NCVS has consistently reported for over 40 years, only slightly more than
one-third of all crimes are reported. In addition, the survey includes questions
designed to elicit detailed information concerning the victim, the characteristics
of the offender(s), and the context of the victimization. This information is used
to calculate age-, sex-, and race-specific estimates of victimization. In addition,
estimates of interracial and intraracial crime can be calculated. Furthermore, sup-
plements to the survey are done periodically to address victimization issues such
as identity theft and school crime and safety.

The NCVS is currently coding race/ethnicity as Non-Hispanic White,
Non-Hispanic Black, Non-Hispanic Other (this includes American Indians and
Alaska Natives; Asian, Native Hawaiians, and other Pacific Islanders; and per-
sons of two or more races). It is important to remember that Hispanics may
be of any race (see Chapter 1) Race and ethnicity of the household reflect
the self-designation of the head of household responding to the survey. Per-
sonal theft and victimization reflect the self-designated status of the individual
respondent or proxy.

The NCVS offers the following definitions for ethnicity and race to the
interviewers30:

Ethnicity: A classification based on Hispanic culture and origin, regardless of
race. Persons are asked directly if they are Spanish, Hispanic, or Latino
before being asked about their racial category.

Hispanic: A person who describes himself as Mexican American, Chicano,
Mexican, Mexicano, Puerto Rican, Cuban, Central American, South
American, or from some other Spanish culture or origin, regardless of
race.

Non-Hispanic: Persons who report their culture or origin as something
other than “Hispanic” as defined above. This distinction is made regard-
less of race.

Race: For this survey, respondents self identify with one or more racial
categories. Racial categories for this report are white only, black only,
and other race only. The “other” category is composed of Asian Pacific
Islanders, and American Indians, Aleuts, and Eskimos, if only one of
these races is given. Persons reporting two or more races are included in
the category of “more than one race”. The race of the head of house-
hold is use for computing household crime demographics.

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51V I C T I M S A N D O F F E N D E R S

The NCVS is an invaluable source of data, but it does have certain limita-
tions. For example, it does not cover commercial crime (such as convenience
store robberies or bank robberies), state crime, white collar crime, kidnapping, or
homicide; the estimates produced are generally for the nation as a whole, how-
ever, some data are available by central city compared to suburban areas. These
data are not available for particular cities or individual states. Further limitations
include how the sample is drawn and the vulnerable nature of the interview for-
mat. Specifically, homeless people are not interviewed; and responses are suscepti-
ble to memory loss, telescoping (reporting a crime that occurred more than a year
ago, which is outside the scope of the survey), exaggeration (e.g., I lost $1,000 in
property when in fact it was only $500), misunderstandings about crime catego-
ries (e.g., robbery vs. burglary), and interviewer bias.

Household Victimization

The NCVS makes a basic distinction between household crimes and personal
crimes. As noted, the NCVS questions the designated head of household about
crimes against the household—burglary, household larceny, and motor vehicle
theft. Rates are calculated per 1,000 households within the subgroup population
identified. The overall Household victimization rate is 118.1 per 1,000 house-
holds in 2014.31 It is clear that household victimization rates vary by race and
ethnicity (see Figure 2.1).32 The lowest victimization rate for all household crime
combined is the Non-Hispanic White group at 111.5 per 1,000 households.
Thus, while it is the largest racial group, is has a victimization rate lower than the
national average. The overall victimization rates for Non-Hispanic African Ameri-
can and Non-Hispanic Other households are similar, and both above the national

150

120

90

60

30

0

R
a
te

P
e
r

1
,0

0
0
H

o
u
s
e
h
o
ld

s

Overall Property
Victimization

Motor Vehicle
Theft

Theft

Non-Hispanic Black Non-Hispanic Other HispanicNon-Hispanic White

Household
Burglary

F I G U R E 2.1 Household Victimization Rates by Race and Ethnicity of Household,
2014
SOURCE: Bureau of Justice Statistics, Rates of property victimizations, household burglaries, motor vehicle theft, and
thefts by race/Hispanic origin of head of household, 2014. Generated by NCVS Victimization Analysis Tool (February 20,
2016). www.bjs.gov.

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52 C H A P T E R 2

average (124.5 and 120.1 per 1,000 households, respectively). Hispanic house-
holds, of any race, have the highest overall victimization rate, substantially over the
national average at 146.6 per 1,000 households.

When the household rates are disaggregated by type of crime, a slightly dif-
ferent picture of victimization is revealed. In short, Non-Hispanic White house-
holds do not always have the lowest victimization rates and Hispanic household
do not always have the highest victimization rates. Household burglary rates, for
example, reveal that Non-Hispanic African American households have the high-
est victimization rates. Conversely, household theft victimization rates reveal
Non-Hispanic African American with the lowest victimization rates.

The Effect of Urbanization

The racial differences in household (property) victimization rates discussed thus far
are differences for the United States as a whole. A number of criminologists have
asserted that victimization patterns can be expected to vary by structural charac-
teristics such as “urbanization.” This section explores victimization rates by degree
of urbanization: urban, suburban, and rural. In the most recent data available from
the NCVS (Table 2.1), Household victimization rates are highest in urban areas
for Non-Hispanic African American, Non-Hispanic White and Hispanic house-
holds. Non-Hispanic African Americans and Non-Hispanic Whites have the lowest
household victimization rates in rural areas, while the lowest rate for Hispanics is
suburban areas. Data for Non-Hispanic Other households (Asian, Pacific Islander,
Native American and multi-racial) reveal their highest victimization rates, in rural
areas is substantially above average at 191.5 victimizations per 1,000 households.33

What differences exist in rural, suburban, and urban areas that result in these
racial and ethnic variations in victimization rates? Glaeser and Sacerdote (1999)
speculate that specific aspect of urban life impact the likelihood of suitable targets
and the motivation of the offender.34 For example, in urban areas, they argue
that the payoff for property crime is higher (the “urban crime premium”), while

T A B L E 2.1 Rates of Property Crime Victimization for Urban,
Suburban, and Rural Areas by Race/Ethnicity of
Households, 2014

Crime Rate per 1,000 Households

Urban Suburban Rural

Race

Non-Hispanic African American 141.2 111.2 91.3

Non-Hispanic White 146.5 98.2 98.0

Non-Hispanic Other 128.0 98.0 191.5

Hispanic 175.5 117.4 152.6

SOURCE: Bureau of Justice Statistics. Race of property victimizations, household burglaries, motor vehicle thefts, and
thefts by race/Hispanic origin of head of household and location of residence, 2014. Generated using the NCVS Victim-
ization Analysis Tool (February 20, 2016). www.bjs.gov.

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53V I C T I M S A N D O F F E N D E R S

the probability of victim recognition and certainty of a police arrest response are
lower in urban than nonurban areas (deterrence hypothesis). Glaeser and Sacer-
dote also speculate the family structure, specifically link to single-parent house-
holds, may also explain part of the differences in victimization rates.

The general pattern of urban areas having the highest household victimiza-
tion rates for all but Non-Hispanic Other racial groups generally holds when the
data are disaggregated by crime type. The exception is that Hispanic household
burglary victimization rates are at their highest in rural areas with a rate of 47.4
per 1,000 households in rural areas compared to 36.9 per 1,000 households in
urban areas.35 What explains these divergent patters? Are rural areas more racially
homogenous? Are “other” racial groups, biracial persons, and Hispanics more
likely to be seen as interlopers in rural areas?

Personal Victimization

In addition to questioning the head of the household about crimes against the
household, the NCVS interviewers ask all household members aged 12 or older
whether they themselves have been the victim of rape (see question above), rob-
bery, assault, or personal theft within the past six months. This information is then
used to estimate victimization rates for the nation as a whole and for the various
subgroups in the population (see Table 2.2).36

Consistent with the pattern of racial disparity found in household victimiza-
tions, rates of personal victimization by race and ethnicity reveal that Non- Hispanic
African Americans are highest across nearly all violent crime types, note the average
victimization rate for simple assault. Non-Hispanic Whites have the lowest personal
victimization rates compared to all groups across offense types, except for simple
assault where they have the second highest personal victimization rate.

The racial differences across crime-specific types of violence reveal interesting
observations. For example, Non-Hispanic African American and Hispanics have

T A B L E 2.2 Rates of Violent Victimization by Race and Ethnicity of
Victims and Crime Type, 2014

Victimization Ratesa

All
Non-Hispanic

African American
Non-Hispanic

White
Non-Hispanic

Other Hispanic

Crimes of Violence (all) 23.2 27.8 23.1 26.1 21.3

Rape 1.1 1.5 0.8 .5 1.9

Robbery 2.5 3.8 2.1 2.6 3.2

Assault 20.1 22.5 20.2 23.0 16.2

Aggravated 7.7 10.1 7.0 7.7 8.3

Simple 12.4 12.4 13.2 15.3 7.9

aVictimization rates per 1,000 persons aged 12 and older, per subgroups named.

SOURCE: Bureau of Justice Statistics. Rates of violent victimizations, personal thefts/larcenies, serious violent victim-
izations, rape/sexual assaults, robberies, and simple assaults by race/Hispanic origin, 2014. Generated using the NCVS
Victimization Analysis Tool (February 20, 2016). www.bjs.gov.

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54 C H A P T E R 2

nearly higher robbery than Non-Hispanic Whites. Hispanic respondents report the
highest rape/sexual assault victimization rates, followed by Non-Hispanic African
Americans. While the highest aggravated assault victimization rate is among Non-His-
panic African Americans, Hispanics have the lowest assault rates, regardless of type.

A recent analysis of the violent offense of carjacking (done by pooling several
years of NCVS data) reveals that African Americans were three times as likely
to be victims of carjacking than whites.37 Hispanic respondents are substantially
more likely than non-Hispanics to be carjacking victims. NCVS respondents
reporting carjacking were most likely to identify the race of the offender as Afri-
can American. Box 2.1 also shows additional NCVS information on the violent
victimization of college students by race and ethnicity compared to similar age
respondents who are not college students.

In the Victims of Identity Theft, 2014 report, the Bureau of Justice Statistics,
on the basis of NCVS estimates, reported that more than 15.5 million people
were the victims of identity theft—roughly 7 percent of Americans38 aged 16 and
older. Nearly 15 percent of respondents reveal that they have experienced identity
them in their lives to this point. The total out of pocket loss (mean of the popula-
tion) for 2014 was almost $3,000. The largest number of victims self-identified as

B o x 2.1 College Students Victimization: NCVS Special Report

The Bureau of Justice Statistics has pooled several years of National Crime Victim-
ization Survey (NCVS) data (1995–2002) to offer a picture of violent victimization of
college students. About 7.9 million people per year from ages 18 to 24 years were
enrolled in college during this time. The consistent pattern of age, race, and victim-
ization from the NCVS data set is that young minorities have routinely higher violent
victimization rates than whites. However, white college students have higher rates
of violent victimization than African-American students and students of “other”
races (65 per 1,000 students compared to 52 and 37 per 1,000 students, respectively).
Nonstudent victimization rates (ages 18–24) are substantially higher, with African
American and whites having the highest rates (83 and 65 per 1,000 population
compared to the numbers outlined previously). African-American students have the
highest victimization rates for robbery and aggravated assault, but white students
have higher rates of victimization for simple assault and rape victimization.

A unique aspect of this data set is that Hispanics are coded to be of any race for
these data, so their victimization rates can be compared to whites and African Ameri-
cans, rather than simply non-Hispanics. A review of these data indicates that Hispanics
have an overall violent victimization rate that is higher than the rate for African Amer-
icans but lower than the rate for whites. The exception to this pattern is the Hispanic
victimization rate for rape—it is higher than any other racial/ethnic group in the study.

Hart and Rennison (2011) caution that any estimates of campus violence consis-
tently underestimate violent victimizations, particularly of women and Hispanics. Even
with this limitation Hispanic college students have a lower serious crime victimization
rate, but a higher simple assault victimization rate compared to Hispanics not in college.

SOURCES: Katrina Baum and Patsy Klaus, “Violent Victimization of College Students, 1995–2000,” Bureau of Jus-
tice Statistics Report (Washington, DC: Government Printing Office, January 2005). Timothy Hart and Callie Marie
Rennison. “Violent Victimization of Hispanic College Students,” Race and Justice 1, no. 4 (2011), pp. 362–385.

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55V I C T I M S A N D O F F E N D E R S

white, with an estimated 8 percent of all persons in this racial group being victim-
ized. Identity theft victims are found in all racial groups, with roughly 5 percent
of African Americans and Hispanics victimized in 2014. While identity theft vic-
timizations seemed consistent with the 2012 estimates, the victimization rate for
elderly victims is increasing.

The Effects of Urbanization

An analysis of victimization trends by the BJS using NCVS data from 1993 to
1998 indicates that urbanization is a key aspect of understanding violent victim-
ization.39 The BJS report also indicated that urban residents, who accounted for
29 percent of the U.S. population, reported 38 percent of all violent and property
crime victimizations. Suburban residents comprise 50 percent of the population
and experience 47 percent of the victimizations. Rural residents are least likely to
experience criminal victimization; they comprise 20 percent of the population
and experience 20 percent of all criminal victimizations.

Interesting convergence and divergence patterns by urbanization and race/
ethnicity when data from 2014 are reviewed.40 Violent victimization rates are
highest in urban areas for Non-Hispanic whites and Hispanics, only. While vic-
timization rates for Non-Hispanic African Americans and Non-Hispanic Whites
are similar in rural areas, with each having a rate of 23.2 per 1,000 population,
Non-Hispanic African Americans report highest violent victimization in rural
areas (24.7 per 1,000 population). Non-Hispanic Other have the highest violent
victimization rate in rural areas with 64.2 per 1,000 persons.

The most recent multiyear view of personal theft victimization data by race (no
information on Hispanics) indicates that although the overall property victimization
(theft and robbery) rate is highest for African Americans in urban areas,42 personal
theft victimization rates are always higher for whites, particularly in urban areas.

The work of researchers Glaeser and Sacerdote (1999) addresses issues of vic-
timization and urbanization.41 For example, in urban areas, they argue that the

B o x 2.2 Native Americans and Violent Crime

Information on the victimization rates of Native Americans is difficult to compile.
This group represents less than 1 percent (0.5 percent) of the sample population of
non-Hispanic respondents in the National Crime Victimization Survey (NCVS). Given
that the incidence of victimization in the general population is rare, documenting
a rare event in a small population is challenging. The Bureau of Justice Statistics has
pooled a number of years (1992–2002) to reveal a picture of Native American (nonfa-
tal) violent victimization: 101 violent victimizations occurred per 1,000 population of
Native Americans aged 12 and older. The average violent victimization rate for Native
Americans was 2.5 times the rate for whites (41 per 1,000), twice the rate for African
Americans (51 per 1,000), and 4.5 times that rate for Asians (22 per 1,000).43

(Continued )

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56 C H A P T E R 2

When the victimization rates are disaggregated by crime type, Native Amer-
icans have higher victimization rates in almost all categories. Their robbery and
assault victimization rates are twice that of whites and African Americans. However,
the rape victimization rate for Native Americans is higher than for whites but lower
than for African Americans. Additionally, in contrast to the general intraracial vic-
timization patterns of white and African-American crime, Native Americans report
that 6 of 10 violent victimizations were committed by someone they perceived to be
white.

In an effort to get more contextual data on American Indian victimization, the
Bureau of Justice Statistics awarded three grants to tribes to study victimization:
Confederated Tribes of the Umatilla Indian Reservation, Southern Ute Indian Tribe,
and Zuni Pueblo Indian Tribe. Respondents on the Umatilla Indian Reservation
revealed that nearly two-thirds of respondents had been the victim of a violent
crime in the last 12 months. Females are overrepresented as victims in these reports,
at roughly two-thirds of respondents reporting violent victimization. The Southern
Ute Indian Tribe survey results revealed that roughly twenty percent of respondents
experienced a violent victimization in the last 12 months, with the majority of vic-
timizations being reported by female respondents. The survey of Zuni Pueblo Indian
Reservation revealed that roughly 30 percent of respondents reported violent victim-
izations in the last 12 months. Again with this tribe, the majority of violent victimiza-
tions were reported by female respondents.

A notable portion of violent victimizations against American Indian women are
domestic violence victimizations. Ronette Bachman and colleagues’ recent report on
“Violence Against American Indian and Alaska Native Women” reveals that sexual
assault victimizations are more likely to be reported by “a friend, family member,
or another official” than the victim herself. Additionally, victims reported being
aware of a subsequent arrest in only 6 percent of sexual assault cases. This review of
victimization data also revealed that “lifetime prevalence rates for physical assaults
are also higher for American Indian and Alaska Native women compared to other
women … [they] are more likely to be assaulted by known offenders compared to
strangers.”44

What is the impact of having such little information on victimization events of
Native Americans? What should be the prevention response to such victimization?
What should be the crime control response to such victimization? Bachman et al.
argue that:

The unique position of American Indian and Alaska Native tribes as both sover-
eign and dependent creates problematic jurisdictional barriers that sometimes
prohibit an effective criminal justice response to American Indian and Alaska
Native victims of violence. Several federal laws have limited tribal government’s
power to prosecute offenders including the Major Crimes Act (1885), which
mandated that virtually all violent crimes committed on tribal lands were to be
prosecuted by the federal government. Although tribes have the power to con-
currently prosecute cases of violence, the Indian Civil Rights Act (1968) mandates
that tribal courts are not permitted to punish offenders with more than $5,000 in
fines, one year in jail or both. Importantly, tribal sovereignty in punishing offend-
ers does not apply to non-American Indian and Alaska Natives (Oliphant v. Suqua-
mish Indian Tribe, 435 U.S. [1978]).45

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57V I C T I M S A N D O F F E N D E R S

B o x 2.3 Asian Americans, Native Hawaiians, Pacific Islanders,
and Violent Crime

Asian Americans, Native Hawaiians, and Pacific Islanders make up less than 4 percent
of the population, but they account for 3 percent of property crime victimization
in the United States and only 2 percent of nonfatal violent crimes. To estimate their
victimization rates, the BJS pooled several years of NCVS (2002–2006) data. These
rates indicate that Asian Americans, Native Hawaiians, and Pacific Islanders have a
substantially lower victimaization rate than non-Asian Americans.

Average Annual Violent Victimization Rate by Race/Hispanic Origin and
Type of Crime, 2002–2006

Rate per 1,000 persons aged 12 or older

Asian/Native Hawaiiian/Pacific Islander 10.6

White 22.6

African American 29.1

Hispanic 24.1

Native American/Alaska Native 56.4

Rates for individual violent victimizations indicate that only for robbery are
Asian/NH/PI victimization rates essentially the same as the next lowest group
(whites).46

Additional unique patterns emerge from these NCVS analyses with pooled
years of data. For example, compared to the non-Asian racial groups, Asian/NH/PI
have a higher percentage of stranger assaults for both males (59 percent compared
to 77 percent) and females (34 percent compared to 51 percent). Similarly, the per-
sistent pattern of intraracial crime events does not hold true for Asian American vic-
timizations. When Asian American respondents were asked to report the perceived
race of the offender, less than 30 percent of offenders were identified as Asian
Americans, whereas 35 percent were identified as white and 26 percent as African
American.47

Recall that the NCVS data presented earlier on violent victimization combined
Asian/Native Hawaiian/Pacific Islander with Native American/Alaska Native into a
group called “other.” What questions emerge when looking at victimization data
from this viewpoint of pooled data, which allows for the disaggregation of Asian,
Native Hawaiian, Pacific Islander from Native American/Alaskan Native? Given the
relatively low victimization rates of one group compared to the high victimization
rates of the contrasting constituent group, what victimization patters remain hidden
from view? What mistakes are policy makers vulnerable to if looking at the aggregate
information compared to the disaggregate information?

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58 C H A P T E R 2

FOCUS ON AN ISSUE

Intersectionality: Violent Victimization and Women of Color

Research on the characteristics of victims

of violent crime generally focuses on the

race of the victim, the ethnicity of the

victim, or the sex of the victim. There are

relatively few studies that examine the

interrelationships among race, ethnic-

ity, sex, and violent victimization or that

attempt to determine if the risk factors

for violent victimization are different for

white women and women of color.

Two studies of nonlethal violent vic-

timization addressed these issues. Janet L.

Lauritsen and Norman A. White used data

from the NCVS to identify the risk of

violence for African American, white, and

Hispanic females. Because they were inter-

ested in the potential relationship between

neighborhood characteristics and risk for

violence, they classified violent incidents

according to whether they occurred

within respondents’ neighborhoods (i.e.,

within one mile of their homes). They also

differentiated violence between incidents

involving strangers and those involving

nonstrangers.48

Lauritsen and White found that the

overall risk of nonlethal violence was

lowest for white females and highest for

African American females, with Hispanic

females in the middle. They also found

that (1) women, regardless of race/ethnic-

ity, faced a lower risk of violence in their

own neighborhoods; (2) African-Amer-

ican women faced a substantially higher

risk of violence at the hands of non-

strangers than either white or Hispanic

women; and (3) both African-American

and Hispanic women faced higher risks of

violence at the hands of strangers than did

white women. These racial/ethnic differ-

ences, which persisted when the authors

controlled for other characteristics of the

respondent that might be associated with

risk of victimization, diminished or dis-

appeared when they included a measure

of neighborhood disadvantage in their

models. When neighborhood disadvan-

tage was taken into consideration, they

found that Hispanic females, but not

African-American females, had a higher

risk of nonstranger violence than white

females and that neither Hispanic females

nor black females faced a higher risk of

stranger violence than white females. Fur-

ther analysis revealed that African-Amer-

ican, white, and Hispanic women who

lived in disadvantaged neighborhoods had

higher risks for stranger and nonstranger

violence than African-American, white,

and Hispanic women who lived in more

advantaged communities. According to

the authors, this means that “the reduc-

tion of violence is unlikely to require

group-specific solutions but will require

attention to both community and indi-

vidual factors that foster safety and harm

reduction”49

Laura Dugan and Robert Apel

took a somewhat different approach to

studying violent victimization of women

of color. They combined eight years of

NCVS data, which generated enough

cases to explore risk factors for white,

African American, Hispanic, Asian/Pacific

Islander, and Native American females.

In predicting violent victimization, the

authors controlled for the respondent’s

age; home environment (type of resi-

dence, marital status, number of children

younger than age 12, and whether the

respondent went out every night); and

things such as the respondent’s income,

education, and job situation. They found

that Native American women faced the

greatest risk of violent victimization, fol-

lowed by black women, Hispanic women,

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59V I C T I M S A N D O F F E N D E R S

white women, and Asian/Pacific Islander

women. The rate for Native American

women, in fact, was almost twice the rate

for black women.50

The authors of this study discovered

that the factors that predicted violent

victimization were not the same for each

group of women. Although being married

was a protective factor for all women and

going out every night and moving often

were risk factors across the board, the

other factors had more variable effects.

Living in an urban area, for example,

increased the risk of violent victimization

only for African-American and Native

American women, and living in public

housing was a risk factor only for Hispanic

women. Living alone with at least one

child, having a job, and working while in

college all had particularly strong effects

on victimization of Asian/Pacific Islander

woman.

The authors also found interesting

racial/ethnic differences in the character-

istics of the violent victimization incidents

that women experienced. White women

were the least likely to be victimized by

someone using a weapon but were the

most likely to be victimized by a spouse.

African-American women, however, were

the group most likely to be victimized by

a boyfriend or at home; they also were

the most likely to be victimized with a

weapon and to be seriously injured. Asian/

Pacific Islander women were the most

likely to be victims of impersonal crimes

(e.g., robbery), to be victimized by strang-

ers, and to be victimized by more than one

offender. African-American women were

the most likely to call the police to report

the victimization; Asian women were the

least likely to do so. Hispanic females were

the least likely to be victimized in the

home, and Native American females were

the most likely to be victimized by some-

one who was using drugs or alcohol at the

time of the incident.

The results of these two studies

suggest that explanations for the violent

victimization of women are compli-

cated and that it is “naive to assume that

all women are uniformly put at risk or

protected regardless of their cultural

background.”51

financial gain from property crime is higher (the “urban crime premium”). The
deterrence value of population density is also suspected in the lack of certainty
with identification of offenders and subsequent potential for arrest.

Prevalence of Crime Victimization

The NCVS provides evidence of risk for criminal victimization by prevalence
rates in addition to victimization rates. The BJS contends that “prevalence rates
also describe the level of victimization but are based on the number of unique
persons (or households) in the population who experienced at least one victim-
ization during a specific time period.”52 Examination of the NCVS data reveals
that 8% of all households experienced one or more property victimizations,
while 1.1% of persons aged 12 and older in the United States experienced
violent crime in 2014. Violent crime data reveal that three times more whites
were victimized by violent crime in 2014 than either African Americans or
Hispanics. However, the prevalence rates show a more complete racial and eth-
nic picture. While whites and Hispanics have similar violent crime prevalence

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60 C H A P T E R 2

FOCUS ON AN ISSUE

School-based Victimizations

Pequero and colleagues ask an important

question: “Does race and ethnicity moder-

ate the relationship between opportunity

and school-based victimization?” (2015,

p. 328).53 They use opportunity theory to

develop research questions to be tested

with a national sample racially and ethni-

cally diverse sample of 10th graders who

have completed a self-report survey. These

researchers look at both violent and vic-

timization to identify which opportunity

(being a suitable target and exposure).54

They find that race and ethnicity are

related to violent and property victimiza-

tions at school. Overall, African Americans,

Hispanics/(Latinos), and Asians have lower

odds of school-based victimization than

white students. Further, for all students

combined, self-reported school-based

misbehavior increases the likelihood of

violent victimization, and participation

in academic extra-curricular activity is

associated with an increase in the odds of

victimization. Whereas participation in

athletic extra- curricular activities is not a

significant risk factor in the likelihood of

victimization.

Peguero and colleagues start with the

premise that “key aspects of opportunity

(i.e., being a suitable target and exposure)

vary among racial and ethnic groups”

(p. 328). The following patterns emerge

from their analysis:

■ Student self-reported misbehavior in

school is a stronger predictor of violent

victimization for white students than stu-

dents of color.

■ Student participation in academic

extra-curricular activities (EX) is associated

with a significant increase in the odds of

violent victimization for African-Ameri-

can, Hispanic, and Asian students compared

to white students.

■ Student participation in athletic

extra-curricular activity (EX) results in

lower odds of violent victimization for

African-American and white students, but

higher odds of violent victimization for

Hispanic and Asian youth.

The researchers look to the work of

Elijah Anderson (Code of the Streets, 1999)

to help understand why certain school

behaviors increase victimization risk by race

and ethnicity and other behaviors do not. Is

it possible that reflecting an image of success

in academic endeavors is perceived differ-

ently by peers than success in an athletic

setting? Moreover, Pequero and colleagues

also findings that the more racially and eth-

nic diverse a school’s population, the lower

the odds of violent victimization. How do

you account for this finding?

Scott Menard asserts that analysis

of cohort data on respondents to the

National Youth Survey “indicated that vio-

lent victimization during adolescence had

a pervasive effect on problem outcomes

in adulthood and increased the chances of

being a perpetrator or victim of violence

in adulthood. In addition, victimization,

specifically violent victimization, showed

a significant impact in terms of financial

loss, physical injury, and short-term asso-

ciations with other problem behaviors and

outcomes. The combination of three fac-

tors, direct costs of victimization (financial

loss and physical injury), the high rate of

violent adolescent victimization, and the

all-encompassing effects of adolescent vio-

lent victimization in adulthood, suggests

the need for interventions to reduce ado-

lescent victimization.”55 (2002, p. 1)

SOURCE: Pequero, Anthony A., Ann Marie Popp,

and Dixie J. Koo. “Race, Ethnicity and School-

Based Adolescent Victimization,” Crime and Delin-

quency, 61(3), pp. 323–349.

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61V I C T I M S A N D O F F E N D E R S

rates (1.1%), African Americans have a prevalence rate of 1.4%. A look at these
data over time reveals a decrease in the prevalence of victimization for all racial
and ethnic groups.

Lifetime Likelihood of Victimization

Although annual victimization rates are important indicators of the likelihood of
victimization, they “do not convey the full impact of crime as it affects people.”56

To gauge the impact of crime, we must consider not just the odds of being vic-
timized within the next few weeks or months but the possibility of being robbed,
raped, assaulted, or burglarized at some time in our lifetime. Although the odds
of being victimized during any given 12-month period are low, the odds of ever
being victimized over a lifetime may be high.

The BJS used annual victimization rates for a 10-year period to calculate
lifetime victimization rates. These rates, which are presented in Table 2.3, indi-
cate that about five out of six people will be victims of a violent crime at least
once during their lives and that nearly everyone will be the victim of a personal
theft at least once. When the intersectionality with gender is available, we find
gender and race differences. Notably, there is a higher lifetime likelihood of
rape victimization for African-American females than that for white females.
Whereas only 16 out of 10,000 women are rape victims annually, for example,
the lifetime likelihood of being raped is much greater: nearly 1 out of every
12 females (and 1 out of every 9 black females) will be the victim of a rape at
some time during her life.57

For the individual crimes of violence, the lifetime likelihood of being
assaulted is nearly identical for African Americans and whites; about three of every
four people, regardless of race, will be assaulted at some time during their lives.
The likelihood of assault for white women, however, is lower (this information is
not available by race). There are, however, large racial differences for robbery, with
African Americans almost twice as likely as whites to be robbed.

T A B L E 2.3 Lifetime likelihood of Victimization by Race and
Gender (when available)a

African American White

Total Male Female Total Male Female

Violent Crimes 87 92 81 81 88 71

Rape 11 8

Robbery* 51 (22) 27 (22)

Assault* 73 (62) 74 (62)

Personal Theft 99 99 98 99 99 99

aPercentage of persons who will experience one or more victimizations starting at 12 years of age.
*Gender-specific numbers with no race-specific designation.

SOURCE: Bureau of Justice Statistics, U.S. Department of Justice, Lifetime Likelihood of Victimization (Washington, DC:
U.S. Government Printing Office, 1987).

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62 C H A P T E R 2

Overall, for serious (nonmurder) violent crimes (including rape), the like-
lihood of victimization is much higher for African Americans than for whites.
When gender is available, we find that generally women have lower violent vic-
timization rates over their lifetime than men (rape not included). Gender differ-
ences are present when race and gender are available; African-American females
have a higher likelihood of victimization over their lifetime than white females
over their lifetime (81% compared to 71%).

There is no difference in the African American and white rates for personal
theft over a lifetime; however, the BJS report indicates that a higher percentage of
whites than African Americans will be victimized three or more times over their
lifetimes. Similarly, a higher percentage of white females will be victimized by
personal theft three or more times than African-American females.

Homicide Victimization

The largest and most striking racial differences in victimization are for the crime
of homicide. In fact, all of the data on homicide point to the same conclusion:
African Americans, and particularly African American males, face a much greater
risk of death by homicide than do whites. Lifetime likelihood of homicide victim-
ization was last calculated by the BJS in 1997 (for people aged 30), which revealed
that victimization odds for white men were 1 out of 283 and for white women
were 1 out of 794. The odds of homicide victimization for African-American
males were 1 out of 35 and for African American women were 1 out of 171.58

Although the NCVS does not produce estimates of homicide victimiza-
tion rates, there are a number of other sources of data. A partial picture is
available from the Supplemental Homicide Reports (SHR), 2014, submitted
by law enforcement agencies to the U.S. Federal Bureau of Investigation (FBI)
as part of the Uniform Crime Reports (UCR) Program.59 This information
is collected when available for single victim–single offender homicides and
offers a breakdown by race and ethnicity of the victims.60 These data reveal
that a disproportionate number of homicide victims are African Americans. In
2014, of the nearly 12,000 homicide victims, African Americans constituted
no more than 15 percent of the population but comprised 51.6 percent of all
homicide victims. Whites are underrepresented in homicide figures, compared
to the population, comprising 45.7 percent of homicide victims. Asian, Pacific
Islander, and Native Amer ica/Alaska Natives make up the smallest group
of homicide victims at less than 5% of homicides combined. Ethnicity was
reported for roughly three quarters of homicides in 2014, with 21% identified
as Hispanic.

The SHR data reveal that homicide is a more significant risk factor for African
Americans than for whites. Although the minority population, African Americans
are largest group of homicide victims a year for nine out of the ten years between
2002 and 2011. Whereas homicide rates have decreased sharply among all groups
since the early 1990s, the homicide rate in 2011 indicated that African Americans
were 6.3 times more likely to be murdered than whites (17.3 per 100,000 pop-
ulation compared to 2.8 per 100,000 population).64 Homicide rates for all other

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63V I C T I M S A N D O F F E N D E R S

racial groups declined during this time as well and have a homicide victimization
rate lower than whites at 1.8 per 100,000 population.

In a recent multiyear BJS analysis of homicide data, it was revealed that
homicide victimizations by guns decreased by half from 1992 to 2011. The cir-
cumstances of homicides that are seen often vary by race.65 Whereas the rate of
homicide by firearm decreased for white males over this period, the rate of homi-
cide by guns remained stable for African Americans, both male and female.

When exploring the homicide by type of relationship, circumstances, and
weapon, interesting racial differences appear.66 While the typical offender in a
homicide is nonstranger for either race, a larger portion of white homicide vic-
tims are murdered by family. Homicide reports also identify the circumstances of
the killing have racial variation. African Americans are overrepresented in homi-
cide victimizations involving drugs-related, sex-related, and gang-related killings.
Whites are the majority victims in every category except drug-related killings.
Workplace killings reflect no racial pattern distinct from U.S. Census population
figures. Although whites and African Americans are almost equally likely to be

FOCUS ON AN ISSUE

Victim Assistance: Should Race Matter?

Although most observers agree that the

American criminal justice system should

treat suspects and offenders in a colorblind

fashion, how should we treat victims?

Gregg Barak, Jeanne M. Flavin, and Paul

S. Leighton61 argue that victim assistance

should take the race, ethnicity, gender, and

even class of the victim into consideration.

They state, “Victim counseling needs to be

sensitive to cultural values through which

the victimization experience is interpreted.

Rehabilitation and intervention programs

likewise need to build on cultural values

for maximum effectiveness.”62 For example,

a victim of domestic violence may need

different services depending on their social

realities: a Hispanic woman with children,

no employment history, and a limited

working knowledge of English will require

different services than a white woman with

children, a professional employment history,

and a command of English.

In Bachman and colleagues’ explora-

tion of domestic violence among Native

American women, they assert that “some

American Indian and Alaska Native com-

munities are developing culturally sensitive

interventions for violence against Ameri-

can Indian and Alaska Native women both

within and outside of the criminal justice

system. These family or community forums

emphasize restorative and reparative

approaches to justice. One example of this

is the Navajo Peacemaking system. Other

culturally sensitive victim support services

are being created across the country, in

both urban settings as well as on rural

tribal lands.”63

Should the criminal justice system

be entirely color blind, even in response

to victims? Or does justice actually

require the system to be color conscious

in some situations? Do you support the

victim advocate’s position that victim

services should be racially, ethnically, and

culturally sensitive in their victimization

responses?

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64 C H A P T E R 2

victims of gun homicides, whites constitute nearly 60 percent of the victims in
arson and nearly 80 percent of poison cases.

What about the intersectionality of race and gender in homicide victimiza-
tion rates?67 The rate for African-American males is consistently seven times the
rate for white males and more than 20 times the rate for white females. When
examining the homicide rate for African-American females, it is lower than
African-American males but consistently three to four times the rate for white
females, approximating the homicide rate of white males.

What happens when age is added to race and gender? While homicide
victimization rates change over time, young black males (ages 14–24) consis-
tently have the highest homicide victimization rates. Teen victimization rates
(ages 14–17) are highest for young, African-American males compared to young,
white males (31.4 vs 4.5 per 100,000 population). The contrast intensifies with
the homicide rates of African-American males ages 18–24 compared to white
males (91.1 vs 38.4 homicides per 100,000 population). What factors explain why
victimization rates change across age, race, and gender? See the Focus on an Issue
related to theoretical explanations for victimization and offending.

Summary: A More Comprehensive Picture of the Crime Victim

The victimization data presented in the preceding sections offer a more com-
prehensive picture of the complex reality of crime victim than that found in
common perceptions and media presentations. Overall, the demographic char-
acteristics of crime victims are seldom the racial (and gender) characteristics you
would expect based on the racial composition of the general U.S. population. The
data sources used in this section reveal that Non-Hispanic African Americans,
Asian/Pacific Islanders, Native Americans, and Hispanics are often more likely
than Non-Hispanic whites to be victims of household and personal crimes. These
racial and ethnic differences are particularly striking for violent crimes, especially
robbery. Moreover, African Americans—especially African-American males—also
face a much greater risk of death by homicide than whites. It thus seems fair to
conclude that in the United States, the groups at greatest risk of becoming crime
victims are those that belong to racial and ethnic minority groups.

P I C T U R E O F T H E T Y P I C A L O F F E N D E R

For many people, the term crime evokes an image of a young African-American
or Hispanic male who is armed with a handgun and who commits a robbery,
rape, or murder. In the minds of many Americans, “crime” is synonymous with
“black (or brown) crime.” It is easy to see why the average American believes
that the typical offender is African American. The crimes that receive the most
attention—from the media, politicians, and criminal justice policy makers—are
“street crimes” such as murder, robbery, and rape. These are precisely the crimes
for which African Americans and Hispanics are arrested at a disproportionately
high rate (see Table 2.4).

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65V I C T I M S A N D O F F E N D E R S

FOCUS ON AN ISSUE

Environmental Racism Claims Brought under Title VI of the Civil Rights Act

As Michael Fischer notes, since “the early

1980s, environmental justice advocates

have been publicizing and protesting

the fact that environmental hazards at

the workplace, in the home, and in the

community are disproportionately visited

upon poor people and people of color.”

Environmental racism builds on the foun-

dation of the civil rights movement and

the term was coined by African-American

civil rights activist Benjamin Chavis. This

term is used most commonly to refer to

the enactment or enforcement of any

policy, practice, or regulation that nega-

tively affects the environment of marginal

low-income and/or racially homogeneous

communities at a disproportionate level;

thus, the battle against environmental

racism includes claims by Native Amer-

icans, African Americans, and Hispanic

Americans. Fischer notes that environ-

mental racism may occur if “the actions

of those federally-funded state agencies

create a racially discriminatory distribution

of pollution, then a violation of Title VI

has occurred and a civil rights lawsuit is

warranted.”68

Bullard contends that “people of

color in all regions of the country bear

a disproportionate share of the nation’s

environmental problems,” including air

pollution, soil pollution, dumps, and so on.

In 2010, as director of a center dedicated

to grassroots efforts to fight for environ-

mental justice, he observed that a 2007

study found race to be the most potent

predictor of where commercial hazardous

waste facilities are located. Environmental

injustice in people of color communities

is as much or more prevalent today than

20 years ago. People of color make up the

majority (56%) of the residents living in

neighborhoods within two miles of the

nation’s commercial hazardous waste facili-

ties and more than two-thirds (69%) of the

residents in neighborhoods with clustered

facilities.69

Are there instances of environmental

racism in your community or region? Go

to the Environmental Justice Resource

Center at Clark University (http://www.

ejrc.cau.edu/) for more details on specific

contaminated sites.

Instances of environmental racism

continue. Consider the news and fed-

eral agency reports about the lead in the

drinking water in Flint, Michigan.70 The

contaminated water source came into city

wide use in 2014 and remains the primary

city water source in 2016. Flint, Michigan,

is a poor city with a predominantly Afri-

can-American population. The city has

struggled with bankruptcy issues that lead

to the Governor appointing an emergency

manager to make city-level decisions. One

decision was to change the city’s water

source as a money saving measure. This

decision resulted in the corrosion of lead

pipes throughout the city, subsequently

poisoning the residents with toxic levels

of lead. Researchers, activists, and citizens

argue that due to the actions of the Gov-

ernor of Michigan and his appointees that

a generation of children are at risk, due to

lead poisoning, from the everyday actions

of drinking, eating, and bathing. Explore

the current status of this issue and look for

the racial nature of the politics that sur-

round the proposal of an inexpensive.

The Mayo clinic offers the following

information about lead poisoning71: symp-

toms in newborns slow growth and lead to

learning difficulties in children. Older chil-

dren develop signs of learning difficulties,

(Continued )

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66 C H A P T E R 2

irritability, weight loss, vomiting, and hear-

ing loss. Lead poisoning symptoms in adults

includes high blood pressure, abdominal

pain, declines in mental functioning, pain,

numbness or tingling of the extremities,

headache, memory loss, and miscarriage or

premature birth in pregnant women.

SOURCE: Review this news article to see that

these issues are not limited to Flint, Michigan:

http://www.nytimes.com/2016/02/09/us/

regulatory-gaps-leave-unsafe-lead-levels-in-

water-nationwide.html?_r=0.

FOCUS ON AN ISSUE

Human Trafficking

It is difficult to collect data on human

trafficking, partially due to the under-

ground nature of the offense and partially

due to the lack of a consistent definition.

The U.S. State Department refers to

human trafficking as “an umbrella term

used to describe the activities involved

when someone obtains or holds a per-

son in compelled service.” (visit http://

www.state.gov/j/tip/ for the Office to

Monitor and Combat Trafficking in Per-

sons). Modern slavery is a modern tactic

in armed conflicts around the works,

such as the group ISIS, and it is a “supply

chain” for domestic needs in such areas

as farm labor and sex services (adults and

minors). The NCVRW offers a picture

of sex trafficking victims and labor traf-

ficking victims by race. Acknowledging

that their data are an underrepresentation

of actual trafficking offences, a picture

does emerge. Note Black, White, Asian,

Other and Hispanic are used here as these

victims could be citizens or noncitizens.

All racial groups are represented among

victims, and some racial groups are diffi-

cult to assign (see other), Blacks make up

the largest percentage of sex trafficking

victims (40.4%) and Hispanics make up

the largest percentage of labor trafficking

victims (55.7%).

As a result of the William Wil-

burforse Trafficking Victims Protection

Reauthorization Act of 2008, the FBI,

through the UCR, began collecting

offense and arrest data on human traffick-

ing. Definitions used by the UCR are:

White
25.6%

Hispanic
23.9%

Other
5.8%

Sex Trafficking

Asian
4.3%

Black
40.4%

White
1.6%

Hispanic
55.7%

Other
18.0%

Asian
14.8%

Black
9.8%

Labor Trafficking

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67V I C T I M S A N D O F F E N D E R S

In this section, we use a number of criminal justice data sources to paint a
picture of the typical criminal offender. We summarize the offender data pre-
sented in official police records, victimization reports, and self-report surveys.
Because each of these data sources varies both in terms of the offender informa-
tion captured and the “point of contact” of the suspect with the criminal justice
system, the picture of the typical offender that each produces also differs some-
what. We note these discrepancies and summarize the results of research designed
to reconcile them.

Official Arrest Statistics

Annual data on arrests are produced by the UCR system, which has been admin-
istered by the FBI since 1930. Presented here are arrest rates, reported to the
Federal Bureau of Investigation through the Uniform Crime Report Program.
Currently, 12,320 agencies, covering an estimated population of 250,194, 950,
are reporting arrest figures for Part 1 (Crime rate categories) and Part 2 offenses.
Five racial categories are reported: White, African American, Asian, Hawaiian/
Pacific Islander, and Native American/Native Alaskan. Ethnicity of arrestees is
also reported by a smaller portion of agencies. This information is collected at
the booking stage of police processing. Arrest rates do not necessarily present an
accurate picture of offending. Many crimes are not reported to the police, and
many of those reported do not result in an arrest. Crime in the United States, 2014,
is the source of arrest data in this section.

Human Trafficking/Commercial

Sex Acts: inducing a person by

force, fraud, or coercion to partic-

ipate in commercial sex acts, or in

which the person induced to per-

form such act(s) has not attained 18

years of age.

Human Trafficking/Involuntary Ser-

vitude: the obtaining of a person(s)

through recruitment, harboring,

transportation, or provision, and

subjecting such persons by force,

fraud, or coercion into involuntary

servitude, peonage, debt bondage, or

slavery (not to include commercial

sex acts).

In 2014, the FBI had nearly 6,000

agencies participating in trafficking data

collection, reporting a total of 443 inci-

dents and clearance of 120 cases. The

arrested offenders were typically male, over

the age of 18 and predominantly white

(nearly 90%). Nearly one third of arrestees

were Hispanic (32.4%), predominantly for

commercial sex trafficking.

SOURCE: 2013 NCVRW Resource Guide.

http://www.victimsofcrime.org/docs/ncvr-

w2013/2013ncvrw_stats_humantrafficking.pdf?s-

fvrsn=0. Pages 24–25; Department of Justice/FBI.

Crime in the United States, 2014. Human Traffick-

ing. Offender arrest information by location and

race and ethnicity; additional information: Duran

Banks and Tracey Kyckelhahn. Characteristics of

Suspected Human Trafficking Incidents, 2008–

2010. Bureau of Justice Statistics (2011).

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68 C H A P T E R 2

Problems with UCR Data

The information on offenders gleaned from the Uniform Crime Reports is
incomplete and potentially misleading because it includes only offenders whose
crimes result in arrest. The UCR data exclude offenders whose crimes are not
reported to the police and offenders whose crimes do not lead to arrest. A second
limitation is that the UCR reports include arrest statistics for five racial groups
(white, African American, Asian, Pacific Islander, and Native America/Alaska
Native), but only ethnicity data for Hispanic and non-Hispanic, and not from all
agencies. See “Focus on an Issue: A Proposal to Eliminate Race from the Uni-
form Crime Report” for further discussion of the controversy surrounding the
reporting of race in UCR figures.

A substantial proportion of crimes are not reported to the police. In fact, the
NCVS reveals that fewer than half of all violent victimizations and only one third
of all property victimizations are reported to the police. Factors that influence the
decision to report a crime include the seriousness of the crime and the relation-
ship between the victim and the offender; violent crimes are more likely than
property crimes to be reported, as are crimes committed by friends or relatives
rather than strangers.72

FOCUS ON AN ISSUE

A Proposal to Eliminate Race from the Uniform Crime Report

In 1993, a group of mayors, led by Minne-

apolis Mayor Donald Fraser, sent a letter to

the U.S. Attorney General’s office asking that

the design of the Uniform Crime Report

(UCR) be changed to eliminate race from

the reporting of arrest data. The mayors were

concerned about the misuse of racial data

from crime statistics. They charged that the

current reporting policies “perpetuate racism

in American society” and contribute to the

general perception “that there is a causal

relationship between race and criminality.”

Critics of the proposal argued that race data

are essential to battling street crime because

they reveal who the perpetrators are.

Using inductive reasoning, the

over-representation of minority race

groups in arrest data (see Table 2.4) can be

suggestive of at least two causal inferences:

(1) certain racial groups characterized by

differential offending rates, or (2) arrest

data reflective of differential arrest patterns

targeted at minorities. What steps must a

researcher take to move beyond descrip-

tions of racial disparity in arrest data to an

exploration of causal explanations for racial

patterns evident in arrest data? Causal fac-

tors that explain race and sentencing can

be found only through multivariate analy-

sis, not through descriptive data.

A review of federal arrest data report-

ing in 2014 reveals that the FBI, through

the data collection for yearly UCR tables,

has expanded its data gathering to include

both race and ethnicity of arrested offend-

ers. The UCR tables now reflect the U.S.

Census designation of five racial groups and

have added the ability to report ethnicity.

Not all agencies are reporting ethnicity at

this time but are able to report an arrested

offender as Hispanic or non-Hispanic.

What kind of warning would you

write for users of UCR arrest data by race

and ethnicity?

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69V I C T I M S A N D O F F E N D E R S

Victimization surveys reveal that victims often fail to report crimes to the
police because of a belief that nothing could be done, the event was not import-
ant enough, the police would not want to be bothered, or it was a private matter.
Failure to report also might be based on the victim’s fear of self-incrimination or
embarrassment resulting from criminal justice proceedings that result in publicity
or cross-examination.73

The NCVS indicates that the likelihood of reporting a crime to the police
also varies by race. African Americans are slightly more likely than whites to
report crimes of theft and violence to the police, whereas Hispanics are substan-
tially less likely than non-Hispanics to report victimizations to the police. Michael
J. Hindelang found that victims of rape and robbery were more likely to report
the victimization to the police if there was an African-American offender.74

Even if the victim does decide to report the crime to the police, there is
no guarantee that the report will result in an arrest. The police may decide that
the report is “unfounded”—in this case, an official report is not filed and the
incident is not counted as an “offense known to the police.” Furthermore, even
if the police do file an official report, they may be unwilling or unable to make
an arrest. In 2014, only about 47.4 percent of violent crimes and 20.2 percent of
property crimes were cleared by the police. Moreover, differences in clearance
rates vary by crime, ranging from serious crimes ranged from 13.6 percent for
burglary to 64.5 percent for murder.75

Police officer and offender interactions also may influence the inclination to
make an arrest, and cultural traditions may influence police–citizen interactions. For
instance, Asian communities often handle delinquent acts informally, when other
communities would report them to the police.76 Hispanic cultural traditions may
increase the likelihood of arrest if the Hispanic’s tradition of showing respect for an
officer by avoiding direct eye contact is interpreted as insincerity.77 African Americans
who appear “hostile” or “aggressive” also may face a greater likelihood of arrest.78

The fact that many reported crimes do not lead to an arrest, coupled with
the fact that police decision making is highly discretionary, suggests that we
should exercise caution in drawing conclusions about the characteristics of those
who commit crime based on the characteristics of those who are arrested. To the
extent that police decision making reflects stereotypes about crime or racially
prejudiced attitudes, the picture of the typical offender that emerges from official
arrest statistics may be racially distorted. If police target enforcement efforts in
minority communities or concentrate on crimes committed by racial minorities,
then obviously racial minorities will be overrepresented in arrest statistics.

A final limitation of UCR offender information centers on the information
not included in these arrest reports. The UCR arrest information fails to offer a
full picture of the white offender entering the criminal justice system. Specifically,
additional sources of criminal justice data present the white offender as typical
in the case of many economic, political, and organized crime offenses. Russell,
in detailing the results of her “search for white crime” in media and academic
sources, supports the view that the occupational (white-collar) crimes for which
whites are consistently overrepresented may not elicit the same level of fear as the
street crimes highlighted in the UCR but nonetheless have a high monetary and

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70 C H A P T E R 2

B o x 2.4 The Operationalization of Race in Criminal Justice Data

The concept of race is measured—operationalized—in a number of ways, depend-
ing on the discipline and depending on the research question. Most biologists and
anthropologists recognize the difficulties using traditional race categories (white,
black, red, yellow) as an effective means of classifying populations, and most social
scientists rely on administrative definitions for recordkeeping, empirical analysis, and
theory testing. Given these conditions, however, the term “race” still carries the con-
notation of an objective measurement with a biological/genetic basis.

As Knepper81 notes, the recording of race in the UCR can be traced to a prac-
tice that has no formal theoretical or policy relevance. From available accounts,
this information was recorded because it was “available” and may be a side effect
of efforts to legitimize fingerprint identification. Currently, the UCR manual gives
detailed information on the definitions for index offenses and Part 2 offenses and
provides specific instructions about the founding of crimes and the counting rules
for multiple offenses. What is lacking, however, are specific instructions on the
recording of race and ethnicity information. Administrative/census definitions pro-
vided by local law enforcement agencies on agency arrest forms are calculated and
reported, but no criteria for the source of the information are given. Thus, some
records will reflect self-reporting by the offender, whereas others will reflect obser-
vations of police personnel. Some police arrest reports have black, white, American
Indian, Asian, and possibly, Hawaiian/Pacific Islander, whereas many use the category
of “other.” A new convention is the attempt to add ethnicity to arrest reports. The
terms Hispanic and Non-Hispanic are now reported to the FBI by a small percentage
of agencies. The FBI’s National Incident-Based Reporting System does log additional
information based on race and ethnicity for victims and offenders, but the informa-
tion available in that data set for 2014 reflects reporting for just over 6,000 agencies
in 33 states representing only 25 percent of the U.S. population in 26 states.82

moral cost.79 (See Box 2.4 for information on the “operationalization,” or mea-
surement, of race in crime data.)

Arrest Data

The arrest data presented in Table 2.4 reveal that the public perception of the “typ-
ical criminal offender” as an African American is generally inaccurate. Examination
of the arrest statistics for all offenses, for instance, reveals that the typical offender is
white; more than two-thirds (69.4 percent) of those arrested in 2014 were white,
less than one third (27.8 percent) were African American, and less than 4 percent
were American Indian/Alaska Native, Asian, and Native Hawaiian/Other Pacific
Islander combined. Similarly, only 18.9 percent of those arrested were Hispanic.
The vast majority (81.1 percent) or persons arrested were Non-Hispanic. These
racial and ethnic percentages are similar when reviewing those arrested for Part
1 violent crimes and property crimes with a majority of arrestees being white
(59.4 percent and 68.8 percent, respectively, for race and 76.0 percent and 83.2 per-
cent for Non-Hispanic, respectively). In fact, the only crimes for which the typical
offender was African American were murder, robbery, and gambling.80

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71V I C T I M S A N D O F F E N D E R S

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Copyright 2018 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-202

72 C H A P T E R 2

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(C
o
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n
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e
d

)

Copyright 2018 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-202

73V I C T I M S A N D O F F E N D E R S

Examining the percentage of all arrests involving members of each racial
group must be done in the context of the distribution of each group in the gen-
eral population. In 2014, whites comprised approximately 83 percent of the U.S.
population, African Americans comprised 13 percent, Native Americans com-
prised less than 1 percent, and combined Asian and Pacific Islanders comprised
3 percent. A more appropriate comparison, then, is the percentage in each racial
group arrested in relation to that group’s representation in the general popula-
tion, rather than simply stating the “typical offender” by the largest proportion of
offenders by racial group.

Although whites are the people most often arrested in crime categories
reported in the UCR, it appears that African Americans are arrested at a dis-
proportionately high rate for nearly all offenses. The total combined rate for all
offenses, 27.8% (see Table 2.4), indicates that the arrest rate for African Americans
is two times higher than would be predicted by their representation in the popu-
lation. The disproportion is even larger for the most serious Part 1/index offenses
reported in the UCR; the arrest rate is two and a half times higher for African
Americans than predicted by their representation in the population.

Among the individual offenses, however, the degree of African-American
overrepresentation varies. The largest disparities are found for robbery and mur-
der. The arrest rate for African Americans is nearly four times what we would
expect for murder and robbery, given their representation in the population.
These differences also are pronounced for rape, motor vehicle theft, gambling,
vagrancy, prostitution, stolen property offenses, and weapons offenses.

Table 2.4 also presents arrest statistics for whites, American Indians/Alaska
Natives, Asians, and Native Hawaiians/Other Pacific Islanders. Whites are over-
represented for some UCR offenses. Specifically, whites are overrepresented for
driving under the influence (DUIs) and typically liquor law violations (though
not in 2014) compared to their representation in the general population. Whites
are found in numbers consistent with their representation in the population for
drunkenness arrests.

The overall pattern for American Indian/Alaska Native arrest figures is
a slight overrepresentation compared to their representation in the population
(1.6 percent of those arrested versus 0.8 percent in the population); however, the
pattern across crimes is more erratic. For Part 1/index crimes, Native Americans
are slightly more likely to be arrested for violent crimes (particularly forcible rape
and aggravated assault) and for property crimes (particularly larceny-theft) and
arson than their representation in the population suggests. Native Americans are
overrepresented in several Part 2 offenses, including other assaults, vandalism, sex
offenses (not rape and prostitution), offenses against family and children, driv-
ing under the influence, liquor law violations, drunkenness, disorderly conduct,
and vagrancy. Conversely, the proportion of Native American offenders arrested
for a number of offenses—forgery and counterfeiting, embezzlement, prostitu-
tion/commercialized vice, and gambling—at lower than what is expected given
their proportion in the population. Additionally, the arrest figures for a number of
other offenses—murder, robbery, burglary, and drug abuse violations—are consis-
tent with their proportion in the general population.

Copyright 2018 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-202

74 C H A P T E R 2

Caution is required when interpreting Native American arrest figures because
arrests made by tribal police and federal agencies are not recorded in UCR data.
Using information from the Bureau of Indian Affairs, K. Peak and J. Spencer83

found that although UCR statistics revealed lower-than-expected homicide arrest
rates for Native Americans, homicide rates were nine times higher than expected
across the 207 reservations reporting.

For overall figures and each index offense, Asian Americans and Native
Hawaiian/Other Pacific Islanders are underrepresented in UCR arrest data (1.7
percent of arrests in 2014 compared to 3 percent of the population). The notable
exception to the pattern of underrepresentation is the Part 2 Offense with Asians
significantly overrepresented in gambling arrests. The arrest rate for this offense
can reach twice what is expected given the representation of Asians in the popu-
lation. Notably, Asian Americans and Native Hawaiian/Other Pacific Islanders are
underrepresented in arrest figures for nearly all Part 1 and Part 2 offenses.

UCR arrest rates offer a limited view of Hispanic offenders, as not all agen-
cies are reporting this information (see Table 2.4). Given that caveat, Hispanics
are overrepresented in arrest statistics if they represent more than 17% of arrests
in a particular category. Thus, Hispanics are overrepresented in the total arrest
figures, representing 18.9% of arrests for all Part 1 and Part 2 offenses compared
to their percentage in the population. Hispanics are overrepresented for vio-
lent Part 1 offenses, but not for property offenses. They are overrepresented for
murder, rape, and motor vehicle offenses. Further examination of Part 2 offenses
reveals that Hispanics are underrepresented in arrest figures for fraud, embez-
zlement, offenses against family and children, liquor laws, and disorderly con-
duct. However, Hispanics are overrepresented in arrest figures for stolen property,
vandalism, weapons, prostitution, sex offenses, drug violations, gambling, and
drunkenness.

Homicide offenders. In 2009, Alexia Cooper and Erica Smith released a report
based on FBI/SHR that in the near 30-year period of their study (1980–2008)
homicide reports revealed significant changes.84 This study highlights that the
profile of homicide offenders is different from the characteristics of the general
population. African Americans are overrepresented as arrested homicide offenders.
Arrest figures are used to estimate an offending rate that is eight times higher than
the offending rate for whites (34.4 per 100,000 population vs 4.5 per 100,000
population). Offending rates for African Americans was at its lowest in 2004 at
24.1 per 100,000 population and at its peak in 1991 at 51.1 per 100,000 popula-
tions. Another snap shot of homicide offending can be seen in UCR arrest rates,
with 52.5% of homicide arrests are of African Americans, compared to 45.3% of
homicide arrests are of whites.

Supplemental homicide reports from 201485 reveal that the peak age for
homicide offending for males is between 17 and 24; it drops significantly after the
age of 30. Women are identified as committing less than 10 percent of homicides,
and their offending patterns mirror those of males with the peak offending years
between 17 and 24 and a significant decline after age 30. While whites are iden-
tified as homicide offenders in more than 50 percent of cases where the offender

Copyright 2018 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-202

75V I C T I M S A N D O F F E N D E R S

FOCUS ON AN ISSUE

Immigration and Crime: The Mythical Connection

Many researchers and social critics are con-

cerned that the infromation we “know”

about crime is distorted. The negative

images of immigrants being criminals and

immigration rates causing crime rates to

rise are commonly presented by both news

figures and politicians. These messages

are numerous and constant, especially in

light fears that the number of immigrants

is rising and the quality of immigrants is

changing (drug dealers and radical Islamic

terrorists).

Individual-level research based on

self-report data fail to support the immi-

gration and crime link that some fear.

Specifically, first-generation immigrants

are less likely than native born people to

commit crime. The pattern changes with

second-generation (socialized) immigrant

populations to reflect offending patterns

similar to native born populations. Piquero

and colleagues suggest that this connection

can be explained by unique perceptions of

immigrants who “tend to have more pos-

itive views of the law, less cynical attitudes

toward the legal system, and report more

social costs associated with punishment.”86

The immigration and crime link is

not supported at the community level

either. An examination of crime rates

reported by the FBI reveals that over the

last few decades crime rates have fallen in

most cases, remained stable in others, and

even declined dramatically in other areas.

On a community level, two recent studies

come to the same conclusion about the

crime benefit of immigrant populations.

First, a California study revealed that

“California cities with large populations

of recently arrived immigrants showed no

significant relationship between immigrant

inflows and property crimes, and a nega-

tive relationship with violent crimes.”87

Second, Stowell and colleagues’

research asserts that the multivariate find-

ings from their multijusrisdictional data set

“indicate that violent crime rates tended to

decrease as metropolitan areas experienced

gains in their concentration of immigrants.

The inverse relationsip is especially robust

for the offense of robbery. Overall, our

results support the hypothesis that the

broad reductions in violent crime during

recent years are potentially attributable

to increases in immigration.”88 Schnapp’s

findings, conversely, fail to support a nega-

tive influence of immigration on homicide

rates but also do not find a positive effect.

He was also unable to isolate the influence

of particular country of immigrant origin

on –homicide rates.

In short, the most accurate assessment

of the data and research on the immigration

and crime link is that first-generation immi-

grants are less likely than native born people

to commit crime. Consistently, self-report

data and incarceration data present a similar

picture of crime by immigrants as less likely

than native born and second-generation

(socialized) immigrant populations.89

race is known, the peak age of offending varies little by the race of offender. The
main difference by age and race is that black offenders start offending at high
levels at an earlier age than white offenders (13–16 years of age); however, white
offenders continue to offend at a significant rate until a later age range (into
their 40s).

Copyright 2018 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-202

76 C H A P T E R 2

Perceptions of Offenders by Victims

Clearly African Americans and sometimes Hispanics are arrested at a disproportion-
ately high rate. The problem, of course, is that we do not know the degree to which
arrest statistics accurately reflect offending. As noted previously, not all crimes are
reported to the police and not all of those that are reported lead to an arrest.

One way to check the accuracy of arrest statistics is to examine data on
offenders produced by the NCVS. Respondents who report a “face-to-face”
encounter with an offender are asked to indicate the race of the offender. If the
percentage of victims who report being robbed by an African American matches
the percentage of African Americans who are arrested for robbery, we can have
greater confidence in the validity of the arrest statistics. We can be more confident
that differences in the likelihood of arrest reflect differences in offending.

If, however, the percentage of victims who report being robbed by an African
American is substantially smaller than the percentage of African Americans who
are arrested for robbery, we can conclude that at least some of the disproportion
in the arrest rate reflects what Hindelang refers to as “selection bias” in the crimi-
nal justice system. As Hindelang notes, “If there are substantial biases in the UCR
data for any reason, we would expect, to the extent that victimization survey
reports are unbiased, to find large discrepancies between UCR arrest data and
victimization survey reports on racial characteristics of offenders.”90

Problems with NCVS Offender Data

There are obvious problems in relying on victims’ “perceptions” of the race of the
offender. Respondents who report a victimization are asked if the offender was
white, African American, or some other race. These perceptions are of question-
able validity because victimizations often occur quickly and involve the element
of shock. In addition, victim memory is subject to decay over time and to “ret-
roactive reconstruction” to fit the popular conception of a criminal offender. If a
victim believes that the “typical criminal” is African American, this may influence
his or her perception of the race of the offender.

Relying on victims’ perceptions of offenders’ race creates another poten-
tial problem. If these perceptions are based on skin color, they may be unreliable
indicators of the race of an offender. There are many very light-skinned African
Americans and dark-skinned “white” people. Hispanics are of a wide range of skin
colors. A person may self-identify in a way not reflected by his or her skin color.
Thus, individuals may appear in different racial groupings in victimization reports
than they do on a police arrest report. A light-skinned offender who identifies
himself as Hispanic and whose race is thus recorded as “other” in arrest data might
show up in victimization data as “white.” If this occurs with any frequency, it obvi-
ously will affect the picture of the offender that emerges from victimization data.

Perceptions of Offenders

With these caveats in mind, we compare the NCVS data on the perceived race
of the offender for single-offender violent victimizations for a recent year where

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77V I C T I M S A N D O F F E N D E R S

this information is available. As Table 2.5 shows, although the typical offender
for all of the crimes is white (or is perceived to be white), African Americans are
overrepresented as offenders for all of the offenses listed. The most notable dispro-
portion revealed by Table 2.5 is for robbery, with 37 percent of the offenders in
single-offender robberies identified as African American. Also, African Americans
are overrepresented as offenders for rape/sexual assault, aggravated assault, and
simple assault. Note that the “not known” category ranges from 17.0 percent
of respondents for rape/sexual assault to 7.3 percent of respondents for simple
assault cases.

We argued earlier that one way to check the accuracy of arrest statistics is to
compare the race of offenders arrested for various crimes with victims’ perceptions
of the race of the offender. These comparisons are found in Table 2.6. There is a
relatively close match in the figures for white offenders for robbery and aggra-
vated assault between victim perception data and arrest data. These comparisons
also suggest that whites may be overrepresented in arrest data for rape and under-
represented in arrest data for simple assault. For African Americans, however, the
pattern is more consistent—that is, African Americans are represented in arrest
figures in much higher proportions than the perception of offenders from victim
interviews for all offenses examined, with more than one-third higher represen-
tation in arrest figures than in victim-perception percentages. These comparisons
indicate that the racial disproportion found in arrest rates for these four offenses
cannot be used to resolve the dilemma of differential arrest rates by race ver-
sus a higher rate of offending among African Americans. It may be reasonably
argued that such evidence actually suggests the presence of both differentially
high offending rates by African Americans for serious violent offenses and the
presence of differentially high arrest rates for African Americans, particularly for
rape offenses.

The comparison of “other” race offers a consistent pattern of underrepresen-
tation of “other” race in arrest figures compared to the victim-perception figures.
This observation could mean that Asian/Pacific Islander and Native American/

T A B L E 2.5 Perceived Race of Offender for Single-Offender Crimes
of Violence

Perceived Race of the Offender

Type of Crime White
African

American Other
Race not
known

All Crimes of Violence 59.0% 22.4% 10.8% 7.9%

Rape/Sexual Assault 48.8 18.1 16.2 17.0

Robbery 39.7 37.0 15.2 8.9

Assault 61.1 21.4 10.1 7.4

Aggravated 56.2 24.1 12.0 7.6

Simple 62.8 20.5 9.5 7.3

SOURCE: Bureau of Justice Statistics, Criminal Victimization in the United States—Statistical Tables, 2006 (Washington,
DC: U.S. Department of Justice, 2008). http://bjs.ojp.usdoj.gov/content/pub/pdf/cvus0602.pdf.

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78 C H A P T E R 2

Alaska Native are committing crimes at a higher rate than they are arrested for.
However, these figures also suggest that NCVS respondents may be classifying
offenders they perceive as Hispanic/Latino/Mexican in appearance to be of
“other” race. Citizens commonly assume that Hispanic is a racial category, not an
ethnic category. It may be argued, then, that dark-skinned offenders who do not
appear African American may be classified as “other” because Hispanic is not an
option for the race-identification question. Additionally, NCVS respondents are
not asked to identify the perceived ethnicity of the offender.

Hindelang used early victimization data to determine which of these expla-
nations (differential offending versus differential enforcement) was more likely.
His initial comparison of 1974 arrest statistics with victimization data for rape,
robbery, aggravated assault, and simple assault revealed some evidence of “differen-
tial selection for criminal justice processing”91 for two of the offenses examined.
For rape and aggravated assault, the percentage of African-American offenders in
the victimization data was smaller (9 percentage points for rape, 11 percentage
points for aggravated assault) than the proportion found in UCR arrest statistics.

However, once Hindelang controlled for victimizations that were reported
to the police, the discrepancies disappeared, and the proportions of offenders
identified as African American and white were strikingly similar. Hindelang con-
cluded that “it is difficult to argue (from these data) that blacks are no more likely
than whites to be involved in the common law crimes of robbery, forcible rape,
assault.”92

Hindelang’s analysis of victimizations reported to the police also revealed a
pattern of differential reporting by victims. Specifically, Hindelang found that for
rape and robbery, those victimized by African Americans were more likely than
those victimized by whites to report the crime to the police. Hindelang suggested
that this is a form of selection bias—victim-based selection bias.

Hindelang concluded his comparison of UCR arrest rates and victimiza-
tion survey data by separating the elements of criminal justice—system selec-
tion bias, victim-based selection bias, and differential offending rates. He argued
that both forms of selection bias were present, but that each was outweighed by

T A B L E 2.6 A Comparison of UCR and NCVS Data on Offender Race,
2006

Whites African Americans Other

Arrested Perceived Arrested Perceived Arrested Perceived

Rape 65.3 58.8 32.5 21.8 2.2 19.5

Robbery 42.2 43.2 56.3 40.3 1.6 8.8

Aggravated 63.2 60.1 34.5 26.0 2.3 12.9

Assault

Simple Assault 65.2 67.8 32.2 22.1 2.6 10.2

SOURCE: Federal Bureau of Investigation, Crime in the United States, 2006. http://www.fbi.gov/ucr/cius2006/data/
table_43.html; Bureau of Justice Statistics, Criminal Victimization in the United States—Statistical Tables, 2006. http://bjs.
ojp.usdoj.gov/content/pub/pdf/cvus0602.pdf.

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79V I C T I M S A N D O F F E N D E R S

the overwhelming evidence of differential involvement of African Americans in
offending.

Using NIBRS arrest data (17 states), Stewart J. D’Alessio and Lisa Stol-
zen-berg try to disentangle differential offending from differential enforcement
by deriving research questions from the social threat hypothesis. They use racial
composition of a jurisdiction to approximate the social threat of racial minority
populations to determine if law enforcement arrest practices vary by the racial
composition of reporting jurisdictions, and thus differentiate differential arrest
practices from differential offending practices. They report that the odds of arrest
were actually higher for whites than blacks in three of the four crime types exam-
ined. They conclude that their findings suggest that “the disproportionately high
arrest rate for black citizens is most likely attributable to differential involvement
in reported crime rather than to racially biased law enforcement practices.”93

Self-Report Surveys

Self-report surveys are another way to paint a picture of the criminal offender. These
surveys question respondents about their participation in criminal or delinquent
behavior. Emerging in the 1950s, the self-report format remains a popular source
of data for those searching for descriptions and causes of criminal behavior. One of
the advantages of asking people about their behavior is that it gives a less-distorted
picture of the offender than an official record because it is free of the alleged biases
of the criminal justice system. However, it is not at all clear that self-report survey
results provide a more accurate description of the criminal offender.94

Problems with Self-Report Surveys

One of the major weaknesses of the self-report format is that there is no single
design used. Moreover, different surveys focus on different aspects of criminal
behavior. Not all self-report surveys ask the same questions or use the same or
similar populations, and very few follow the same group over time. Usually, the
sample population is youth from school settings or institutionalized groups.

In addition to the problems of inconsistent format and noncomparable sam-
ples, self-report surveys suffer from a variety of other limitations. The accuracy
of self-report data is influenced by the respondents’ honesty and memory and by
interviewer bias.

One of the most confounding limitations in criminal justice data sets is
present with self-report surveys: the comparisons are overwhelmingly between
African Americans and whites. Little can be said about Native Americans, Asian
Americans, or Hispanic Americans. Some studies suffer from the additional lim-
itation of homogenous samples, with insufficient racial representation. These lim-
itations make it difficult to draw conclusions about how many members of a
racial group commit delinquent activity (prevalence) and how frequently racial
minorities commit crime (incidence).

Although self-report surveys generally are assumed to be reliable and valid,
this assumption has been shown to be less tenable for certain subgroups of

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80 C H A P T E R 2

offenders.95 Specifically, it has been shown that there is differential validity for
white and African-American respondents. Validity is the idea that, as a researcher,
you are measuring what you think you are measuring. Reverse record checks
(matching self-report answers with police records) have shown that there is
greater concurrence between respondent answers and official police arrest records
for white respondents than for African-American respondents.96 This indicates
that African American respondents tend to underreport some offending behavior.

Delbert Elliot and colleagues caution against a simplistic interpretation of
these findings.97 They find that African-American respondents are more likely to
underreport index-type offenses than less-serious offenses. Therefore, they suggest
that this finding may indicate the differential validity of official police records
rather than differential validity of the self-report measures by race. An example
of differential validity of police records would occur if police reported the clearly
serious offenses for whites and African Americans but reported the less-serious
offenses for African Americans only. In short, most self-report researchers con-
clude that racial comparisons must be made with caution.

Characteristics of Offenders

Usually juvenile self-report surveys record demographic data and ask questions
about the frequency of certain delinquent activities in the last year. The delin-
quent activities included range in seriousness, that is, from less-serious actions
like skipping class and drinking liquor to more-serious behaviors such as stealing
something worth more than fifty dollars, stealing a car, or assaulting someone.98

Early self-report studies, those conducted before 1980, found little difference
in delinquency rates across race (African American and white only). Later, more
refined self-report designs have produced results that challenge the initial assump-
tion of similar patterns of delinquency.99 Some research findings indicate that
African-American males are more likely than white males to report serious crim-
inal behavior (prevalence). Moreover, a larger portion of African Americans than
whites report a high frequency of serious delinquency (incidence).100

Theoretical Explanations for the Racial Gap in Offending

The traditional paradigms of criminological theory developed from Lombroso
to the emergence of the general theory of crime was essentially, “one size fits
all” in the sense of racial differences. While theory testing traditionally uses race
of offenders as a control variable, it is given no more attention than one of the
“usual suspects.” Such a racial theorizing (African Americans and Hispanics com-
mit crimes for the same reason than whites commit crime) is essentialized in the
assumptions of General Strain Theory that there is “invariance” in the racial/eth-
nic indicators for crime. With the emergence of critical race theory and Unne-
ver and Gabbidon’s Theory of African American Offending,101 this thesis is being
challenged. Unnever and colleagues (2016) hypothesize a racial “invariance” in
the predictors of self-reported violent delinquency in a cohort of young males in
Chicago.102 They find that African-American youth report a significantly higher

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81V I C T I M S A N D O F F E N D E R S

level of discrimination from police than other racial groups and are more likely
to be negatively impacted by this action than other racial groups. Of specific
focus is the influence of perceived discrimination on the delinquency of African
American compared to white youth. These results support the belief that delin-
quent behavior (like any behavior) is impacted by the “unique lived experiences”
of subordinate groups in fundamentally distinct ways compared to superordinate
groups.

Deena Isom, with the same data set, more directly explores the question: Is
race criminogenic?103 If so, how? Starting with the foundation of the Theory
of African American Offending, she explores the hypothesis that microaggres-
sion (five items asking were you discriminated against when you wanted ser-
vices, etc.) and criminal justice injustices (have you been discriminated against in
the last year?) independently increase the likelihood of offending. She asserts that
“racial microaggressions and criminal justice injustices lead to negative emotions,
weaken social bonds and increase the likelihood of negative outcomes (violent
delinquency).”104 She finds support for her hypothesis, findings that, “when con-
sidered together, microagressions and criminal justice injustices are significantly
associated with serious and violent offending, increasing the likelihood by 102%
and 57%, respectively” (p. 42). Further analysis suggests that positive racial iden-
tity in the presence of racial discrimination can reduce the likelihood of serious
offending.

These studies converge in their support the need to continue to develop
race-specific offending theories and subsequent empirical theory test.

Community Influence on the Racial Gap in Offending Rates

Criminological theory at the beginning of the twentieth century focused on
white immigrant communities with reportedly high delinquency rates to develop
such theories as Social Disorganization theory and Culture Conflict theory. More
recent research by Sampson and colleagues indicates that minority immigrant
populations in Chicago neighborhoods have lower rates of self-reported delin-
quency than white and African-American populations. In their recent cohort
study, Sampson and colleagues find that first-generation immigrants from Puerto
Rico and Mexico have lower self-reported delinquency rates than second- and
third-generation immigrants.

Theoretical explanations based on the importance of neighborhood effects as
a locus for and moderator of causes of offending by race have received substantial
support from the works of Anderson, Stewart and Simons, Stowell and colleagues
(discussed earlier in the chapter), and Sampson and colleagues (discussed earlier in
the chapter).

Furthermore, Sampson and colleagues find that self-report data collected in
a cohort study of juvenile and young adults from Chicago neighborhoods indi-
cate that there is a “racial” gap in offending between African American, Mexican,
Puerto Rican, and white youth. In an attempt to explain these descriptive find-
ings, they control for neighborhood-level effects, individual constitutional char-
acteristics (IQ and impulsivity), and so on. They find that once controlling for

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82 C H A P T E R 2

FOCUS ON AN ISSUE

Code of the Street: Predicts Violent Delinquency

In Elijah Anderson’s work, he sets forth a

“Code of the Street” perspective to explain

the causes of violent delinquency among

African Americans. This work suggests a

learning environment conducive to the

commission of violence as individuals

develop “social identities” consistent with

the predominant street culture.107 Recent

work by Eric Stewart and Ronald Simons

offers a multivariate analysis of the “code

of the street” perspective by testing two

key hypotheses, finding support for each.

Using a data set of 700 African-American

youth in response to a survey designed to

“identify neighborhood and family pro-

cesses that contribute to African-American

children’s development in families living in

a wide variety of community settings,”108

these researchers found the following:

First, based on the assumption of the

existence of a neighborhood-based

street culture of violence, Stewart and

Simons hypothesize that “neighbor-

hood street culture would be related

significantly to violent delinquency

above and beyond individual level

street code values.”109 Their findings

indicate that neighborhood street

culture does in fact predict violent

delinquency beyond the individual

respondent’s personal commitment to

street code values.

Second, based on the ideas pre-

sented by Anderson that suggest “ the

neighborhood street culture moderates

the effect of individual-level street

code values of violence” thus leading

to the assumption that “neighbor-

hood street culture tends to amplify

the violence-provoking effect of

personnel commitment to the street

code” Stewart and Simons proposed

B o x 2.5 Monitoring the Future

The only student-based self-report survey done on a yearly basis with a nation-
wide sample is Monitoring the Future.105 Responses to their delinquency questions
reveal few differences in self-report delinquent behavior by white compared to
African-American youth. White youth were slightly more likely to report being in a
serious fight within the last year, using a weapon to get something from a person,
taking something from a store, and taking a car that did not belong to someone in
their family. African-American youth were slightly more likely to report taking some-
thing from a store without paying for it, taking something not belonging to them
worth less than $50, and going into some house or building without permission.

David Huizinga and Elliot explored whether African-American youth have a
higher prevalence of offending than whites and whether a higher incidence of
offending by African Americans can explain differential arrest rates. Their analysis
revealed few consistent racial differences across the years studied, either in the pro-
portion of African American and white youth engaging in delinquent behavior or in
the frequency with which African American and white offenders commit delinquent
acts. Contrary to Hindelang, they suggest that the differential selection bias hypothe-
sis cannot be readily dismissed because the differential presence of youth in the crimi-
nal justice system cannot be explained entirely by differential offending rates.106

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83V I C T I M S A N D O F F E N D E R S

the economic indicators, the gap in offending by race and ethnicity effectively
disappears.111

Drug Offenders

A prevalent image in the news and entertainment media is the image of the drug
user as a person of color. In particular, trend arrest data for nonalcoholic drug
abuse violations reflect an overrepresentation of African Americans and often an
overrepresentation of Native Americans for alcohol-related offenses. A more com-
prehensive picture of drug users emerges from self-report data that ask respon-
dents to indicate their use of and their prevalence of use for particular drugs. In a
recent report on the use of licit and illicit drugs among people of color, through
the National Survey on Drug Use and Health, funded by the National Institutes
of Health (NIH) reveals racial and ethnic variations among young people and
adults. For all residents aged 12 and older,112 10.1 percent report using illicit drugs
in the last year. The lowest use pattern was with Asians Americans (3.1 percent),
followed by Hispanics (8.8 percent), whites (9.5 percent), and African Americans
(10.5 percent). The highest level of use was reported by American Indians/Native
Alaskans (12. 3 percent) and Hawaiian/Pacific Islander (14.0 percent), and bira-
cial/multiracial respondents (17.0 percent).

College student drug use (ages 18–22) was more the double the use of gen-
eral population at 22.3 percent. Asian Americans reported significantly lower than
average use (9.4 percent). Whereas African-American and Hispanic college stu-
dents (19.7 percent and 21.5 percent, respectively) report slightly lower than aver-
age use. Whites have the highest level of drug use in college at 25.1 percent. The
typical drug of choice for college students was marijuana.

In a multivariate analysis of earlier NSDUH data, McCabe and colleagues
find that male students are generally more likely to report drug use than female
students; however, they find that, “Hispanic and white students were more likely
to report drug use and abuse than Asian and African American students prior
to coming college or during college.”113 Additionally, the use of marijuana by
college students reveals that it is more often used by Hispanic college students,
followed by white, Asian American, and then African American college students.

For the U.S. population aged 12–17, survey data reveal interesting patterns
for “licit” (cigarettes and alcohol) and “illicit” drug use114 (marijuana). Examina-
tion of the data reveals that the pattern of cigarette and alcohol use varies by race
and ethnicity. While 5.6 percent of this age group indicated they had smoked in

a second hypothesis in which they

expect: “the effect of street code values

to be associated strongly with violent

delinquency in settings where strong

evidence is found of a neighborhood

street culture.” Their findings indicate

that support for the position that

“neighborhood street culture moder-

ates individual-level street code values

on violence in neighborhoods where

street culture is widespread.”110

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84 C H A P T E R 2

the last month, white youth had the highest reported cigarette use (7.2 percent).
Hispanic and Native Hawaiian/Pacific Islander youth have half the level of white
youth smoking cigarettes in the last month (3.7 percent and 3.6 percent, respec-
tively). African-American and Asian youth report the lowest levels of smoking
cigarettes (3.2 percent and 2.5 percent, respectively). Whites also chow the highest
use of smokeless tobacco. All racial groups show a decline in smoking since 2009.
As for alcohol use, youth were asked if they started drinking in the last year, with
10.5 percent of white youth initiating alcohol use, followed by a lower percentage
of Hispanic and African-American youth (9.1 percent).

The initiation patterns of drug use by youth in the last 12 months also diverge
by race and ethnicity.115 The pattern, however, is the same across drug type. Spe-
cifically, white youth reporting the highest initiation of alcohol, cigarettes, and
nonmedical use of prescription drugs compared to African-American and His-
panics youth. The use patterns differ between Hispanic and African-American
youth as the former report higher levels of initiation for cigarettes and nonmedi-
cal use of prescription drugs.

Monitoring the future is another self-report drug use survey. This annual sur-
vey asks a sample of high school students from around the nation their daily to
lifetime drug use for a range of licit and illicit drugs.116 The primary observation
about race, given prevalence estimates across three years, is “12th grade African
American students reported lifetime, annual, 30 day, and daily prevalence rates for
nearly all drugs as lower—sometimes dramatically so—than those for white and
Hispanic 12th graders …. Also, usage rates for most drugs were generally lower for
African American students than for white and Hispanic students in 8th and 10th

grade.”117 As with college students, marijuana use is highest among Hispanics, and
Hispanics have the highest annual and lifetime prevalence for crack and cocaine
use. White students have the highest annual and lifetime use for hallucinogens
(including LSD), tranquilizers, amphetamines, and sedatives.

To the extent we see a face of color when we picture drug users, we are
only aware of a small portion of the picture of drugs use across racial and eth-
nic groups. Often whites report the highest use levels. Neighborhood charac-
teristics and family environment may serve as risk factors contributing to drug
use. For example, the National Household Survey on Drug Abuse data reveal
the disturbing observation that a far greater number of African-American and
Hispanic youth (approximately one third) reported seeing people sell drugs
in the neighborhood occasionally or more often than whites did (less than
10 percent).

Mass Shooting Offenders

Given the information available on homicides in single incident cases, we now
turn to the question, “Do Mass shooters have a race”? This section reviews two
aggregate, descriptive accounts of criminal incidents that lead to the massive
injury and death in the United States. One account is a journalistic from a major
news magazine, Mother Jones, of Mass shooting events, while the other account
is from a federal law enforcement agency describing active shooter event. Both

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85V I C T I M S A N D O F F E N D E R S

accounts identify the offenders as being overwhelmingly male (more than 95% of
the time). Note, this percentage is far in excess of the roughly 50 percent of the
U.S. population that is identified in the U.S. Census as male. However, do mass
shooters and active shooters have a race? The discussion of mass shooters identi-
fies the gender, race, and often age of the offenders, while the government source
identifies gender and age, but not race of the shooters. Race is difficult to define
at times and may best be considered as a self-defined status; however, an attribu-
tion of race by another (such as by a journalist from a photograph) clearly has a
racial impact. Does the absence of race in a government report on active shooters
raise important questions?

Definitions for mass shootings and the similar active shooter incidents are
varied; however, they do have an overlap of incidents. Mother Jones has constructed
a data base of mass shooting incidents (typically killing four or more people with
little or no break), which includes offender information. Their database reveals
the vast majority of mass shooters are whites. This is a different picture of the typ-
ical offender than we see in typical (individual victim) accounts in the SHR made
available by the FBI that are addressed above. Mother Jones reveals that in more
than 75 incidents since 1982, the typical shooter is white (in over 80 percent of
the cases), and in the remaining cases, the shooter is identified as Asian or African
American.118 This pattern of 80 percent of mass shooters being whites persists in
Columbine copycat shootings as well, which have resulted in 21 attacks, with 89
fatalities and 126 wounded since 1999.119

The Federal Bureau of Investigation released a report in 2014, entitled, “A
Study of Active Shooter Incidents Between 2000 and 2013.120 An active shooter
incident is defined as “a situation in which a shooting is in profess and an aspect
of the crime may affect the protocols used in responding to and reacting at the
scene of the incident” (Blair et al., p. 4). Highlights from this study (Blair et al.,
2014, pp. 5–7) reveal that critical shooter incidents have occurred in 40 of the
50 states; 160 incidents were identified, with an average of 6.4 incidents in the
first 7 years studied and 16.4 incidents in the last 7 years studies; 1,043 people
were injured or killed.

Further review of these data reveals that incidents are typically in business
locations or an educational environment. The report states that “though this study
does not focus on the motivation of the shooters, the study did identify some
shooter characteristics” (Blair et al., 2014, p. 20):

– In 158 incidents, the shooter acted alone;

– Shooters are predominantly male, with fewer than 4 percent of incidents
involving a female;

– A number of shooters were identified as middle school or high school
age.

No race information is presented in the report for the shooters, even though
97% of them are dead or in custody. Moreover, no race information is offered in
the description of victims, either. The conclusion is that males are overrepresented
as offenders in active shooter events, but we have no information from the FBI

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86 C H A P T E R 2

about shooter race. This report stands in contrast with the UCR, the SHR, and
the Hate Crime statistics that report race of arrestees, and in the last two reports,
race of suspect.

Can you picture an offender without picturing a race? Can law enforcement
act effectively with a shooter profile that does not include race? Is race assumed to
be connected with motivations, thus, excluded?

In a recent New York Times op-ed piece,121 Anthea Bulter, professor of Reli-
gious and Africana Studies at the University of Pennsylvania, highlights the racial-
ized nature of reporting on homicides and mass shootings. In short, minority
homicide offenders are “street thugs” and white mass killing offenders are trou-
bled by mental illness. Metzel and MacLeish conclude in their recent research that
“notions of mental illness that emerge in relation to mass shootings frequently
reflect larger cultural stereotypes and anxieties about matters such as race/ethnic-
ity, social class, and politics. These issues become obscured when mass shootings
come to stand in for all gun crime, and when ‘mentally ill’ ceases to be a medical
designation and becomes a sign of violent threat.”122

Summary: A Picture of the Typical Criminal Offender

The image of the typical offender that emerges from the data examined here
conflicts somewhat with the image in the minds of most Americans. If by the
phrase “typical offender” we mean the offender who shows up most frequently in
arrest statistics, then for all crimes except murder and robbery the typical offender
is white, not African American.

As we have shown, focusing on the number of persons arrested is somewhat
misleading. It is clear from the data discussed thus far that African Americans
are arrested at a disproportionately high rate. This conclusion applies to prop-
erty crime and violent crime. Moreover, victimization data suggest that Afri-
can Americans may have higher offending rates for serious violent crime, but
examinations of victim perception of offender with official arrest data reveal
that some of the overrepresentation of African-American offenders may be
selection bias on the part of criminal justice officials, but this dilemma remains
unsettled.

If part of the view of the typical criminal offender is that the typical drug
offender is a minority, we have shown that self-report data from youth popula-
tions in the United States reveal that people of color do not have consistently
higher drug-use rates than whites. This picture varies slightly by type of drug,
with Hispanic youth showing higher rates of use with some drugs and Native
American youth with other drugs, but there is little evidence of differential pat-
terns of higher use rates by African Americans than other racial groups.

The typical offender in mass shooting situations has a race, and even when
it is not reported in government publications, media outlets provide such infor-
mation in their data bases. The typical mass shooter has a race: white. Moreover,
the depiction of this type of crime is conflated with media depictions of “street
thugs” versus the mentally ill.

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87V I C T I M S A N D O F F E N D E R S

C R I M E A S A N I N T R A R A C I A L E V E N T

In the minds of many Americans, the term crime conjures up an image of an act of
violence against a white victim by an African-American offender.123 In the pre-
ceding sections, we demonstrated the inaccuracy of these perceptions of victims
and offenders; we illustrated that the typical victim is a racial minority and that
the typical offender, for all but a few crimes, is white. We now turn to a discussion
of crime as an intraracial event.

National Crime Victimization Survey

Few criminal justice data sources, including the NCVS, offer comprehensive
information on the racial makeup of the victim–offender dyad. Recall that the
NCVS asks victims about their perceptions of the offender’s race in crimes of
violence and data presented distinguish among only African Americans, whites,
and “others” (victims’ perceptions of the offender as Hispanic are not available).

With these limitations in mind, NCVS data on the race of the victim and
the perceived race of the offender in single-offender violent victimizations can be
examined.124 These data indicate that almost all violent crimes by white offenders
were committed against white victims (73 percent). This pattern also character-
ized the individual crimes of robbery, sexual assault, aggravated assault, and sim-
ple assault. The typical white offender, in other words, commits a crime against
another white person.

This intraracial pattern of violent crime is also reported by African-American
victims. In short, crimes of robbery, sexual assault, aggravated assault, and simple
assault of African Americans are predominantly intraracial. The only NCVS crime
type that does not follow this pattern is a white robbery victim with injury. These

B o x 2.6 Civil Rights Cold Cases

Pursuant to the passage of the Emmett Till Unsolved Civil Rights Crime Act (“Emmett
Till Act”), signed into law on October 8, 2008, the Department of Justice and the
FBI are working together to address “violations of criminal civil rights statutes …
result[ing] in death” that “occurred not later than December 31, 1969.” Toward that
end, each of the 56 FBI field offices searched their “cold case files” to identify inci-
dents that might be ripe for investigation. Since February 2007, the FBI and the Divi-
sion have partnered with the National Association for the Advancement of Colored
People (NAACP), the Southern Poverty Law Center (SPLC), and the National Urban
League to identify additional cases for investigation and to solicit their help.

(Excerpt from https://www.justice.gov/crt/cold-case-initiative)

What Civil Rights era criminal cases were left unresolved in your state? Can you
identify a case the FBI might be able to solve through this initiative?

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88 C H A P T E R 2

victims are nearly as likely to be victimized by perceived offenders who are white
or African American.

Uniform Crime Report Homicide Reports

A final source of data on the victim–offender pair is the Supplemental Homi-
cide Report. Contrary to popular belief, a 29-year review of UCR/SHRs reveals
that homicide is essentially an intraracial event.125 Specifically, in data spanning
1980–2008,

■ 93 percent of African-American murder victims were slain by other African
Americans;

■ 84 percent of whites were victimized by whites;

■ 26.7 percent of stranger homicides were interracial;

■ 9.7 percent of friend or acquaintance victimization was interracial;

Cross-sectional UCR data for 2008 alone reveals126:

■ 63 percent of Asian/Hawaiian/Pacific Islanders were victimized by Asian/
Hawaiian/Pacific Islanders; and

■ 57 percent of Native American/American Indians were victimized by
Native American/American Indians.

The small percentage of interracial homicides are more likely to occur with
young victims and young offenders and are slightly more likely to be black-on-
white offenses than white-on-black offenses. This analysis also reveals that most
homicides are intraracial, regardless of relationship with the offender: stranger
homicides (7 in 10 are intraracial) than homicides by victim or acquaintance (9 in
10 are intraracial).127

Summary

The general pattern revealed is one in which white offenders consistently victim-
ize whites, whereas African-American offenders, and particularly African-American
males, more frequently victimize both African Americans and whites. As noted, the
politicizing of black criminality continues, and the emergence of and subsequent
focus on racial hoaxes persists.128 See “Focus on an Issue” sections for a discussion of
the politicizing of black criminality and the persistence of racial hoaxes.

C R I M E A S A N I N T E R R A C I A L ( H AT E ) E V E N T

Not all interracial criminal events are considered hate crimes. The term hate crime
(or bias crime) is most often defined as a common law offense that contains an
element of prejudice based on the race, ethnicity, national origin, religion, sexual
orientation, or disability status of the victim (some statutes add gender). Generally,

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89V I C T I M S A N D O F F E N D E R S

FOCUS ON AN ISSUE

Politicizing Black-on-Black Crime and Ignoring White-on-White and
White-on-Black Crime

Bing and Russel note that, “Much atten-

tion has been devoted to ‘black-on-black’

crime … It is not unusual to see in the

written press or to hear in the electronic

media stories depicting the evils of liv-

ing in the black community. [This] has

occurred with such frequency that some

individuals now associate black people

with criminality. Simply put, it has become

fashionable to discern between crime and

black-on-black crime. Rarely does one

read or hear about white crime or ‘white-

on-white’ crime. This is troubling when

one considers that most crimes, including

serious violent crimes, are committed by

and against whites as well as blacks.”129

Some researchers have challenged

the assertion that crime is predominantly

intraracial.130 These critics point to the fact

that a white person has a greater likelihood

of being victimized by an African-Ameri-

can offender than an African American has

of being victimized by a white offender.

Although this is true, it does not logically

challenge the assertion that crime is pre-

dominantly an intraracial event. Remem-

ber that the NCVS reveals that the typical

offender is white, not African American.

An exception to the predominant

intraracial pattern of crime occurred with

the examination of Native American and

Asian victimization patterns. Native Amer-

icans report most victimizations occurring

by whites, and Asians report victimizations

occurring almost equally by whites, Afri-

can Americans, and other racial groups

(with no group committing the majority

of offenses).

Braga and Brunson, reporting for the

Executive Session on Policing held at the

Kennedy School (2015), assert that “the

term ‘black-on-black violence’, while sta-

tistically supported [in some situations] is

simplistic and emotionally charged defini-

tion of urban violence when used by polit-

ical commentators, politicians and police

executives.”131 Does this term suggest

that urban violence is a “black problem”?

These authors note that television and

print media coverage may be presented

without the appropriate contextual infor-

mation and may be perceived as reflecting

the actual racial distributions of crime and

offenders. They sight damaging examples

of unsupportable statements and erroneous

facts used by commentators, mayors, and

police chiefs. A discussion of what can be

done in a constructive manner focuses on

community-level issues, such as building

collective efficacy. Papachristos, Braga and

Hura’s examination of homicide in Boston

(over a 13-year period), reveals that “black-

on-black” homicide is largely concen-

trated in a small number of disadvantaged

neighborhoods, with offenders that were

involved in criminal activity.132 Further,

a large number of incidents could be

explained by the actions of a small number

of “career” criminals.

Do we consider any particular crimes

to be “white-on-white crimes”? Why or

why not? Consider financial crimes. What

about state crime? If the government is a

majority white government, if it commits a

crime against predominantly black cities, is

this “white-on-black crime”? Consider the

Flint, Michigan, lead-poisoning scandal.

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90 C H A P T E R 2

Disabilities
1.5 %

Racial Bias
48.3%

Sexual Orientation/
Gender Identity Bias

20.1%

Religious
Bias

17.1%

Ethnicity
Bias

12.4%

F I G U R E 2.2 Hate Crime Offenses by Bias Type, 2014
SOURCE: FBI, Hate Crime Statistics, 2014 (2015).

hate crime legislation is enacted in the form of enhancement penalties for com-
mon law offenses (ranging from assault to vandalism) that have an element of
prejudice. Justifications for the creation of such legislation include the symbolic
message that certain actions are exceptionally damaging to an individual when
they are “provoked” by the status of race and ethnicity and that such actions are
damaging to the general community and should be condemned.

The FBI has been mandated by Congress to collect and disseminate infor-
mation on hate crime in the United States.133 In 2014, the FBI Hate Crime
Data Collection Program received reports from nearly 15,494 law enforcement
agencies, representing nearly 85 percent of the U.S. population. The FBI offers
this caution in its annual report: “The reports from these agencies are insufficient
to allow a valid national or regional measure of the volume and types of crimes
motivated by hate; they offer perspectives on the general nature of hate crime
occurrence.”

The FBI received reports of 5,479 bias-motivated criminal incidents in
2014, consisting of 6,418 offenses. Most offenses reported (63.1 percent) involved
crimes against a person, with 36.1 percent of the offenses designated as prop-
erty offenses. A small number of offenses (less than 1 percent) were designated as
crimes against society.134 As shown in Figure 2.2, most common offense were the
crimes of intimidation (27.2 percent), followed by destruction/vandalism of prop-
erty (26.4percent), simple assault (23.6 percent), and aggravated assault (12.0 per-
cent).135 The most commonly reported hate crime motivation was identified as
race bias (48.3 percent), followed by 20.1 percent reflecting sexual orientation or
gender identity bias, 17.1 percent reflecting bias based on religion, and 12.4 per-
cent reflecting a bias based on ethnicity/national origin (Figure 2.2).

The victims of race bias crimes were reflective of all race categories, includ-
ing a multiracial group category. Three racial groups reported high percentage
of victimization than their representation in the population: 63.5 percent were
motivated by African-American bias, with 5.5 percent resulting from anti-Asian
bias and 4.6 percent motivated by American Indian/Alaska Native bias. White

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91V I C T I M S A N D O F F E N D E R S

victims made up of 22.8 percent of bias-motivated offenses were reported, mak-
ing them the second largest group of race-based hate crime victims. Asian/Pacific
Islanders accounted for 0.01 percent of hate crime victimization.

Offender information is also available in the FBI Hate Crime Reporting
Program reports. This information is provided by victims reporting their percep-
tions, rather than being based on arrest or charging information. In 73.9 percent
of the hate crime offenses reported, the offender was known and the perception
of race was reported by the victim. In these cases, suspected offenders were most
often identified as white (56.7 percent), and suspected offenders represented all
four race categories and were occasionally identified as multiracial.136 In short, all
race groups have individuals who have been victimized by bias crimes and all race
groups have individuals who are suspected offenders of bias crimes.

Information on the trends of victimization and offending in bias-crime
events is limited, but patterns for both whites and African Americans have
emerged. African Americans are most often victimized by whites. And whites are
most often victimized by African Americans.137 Native American, Asian Amer-
ican, and Pacific Islander/Hawaiian Native bias-crime victims identified whites
as the offender in more than half of incidents. Whereas Native Americans were
rarely identified as offenders, they were as likely to have white victims as Afri-
can-American victims, and the offender identified as Asian American is found to
victimize African Americans more than the other racial groups.138

In 2005, the Bureau of Justice Statistics released a Special Report comparing
the picture of hate crime incidents and offenders that appears in victim self-re-
port survey information (the NCVS) with the picture found in police-based data
(UCR).139 The NCVS requires corroborating evidence of hate-based motiva-
tion before it records an event as a hate crime. Specifically, the offender must use
derogatory language, display a hate symbol, or have a confirmed hate crime report
by local law enforcement. Pooling several years of NCVS data (2000–2003) results
in an average of 191,000 hate incidents, of which 92,000 were reported to police
(44 percent). These data reveal approximately 3 percent of all violent crimes
reported in the NCVS were perceived by the victim as hate crimes. Nearly one
third of the offenses were violent crimes such as rape and serious assault, and
nearly 25 percent of the offenses were household vandalism that was perceived
to be motivated by hate. The most common motivation identified by victims was
based on race (55 percent), association with someone of a different race (such as a
multiracial couple; 31 percent), or ethnicity (29 percent).

Key information describing the offender and the incident is also available
from the NCVS data. Offenders are predominately male and most likely to be
white and a stranger to the victim. The event is most likely to be a violent crime
and occur in a public place. When comparing hate offenders to non-hate offend-
ers, NCVS data reveal that perceived gang membership and use of weapons do
not vary from hate- to non-hate-related events. However, a larger percentage of
females are identified as offenders in hate events than non-hate events. Similarly,
the perceived racial makeup of offenders is different with hate- and non-hate-
related events. Forty-four percent of offenders are white in hate events; 62 per-
cent of offenders are identified as white in non-hate events. Conversely, a larger

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92 C H A P T E R 2

percentage of hate offenders are perceived as African American than non-hate
offenders (39 percent compared to 24 percent).140

When the racial composition of victims and offenders is examined, interest-
ing differences appear. First, white victims report that nearly half of their offend-
ers were white offenders and nearly half of the offenders were African Americans.
However, African-American victims perceive their offenders to be white in more
than 85 percent of offenses, with African-American offenders identified in only
15 percent of cases.141

The official UCR recording of hate crime incidence from this time period
(2000–2003) gives an annual average of 8,227 incidents.142 What accounts for
the disparity? First, the motivation of association is not recognized by the UCR
classification system (identified above as the second most common motivation
in the NCVS). Second is the lack of victimization reporting to the police.
The NCVS respondents reveal the hate incidents they report to the police are
confirmed by police investigation in fewer than 10 percent of incidents. This
study also reveals that victims are less likely to report hate-related events to
the police than similar non-hate-related events. Additionally, the NCVS data
may reflect an overreporting by respondents, perhaps due to telescoping events
forward in time.

James Jacobs argued that hate crime statutes create a law unlikely to deter,
and its implementation will widen social division. He also argued that hate crime
legislation represents an ill-advised insertion of the civil rights paradigm into the
criminal law. Specifically, Jacobs reasons that civil rights legislation is an attempt
to extend “positive rights and opportunities to minorities and women … directed
at the conduct of government officials and private persons who govern, regulate,
or sell goods and services. By contrast, hate crime law deals with conduct that is
already criminal and with wrongdoers who are already criminals.” He concluded
that the “possibility that criminals can be threatened into not discriminating in
their choice of crime victims is slight.”143

In a recent study examining the potential for community disorganization
to explain the occurrence of hate crime, Christopher Lyons hypothesized that
socially disorganized communities will have higher rates of hate crime. In his
multivariate analysis of communities in Chicago, he characterized social disor-
ganization with such measures as youths who skipped school, the presence of
graffiti, and fighting in front of a respondent’s house. He also controlled for
unemployment, poverty, percentage of families on public assistance, and percent-
age of families with single mothers. Additionally, he controlled for racial compo-
sition and percentage change in minority racial composition over the last decade.
The dependent variables for this study were the occurrence of anti-black and
anti-white hate crimes. His findings indicate that “anti-black hate crimes are most
numerous in relatively organized communities with higher levels of informal social
control, and especially in internally organized white communities undergoing the
threat of racial invasion” and are most common in “economically affluent com-
munities.” Anti-white hate crimes, however, have a different set of causes, since
these crimes are identified as “somewhat more likely in disadvantaged communi-
ties, especially with higher levels of residential mobility.”144

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93V I C T I M S A N D O F F E N D E R S

FOCUS ON AN ISSUE

Disability and Crime Victims

The FBI Hate Crimes statistics report

bias incidents occurring against people

with disabilities. Although these events are

rare—95 incidents in 2014, and approxi-

mately 1 percent of all reported hate crime

incidents—this status of victimization is

still relevant to a discussion of minorities

and criminal justice.146 These data distin-

guish between those with physical disabil-

ities (27.3 percent) and those with mental

disabilities (72.6 percent). Of the known

reported incidents, 42.8 percent occurred

in the residence/home, higher than the

percentage for this location for any other

bias-crime offense.

A recent report from the Bureaus of

Justice Statistics based on the National

Crime Victimization Survey (2009–2013)

indicated a victimization rate was more

than twice that of persons without disabil-

ities (36 vs. 14 per 1,000 population).147

The definition used in this survey is

broader than the mental or physical dis-

ability used by the FBI reporting data,

encompassing restrictions to full partic-

ipation in activities at home, school and

work, that could include hearing, vision,

ambulatory, and cognitive issues. Thus,

roughly 21 percent of all violent victim-

izations occurred against someone with a

disability. African Americans with disabil-

ities reported victimization rates similar

to those without disabilities; however, the

remaining racial groups had higher rates

for members with a disability than those

without a disability. The disability victim-

ization rate did not vary significantly by

gender, with males and females both hav-

ing a higher victimization rates than the

non-disabled population.

Examination of FBI Hate Crime Sta-

tistics revealed a larger percentage of dis-

bility bias offenses were committed against

whites identifying a disability than against

African Americans identifying a disability.

The vicimization of Hispanics was signifi-

cantly lower than for non-Hispanics. Age

differences emerged in these data that indi-

cate a higer percentage of disiblity-based

bias crimes occurred against people aged

21 and over, compared with respondents

aged 20 or younger.148

Victims identifying their offenders

indicated that their offenders were more

likely to be a combination of male/female

offenders than one or the other, signifi-

cantly more likely to be white than Afri-

can American, and more likely to be 20

or younger than 21 or older. This report

indicates significantly more victimizations

during this time period than the FBI Hate

Crime statistics that police agencies report.

Persons with disabilities report being

victimized by non-strangers at higher per-

centage than persons without disabilities

(more than 60 percent of the time, com-

pared to less than 50 percent of the time).

Karla Westjohn challenges stereotypes

that disabled people can also be offenders,

because some of the offenders known to

the victim were also disabled. She also

asserts the need for law enforcement and

the courts to be more responsive to dis-

abled victims as able witnesses.149

Lyons concludes that “the correlates of anti-black crimes are distinguishable
from those of crime in general,” while anti-white crime, “like other forms of
crime … appear[s] to be the product of social disorganization brought about by
population turnover.”145 The logical extension of this research is that different

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94 C H A P T E R 2

prevention strategies may be needed for different types of hate crime incidents.
Moreover, this research again highlights the importance of criminological theory
based on neighborhood context to explain the causes of crime and victimization
(this is addressed more in Chapter 3).

E T H N I C Y O U T H G A N G S

In the minds of most Americans, the words gang, race, and crime are inextricably
linked. Recall the incident described at the beginning of this chapter, in “Focus
on an Issue: Central Park Jogger” (earlier in the chapter), in which a woman was
raped and believed to be attacked by a group of minority teenagers in Central
Park. The media labeled these youths a “gang.” This designation, however, was
challenged by those who argued that the teenagers allegedly involved in the inci-
dent were not organized, had no gang identity, and behaved more like a mob
than a gang.150 This insistence on the perceived “group” nature of the offense led
investigators to arrest and the court to convict the “gang” suspects, ignoring the
evidence of the single “real” offender identified later by DNA testing.

A comprehensive review of recent research on ethnic youth gangs is beyond
the scope of this chapter. Instead we discuss some of the prevailing myths and
new realities about gangs and gang membership. The National Gang Intelligence
Center indicates that there are over 1 million gang members in more than 30,000
distinct gangs. This report offers a quick synopsis of three types of gangs151:

(Youth) Gangs—(U.S. Department of Justice’s definition) “(1) an association of
three or more individuals; (2) whose members collectively identify them-
selves by adopting a group identity which they use to create an atmo-
sphere of fear or intimidation frequently by employing one or more of
the following: a common name, slogan, identifying sign, symbol, tattoo or
other physical marking, style or color of clothing, hairstyle, hand sign, or
graffiti; (3) the association’s purpose, in part, is to engage in criminal activ-
ity and the association uses violence or intimidation to further its criminal
objectives; (4) its members engage in criminal activity, or acts of juvenile
delinquency that if committed by an adult would be crimes; (5) with
the intent to enhance or preserve the association’s power, reputation,
or economic resources; (6) the association may also possess some of the
following characteristics: (a) the members employ rules for joining and
operating within the association; (b) the members meet on a recurring
basis; (c) the association provides physical protection of its members from
other criminals and gangs; (d) the association seeks to exercise control
over a particular location or region, or it may simply defend its perceived
interests against rivals; or (e) the association has an identifiable structure.”

Street Gangs—(neighborhood-based and national street gangs) “gangs
located throughout the United States, and their memberships vary in
number, racial and ethnic composition, and structure. Large national
street gangs pose the greatest threat because they smuggle, produce,

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95V I C T I M S A N D O F F E N D E R S

transport, and distribute large quantities of illicit drugs throughout the
country and are extremely violent. Local street gangs in rural, suburban,
and urban areas pose a steadily increasing threat transporting and distrib-
uting drugs within specific areas. The local street gangs often imitate the
larger, more powerful national gangs in order to gain respect from their
rivals”

Outlaw Motorcycle Gangs (OMGs) “are organizations whose members use
thei r motorcycle clubs as conduits for criminal enterprises. OMGs are
highly structured criminal organizations whose members engage in
criminal activities such as violent crime, weapons trafficking, and drug
trafficking. There are more than 300 active OMGs within the United
States, ranging in size from single chapters with five or six members to
hundreds of chapters with thousands of members worldwide.”

Gang Myths and New Realities

We have shown that popular perceptions of crime, crime victims, and criminal
offenders often are inaccurate. While gangs are consistently identified as groups
using violence to further goals, who act primarily to generate income, many of
the prevailing beliefs about gangs are similarly mistaken. In the sections that fol-
low, we discuss some of the myths surrounding gangs and gang activity. We show
that although there is an element of truth in each of these myths, there also are a
number of inaccuracies.

Myth 1: Gangs are a uniquely twentieth and twenty-first century phenomenon.

L. Sante documents that some historians believe there is evidence to suggest that
gangs began in the United States just after the Revolutionary War, around 1783.
Still others document the emergence of street gangs in growing American cities
several decades later, in the early 1800s.152

A recent report on the “History of Gangs in the United States” also docu-
ments unique regional factors that have contributed to the emergence of gangs
around the country.153 For example, Northeast and Midwest gangs are largely
rooted in the immigration patterns from white ethnic groups leaving Europe for
America. These groups were settling in large industrial cities in very segregated
housing situations and experienced prejudices that made achieving the American
Dream difficult (see subculture theory in Chapter 3). In the West, the clash of
American expansion and preexisting Mexican cultures lead to the emergence of
street gangs. Subsequent immigration patterns to the West Coast from Mexico,
immigrants looking for farm work, contributed to the growth of street gangs.
Migration patterns by African Americans moving from the South to these three
regions (the Northeast, the Midwest, and the West) added an additional dimen-
sion of gang formation that is still prevalent today. In the decades to come addi-
tional groups of Hispanics (Puerto Ricans, Panamanians, Cubans, and so on) and
Asian immigrants (Filipinos, Chinese, Vietnamese, and so on) would continue to
fuel the gang cultures in these regions. Native American gangs would emerge at a
later point, both on and off tribal lands.154

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96 C H A P T E R 2

Outlaw motorcycle gangs have not always been seen as threats to public
safety; however, recent events have changed that perception. For example, in 2012,
the motorcycle gang Hell’s Angels Rock Hill in South Carolina was convicted
of drug dealing, robbery, arson, and firearms violations. Also in 2012, the Wheels
of Soul motorcycle gang was convicted of federal racketeering charges linked to
murder. These gangs are found throughout the United States and include but are
not limited to Hells Angels Motorcycle Club, Pagans, Banditos, Outlaws, and Iron
Horsemen. This threat has been identified as a serious concern by policing exec-
utives due to their perceived criminal sophistication. These groups are found in
urban, as well as, rural areas.

Myth 2: All gang members are African American and belong either to the

Bloods or the Crips. The Bloods and the Crips are predominantly African
American and are very widely known. These two street gangs are heavily involved
in illegal drug activities and are characterized by a confederation of local gangs
that stretch across the country.155 They are not, however, exclusively African
American. S. Mydans156 provided examples of well-to-do white youth joining
California Crips and Bloods. The most recent National Gang Survey identified as
least one group of Asian Crips.

Although members of the racial minority groups we focus on in this book
are overrepresented in gangs, they do not comprise the entire gang problem. (It is
somewhat misleading to categorize gangs as Hispanic or Asian. The terms “His-
panic” and “Asian” are very broad and mask the variety within each group. In
reality, gangs are ethnically specific by nationality; there are Puerto Rican, Cuban,
Mexican American, Vietnamese, Cambodian, Korean, Chinese, and Japanese
gangs.)

The earliest gangs in the Northeast region of the United States were pre-
dominantly white, reflecting the major waves of European immigration, first from
northern and Western European countries and later from middle and Eastern
European countries. These immigration trends, along with the rapid growth of
industrial center cities, left a situation of poverty and unemployment that created
fertile ground for the formation of gangs. Sante notes the earliest gangs were
commonly Irish, with the Chinese establishing tongs as early as 1860. Italian and
Jewish gangs emerged after the Civil War.157

Currently, white ethnic gangs are not as prevalent. Covey and colleagues158

argue that “the relative absence of white ethnic gangs in official studies may be a
product of a number of factors including the difficulty of identifying them159 and
biases in reporting and public perception.”160 Many of the white ethnic groups
that do exist are characterized by white supremacist activities or Satanism.

Myth 3: Gangs are only found in large cities. It is important to understand that
the gang phenomenon is not a homogeneous one. Although many gangs are located
in urban areas, gangs are increasingly found in suburban and rural communities and
on Indian reservations.161 The National Youth Gang Survey in 2007, collected by
the National Youth Gang Center from law enforcement agencies, estimated that
gangs were present in 86 percent of large cities and 35 percent of smaller cities.

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97V I C T I M S A N D O F F E N D E R S

Additionally, this survey revealed that suburban and rural counties each reported the
presence of gangs (50 percent and 15 percent).162 The National Youth Gang Center
also tracks the size of urban, suburban, and rural gangs over time. Since 2002 the
general estimate of the number of self-identified gang problem jurisdictions went
up 25 percent. However, this increase was largely fueled by the 33 percent rise in
suburban gangs compared to the 12 percent rise in large city gangs.

Myth 4: Gangs are the result of poverty and a growing underclass. It is
overly simplistic to attribute the existence of gangs solely to poverty. The National
Youth Gang Survey indicated that although the majority of gang members are
identified as underclass, 35 percent were identified as working class, 12 percent as
middle class, and 3 percent as upper middle class.163 Gangs exist for a variety of
reasons: the growth of the underclass, the disintegration of the African American
and Hispanic family, poverty, difficulty assimilating into American culture, mar-
ginality, political and religious reasons, and general rebellion against adult and
conventional society.164 However, Curry and Decker argued that gang formation
and gang delinquency are more likely to be explained at a community level rather
than at an individual level.165

Myth 5: All gang members are males. Although it is true that males are over-
represented in gang membership, there are female gang members and female
gangs. The early sociological literature on gangs only discussed males; females
who accompanied male gang members were often described in terms of an
“ auxiliary”—present, but not a formal part of the criminal activity.

More recent studies have found both fully active female gang members and a
few solely female gangs. The NGIC reports that 1 in 4 jurisdictions report female
gang members (up from 1 in 7 in 2007), with up to 10 percent of gang mem-
bership made up of females. Moreover, more than half of recognized gangs have
female members, with smaller cities reporting the largest percentage of female
gang members compared to larger cities, suburban counties, and rural counties.166

Anne Campbell identified several all-female gangs in New York City. “The Sand-
man Ladies,” for example, were Puerto Rican females with a biker image. “The
Sex Girls” were African American and Hispanic females involved in drug deal-
ing. Currently, female gang members are known to assist with the “movement of
drugs and weapons for male gang members and [the gathering of] intelligence
from rival gangs.”167

The presence of female gang members differs by ethnicity as well. Females
are found in Hispanic, African American, and white ethnic gangs, but they appear
to be conspicuously absent in both journalistic and scholarly accounts of Asian
American gangs.168

In December 2012, federal authorities arrested 40 members of the Bronx
Trinitarios gang. They were charged them with multiple counts of murder and
attempted.169 The arrests included the leader of the all-female faction called “Bad
Barbies,” who was charged in connection with the shooting death of a rival gang
member in 2005. She was identified as one of as many as a hundred women who
run the Bronx Trinitarios.

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98 C H A P T E R 2

Myth 6: Gangs involve only young people and have few ties to organized

crime. For a number of years, gang researchers have documented generational
patterns of gang membership in a number of Hispanic and African-American
gangs. Moreover, outlaw motorcycle gangs are predominantly 20 years of age and
older. Furthermore, in a recent survey law enforcement, officials report that gangs
in their jurisdiction were associated with organized crime. Law enforcement
agencies report that street gangs are associated with transnational criminal orga-
nizations (Mexico, Central America, and the Caribbean), Asian organized crime
groups, Russian organized crime, and outlaw motorcycle gangs.170 These street
gangs include but are not limited to Bloods, Crips, Gangster Disciples, Almighty
Latin King and Queen Nation, and Mara Salvatrucha (MS-13).

New realities in gang behavior include:

– Gangs are present in middle schools and high schools. In a recent survey
of students, sponsored by the Office of Juvenile Justice and Delinquency
Prevention, nearly half of high school students respond that gangs are
present in their schools while more than one third of middle-school
students report gangs presence in their schools.171

– Gangs now employ cell phone, computer technologies, and social media
to identify target and communicate gang operations. The National Gang
Intelligence Center (NGIC) has also documented use of online gaming
systems such as Playstation and Xbox.172 Gang activities have been iden-
tified to include cyber-bullying and cyber-crime.

– In addition to tradition crimes of violence (for keeping territory and
extortion), drug running (most common income activity), and prosti-
tution, gangs are now using identity theft, credit card fraud, insurance
fraud, counterfeiting (i.e., designer products, currency, and so on) and
human trafficking to generate income.

– The NGIC, on the basis of a law enforcement survey, assert that 40 per-
cent of street gangs are involved in some level of weapons trafficking.
Theft is another source of weapons, including law enforcement and mil-
itary targets.

– Recently, gangs have started pursuing jobs in law enforcement and the
military to exploit sources of information to protect their enterprises
and to gain information on rivals. As of June 2013, the NGIC identified
“at least 60 gangs whose members or associates have been either enlisted
or have attempted to gain employment in the military or various gov-
ernment agencies. Of these gangs, 54 had members who served in the
military or who were otherwise affiliated with the military.”173 The
resulting weapons and tactics skills are highly valued by street gangs.

– The NGIC has also documented increased gang presence on college
campuses. It is argued that street gang members have also sought out
college degrees, all as ways to increase the skill set that is needed to
maintain and expand modern gangs.

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99V I C T I M S A N D O F F E N D E R S

Varieties of Ethnic Street Gangs

We already noted that, contrary to popular wisdom, all gang members are not
African Americans. There are also Hispanic, Native American, Asian, and white
gangs. In a recent year, the National Youth Gang Survey indicated that 49 per-
cent of gang members are identified as Hispanic, 35 percent as African American,
9 percent as white, and 9 percent as other.

Covey and colleagues stated, “[Ethnicity] is not the only way to understand
gangs, but gangs are organized along ethnic lines, and it would be a mistake to
ignore ethnicity as a variable that may affect the nature of juvenile gangs.”174

Most ethnic gangs reflect a mixture of their members’ culture of origin and
the American “host” culture; indeed, many gangs form as the result of a clash
between the two cultures. The National Gang Intelligence Center reports that
law enforcement agencies identify more and more gang collaboration, likely due
to the networks needed to generate profits through drug trafficking and counter-
feiting schemes.

African American

The most widely known African-American gangs are the Bloods and the Crips.
Each gang has unique “colors” and sign language to reinforce gang identity. It
is believed that these gangs are really “national confederations of local gangs” in
American cities.175 They are characteristically very territorial and use violence at
intimidation. They are also linked to nationwide drug distribution that is supplied
by international criminal organizations. They have also been linked with human
trafficking.

Other African-American gangs exist across the United States. Researchers
have identified many big-city African-American gangs that are oriented toward
property crime rather than drug sales. In addition, African-American gangs have
formed around the tenets of Islam, with corresponding political agendas.176

Native American

The circumstances among which Native American youth are becoming part of the
gang culture in the United States include the emerging presence of gangs in the
semi-sovereign tribal lands throughout the country and the formation of gangs
located in urban and rural non-reservation areas around 20 years ago.177 In 2010,
of 132 tribal communities in the United States, 81 percent were identified as
having dome gang activity. Specifically, the Navajo nations have  documented the
presence of youth gangs consisting of tribal members. They have reported the
presence of more than 60–70 gangs with more than 1,500 members on the tribal
lands. Similarly, the Pine Ridge Indian reservation reports 30–40 active gangs.
Some Native American gangs identify themselves with the native culture of their
unique areas (such as the Native Out-lawz, Red Nation Kligue, and Native Mob),
whereas other gang names indicate alliances with more nationally recognized

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100 C H A P T E R 2

groups like the Bloods and Gangster Disciples (with names like the Indian
Bloods, Native Gangster Disciples, and Native Latin King). Actual evidence of
structural alliances with these other urban gangs seems to be in doubt. Some gang
researchers speculate that such affiliation is “utilized for the purposes of notoriety
and intimidation.” Most gang crimes on tribal lands seem to be property based,
but there is increasing concern about violence and drug distribution (especially
methamphetamine and marijuana).178

Gang activity includes the presence of graffiti, vandalism, drug usage, and
assault, up to burglary, robbery, and murder. Grant has found, through his inter-
view based research, that lack of connection to tribal cultural heritage is a
risk factor for gang membership. Conversely, he asserts that connection with
cultural heritage may be successful in Native-American-based reintegration
programs.

Asian American

As previously stated, there are a variety of Asian ethnic gangs. Most Asian gang
researchers attribute the formation of these gangs, at least in part, to feelings of
alienation due to difficulty assimilating into American culture.179 Similarities
between Asian gangs include an emphasis on economic activity and a pattern of
intraracial victimization. The tendency to victimize others in the Asian commu-
nity may contribute to lower reporting rates of gang victimization to local law
enforcement.

The origins of Chinese American gangs can be traced to the early 1890s and
the secret “Tong” societies. Chinese American gang activity has increased with
the relaxation of immigration laws in the mid-1960s. The research on Chinese
gangs reveals that these entities have a commitment to violence, both for its own
sake (gang warfare) and also as a means for generating income (through robbery,
burglary, extortion, and protection). Gang researchers report that it is not unusual
for Asian-organized crime groups to work with street gangs in such activities
as “drug trafficking, credit card fraud, illegal gambling and money laundering.”
K. Chin noted that generally the structure of Chinese American gangs is very
hierarchical; he also explains that gang members may participate in legitimate
business, establish drug distribution and sale networks, and form national and
international networks.180 Vietnamese American gang activity is not as structured
as that of Chinese American gangs. The increase in gang activity for this ethnic
group can also be tied to an influx in immigration. Overall, Vietnamese American
gang activity is less violent, usually economically oriented, and most likely to tar-
get other Vietnamese Americans.181

Asian gangs are traditionally found in a number of costal states across the
United States such as California, Oregon, New York, Massachusetts, and Con-
necticut.182 Asian gangs are also emerging in the South. More gangs are emerging
in Atlanta, Georgia, fueled by an increase in Asian population since 2000 (87 per-
cent increase). The largest numbers of Asian gang members are Indians, followed
by Koreans and Chinese ethnicities.183

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101V I C T I M S A N D O F F E N D E R S

Hispanic

Hispanic gangs have identifiable core concer ns: brotherhood/sisterhood,
machismo, and loyalty to the barrio (neighborhood). Many Hispanic gangs have
adult and juvenile members, and gang members may be involved in the use and
sale of drugs. The importance of machismo may explain the emphasis of many
Hispanic gangs on violence, even intragang violence.184

Hispanic gangs make up the largest ethnic population of gang membership
in the country. Hispanic gangs have the most gang members in large cities, small
cities, and suburban counties. This trend reverses for rural counties where His-
panic gangs comprise 32 percent of gang members, while African-American gang
members comprise 44 percent of the identified gang members. Prominent His-
panic gangs vary by region. In the western part of the country, Sur 13 and The
Latin Kings are most evident. The former is strongly associated with the prison
gang Mexican Mafia (discussed in Chapter 9). Law enforcement agencies have
identified Hispanic gangs in Northern California in alliance with outlaw motor-
cycle gangs to transport drugs (primarily methamphetamine). International con-
nections emerge with such gangs as the MS-13 (Mara Salvatrucha), which has El
Salvadoran roots. Other gangs are reported to have connections to crime groups
in Honduras, Guatemala, and other Central American countries.185

The National Alliance of Gang Investigators report that some Central Amer-
ican gang members, from El Salvador and Honduras, have gained Temporary Pro-
tective Status (granted by the Bureau of Immigration and Custom’s Enforcement)
in the United States as a result of the gang prosecution efforts in their own coun-
tries. The Department of Homeland Security requires migrants to be deported if
they have been convicted of a felony or two or more misdemeanors, but some
gang members are able to remain for a period of time if they are looking for
work.186

White

The white ethnic gangs—composed of Irish, Polish, and Italian youth—identified
by researchers earlier in this century are less evident in today’s cities. Contem-
porary white ethnic gangs are most often associated with rebellion against adult
society; with suburban settings; and with a focus on white supremacist, domestic
terrorist, or Satanist ideals. Larger cities report that about 8 percent of gangs are
comprised of white members, while smaller cities and suburban and rural counties
identify between 14 percent and 17 percent of gang members as white.187 “Skin-
heads” may be the most well-known example of a white ethnic gang. Covey and
colleagues describe them in this way: “Skinhead gangs usually consist of Euro-
pean American youths who are non-Hispanic, non-Jewish, Protestant, working
class, low income, clean shaven and militantly racist and white supremacist.”188

Skinheads have been located in cities in every region of the country and have
been linked to adult domestic terrorist organizations such as the White Aryan
Resistance (WAR) and other Neo-Nazi movements. Skinheads are unique in the

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102 C H A P T E R 2

sense that they use violence not to protect turf, protect a drug market, or commit
robberies, but rather “for the explicit purpose of promoting political change by
instilling fear in innocent people.”189

Youth gangs with connections to domestic terrorist groups comprise less than
10 percent of known gang activity. These groups include the Ku Klux Klan, Aryan
Resistance, National Socialist Movement, and various militia groups. Little evidence
exists of youth gang connections with international terrorist groups because most
evidence suggests recruitment is more common in adult prisons (see Chapter 9).190

“Stoner” gangs, another form of white ethnic gangs, are characterized by an
emphasis on Satanic rituals. This doctrine is supplemented by territoriality and
the heavy use of drugs.191

In recognizing the racial nature of gangs, it is important to clarify the role of
racism in the formation of gangs. Most gangs are racially and ethnically homog-
enous. Some researchers argue that this situation is merely reflective of the racial
and ethnic composition of neighborhoods and primary friendships—that is,
“where schools and neighborhoods are racially and ethnically mixed, gangs tend
to be racially and ethnically mixed.”192

Although violent conflicts do occur between and within ethnic gangs, vio-
lence is seldom the reason for gang formation. Racism as a societal phenomenon
that creates oppressive conditions can contribute to gang formation. However,
individual racism explains very little in terms of the formation of gangs or the
decision to join gangs. Skinhead membership is a notable exception, being almost
exclusively a function of individual racism.193

C O N C L U S I O N

We began this chapter with a discussion of the presentation of crime stories in the
media in comparison to their actual occurrence. We argued that incidents such as
missing person reports and racial hoaxes shape perceptions of crime in the United
States. In the minds of many Americans, the typical crime is an act of violence
involving a white victim and a minority offender. We have used a variety of data
sources to illustrate the inaccuracy of these perceptions and offer a more compre-
hensive view of victimization and offending.

We have shown that people of color are overrepresented as victims of both
household and personal crime and have demonstrated that this pattern is par-
ticularly striking for crimes of violence. We have demonstrated that the typical
offender for all crimes except robbery and gambling is white; however, African
Americans are arrested at a disproportionately high rate. We also have shown that
most crimes involve an offender and victim of the same race, which means that
crime is predominantly an intraracial event.

The information provided in this chapter may raise as many questions as it
answers. Although we have attempted to paint an accurate picture of crime and
victimization in the United States, we are hampered by limitations inherent in
existing data sources. Some victimization events are not defined as crimes by the
victims, many of those that are defined as crimes are not reported to the police,

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103V I C T I M S A N D O F F E N D E R S

and many of those reported to the police do not lead to an arrest. There is no data
set that provides information on all crimes that occur.

We have attempted to address this problem by using several different sources
of data. We believe that we can have greater confidence in the conclusions we
reach if two or more distinct types of data point in the same direction. The fact
that both NCVS data and data from the SHRs consistently reveal that racial and
ethnic minorities are more likely than whites to fall victim to crime, for exam-
ple, lends credence to the need for a more comprehensive picture of victims and
offenders. Similarly, the fact that a variety of data sources suggest that crime is
predominantly an intraracial event enhances our confidence in this conclusion as
well.

We have less confidence in our conclusions concerning the racial makeup
of the offender population. Although it is obvious that African Americans are
arrested at a disproportionately high rate, particularly for murder and robbery, it is
not clear that this reflects differential offending rather than selective enforcement
of the law. Arrest statistics and victimization data both indicate that African Amer-
icans have higher rates of offending than whites, but some self-report studies sug-
gest that there are few, if any, racial differences in offending. We suggest that this
discrepancy limits our ability to draw definitive conclusions about the meaning of
the disproportionately high arrest rates for African Americans.

One final caveat seems appropriate. The conclusions we reach about victims
and offenders are based primarily on descriptive data; they are based primarily on
percentages, rates, and trends over time. These data are appropriate for describing
a disproportionate representation of people of color as the victims of crime and
as the criminal offender, but these data are not sufficient for drawing conclusions
concerning causality. The data we have examined in this chapter can tell us that
the African-American arrest rate is higher than the white arrest rate for a partic-
ular crime, but they cannot tell us why this is so. We address issues of causation in
subsequent chapters.

D I S C U S S I O N Q U E S T I O N S

1. What are the social and psychological costs of racial hoaxes? What do you
think? Should states have racial hoax sentence enhancement statutes? What
should the content of such legislation be?

2. Does the media systematically discriminate against crime victims, favoring
white victims? Or is the discrimination contextual (see Chapter 1)? How
does the media cover racial hoaxes? Does this coverage perpetuate the view
of young African American males as the typical criminal offenders?

3. What are some of the possible explanations for the overrepresentation of
minorities as crime victims? Are minority communities particularly vulnera-
ble to crime? Why?

4. The descriptive information in UCR arrest data depicts an overrepresenta-
tion of African-American offenders for most violent and property crimes.

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104 C H A P T E R 2

What are the possible explanations for such disparity? Is this picture of the
offender the result of differential offending rates or differential enforcement
practices? What must a researcher include in a study of “why people com-
mit crime” to advance beyond a description of disparity to test for a causal
explanation?

5. Should hate be a crime? What arguments can be made to support the use of
sentencing enhancement penalties for hate crimes? What arguments can be
made to oppose such statutes? Are hate crime laws likely to deter offenders
and reduce crime?

6. If most youth gangs are racially and ethnically homogenous, should law
enforcement use race- and ethnic-specific strategies to fight gang formation
and to control gang crime? Or should law enforcement strategies be racially
and ethnically neutral? What dilemmas are created for police departments
that pursue each of these strategies? Is the likely result institutional or con-
textual discrimination?

N O T E S

1. Nikole Hannah-Jones, “The Sordid History of Racial Hoaxes,” The Root (September
21, 2010, 11:49 A.M.). http://www.theroot.com/views/sordid-history-racial-hoaxes.

2. Katheryn K. Russell, The Color of Crime (New York: New York University Press,
1998), p. 70.

3. Ibid.

4. Ibid.

5. Ibid., p. 76.

6. Ibid.

7. Ibid., p. 75.

8. Ibid., p. 88.

9. Disney World Hoax Mom Sentenced: Bonnie Sweeten Gets 8 years for 1M Fraud.
Huffington Post Crime ( January 26, 2012). www. Huffingtonpost.com/2012/01/26/
Disney-world-hoax-mom-sentenced_n_123448.

10. Ibid.

11. Crime in the United States, 2014 (Washington, DC: U.S. Department of Justice, 2015).

12. National Center for Missing Adults, quoted in Anne-Marie O’Connor, “Media
Coverage of Missing Women Draws Ire,” Lincoln Journal Star (Monday, August 8,
2005), p. 8A.

13. Erin Bruno, quoted in Fahizah Alim, “Missing White Women Get Lion’s Share of
Media Coverage,” Sacramento Bee (June 28, 2005).

14. Ibid.

15. Ibid.

16. Ibid.

17. Erin Bruno, quoted in Anne-Marie O’Connor, “Media Coverage of Missing Women
Draws Ire,” Lincoln Journal Star (Monday, August 8, 2005, p. 8A).

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105V I C T I M S A N D O F F E N D E R S

18. Professor Todd Boyd, quoted in Anne-Marie O’Connor, “Media Coverage of Miss-
ing Women Draws Ire,” Lincoln Journal Star (Monday, August 8, 2005), p. 8A.

19. According to Uniform Crime Report index crime totals for 2,000, roughly 90 per-
cent of crimes were property crimes. It is believed that rapes are severely under-
reported, but similar arguments can be made for property crimes, especially fraud.
Even if the rape numbers are low, the numbers of violent criminal events do not
overshadow property crime.

20. New York Times (May 29, 1989), p. 25.

21. Robert M. O’Brien, “The Interracial Nature of Violent Crimes: A Reexamination,”
American Journal of Sociology 92 (1987), pp. 817–835.

22. Joe Mahony, “Five Cleared in Central Park Jogger Assault,” Daily News (New York,
January 7, 2005).

23. Ibid.

24. Charles Silberman, Criminal Violence, Criminal Justice (New York: Random House,
1978), pp. 177–118.

25. Benjamin Weiser, 5 Exonerated in Central Park Jogger Case Agree to Settle Suit for
$40 Million.

26. Benjamin Weiser, 5 Exonerated in Central Park Jogger Case Agree to Settle Suit for $40
Million (June 19, 2014). http://www.nytimes.com/2014/06/20/nyregion/5-exoner-
ated-in-central-park-jogger-case-are-to-settle-suit-for-40-million.html?_r=0.

27. The original National Crime Survey (NCS) was renamed the National Crime Vic-
timization Survey (NCVS) to clearly emphasize the focus of measuring victimiza-
tions. The Bureau of Justice Statistics was formerly the National Criminal Justice and
Information Service of the Law Enforcement Assistance Administration.

28. Data Collection National Crime Victimization Survey (NCVS). http://www.bjs.
gov/index.cfm?ty=dcdetail&iid=245#Methodology on 2/20/2016.

29. Bureau of Justice Statistics. NCVS-1 Basic Screen Questionnaire (February 20, 2016).
http://www.bjs.gov/content/pub/pdf/ncvs1_2014.pdf.

30. http://www.bjs.gov/index.cfm?ty=tp&tid=922#terms_def.

31. Truman, Jennifer, and Lynn Langston (2015) Criminal Victimization, 2014. http://
www.bjs.gov/content/pub/pdf/cv14.pdf.

32. Bureau of Justice Statistics, Rates of property victimizations, household burglaries,
motor vehicle theft, and thefts by race/Hispanic origin of head of household, 2014.
Generated by NCVS Victimization Analysis Tool (February 20, 2016). www.bjs.gov.

33. Bureau of Justice Statistics. Race of property victimizations, household burglaries,
motor vehicle thefts, and thefts by race/Hispanic origin of head of household and
location of residence, 2014. Generated using the NCVS Victimization Analysis Tool
(February 20, 2016). www.bjs.gov.

34. Edward L. Glaeser and Bruce Sacerdote, “Why is There More Crime in Cities?”
Journal of Political Economy 107 (1999), pp. S225–S258.

35. Ibid. BJS source for Table 2.1.

36. Bureau of Justice Statistics. Rates of violent victimizations, personal thefts/larcenies,
serious violent victimizations, rape/sexual assaults, robberies, and simple assaults by
race/Hispanic origin, 2014. Generated using the NCVS Victimization Analysis Tool
(February 20, 2016). www.bjs.gov.

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106 C H A P T E R 2

37. Criminal Victimization, 2004. www.ojp.usdoj.gov/bjs/cvict_v.htm.

38. Erika Harrell, Victims of Identity Theft, 2014 (2015). US Department of Justice.

39. Duhart, Urban, Suburban, and Rural Victimization, 1993–1998.

40. Bureau of Justice Statistics. Rates of violent victimizations, personal thefts/larcenies,
serious violent victimizations, rape/sexual assaults, robberies, aggravated assaults, and
simple assaults by race/Hispanic origin and location of residence, 2014. Generated
using the NCVS Victimization Analysis Toll (February 20, 2016). www.bjs.gov.

41. Edward L. Glaeser and Bruce Sacerdote. 1999. “Why is There More Crime in Cit-
ies?” Journal of Political Economy 107 (1999), pp. S225–S258.

42. Criminal Victimization in the U.S., 2002. http://www.ojp.usdoj.gov/bjs.

43. Callie Rennison, Violent Victimization and Race, 1993–1998. http://www.ojp.usdoj.
gov/bjs/pub/pdf/vvr98.pdf. See also, Lawrence A. Greenfeld and Steven K. Smith,
American Indians and Crime (Washington, DC: Bureau of Justice Statistics, 1999).

44. Ronette Bachman, Heather Zaykowski, Rachel Kallmyer, Margarita Poteyeva, and
Christina Lanier, Violence Against American Indian and Alaska Native Women and the Crim-
inal Justice Response: What is Known (National Institute of Justice Publication, 2008), p. 7.

45. Ibid., pp. 7–8.

46. Erika Harrell, Asian, Native Hawaiian, and Pacific Islander Victims of Crime. http://
www.ojp.usdoj.gov/bjs/abstract/anhpivc.htm.

47. Renisson, Violent Victimization and Race.

48. Janet L. Lauritsen and Norman A. White, “Putting Violence in Its Place: The Influ-
ence of Race, Ethnicity, Gender, and Place on the Risk for Violence,” Crime and
Public Policy 1 (2001), pp. 37–59.

49. Ibid., p. 51.

50. Laura Dugan and Robert Apel, “An Exploratory Study of the Violent Victimiza-
tion of Women: Race/Ethnicity and Situational Context,” Criminology 41 (2003),
pp. 959–977.

51. Ibid., p. 972.

52. Jennifer L. Truman and Lynn Langton (2015). Criminal Victimization, 2014. Bureau of
Justice Statistics. NCJ 248973 quote from page 4.

53. Pequero, Anthony A., Ann Marie Popp, and Dixie J. Koo. “Race, Ethnicity and
School-Based Adolescent Victimization,” Crime and Delinquency 61 (2015), pp.
323–349.

54. While there are racial and ethnic differences in the rate of property victimization,
findings indicate no significant impact of opportunity variables on victimization risk.
IBIB Pequero.

55. https://www.ncjrs.gov/App/Publications/abstract.aspx?ID=191210.

56. Bureau of Justice Statistics, Lifetime Likelihood of Victimization (Washington, DC: U.S.
Department of Justice, 1987), p. 1.

57. Ibid., p. 3.

58. https://www2.fbi.gov/ucr/Cius_99/99crime/99cius5.pdf. Retrieved February 13,
2016.

59. Department of Justice, Crime in the United States, 2014. Expanded Homicide Data.
https://www.fbi.gov.

60. Ibid. Table 1.

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107V I C T I M S A N D O F F E N D E R S

61. Gregg Barak, Jeanne M. Flavin, and Paul S. Leighton, Class, Race, Gender, and Crime:
Social Realities of Justice in America (Los Angeles: Roxbury, 2001).

62. Ibid., p. 102.

63. Bachman, Zaykowski, Kallmyer, Poteyeva, and Lanier, Violence Against American Indian
and Alaska Native Women and the Criminal Justice Response, p. 10.

64. Erica Smith and Alexis Cooper, Homicide Trends in the U.S. Known to Law Enforcement,
2011. Bureau of Justice Statistics, DOJ (NCJ 243035).

65. Ibid.

66. Alexia Cooper and Erica L. Smith, “Homicide Trends in the United States,
1980–2008,” Bureau of Justice Statistics, 2011 (NCJ 236018).

67. Ibid. Cooper and Smith.

68. Michael Fischer, “Environmental Racism Claims Brought under Title VI of the Civil
Rights Act,” Environmental Law 25 (1995), p. 285; Commission for Racial Justice,
United Church of Christ, Toxic Wastes and Race in the United States: A National Report
On The Racial and Socioeconomic Characteristics of Communities With Hazardous Waste
Sites (New York: Public Data Access, Inc., 1987).

69. Robert Bullard, Dumping in Dixie: Race, Class, and Environmental Quality (1990).
http://www.ejrc.cau.edu; Robert Bullard, Message from the Director (November 29,
2010). http://www.ejrc.cau.edu.

70. Jeremy C. F. Lin, “The Reach of Lead in Flint’s Water Supply,” New York Times
( January 15, 2016). http://www.nytimes.com/interactive/2016/01/15/us/
flint-lead-water-michigan.html.

71. http://www.mayoclinic.org/diseases-conditions/lead-poisoning/basics/symptoms/
CON-20035487. Accessed February 28, 2016.

72. Rennison, Criminal Victimization, 2000.

73. D. L. Decker, D. Shichor, and R. M. O’Brien, Urban Structure and Victimization
(Lexington, MA: D.C. Heath, 1982), p. 27.

74. Michael J. Hindelang, “Race and Involvement in Common Law Personal Crimes,”
American Sociological Review 43 (1978), pp. 93–109.

75. U.S. Department of Justice, Crime in the United States, 2003.

76. John Huey-Long Song, “Attitudes of Chinese Immigrants and Vietnamese Ref-
ugees toward Law Enforcement in the United States,” Justice Quarterly 9 (1992),
pp. 703–719.

77. Margorie Zatz, “Pleas, Priors, and Prison: Racial/Ethnic Differences in Sentencing,”
Social Science Research 14 (1985), pp. 169–193.

78. Donald Black, “The Social Organization of Arrest,” in The Manners and Customs of the
Police, Donald Black, ed. (New York: Academic Press, 1980), pp. 85–108.

79. Russell, The Color of Crime.

80. Crime in the United States, 2008 (Washington, DC: U.S. Department of Justice,
2009). http://www.fbi.gov/ucr/cius2008/data/table_43.html.

81. Paul Knepper, “Race, Racism and Crime Statistics,” Southern Law Review 24 (1996),
pp. 71–112.

82. Uniform Crime Reporting (UCR) Program, National Incident-Based Reporting
System (NIBRS), NIBRS Participation by State. https://www.fbi.gov/about-us/cjis/
ucr/nibrs/2013/resources/nibrs-participation-by-state.

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108 C H A P T E R 2

83. K. Peak and J. Spencer, “Crime in Indian Country: Another Trail of Tears,” Journal of
Criminal Justice 15 (1987), pp. 485–494.

84. Erica Smith and Alexis Cooper, “Homicide Trends in the U.S. Known to Law Enforce-
ment, 2011. Bureau of Justice Statistics, DOJ (NCJ 243035).

85. UCR, 2015, Supplemental Homicide Tables found at www.fbi.gov.

86. Peguero, Alex R., Bianca E. Bersani, Thomas A. Loughran, and Jeffrey Fagan, “Lon-
gitudinal Patterns of Legal Socialization in First-Generation Immigrants, Second
Generation Immigrants, and Native –Born Serious Youthful Offenders. Crime and
Delinquency. Published online August 2014, pp. 1–21.

87. Kristin Butcher and Morrison Piehl, San Diego Union-Tribune (March 2008).

88. Eric Stowell, Steven Messner, Kelly McGreever, and Lawrence Raffalovich, “Immigra-
tion and the Recent Violent Crime Drop in the United States: A Pooled, Cross-sec-
tional Time-Series Analysis of Metropolitan Areas,” Criminology 47 (2009), pp. 889–928.

89. Sampson et al., 2005; Butcher and Piehl, 2005.

90. Hindelang, “Race and Involvement in Common Law Personal Crimes,” p. 93.

91. Ibid., p. 99.

92. Ibid., pp. 100–101.

93. Stewart J. D’Alessio and Lisa Stolzenberg, “Race and the Probability of Arrest,”
Social Forces 80 (2003), pp. 1381–1397.

94. Gwynn Nettler, Explaining Crime, 3rd ed. (New York: McGraw-Hill, 1984).

95. Patrick G. Jackson, “Sources of Data,” in Measurement Issues in Criminology, Kimberly
Kempf, ed. (New York: Springer-Verlag, 1990).

96. Michael Hindelang, Travis Hirschi, and Joseph G. Weis, Measuring Delinquency
(Beverly Hills, CA: Sage, 1981); Delbert Elliot, David Huizinga, Brian
Knowles, and Rachel Canter, The Prevalence and Incidence of Delinquent Behavior:
1976–1980: National Estimates of Delinquent Behavior by Sex, Race, Social Class,
and Other Selected Variables (Boulder, CO: Behavioral Research Institute, 1983);
Robert M. O’Brien, Crime and Victimization Data (Beverly Hills, CA: Sage,
1985).

97. Elliot et al., The Prevalence and Incidence of Delinquent Behavior.

98. National Youth Survey questionnaire in O’Brien, Crime and Victimization Data.

99. O’Brien, Crime and Victimization Data.

100. Delbert S. Elliot and S. S. Ageton, “Reconciling Race and Class Differences in
Self-Reported and Official Measures of Delinquency,” American Sociological Review
45 (1980), pp. 95–110; Hindelang et al., Measuring Delinquency.

101. Read more in J. D. Unnever and S. L. Gabbidon, A Theory of African American
Offending (New York, NY: Routledge, 2011).

102. J. D. Unnever, J. C. Barnes, and F. T. Cullen. “The Racial Invariance Thesis Revis-
ited: Testing an African American Theory of Offending,” Journal of Contemporary
Criminal Justice 21 (2016), pp. 7–26.

103. Deena Isom, “Microagressions, Injustices, and Racial Identity: An Empirical Assess-
ment of the Theory of African American Offending,” Journal of Contemporary Crimi-
nal Justice 32 (2016), pp. 27–59.

104. Deena Isom, 2016, p. 33.

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109V I C T I M S A N D O F F E N D E R S

105. Principal Investigators of the Monitoring the Future Project are Lloyd D. Johnston,
Jerald G. Bachman, and Patrick M. O’Malley. Data available in the Sourcebook of
Criminal Justice Statistics, 2000. http://www.albany.edu/sourcebook/.

106. David Huizinga and Delbert S. Elliot, “Juvenile Offenders: Prevalence, Offender
Incidence, and Arrest Rates by Race,” Crime and Delinquency 33 (1987), pp.
206–223.

107. Elijah Anderson, “The Code of The Streets,” Atlantic Monthly 273 (1994), pp. 81–94;
Elijah Anderson, Code of the Street: Decency, Violence, and the Moral Life of the Inner
City (New York: W.W. Norton, 1999).

108. Eric Steward and Ronald Simons, “Race, Code of the Street, and Violent Delin-
quency: A Multilevel Investigation of Neighborhood Street Culture and Individual
Norms of Violence,” Criminology 48 (2010), pp. 569–605.

109. Ibid., p. 756.

110. Ibid., pp. 578, 570.

111. Robert Sampson, Jeffrey Morenoff, and Stephen Raudenbush, “Social Anatomy of
Racial and Ethnic Disparities in Violence,” American Journal of Public Health 95, no. 2
(2005), pp. 224–232.

112. Substance Abuse and Mental Health Services Administration, Results from the
2013 National Survey on Drug Use and Health: Summary of National Findings,
NSDUH Series H-48 HHS Publication N. (SMA) 12-4863. Rockville, MD: SAM-
HSA, 2014.

113. Sean E. McCabe, Michele Morales, James A. Cranford, Jorge Delva, Meinee D.
McPherson, and Carol J. Boyd. “Race/Ethnicity and Gender Differences in Drug
Use and Abuse Among College Students,” Journal of Ethnicity and Substance Abused
6, no. 2 (2007), pp. 75–95, p. 75.

114. Substance Abuse and Mental Health Services Administration. Behavioral Health
Barometer: United States 2014. HHS Publication No. SMA-15-4895. Rockville,
MD: SAMHSA, 2015.

115. Ibid.

116. R. A. Miech, L. D. Johnson, P. M. O-Malley, J. G. Bachman, and J. E. Schulenburg
(2015). Monitoring the Future National Survey Results on Drug Use, 1975–2014, Vol. 1,
Secondary School Students. Ann Arbor: Institute for Social Research, The Univer-
sity of Michigan. http://monitoringthe future.org.

117. Ibid., p. 99.

118. Mark Follman, Gavin Aronsen, and Deanna Pan, “A Guide to Mass Shootings in
America” in Mother Jones. Updated February 26, 2016. Accessed at http://www.
motherjones.com/politics/2012/07/mass-shootings-map on March 17, 2016.

119. Mark Follman and Becca Andrews, “The Columbine Effect” in Mother Jones,
November/December issue, 2015. Accessed at http://www.motherjones.com/
politics/2015/10/columbine-effect-mass-shootings-copycat-data on March 17,
2016.

120. J. Pete Blair and Katherine W. Schweit, A Study of Active Shooter Incidents,
2000 –2013 (Texas State University and Federal Bureau of Investigation, U.S.
Department of Justice, Washington, DC, 2014).

121. December 3, 2015. New York Times.

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110 C H A P T E R 2

122. Metzel, Jonathan M. and Kenneth T. MacLeish, “Mental illness, mass shootings,
and the politics of American firearms,” American Journal of Public Health 105, no. 2
(2015), pp. 240–249, p. 240.

123. Lori Dorfman and Vincent Scharaldi, “Off Balance: Youth, Race, and Crime in the
News,” Berkeley Media Studies Group, 2001. http://www.building-blocksforyouth.
org/media.html.

124. NCVS, 2003.

125. Cooper and Smith, Homicide Trends in the United States, 1980–2008.

126. C. Puzzanchera and W. Kang, “Easy Access to the FBI’s Supplementary Homicide
Reports: 1980–2008” (2010). http://www.ojjdp.gov/ojstatbb/ezashr/.

127. Ibid.

128. Bing and Russell, Politicizing Black-on-Black Crime; Russell, The Color of Crime.

129. Bing, Politicizing Black-on-Black Crime; Russell, The Color of Crime.

130. William Wilbanks, “Is Violent Crime Intraracial?” Crime and Delinquency 31 (1985),
pp. 117–128.

131. Anthony A. Braga and Rod K. Brunson, The Police and Public Discourse on ‘Black-on-
Black’ Violence (National Institute of Justice, May 2015), p. 1.

132. Andrew V. Papachristos, Anthony A. Braga, and David M. Hureau, “Social Net-
works and the Risk of Gunshot Injury,” Journal of Urban Health 89, no. 6 (2012),
pp. 992–1003.

133. Hate Crimes Act of 1990; Violent Crime and Law Enforcement Act of 1994;
Church Arson Prevention Act, 1996.

134. Federal Bureau of Investigation, Hate Crime Statistics, 2014. http://www.fbi.gov/
ucr/hatecm.htm.

135. Ibid.

136. Ibid.

137. Ibid.

138. Ibid.

139. Caroline Wolf Harlow, Hate Crime Reported by Victims and Police (Washington, DC:
BJS, 2005).

140. Ibid.

141. Ibid.

142. Hate Crime Statistics, 2000–2003. http://www.fbi.gov/ucr.

143. James Jacobs, “Should Hate Be a Crime?” Public Interest (1993), pp. 3–14.

144. Christopher Lyons, “Community (Dis)Organization and Racially Motivated
Crime,” American Journal of Sociology 113 (2007), p. 848.

145. Ibid., p. 847.

146. Hate Crime Statistics, 2014. www.fbi.gov/ucr/hatecm.htm. Tables 1, 10.

147. Erika Harrell, Crimes Against Persons with Disabilities, 2009–2013. Statistical Tables
(2015). (NCJ 248676).

148. Federal Bureau of Investigation, Hate Crime Statistics, 2008. http://www.fbi.gov/
ucr/hatecm.htm.

149. Karla Westjohn, “Beyond Stereotypes and Good Intentions: An Examination of Blind-
ness and Criminal Victimization,” Master’s Thesis (Western Illinois University, 2008).

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111V I C T I M S A N D O F F E N D E R S

150. A. K. Cohen, “Foreword and Overview,” in Gangs in America, C. Ronald Huff, ed.
(Newbury Park, CA: Sage, 1990).

151. National Gang Intelligence Center. 2013 National Gang Report. https://www.fbi.
gov/stats-services/publications/national-gang-report-2013.

152. Luc Sante, Low Life: Lures and Snares of Old New York (New York: Vintage Books, 1991).

153. James C. Howell and John P. Moore, “History of Street Gangs in the United States,”
Washington, DC: Bureau of Justice Assistance, National Gang Center Bulletin 4
(2010).

154. M. K. Conway, Gangs on Indian Reservations (Washington, DC: U.S. Department of
Justice, Federal Bureau of Investigation, 1998).

155. Covey et al., Juvenile Gangs.

156. Seth Mydans, “Not Just the Inner City: Well To Do Join Gangs,” New York Times
National (April 10, 1991), A–7.

157. Luc Sante, Low Life: Lures and Snares of Old New York (New York: Vintage Books,
1991).

158. Covey et al., Juvenile Gangs, p. 64.

159. C. J. Friedman, F. Mann, and H. Aldeman, “Juvenile Street Gangs: the Victimization
of Youth,” Adolescence 11 (1976), pp. 527–533.

160. William J. Chambliss, “The Saints and The Roughnecks,”’ Society 11 (1973),
pp. 341–355.

161. National Alliance of Gang Investigators Association, 2005 National Gang Threat
Assessment. http://ojp.usdoj.gov/BJA/what/2005_threat_assesment.pdf.

162. Office of Juvenile Justice and Delinquency Prevention, 2009. Highlights of the 2007
National Youth Gang Surveys. www.ncjrs.gov/pdffiles1/ojjdp/225185. pdf.

163. Highlights of the 1999 National Youth Gang Survey, Office of Juvenile Justice and
Delinquency Prevention, 2000. http://www.iir.com/nygc/.

164. J. M. Hagedorn, People and Folks (Chicago: Lake View Press: 1989); D. Ronald Huff,
Gangs in America; W. K. Brown, “Graffiti, Identity, and the Delinquent Gang,” Inter-
national Journal of Offender Therapy and Comparative Criminology 22 (1978), pp. 39–45;
J. W. C. Johnstone, “Youth Gangs and Black Suburbs,” Pacific Sociological Review 24
(1981), pp. 355–375; Thrasher, The Gang; J. D. Moore and Vigil R. Garcia, “Resi-
dence and Territoriality in Chicano Gangs,” Social Problems 31 (1983), pp. 182–194;
Ko-Lin Chin, Jeffrey Fagan, and Robert J. Kelly, “Patterns of Chinese Gang Extor-
tion,” Justice Quarterly 9 (1992), pp. 625–646; Calvin Toy, “A Short History of Asian
Gangs in San Francisco,” Justice Quarterly 9 (1992), pp. 645–665; M. G. Harris,
Cholas: Latino Girls in Gangs (New York: AMS Press, 1988); J. D. Vigil, Barrio Gangs
(Austin, TX: University of Texas Press, 1988); Anne Campbell, Girls in the Gang: A
Report from New York City (Oxford: Basil Blackwell, 1984); E. G. Dolan and S. Fin-
ney, Youth Gangs; James F. Short, Jr., and Fred L. Strodbeck, Group Process and Gang
Delinquency (Chicago: University of Chicago Press, 1965).

165. Curry and Decker, Confronting Gangs.

166. Mydans, “Not Just the Inner City”; Esbensen and Huizinga, “Gangs, Drugs and
Delinquency”; Jeffrey Fagan, “Social Process of Delinquency and Drug Use Among
Urban Gangs,” in Gangs in America, C. Ronald Huff, ed. (Newbury Park, CA: Sage,
1990); Anne Campbell, The Girls in the Gang, 2nd ed. (Cambridge, MA: Basil Black-
well, 1991).

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112 C H A P T E R 2

167. National Alliance of Gang Investigators Association.

168. Covey et al., Juvenile Gangs.

169. New York Daily News. “Feds bust 40 members Bronx gang members, including
the head of the all-female ‘Bad Barbies’ faction, on a slew of murder charges.”
December 2012. www.nydaily news.com/news/crime/bad-barbies-bronx-gang-
members-busted-article-1.1218874#ixzz2Yr6CgL5t.

170. Ibid.

171. Bureau of Justice Statistics, “Responding to Gangs in the School Setting,” National
Gang Center Bulletin, No. 5; November 2010.

172. 2013 National Gang Report.

173. 2013 National Gang Report, p. 29.

174. Covey et al., Juvenile Gangs, p. 49.

175. Ibid., p. 52.

176. John P. Sullivan, Third Generation Street Gangs, Crime and Justice International Maga-
zine (April 24, 2011). http://cjmagazine.com.

177. Christopher M. Grant, “Native American Involvement in the Gang Subculture:
Current Trends and Dynamics. US Department of Justice (2013). http://www.
communitycorrections.org/images/publications/NAInvolveinGangs-Trends.pdf.

178. National Alliance of Gang Investigators Association, 2005 Threat Assessment,
pp. 11–12.

179. James D. Vigil and S. C. Yun, “Vietnamese Youth Gangs in Southern California,” in
Gangs in America; Chin et al., “Patterns in Chinese Gang Extortion”; Toy, “A Short
History.”

180. K. Chin, “Chinese gangs and extortion,” in Gangs in America, C. Ronald Huff, ed.
(Newbury Park, CA: Sage, 1990).

181. Vigil and Yun, “Vietnamese Youth Gangs in Southern California.”

182. Covey et al., Juvenile Gangs, p. 67; NAGIA, 2005 Threat Assessment, p. 18.

183. Fighting Back: What gangs can offer young Asian Americans. The Economist.
June 13, 2015. http://www.economist.com/news/united-states/21654076-what-
gangs-can-offer-young-asian-americans-fighting-back.

184. Covey et al., Juvenile Gangs.

185. NAGIA, 2005 Threat Assessment, pp. 7–8.

186. Ibid., p. 9.

187. National Youth Gang Survey (2007).

188. Covey et al., Juvenile Gangs, p. 65.

189. Mark S. Hamm, American Skinheads (Westport, CT: Praeger, 1994), p. 62.

190. NAGIA, 2005 Threat Assessment, p. 5.

191. I. A. Spergel, “Youth Gangs: Continuity and Change,” in Crime and Delinquency: An
Annual Review of Research, vol. 12, Michael Tonry and Norval Morris, eds. (Chicago:
University of Chicago Press, 1990).

192. Covey et al., Juvenile Gangs, p. 48.

193. Hamm, American Skinheads.

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113

3

RACE, ETHNICITY, SOCIAL

STRUCTURE, AND CRIME

L E A R N I N G O B J E C T I V E S

The objectives of this chapter are to examine the broader structure of Amer-
ican society with respect to race and ethnicity and to analyze the relation-
ship between social structure and crime. As we learned in Chapter 2, people
of color are disproportionately involved in the criminal justice system, as
crime victims, offenders, persons arrested, and persons in prison. In very
general terms, there are two possible explanations for this overrepresentation.
The first is discrimination in the criminal justice system. We explore the data
related to this issue in Chapters 4 through 10. The other possible explanation
is the American social structure, which involves patterns of inequality that
are criminogenic. In this chapter, we will discuss the social and economic
inequalities in American society and their relationship to crime and criminal
justice.

We should first define what we mean by social structure. Social
structure is “a general term for any collective social circumstance that is
unalterable and given for the individual.” The analysis of social structure
reveals patterned relationships between groups of people that form the basic con-
tours of society. The patterned relationships are related to employment,
income, residence, education, religion, gender, and race and ethnicity. In
combination, these factors explain a person’s circumstances in life, relation-
ships with other groups, attitudes and behavior on most issues, and pros-
pects for the future.

This chapter explores the very complex relationship among social and
economic inequality, race and ethnicity, and participation in crime.

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114 C H A P T E R 3

After you have read this chapter:

1. You will be able to knowledgeably discuss inequalities in income and wealth
with respect to race and ethnicity.

2. You will better understand the nature and extent of inequality in American
society with respect to racial and ethnic minorities.

3. You will be able to explain whether the social and economic gap between
whites and people of color is narrowing or growing.

4. You will understand how inherited wealth perpetuates inequality in terms of
opportunities for employment and education.

5. You will understand what we know about the relationship between social
and economic inequality and crime, and how the leading theories of crime
help explain that relationship.

6. You will be knowledgeable about the impact of social and political reform
efforts designed to reduce inequality, including the civil rights movement
and different antipoverty efforts.

A S N A P S H O T O F C O M I N G H O M E F R O M P R I S O N :

S O C I A L I N E Q U A L I T Y A N D C R I M I N A L J U S T I C E

What happens when a young man comes home from prison? Where does he live
that first night? What kind of resources does he have? What happens in the first
weeks and months? Does he go right back to involvement in crime? Where does
he stand at the end of a year?

The following is a snapshot of one hypothetical young African-American
male who just returned home to Cleveland, Ohio, after a term in the state pen-
itentiary. It is adapted from a report by the Urban Institute on people reentering
society from prison in Cleveland, Chicago, and other cities. The report is one of
many published by the Urban Institute on the subject of reentry.

Let’s call our hypothetical person Fred Jones, a 26-year-old African Amer-
ican from Cleveland who just returned home after two years and two months
in prison. Fred spends his first night with a family member or members. Upon
release, he has no money, and in fact has some sizeable child support debts. He
will tell people that over the next year support from family members will be the
most important factor in helping him stay out of prison, far more important even
than having a job. But some of Fred’s friends have a different family situation.
Some of their family members are involved in crime, and this will affect their
chances for successful reentry.

After a year back in society, Fred will be among the more than half of his
fellow returnees who still do not have a full-time legal job. When he left prison,
he did not have either a valid driver’s license or a Social Security card, as is the
case with many offenders reentering society. Getting these basic forms of identi-
fication, moreover, is a challenge. Fred has no car, and public transportation to the
department of motor vehicles is weak. So he has to rely again on family or friends
to get there.

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115R A C E , E T H N I C I T Y , S O C I A L S T R U C T U R E , A N D C R I M E

Instead of a full-time job, Fred will be among the one third of the people
leaving prison who support themselves with “off the books” or “under the table”
work. That kind of work provides some income, but it is typically part-time,
irregular work, with no benefits such as health insurance and no real prospects
for advancement. And Fred’s job prospects were not so good to begin with. Along
with 55 percent of the other returnees, he has only a high school diploma (and
was never a star pupil), and like 42 percent of the group, he had never worked
40 hours a week before going to prison.

One of Fred’s major problems is his health. Along with 59 percent of his
peers, he has some kind of physical illness, and he is among the 30 percent who
suffer from depression. And like almost 30 percent of his peers, he has a history of
drug usage.

Along with about two-thirds of his peers, Fred reports that his parole officer
has been helpful with him making the transition from prison over the first-year
home. But like 30 percent of the group, after one year out he reports that he has
committed another crime, with half involving drug possession. After only one
year out, 15 percent of his peers were back in prison.

Fred’s situation and experience in his first-year home from prison highlight
the impact of social and economic factors on his life and his future. Cleveland
is a city where the old economy of blue-collar jobs has been hit very hard. Fred
arrives home with little education and work experience and is initially very
dependent on family members (who themselves are struggling to get by), living
in an environment with few job opportunities, debts, and poor health, especially
his mental health, and the immediate presence of family, friends, or residents in
the neighborhood who are involved in crime.

In short, people like Fred who leave prison on parole face many challenges
regarding simple day-to-day living, such as finding a place to live and getting a
job. Meanwhile, no matter how determined he is to establishing a productive
law-abiding life, he has family members, friends, and people in the neighborhood
who invite him back into a life of crime. All poor people face the same chal-
lenges; the ex-offender just has some additional burdens. And as we shall learn in
this chapter, African Americans, Hispanics, and Native Americans disproportion-
ately face these challenges.

SOURCE: Adapted from Christy A. Visher and Shannon M. E. Courtney, One Year Out: Experiences of
Prisoners Returning to Cleveland (Washington, DC: Urban Institute, 2007).

I N E Q U A L I T Y A N D C R I M E

It’s Not Just the Criminal Justice System

If we are serious about both understanding racial and ethnic disparities with
respect to crime in America, we need to look beyond the criminal justice system.
Marc Maurer, director of The Sentencing Project, lists four factors that contribute
to racial and ethnic disparities in crime rates. He cites “disproportionate crime
rates,” “disparities in criminal justice processing,” “the overlap of race and class

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116 C H A P T E R 3

effects,” and the “impact of ‘race neutral’ policies.”1 This chapter focuses on the
second on those factors, the deeply embedded social and economic inequalities in
American society.

Something as simple as owning a telephone, to take just one example, can
affect the quality of justice a person receives. Maurer explains that before trial a
person who has a cell phone or even a home-based landline can allow the court
to stay in touch with him and thereby increase the chances of pretrial release.
The poor person who cannot afford any kind of phone is more likely to both be
unable to afford bail in the first place and then be less likely to be released before
trial. As we will learn in Chapter 5, remaining in jail before trial increases the
chances of being convicted and then being sentenced to prison. A criminal con-
viction has enormous consequences, especially on a person’s ability to get a job.

In short, from small things, such as having a phone, large adverse conse-
quences can grow.

Inequality in America: Long-Term Trends and the Recession

Economic and social inequality is directly related to crime. Social and economic
inequality explains a great deal about who commits crime, who are the victims
of crime, who is arrested and prosecuted, and who goes to prison. Does inequal-
ity cause crime? No. All poor people do not commit crime, and poverty does
not make someone become a criminal. But poverty correlates with crime. Poverty
involves circumstances that contribute to criminal behavior.

The United States has had long-standing patterns of social and economic
inequality by race and ethnicity. African Americans, Hispanics, and Native Amer-
icans are much worse off by every measure than non-Hispanic whites and Asian
Americans. In this chapter, we will explain how those factors directly affect crime
and criminal justice and account for much of the much-publicized disparities in
the prison population.

Two Societies?

Almost 50 years ago, the Kerner Commission, which was appointed to study the
riots of the 1960s, warned that “our Nation is moving toward two societies, one
black, one white—separate and unequal.”2 Twenty-four years later, political sci-
entist Andrew Hacker published a book on American race relations titled Two
Nations: Black and White, Separate, Hostile, Unequal.3 Hacker’s subtitle indicates that
the Kerner Commission’s dire warning has come true: instead of moving toward
greater equality and opportunity, since the 1960s we have moved backward.

Economic inequality has steadily worsened. The gap between the very rich
and ordinary Americans has grown tremendously. By 2015, the richest 1 percent
of Americans controlled half of all the wealth in the country; the richest 10 per-
cent controlled 88 percent; and the bottom 50 percent of Americans controlled
only 1 percent of all the wealth. As we will discuss later, wealth includes income,
savings, property, and all other tangible assets. The economic well-being of both
middle-class and poor Americans has declined since the 1970s.4

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117R A C E , E T H N I C I T Y , S O C I A L S T R U C T U R E , A N D C R I M E

Second, the recession that struck in 2008 accentuated the long-term trends.
Unemployment rose significantly in 2008–2009 but has fallen steadily since then
(although not as fast as most economists and political leaders want). Job oppor-
tunities, however, have grown in relatively lower paid service industries, while
better paying blue-collar industrial jobs have fallen. These trends have hit African
Americans and Hispanics particularly hard. The unemployment rate for African
American in 2015 was twice the rate for non-Hispanic whites (8.8 percent vs.
4.3 percent) and 37 percent higher for Hispanics (5.9 percent vs. 4.3 percent).5

E C O N O M I C I N E Q U A L I T Y

There are three important patterns of economic inequality in America: (1) the
large gap between rich and poor, without regard to race or ethnicity; (2) the large
economic gap between white Americans and communities of color, particularly
African Americans and Hispanics; and (3) the growth of the very poor—a group
some analysts call an underclass—in the past 40 years. (We discuss the concept of
an underclass later on pp. 127.)

The standard measures of economic inequality are income, wealth, unemploy-
ment, and poverty status. We will discuss all four in detail. There is also increased
social science interest in the concept of well-being, which includes the quality of a
person’s family life, the social and physical environment, and personal safety.6

Income

Median family income is a standard measure of economic status. It measures how
much money a family earned during one year. U.S. Census Bureau data reveal
wide gaps between racial and ethnic groups. In 2014, the median household
income for all American households was $53,657. But as with all economic indi-
cators, strong racial and ethnic disparities exist. Asian-American household had
the highest median family income at $74,297, followed by non-Hispanic whites
at $60,256, Hispanic households at $42,491, and African-American households
at $35,398.7 Historical trends put these figures in perspective. African Ameri-
cans made significant progress relative to whites in the 1950s and 1960s, when
the American economy was growing, but since then, according to the National
Research Council, “the economic status of blacks relative to whites has, on aver-
age, stagnated or deteriorated.”8

The median household income figures mask two important issues. First, as
we will discuss shortly, there is a very large and growing gap between the very
rich and the rest of Americans. Second, there are significant differences in median
income within racial and ethnic groups. One of the most significant developments
over the past 40 years has been the growth of an African-American middle class
that is doing much better than its lower-income counterparts.9 A similar class
difference exists within the Hispanic community. These cleavages are the result
of two factors. First, the civil rights movement opened the door to employment

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118 C H A P T E R 3

for African Americans and Hispanics in careers from which they previously had
been excluded: white-collar, service, and professional-level jobs. Second, the end
of blatant housing discrimination has allowed middle-class African Americans and
Hispanics to move out of segregated neighborhoods. This process, however, has
resulted in a concentration of disadvantage in the older neighborhoods, with, as we
will explain shortly, a resulting concentration of factors that are criminogenic. The
concentration of disadvantage, for example, means that a teenager is surrounded
by a concentration of bad peer influences: other kids who are involved in drugs,
guns, gangs, and crime.

Among both African Americans and Hispanics, then, there is a greater gap
between the middle class and the poorest than at any other time in our history.
Later, we will see how changes in housing patterns among people of color have
resulted in a greater concentration of disadvantage in certain areas. This has a
direct impact on crime in poor neighborhoods.

Wealth

Annual income is only part of a person’s or a family’s economic status. Wealth
includes all the assets you own: your home (or homes, for some people); your cars;
other property (the rent you earn from a rental property is counted as income,
but the value of the property itself is counted as wealth); your savings, including
stocks and bonds; and so forth.

At the basic level, the family that owns a house, for example, has far more
wealth than the family that rents an apartment or house. The person or family
that has a large stock portfolio has far more wealth than people with no savings
at all.

The relative wealth of different groups of Americans has been changing sig-
nificantly in recent years. Three trends stand out. The wealth of the very richest

$70

$60

$50

$40

$30

$20

$10

$0

T
h

o
u
s
a
n
d

s

White

60,256

Hispanic

42,491

African American

35,398

F I G U R E 3.1 Median Household Income, by Race and Ethnicity, 2014
SOURCE: U.S. Census Bureau, Income and Poverty in the United States: 2014 (Washington, DC: Department of
Commerce, 2015). https://www.census.gov/content/dam/Census/library/publications/2015/demo/p60-252.pdf.

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119R A C E , E T H N I C I T Y , S O C I A L S T R U C T U R E , A N D C R I M E

Americans has soared; the wealth of middle-income Americans has stagnated
and even begun to decline; and the wealth of the poorest has actually declined.
Between 2000 and 2011, which includes the years of the great recession (2008–
2009), the average net worth of all American households declined by 6.8 percent
(or a total of $5,046). But different racial and ethnic and income-level groups had
very different experiences.10

Non-Hispanic whites exper ienced an increase of 3.5 percent in that
period, but only those households in the top 60 percent enjoyed that increase.
African-American households saw their net worth decrease by a substan-
tial 37.2 percent between 2000 and 2011. Most of that was experienced by
the poorest 40 percent of African-American households. The upper 40 percent
(the  African-American middle class) experienced an increase in net worth of
5.4 percent. The overall net worth of Hispanic Americans, meanwhile, decreased
by 42.1 percent, a greater decline than for African Americans. Most of that loss
was among the bottom 60 percent of households; the top 40 percent enjoyed
gains of 17.9 percent.11

Several points need to be emphasized. First, the gap between whites and both
African-Americans and Hispanic households increased in the decade of the 2000s.

T
h
o
u
s
a
n
d

s

White

141,900

Hispanic

13,700

African American

11,000

$140

$150

$130

$120

$110

$100

$90

$80

$70

$60

$50

$40

$30

$20

$10

$0

F I G U R E 3.2 Median Family Wealth, by Race and Ethnicity, 2013

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120 C H A P T E R 3

Non-Hispanic white households had 17.5 times the net worth as African Amer-
icans in 2011, compared with 10.6 times in 2000. And non-Hispanic whites had
14.4 times the net worth as Hispanics in 2011, compared with 8.1 in 2000.12

The reasons for the huge gap in net worth are easy to understand. Middle-class
households are able to save each month; the poor struggle to get by day-to-day
and week-to-week, and unable to put aside any savings. The middle-class family
is able to buy a house, which counts as wealth, and typically increases in value. A
family can use its savings to send its children to college, which gives that gener-
ation a head start in life over their less-fortunate peers. Students who graduate
with no student loan debts, because their parents could pay for college, begin with
an enormous advantage over those with large student loan depts. Middle-class
people typically buy homes in neighborhoods where property values are rising.
Lower-middle-class families, regardless of race, are often able to buy homes at
neighborhoods where property values grow slowly and might even be stagnant.
As a result, their wealth does not increase very much. Poor people, of course, can-
not buy a house at all and as a result continually fall behind in terms of wealth.

The absolute decline in the wealth among the poorest Americans has dra-
matic implications for crime and criminal justice. As families grow poorer, they
are less able to move to a better neighborhood, thereby exposing their children to
the bad peer influences of high-crime neighborhoods (the concentration of pov-
erty effect). As the National Crime Victimization Survey consistently finds, living
in higher crime neighborhoods means they are more likely to be victims of both
violent and property crimes.13 And being the victim of a crime imposes dollar
costs that the poor are the least able to cope with: medical car, loss of days from
work, a car or television that needs to be replaced, and so on.

The 2008–2009 recession had a devastating effect on many families. The
more important source of wealth for most Americans is the value of their home.
In the pre-2008 housing boom, many people bought homes that were more
expansive than they normally would have, because they expected the value to
quickly increase. The crash, however, caused housing values to plummet, wiping
out all of their home-related savings. Many people were forced into foreclosure,
leaving them far worse off than ever.

Wealth plays an important role in perpetuating inequality. Savings can cush-
ion a family against temporary hard times, such as loss of a job or an unexpected
medical crisis. The construction worker or plumber who is without work for an
extended period of time because of an economic slowdown may lose his or her
home, and as a result slide down the economic scale. In the next section, we will
discuss the impact of inheritance in transferring wealth from one generation to
the next, and in the process perpetuating inequality.

The gap between whites and African Americans remains wide, despite the
tremendous changes over the decades as a result of the civil rights movement and
a series of both liberal and conservative economic policies designed to increase
opportunity. The National Research Council found “persisting disparities
between black and white Americans” over the course of several decades. Later in
this chapter, we will examine the impact of the civil rights movement and other
social and political changes on the problem of persistent inequality.

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121R A C E , E T H N I C I T Y , S O C I A L S T R U C T U R E , A N D C R I M E

The “Family Thing”: Emergency Assistance and Inheritance

Families (and sometimes friends) are important sources of support for people
during times of financial emergencies. When the car breaks down or needs new
brakes, or there is a family medical crisis, people turn to those closest to them.
People whose relatives or friends have savings and can help out are better able
to survive a temporary financial crisis. African-American families are actually
more likely to receive financial support from family and friends: 15.9 percent of
all African-American families, compared with 0.4 percent of Hispanic families,
and 6.5 percent of white families. In part, this is because they have fewer per-
sonal resources (savings, for example) than whites. But African-American families
receive the second lowest average amount of family help. Whites receive an aver-
age of $589, compared with $383 for nonimmigrant Hispanics, $278 for African
Americans, and $208 for immigrant Hispanic families.14

Inheritance is sometimes called the “family thing,” and it is extremely import-
ant in perpetuating disparities in wealth from one generation to the next. The
media, however, present a very distorted picture of the reality of inheritance in
America. It focuses on the very wealthy, and “rich kids” who inherit fortunes, or
entire businesses, or trust funds. The reality for most Americans is very different.

In a powerful analysis of the gap between whites and African Americans,
Thomas Shapiro argues that “inheritance is a frightful conveyor and transmitter
of inequality.” In a series of family interviews, he found that 25 percent of white
families enjoyed an inheritance from parents or other family members, compared
with only 5 percent of African-American families. And that is only part of the
story. One study found that among those inheriting anything, whites averaged
$144,652, whereas African-American families averaged only $41,985.15 The Fed-
eral Reserve, meanwhile, estimates that the average white American family inher-
its only $20,000 from their parents, whereas the average African-American family
inherits a mere $2,000.

Inheritances provide many advantages. An inheritance can help tide over a
young person who is still trying to find a job and career. It helps to buy a house.
Shapiro argues that almost half of all whites (46 percent) made the down payment
on their houses with help from family or other sources in addition to their own
savings. Only 12 percent of African Americans enjoyed that extra help.16 A house
in a middle-class neighborhood is more likely to increase in value than one in an
economically marginal neighborhood—thereby increasing a family’s wealth over
time. Some inheritance can help with college expenses, either for the child or
later for that person’s children.

The Growing Gap between the Very Rich

and the Rest of Americans

The gap between the very richest Americans and most Americans in terms of both
annual income and total wealth has been growing dramatically over the past few
decades. Many commentators today talk and write about a crisis of inequality, particu-
larly with regard to the gap between the richest 1 percent and the rest of Americans.

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122 C H A P T E R 3

The most dramatic change in inequality in the past few decades is that the
very rich own an increasing share of all wealth. It is now estimated that the rich-
est 1 percent of Americans own half of all the wealth in the country, while the
bottom 50 percent of Americans control only 1 percent of all wealth. By 2016,
the United States is the least equal of all industrialized countries. The middle
class control only 19.6 percent of all wealth, compared with 39.9 percent for
middle-class Germans and 49 percent for middle-class Japanese.17

The problem with the gap between the richest 1 percent and the rest of
Americans is not necessarily that the 1 percent has too much, but that ordinary
Americans do not have enough to get by, be able to handle financial emergen-
cies, educate their children as well as they might, and be able to move up in the
world.

Unemployment

The unemployment rate is another standard measure of economic well-being. The
rate fluctuates month-to-month and year-to-year with the health of the national
economy. Whatever the national rate, for decades there has been a racial and eth-
nic gap in unemployment. In January 2016, the official national unemployment
rate was 4.9 percent. For whites the rate was 4.3 percent, compared with 3.7
percent for Asian Americans, 5.9 percent for Hispanics, and 8.8 percent for Afri-
can Americans. Historically, going back into the 1950s, the African- American
unemployment rate has consistently about twice the white’s unemployment rate,
during times of prosperity and times of recession.18

The unemployment situation for African-American teenagers (16–19 years
old) is particularly acute. For both boys and girls, the unemployment rate in Jan-
uary 2016 was 25.2 percent, compared with 14.4 percent for whites and 18 per-
cent for Hispanics.19

The high unemployment rates for all racial and ethnic groups is a matter of
great concern, as criminologists consistently find that unemployment correlates
with involvement in delinquent behavior, gang activity, and participation in more
serious crime, and the likelihood of adult criminal careers. Involvement in crime
peaks during the teenage years. Arrests peaked at age 18 for both burglary and
robbery in 2014.20 Providing meaningful employment opportunities in those

T A B L E 3.1 Wealth Inequality in the United
States, 2014

Percentage of the Population Percentage of All Wealth

Top 1% 43%

To 2–4% 29%

Remaining 85% 28%

SOURCE: Nicholas Kristoff, “An Idiots Guide to Inequality,” New York Times, July 22, 2014.

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123R A C E , E T H N I C I T Y , S O C I A L S T R U C T U R E , A N D C R I M E

years would have a direct impact on overall crime rates. The concentration of
high rates of teenage unemployment in low-income neighborhoods, moreover,
creates a critical mass of peer influences that help to introduce young people into
criminal activity.

The official data on unemployment do not tell the whole story, however.
The official unemployment rate counts only those people who are actively seeking
employment. This problem is similar to the official FBI UCR data on the crime
rate, which only counts crimes that are reported to police. The official unem-
ployment rate does not count three important groups: (1) discouraged workers who
have given up and are not looking for work; (2) part-time employees who want
(and probably need) full-time jobs but cannot find them; and (3) workers in the
“underground economy,” who are paid in cash to avoid paying taxes and Social
Security withholding. During a recession, when job opportunities are scarce, it is
even more likely that people will not bother to look for work. Many economists
believe that people of color are disproportionately represented among those not
counted by the official unemployment rate.21

The unemployment situation with regard to Native Americans is possibly the
bleakest of any group. A 2013 report found 15 Native American tribes where the
unemployment rate was over 80 percent. The Rosebud Sioux Tribe, with a total
population of 26,237 tribal members, had 14,428 members available for work,
with 11,909 unemployed, for an unemployment rate of 83 percent.22

Later in this chapter, we discuss the major theories of crime as they relate to
race and ethnicity. For virtually every theory, the teenage unemployment rate is
particularly relevant in terms of the likelihood of participation in crime. The peak
years of criminal activity for Index crimes occur when people are between the
ages of 14 and 24. Arrests peak at age 18 for violent crimes and at age 16 for prop-
erty crimes. The persistently higher rates of unemployment for African-American
and Hispanic teenagers help explain their higher rates of criminal activity com-
pared with those of whites.

For all people, one important consequence of unemployment is that losing
your job can affect your health. Being laid off from your job imposes new stress:
the shock of being laid off, the loss of self-esteem and social status, and the worry
about finding another job. Families need to spend down their savings and as a
result be less able to cope with the next experience of unemployment. The sud-
den decline in income may cause the family to relocate to a less-expensive neigh-
borhood, disrupting family and social relations. If the family has to relocate to a
poor, high-crime neighborhood, the children will be exposed to crime-involved
peers.23

T A B L E 3.2 Unemployment Rate, by Race
and Ethnicity, July 2016

4.3% 8.4% 5.4% 3.8%

White African American Hispanic Asian

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124 C H A P T E R 3

Poverty Status

The economic status of racial and ethnic groups is also measured by the per-
centage of families in poverty. The federal government first developed an official
definition of poverty in 1964 that was designed to reflect the minimum amount
of income needed for an adequate standard of living. In 2014 the official poverty
threshold was $24,230 for a family of four. That year, 14.8 percent of all Amer-
icans (46.6 million people) were below the poverty line, up from 12.5 percent
in 2004. A strong racial and ethnic gap exists here as with other economic indi-
cators. Among non-Hispanic whites, 10.1 percent were below the poverty line,
compared with 12 percent of Asian-American, 23.6 percent of Hispanics, and
26.2 percent of African Americans.25

Insurance Coverage

Another important measure of well-being is insurance coverage. The 2010 Afford-
able Care Act (generally referred to as Obamacare) significantly expanded health
care coverage. In 2014, 33 million Americans (10.4 percent of the population)
had no health insurance. That represented a significant decline from 41 million
uninsured (13.3 percent of the population) in 2013. Significant racial and ethnic
variations in health insurance coverage remained in 2014, however. While 9.7
percent of non-Hispanic whites were uninsured, 19.9 percent of African-Ameri-
cans and 24.4 percent of Hispanics were uninsured.26

B o x 3.1 The Low-Income Trap: Payday Loans

Some low-income people facing an unexpected financial squeeze turn to so-called
payday loans. Every year, about 12 million Americans take out these loans, where
they borrow against an expected paycheck. They do it to pay for the cost of car
repair, an unexpected medical expense, or to pay the rent or phone bill, and so on.
The fees for payday loans (which can be considered interest rates) are exorbitant
and often trap the borrowers into continuing loans as they borrow to pay off the
previous loan. A Pew Research Center study found that the average payday loan
borrower takes out eight loans of $375 per year, with an average fee of $55 each.
Thus, borrowers are paying almost $500 in fees for loans totaling $3000. In some
states, where state regulations on lending are weak, the fees average $100 on a
$375 loan.24

Middle-income people with savings for emergency, or with family members
who can help out, do not have to turn to payday loans, and consequently do not
either pay the very high fees or run the risk of a cycle of loans. Social and economic
factors explain the likelihood of taking this option. The odds of turning to payday
loans are 57 percent higher for renters than homeowners, 103 percent higher for
people who are separated or divorced compared with people who are married, and
105 percent higher for African Americans compared with whites or Hispanics.

In short, payday loans provide quick relief for low-income people when a finan-
cial emergency arises. But they involve high “fees” that are in effect interest rates
that serve to trap them into still more difficult economic situations.

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125R A C E , E T H N I C I T Y , S O C I A L S T R U C T U R E , A N D C R I M E

Lack of health insurance makes a big difference in a person’s life. If you can-
not take care of routine health problems, you are likely to develop major health
problems that affect your economic status. If you are chronically sick, you miss
work and eventually have trouble holding a steady job. One of the major advan-
tages of expanded health care is access to preventive medical care that helps to
identify and correct problems that might eventually lead to much more serious
problems. Prenatal health care is extremely important for the health of the fetus,
with major impacts later in life. Lack of health insurance can also affect a person
or family’s economic status. In 2015, 62 percent of personal bankruptcies in the
United States were due to medical bills not covered by insurance.28 Bankruptcy
can cause many families to fall from middle- or even upper-middle-class status to
lower-middle-class or even to poverty status.

S O C I A L C A P I TA L A N D C U LT U R A L C A P I TA L

A person’s current social status and future prospects involve more than just money.
Also important are what are called social capital and cultural capital. Social the-
orist Pierre Bourdieu identified three different types of capital. Economic capital,
obviously, refers to financial resources. Social capital includes a person’s network

B o x 3.2 The Minimum Wage and Poverty

A minimum-wage job paying $7.25 per hour (the federally mandated level in 2016;
a growing number of cities and states have raised their minimum wages) yields an
annual income of $14,500 ($7.25 × 40 hours/week × 50 weeks). If two parents who
have two children, both have minimum-wage jobs, their total annual income is
$29,000, which is higher than the 2016 official federal poverty level for a family of
four ($24,250). The problem is that minimum-wage jobs are not always full-time
jobs. If both parents work only 30 hours a week at the minimum wage, their com-
bined annual income of $21,750 falls below the poverty line.

The most disturbing aspect of the poverty figures is the percentage of children
in poverty. The National Center for Children in Poverty calculates that about half of
all children live in poor families (with poor defined as families at or below the offi-
cial federal poverty level). And because of the 2008–2009 recession, the percentage
in low-income families has risen. The racial and ethnic disparities are stark and very
alarming. While 28 percent of white non-Hispanic adolescents live in low-income
families, the figures are 33 percent for Asian Americans, 58 percent for Native Amer-
icans, 60 percent for Hispanics, and 61 percent for African Americans.27

The implications of these figures for delinquency and crime are obvious. Child-
hood poverty is associated with so many other factors that are in turn associated
with misbehavior and ultimately serous criminal activity: inadequate nutrition and
health care, which affect physical and intellectual development; educational achieve-
ment; residence in higher-crime neighborhoods, with the resulting concentration of
peers already involved in delinquency, crime, and gangs; the lack of job opportuni-
ties in the immediate neighborhood; and so on.

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126 C H A P T E R 3

of friends, relationships, and other contacts. Cultural capital includes education,
knowledge, or skills that give a person an advantage.29

Social capital is defined by the World Bank as “the institutions, relationships,
and norms that shape the quality or quantity of a society’s social interactions.”30

The sources of social capital include families, communities, and organizations.
With respect to employment, one important form of social capital is having
family, friends, or neighbors who may own a business and can offer a job, or
who are able to refer a young person to their employer for a possible job. Family
and friends can also offer specific advice or assistance about a problem that has
arisen.31

Social capital can also be collective in form, particularly at the neighborhood
level. A neighborhood, for example, may have many strong religious institutions,
which promote neighborhood activity and social cohesion that benefit the entire
area. We will explore the importance of this later in our discussion of social disor-
ganization theory (pp. 134).32

Criminologist Elliot Currie described how some people benefit from social
capital while other people do not by citing a study of juvenile delinquents who
graduated from the Lyman School in Massachusetts and the Wiltwyck School in
New York in the 1950s. The predominantly white Lyman graduates often had
personal connections who helped them find good employment. One graduate
explained: “I fooled around a lot when I was a kid. … But then I got an uncle on
the [police] force. When I was twenty he got me my first job as a traffic man.”33

The predominantly African-American and Hispanic graduates of Wiltwyck did
not have similar kinds of personal resources. As a result, they returned to criminal
activity at a much higher rate. In short, the conditions of extreme poverty dimin-
ish the human and social capital that young people possess and, as a consequence,
contribute to higher rates of criminal activity.

The noted sociologist Alejandro Portes points out, however, that social capital
can also have a downside. The most obvious example is neighborhood gangs. A
drug gang provides friends, income, self-esteem, and protection from other gangs.
It also provides work experience, including negotiating skills, leadership skills, and
experience in handling money (but also the skills of lying, threatening people,
and using guns). All these skills are gained in the service of criminal activity that
might lead to prison or even death. Nonetheless, the positive aspects of the gang
experience are a major part of the attraction of gangs, which is far stronger than
moralizing about how bad gangs, drugs, and crime are.34

The World Bank argues that government institutions, “the public sector,” are
an important part of the network of social capital. Assume that a neighborhood
has stable families and a strong sense of community. Responsive government insti-
tutions can help translate their aspirations and efforts into effective services: good
schools, attractive parks for recreation, streets that are repaired, a public transpor-
tation system that allows people to find and hold jobs, and so on.35

The police and the criminal justice system are also important elements of the
public aspect of social capital. If the police effectively control crime and disorder,
community members will feel better about their neighborhood and feel empow-
ered to work for its improvement. The community policing movement began

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127R A C E , E T H N I C I T Y , S O C I A L S T R U C T U R E , A N D C R I M E

with the idea that policing can be made more effective by developing partner-
ships with community organizations and developed programs that reduce crime
and disorder. The resulting feeling among neighborhood residents that they can
effectively influence neighborhood conditions is what criminologists call collec-
tive efficacy. We will discuss this in more detail shortly.

The Debate over the Underclass

Some of the most pessimistic observers of inequality in America use the term
underclass to describe the very poor who are concentrated in the inner cities. The
idea of an underclass is more than a matter of semantics. It is not merely another
euphemism for poor people, along with “the poor,” “the deprived,” “the impov-
erished,” “the disadvantaged,” “the at-risk,” and so on. It describes a new kind of
poverty, from which people are not able to escape, and the conditions of poverty
recreate.36

Extended periods of poverty lead to dysfunctional families, which in turn
lead to children who do poorly at school, become involved in delinquency and
crime, and become negative peer influences for other kinds in the immediate
neighborhood. Kids who are arrested acquire criminal records that bar them from
many job opportunities. Gangs dominate street life, disrupting positive social rela-
tion. And on it goes, and the underclass perpetuates itself.

Evidence suggests that the nature of urban poverty has changed in signifi-
cant ways. First, the industrial sector of the economy has eroded, eliminating the
entry-level jobs that were historically available to the poor. Second, conditions in
the underclass generate circumstances, particularly concentrated disadvantage, and
the resulting behavior that perpetuate poverty.

Gary Orfield and Carole Ashkinaze’s study of economic conditions in Atlanta
during the 1980s found growing inequality amid overall growth and prosperity.
The authors found that although most people in the Atlanta metropolitan area
fared better economically, “the dream of equal opportunity is fading fast for many
young blacks in metropolitan Atlanta.” For the African-American poor in the
inner city, “many of the basic elements of the American dream—a good job, a
decent income, a house, college education for the kids—are less accessible …
than was the case in the 1970s.”37 Most of the economic growth occurred in
the largely white suburbs, whereas opportunities declined in the predominantly
African-American inner city. At the same time, most of the expanding oppor-
tunities occurred in the service sector of the economy: either in white-collar
professional-level jobs, health care professions, or in minimum-wage service
jobs (e.g., fast food restaurants). The poor cannot realistically compete for the
professional-level jobs, and many of the service-sector jobs do not pay enough to
support a family or are out of reach by public transportation.

Patterns of residential segregation contribute to the development of the
urban underclass. Job growth over the past 30–40 years has been strongest in
suburban areas outside the central cities. Inner-city residents, regardless of color,
find it extremely difficult both to learn about job opportunities and to travel to
and from work. Public transportation systems are either weak or nonexistent in

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128 C H A P T E R 3

most cities, particularly with respect to traveling to suburban areas. A private car is
almost a necessity for traveling to work. Yet one of the basic facts of poverty is the
lack of sufficient money to buy a reliable car. And as we already discussed, peo-
ple returning from prison often lack a driver’s license. Concentration of the very
poor and their isolation from the rest of society erode the social networks that
are extremely important for finding employment. And, finally, as we have already
mentioned, the recession has hit poor and low-income people particularly hard,
aggravating the trends over the previous 30 years.

C O M M U N I T Y S O C I A L S T R U C T U R E

The social structure of communities has an important impact on crime. Commu-
nity in this respect refers to both large metropolitan communities and local neigh-
borhoods. The social structure of a community involves the spatial distribution
of the population, the composition of local neighborhoods, and the patterns of
interaction between and within neighborhoods. Our focus is on the social struc-
ture of local residential neighborhoods.

Residential Segregation

American metropolitan communities are characterized by strong patterns of resi-
dential segregation. Segregation itself is nothing new. Historically, American cities
have always been segregated by income, ethnicity, and race. One of the central
insights of the Chicago School of Sociology was that new arrivals to the city—
either immigrants from other countries or migrants from rural areas—settled in the
central city, with older immigrant groups and the middle class moving to neigh-
borhoods farther out or to suburban communities. (We discuss the Chicago School
of Sociology again, on pp. 134.) Racial and ethnic segregation in housing has been
the result of several factors: the historic practice of de jure segregation, covert dis-
crimination, and group choice. In the southern and some northern communities,
local ordinances prohibited African Americans from living in white neighborhoods.

Particularly in the North, many property owners adopted restrictive cov-
enants that prohibited the sale of property to African Americans or Jews. The
Supreme Court invalidated restrictive covenants in 1948 in the case of Shelley v.
Kraemer.38 Real estate agents maintained segregation by steering minority buyers
away from white neighborhoods. Banks and savings and loan companies refused
to offer mortgages in poor and minority neighborhoods—a practice known as
“redlining.” (The term comes from the idea that real estate agents and banks drew
red lines on maps to designate disfavored areas for sales and mortgages).39 Finally,
segregation has been maintained by personal choice. People often prefer to live
among members of their own group. Thus, European immigrants tended to form
distinct ethnic neighborhoods, many of which still exist (e.g., Little Italy).

Despite federal and state laws outlawing housing discrimination, residential
segregation persists today. Social scientists have devised an index of residential
segregation that measures the proportion of neighborhoods in any city that are

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racially homogeneous. The data indicate that in the 1980s, from 70 to 90 percent
of the people in the major cities lived in racially homogeneous neighborhoods.
The residential segregation indices for both Detroit and Chicago in 1980, for
example, were 88, meaning that 88 percent of all people lived in either all-white
or all-African-American neighborhoods.40

“Distressed Communities”:

The Growing Gap in Community Well-Being

The growing gap between family incomes, which we discussed earlier, is also
reflected in an increasing economic status gap between communities. The Eco-
nomic Innovation Group developed a Distressed Communities Index, analyzing
changes in 26,000 zip code areas (covering 99 percent of the U.S. population)
between 2010 and 2014, using seven factors: percentage of adults (25 years old
or older) without a high school degree; housing vacancy rate; adults not working;
poverty rate; median income ratio (compared with the state median income);
change in the number of jobs (plus or minus); change in the number of business
establishments in the area.41

The report found a widening gap in community well-being between 2010
and 2013. In the wealthiest communities, the number of jobs increased by 20 per-
cent, while in the poorest, jobs fell sharply. In the poorest neighborhoods, the
number of businesses fell by 10 percent. In the most distressed communities
55 percent of the adults were not working, 27 percent of the residents lived in
poverty, and 14 percent of the homes were vacant.

Crime and Neighborhood Deterioration

The concentration of low-income people in particular neighborhoods has a
direct impact on crime by concentrating high-rate offenders in one area. This is
a major part of what is called concentrated disadvantage. As a result, law-abiding
residents of those areas suffer high rates of robbery, burglary, and other predatory
crimes. The National Crime Victimization Survey found that in 2014 the house-
hold burglary rate was almost three and a half times higher for the poorest house-
holds (less than $7,500 annual income) than the highest income group ($75,000
a year or more). The robbery and auto theft rates were also higher.42 The obvious
questions are: Why do burglars prey on the households that have the least? Why
not go where there is more to steal? The answer to both is that burglars them-
selves are generally poor, and they attack the most available homes, those in the
immediate neighborhood.

The concentration of high-rate offenders in an area increases the influence
of crime-involved peers among young people. As Robert Crutchfield points
out, unemployed or marginally employed people in the secondary labor mar-
ket “spend more time with each other,” and as a result, they are more likely to
influence each other in the direction of a greater propensity to commit crime.43

Even in stable families, the sheer weight of this peer influence overwhelms positive
parental influence. In the worst of situations, teenagers are coerced into joining

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130 C H A P T E R 3

crime-involved gangs. Thus, many individuals are socialized into crime when this
would not be the case if they lived in a more diverse neighborhood with less crime.

In one of the great ironies of recent history, some of the great gains of the
civil rights movement have hurt the poorest racial minority communities. Since
the 1960s, the civil rights movement has opened up employment opportunities in
business and the professions, creating a greatly expanded African-American mid-
dle class. The end of blatant residential racial segregation created housing oppor-
tunities for families in that new middle class. Following the example of their
white counterparts, these families move out of low-income, inner-city neighbor-
hoods and into the suburbs where there is less crime and better schools.

The result is that the old neighborhoods abandoned by the African-American
middle class are stripped of important stabilizing elements—what William Julius
Wilson refers to as a “social buffer.”44 The neighborhood loses its middle-class
role models, who help socialize other children into middle-class values, and an
important part of its natural leadership, the people who are active in neighbor-
hood associations and local school issues. Wesley G. Skogan reports that educated,
middle-class, home-owning residents are more likely to be involved in neighbor-
hood organizations than are less educated, poorer, renting residents.45 And, as we
have already noted, the middle class is composed of the people who can provide
the social networks that lead to good jobs. In short, we are left with concentrated
disadvantage in the old neighborhoods.

All of these factors contribute directly to neighborhood deterioration and
indirectly to crime. As more of the people with better incomes move out, the
overall economic level of the neighborhood declines. Houses often go from
owner-occupied to rental property. As the area loses purchasing power, neighbor-
hood stores lose business and close. James Q. Wilson and George Kelling, two of
the early theorists of community policing, argue that the physical deterioration of
a neighborhood (abandoned buildings and cars, unrepaired houses, and so forth)
is a sign that people do not care and, consequently, is an “invitation” to crimi-
nal behavior.46 As the composition of the neighborhood changes, meanwhile, an
increasing number of crime-involved people move in, changing the context of
peer pressure in the neighborhood.

Skogan describes the impact of fear of crime on neighborhood deteriora-
tion as a six-stage process. It begins with withdrawal. People choose to have less
contact with other neighborhood residents; the ultimate form of withdrawal is
to move away. This leads to a reduction in informal control over behavior by
residents: people no longer monitor and report on the behavior of, say, their
neighbors’ children. Then, organizational life declines: fewer residents are active in
community groups. These factors lead to an increase in delinquency and disorder.
As the neighborhood becomes poorer, commercial decline sets in. Local shops are
closed, and buildings are abandoned. The final stage of the process is collapse. At
this point, according to Skogan, “there is virtually no ‘community’ remaining.”47

Community policing and problem-oriented policing are designed to stop
the process of neighborhood deterioration. They do this in several ways. First,
many programs address small signs of disorder that cause people to withdraw:
accumulated trash in the neighborhood, graffiti, parks with broken playground

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equipment, and so on. Second, police-initiated partnerships and block meetings
are designed to strengthen networks among residents and help to give them a
feeling of empowerment or collective efficacy in dealing with neighborhood
problems. Block meetings were one of the core elements of CAPS, the Chicago
community policing initiative.48

Much of the gun violence in high-crime neighborhoods involves conflict
between gangs seeking to control drug trafficking. This was particularly true
during the crack cocaine epidemic in the mid-1980s. The violence resembled the
famous “beer wars” in Chicago in the late 1920s, as rival gangs fought for control
of bootlegging during Prohibition.49 Because of drive-by shootings and other
gang-related violence, the streets are even less safe than before. This is the stage in
neighborhood decline that Skogan describes as neighborhood “collapse.”

Well-Being

The quality of neighborhood life affects residents’ sense of well-being. The purely
economic factors of income and wealth are important, of course, but well-being
includes many other factors. In a 2015 report on America’s Children, the Urban
Institute identified seven different domains that affect well-being. In addition to
economic circumstances, they include the family and social environments (e.g.,
living arrangements, child care, child maltreatment), health care, the physical envi-
ronment and safety (e.g., the risk of criminal victimization), personal behavior
(e.g., smoking, alcohol or drug use), education, and health.50 Pride in the neigh-
borhood and social relations with neighbors are important factors. Poor neigh-
borhoods are typically filled with dilapidated or abandoned buildings. It is hard to
take pride in this kind of area. People who do take pride in their neighborhood
invest time and energy in keeping up their own residence, even when they are
renters. They pick up loose trash, take care of the law, fix a fence, and don’t leave
old furniture on the porch or on the law.

An important part of vibrant and healthy neighborhoods is social bonds
among residents and participation in organizations such as religious institutions
and civic groups. Knowing other people and believing that they care about you
and the neighborhood provides a great deal of satisfaction. As we will see later
(pp. 135), criminological research has found that neighborhoods with these kinds
of bonds are likely to have lower rates of crime than similar neighborhoods that
do not have these bonds. Being able to work together to fight disorder and crime
is referred to as “collective efficacy.”51

T H E O R E T I C A L P E R S P E C T I V E S O N

I N E Q U A L I T Y A N D C R I M E

Inequality has both direct and indirect impacts on crime. As a result, the signifi-
cant racial and ethnic and economic and social inequalities have a disparate effect
on the likelihood of poor people of color participating in crime, being the victim

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132 C H A P T E R 3

of crime, and suffering inequalities at the hands of the criminal justice system. In
the next section, we examine the major theories of crime and discuss how each
one explains crime and criminal justice.

Social Strain Theory

Robert Merton’s social strain theory holds that each society has a dominant set
of values and goals along with acceptable means of achieving them. Not every-
one is able to realize these goals, however. The gap between approved goals and
the means people have to achieve them creates what Merton terms social strain. If
someone cannot achieve his or her goals through legitimate means, he or she may
turn to illegitimate means: crime. Let’s say, for example, that you want to be rich
but are a high school dropout with no job skills. You might become a drug dealer
in order to get rich.52

As Steven F. Messner and Richard Rosenfeld argue in Crime and the Amer-
ican Dream, the dominant goals and values in American society emphasize suc-
cess through individual achievement.53 Success is primarily measured in terms of
material goods, social status, and recognition for personal expression (e.g., through
art or athletics). The indicators of material success include a person’s job, income,
place of residence, clothing, cars, and other consumer goods.

The accepted means of achieving these goals are also highly individualistic,
emphasizing hard work, self-control, persistence, and education. The traditional
American work ethic holds that anyone can succeed if only he or she will work
hard enough and keep trying long enough. Failure is regarded as a personal, not a
social, failure. Yet, as we have seen, many people in the United States do not enjoy
success in these terms: unemployment rates remain high, and millions of people
are living in poverty. Minorities are the victims of racial and ethnic discrimination.

Merton’s theory of social strain holds that people respond to the gap between
society’s values and their own circumstances in several different ways: rebellion,
retreatism, and innovation. Some of these involve criminal activity.

Rebellion involves a rejection of society’s goals and the established means of
achieving them, along with an attempt to create a new society based on different
values and goals. This stage includes revolutionary political activity, which in some
instances might be politically related criminal activity such as terrorism. Rebel-
lion can also take the form of artistic expression. Many famous artists rebelled
against established norms, created new art forms, and eventually became very
famous. Think of some of the most famous rap music artists.

Retreatism entails a rejection of both the goals and the accepted means of
achieving them. A person may retreat, for example, into drug abuse, alcoholism,
vagrancy, or an alternative lifestyle. Retreatism helps explain the high rates of
drug and alcohol abuse in America. Many forms of drug abuse involve crimi-
nal behavior: the buying and selling of drugs, robbery or burglary as a means of
obtaining money to purchase drugs, or involvement in a drug-trafficking network
that includes violent crime directed against rival drug dealers.

There is considerable debate among cr iminologists over the relation-
ship between drugs and crime.54 Studies of crime and drugs have found mixed

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patterns: some individuals begin their criminal activity before they start using
drugs, whereas for others, drug use precedes involvement in crime. Moreover,
some individuals “specialize” and either use (and/or sell) drugs but engage in no
other criminal activity, or they commit crimes but do not use illegal drugs.55

Innovation involves an acceptance of society’s goals but different means of
attaining them. Some people may choose to be highly innovative with the normal
means (think of the famous pioneers in the digital age). Others may choose alter-
native and even illegal means. Crime is one mode of innovation. The person who
embezzles money seeks material success but chooses an illegitimate (criminal)
means of achieving it. Some Wall Street investors pushed the limits of the law in
developing new ways to make money. In some cases, they did break the law and
were eventually caught and prosecuted. In today’s digital world, computer fraud is
a possible avenue of crime. Gang formation and drug trafficking are manifestations
of entrepreneurship and neighborhood networking. Unfortunately, they include
lawbreaking and often have destructive side effects (e.g., gang- related shootings)
rather than law obedience. These are examples of what Alejandro Portes and
Patricia Landolt refer to as the “downside” of social capital.56 The person who
steals to obtain money or things is seeking the external evidence of material suc-
cess through illegal means.

Applying the Theory

Social strain theory helps explain the high rates of delinquency and criminal
behavior among racial and ethnic minorities in the United States. Criminal activ-
ity will be higher among those groups that are denied the opportunity to ful-
fill the American dream of individual achievement. The theory also explains far
higher rates of retreatist (e.g., drug abuse) and innovative (e.g., criminal activ-
ity) responses. The high levels of economic inequality experienced by minorities,
together with continuing discrimination based on race and ethnicity, mean that
minorities are far less likely to be able to achieve approved social goals through
conventional means.

Differential Association Theory

Edwin Sutherland’s theory of differential association holds that criminal behavior
is learned behavior. The more contact a person has with people who are already
involved in crime, the more likely that person is to engage in criminal activity.57

Applying the Theory

Given the structure of American communities, with its high degree of both eco-
nomic and racial and ethnic segregation, differential association theory has direct
relevance to the disproportionate involvement of racial and ethnic minorities in
the criminal justice system. A person who is poor and African American and lives
in a high-crime neighborhood, for example, will have more personal contact
with people who are already involved in crime than a middle-class white person.

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134 C H A P T E R 3

The concentration of people involved in crime in underclass neighborhoods pro-
duces enormous peer pressure to become involved in crime. In neighborhoods
where gangs are prevalent, young people often experience tremendous pressure
to join a gang simply as a means of personal protection. In schools where drug use
is prevalent, juveniles will have more contact with drug users and are more likely
to be socialized into drug use themselves. As noted earlier, Crutchfield argues that
the secondary labor market brings together high concentrations of people with
a weak attachment to their work and the future, who then socialize with one
another and influence one another’s propensity to commit crime.58

Parents have a basic understanding of differential association theory: they
warn their children to avoid the “bad” kids in the neighborhood and encourage
them to associate with the “good” kids. This also explains choices people make
in where they live. They choose to live in what they see as “good” neighbor-
hoods, where there are “good” schools and where their children will not meet
“bad” kids.

Social Disorganization Theory

The Chicago School of urban sociology developed the social disorganization the-
ory of crime.59 Focusing on poor inner-city neighborhoods, this theory holds
that the conditions of poverty undermine the institutions that socialize people
into conventional, law-abiding ways of life. As a result, the values and behavior
leading to delinquency and crime are passed on from one generation to another.

The Chicago sociologists found, for example, that recent immigrants tended
to have lower rates of criminality than the first American-born generation. Immi-
grants were able to preserve old-world family structures that promoted stabil-
ity and conventional behavior. These older values broke down in the new urban
environment, however, which led to higher rates of criminality among the next
generation. The Chicago sociologists noted the spatial organization of the larger
metropolitan areas, with higher rates of criminal behavior in the poorer inner-
city neighborhoods and lower rates in areas farther out.

The conditions of poverty contribute to social disorganization and crimi-
nality in the ways we have already discussed in this chapter. Poverty and unem-
ployment undermine the family, the primary unit of socialization, which leads to
high rates of single-parent families. Lack of parental supervision and positive role
models contributes to crime and delinquency. The concentration of the poor in
certain neighborhoods means that individuals are subject to strong peer-group
influence tending toward non-conforming behavior. Poverty is also associated
with inadequate prenatal care and malnutrition, which contribute to develop-
mental and health problems that, in turn, lead to poor performance in schools.

The principal proponent of social disorganization theory today is Robert
J. Sampson, whose research has focused on Chicago neighborhoods. Out of his
research has emerged the related theory of collective efficacy.60 If the people in
a neighborhood have resources they can rely on as a group, they can resist and
possibly even overcome the impact of social disorganization. Measures include

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friendship networks, control of teenagers’ activity on the streets, and participation
in neighborhood organizations. These resources include bonds among neigh-
borhood residents based on mutual trust; strong neighborhood institutions such
as churches, synagogues, or mosques; and neighborhood leaders such as small
business owners or religious leaders. Effective community policing or problem-
oriented policing programs can reinforce these resources.

Applying the Theory

Social disorganization theory helps explain the high rates of crime and delin-
quency among racial and ethnic minorities. As our discussion of inequality
suggests, minorities experience high rates of poverty and are geographically con-
centrated in areas with high rates of social disorganization. Sampson’s research on
Chicago found that neighborhoods with higher levels of collective efficacy had
lower levels of violent crime, after controlling for other variables.

In Baltimore, Maryland, Ralph Taylor, Stephen Gottfredson, and Sidney
Brower interviewed residents of 687 households, asking whether they belonged
to neighborhood organizations and whether they felt responsible for conditions
in their neighborhood. People who answered affirmatively to both questions
were more likely to live on neighborhood blocks with lower levels of violent
crime than people on blocks who did not belong to organizations and did not
feel responsible for their area.61

Social disorganization theory is consistent with other theories of crime. It is
consistent with social strain theory, in that persons who are subject to conditions
of social disorganization are far less likely to be able to achieve the dominant goals
of society through conventional means and, therefore, are more likely to turn to
crime. It is consistent with differential association theory, in that neighborhoods
with high levels of social disorganization will subject individuals, particularly
young men, to strong influences tending toward delinquency and crime.

Social disorganization theory and the related theory of collective efficacy
underpin a number of criminal justice innovations, particularly community
policing and problem-oriented policing. As Sampson puts it, the more promis-
ing approach to controlling crime is in “changing places, not people.”62 Tradi-
tional rehabilitation programs seek to change people; community policing and
related approaches seek to change the quality of life in neighborhoods. Commu-
nity policing and problem-oriented policing, for example, seek to reduce social
disorder and to make neighborhoods appear safer and actually be safer. Reducing
the fear of crime helps to keep people from moving out of the area and also to
be more involved in neighborhood activities. “Hot spots” policing, meanwhile,
is directed toward specific areas where crime is concentrated. Crime prevention
through environmental design seeks to eliminate features that invite crime (e.g.,
hidden walkways or unlighted building entrances).63

One of the basic principles of community policing and problem-oriented
policing is that neighborhood-focused police efforts can help communities develop
the resources (including trust in the police) that represent collective efficacy.64

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136 C H A P T E R 3

Culture Conflict Theory

Culture conflict theory holds that crime will be more likely to flourish in het-
erogeneous societies where there is a lack of consensus over society’s values.65

Human behavior is shaped by norms that are instilled through socialization and
embodied in the criminal law. In any society, the majority not only defines social
norms but also controls the making and the administration of the criminal law,
which punishes behavior that deviates from the established norm (hence, the
concept of deviant behavior). In some instances, certain groups do not accept the
dominant social values. They may reject them on religious or cultural grounds or
feel alienated from the majority because of discrimination or economic inequal-
ity. Conflict over social norms and the role of the criminal law lead to certain
types of lawbreaking.

One example of religiously based culture conflict involves peyote, a cactus
that has mild hallucinogenic effects when smoked and that some Native American
religions use as part of their traditional religious exercises.66 Today, many observ-
ers see national politics revolving around a “culture war” involving such issues
as abortion, homosexuality, and religion in the public schools.67 Some groups
believe that abortion is murder and should be criminalized; others argue that it is
a medical procedure that should be governed by the individual’s private choice.
Homosexuality is a dramatic example of how cultural norms can change dra-
matically. Up until the 1960s, homosexuality was regarded as a deviant behavior
and was illegal in many respects. Yet, many states today have made discrimination
based on sexual orientation illegal and have enacted statutes legalizing same-sex
marriage, and in 2015, the U.S. Supreme Court legalized same-sex marriage.

Applying the Theory

Culture conflict theory helps explain some of the differential rates of involvement
in crime in society, which is extremely heterogeneous, characterized by many
different races, ethnic groups, religions, and cultural lifestyles. The theory encom-
passes the history of racial conflict—from the time of slavery, through the Civil
War, to the modern civil rights movement—as one of the major themes in U.S.
history. There is also a long history of ethnic and religious conflict. Americans of
white, Protestant, and English background, for instance, exhibited strong preju-
dice against immigrants from Ireland and southern and eastern Europe, particu-
larly Catholics and Jews.68

An excellent example of cultural conflict in American history is the long
struggle over the consumption of alcohol that culminated in national Prohibition
(1920–1933). The fight over alcohol was a bitter issue for nearly 100 years before
Prohibition. To a great extent, the struggle was rooted in ethnic and religious
differences. Protestant Americans tended to take a very moralistic attitude toward
alcohol, viewing abstinence as a sign of self-control and a means of rising to
middle-class status. For many Catholic immigrant groups, particularly Irish and
German, alcohol consumption was an accepted part of their cultural lifestyle. The
long crusade to control alcohol use represented an attempt by middle-class Prot-
estants to impose their lifestyle on working-class Catholics.69

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Conflict Theory

Conflict theory holds that the administration of criminal justice reflects the
unequal distribution of power in society.70 The more powerful groups use the
criminal justice system to maintain their dominant position and to repress groups
or social movements that threaten their position.71 Variations on conflict theory
include feminist conflict theory, race conflict theory, and economic conflict theory.
Darnell Hawkins points out that conflict theory was developed primarily with
reference to social class and gave relatively little attention to race and ethnicity.72

The most obvious example of conflict theory in action was the racial segre-
gation era in the South (1890s–1960s), when white supremacists instituted de jure
segregation in public schools and other public accommodations.73 The criminal
justice system was used to maintain the subordinate status of African Americans.
Because African Americans were disenfranchised as voters, they had no control or
influence over the justice system. The result, as described by Gunnar Myrdal in his
classic study of American race relations, An American Dilemma, was four distinct
systems of criminal justice. Crimes by whites against whites were treated as nor-
mal crimes, while crimes by whites against African Americans went unpunished.
Crimes by African Americans against whites were treated extremely harshly—
especially in the case of rape or even a rumor of a rape—while crimes by African
Americans against African Americans often just ignored.74 Meanwhile, outside of
the South, discrimination also limited the influence of minorities over the justice
system. The civil rights movement has eliminated de jure segregation and other
blatant forms of discrimination. Nonetheless, pervasive discrimination in society
and the criminal justice system continues.

Applying the Theory

Conflict theory explains the overrepresentation of racial and ethnic minorities in
the criminal justice system in several ways. The criminal law singles out certain
behavior engaged in primarily by the poor. Vagrancy laws are the classic example
of the use of the criminal law to control the poor and other perceived “threats” to
the social order. The criminal law has also been used against political movements
challenging the established order: from sedition laws against unpopular ideas to
disorderly conduct arrests of demonstrators.

Finally, “street crimes” that are predominantly committed by the poor and
disproportionately by racial and ethnic minorities are the target of more vigorous
enforcement efforts than are those crimes committed by the rich. The term crime
refers more to robbery and burglary than to white-collar crime. In these ways,
conflict theory explains the overrepresentation of racial and ethnic minorities
among people arrested, convicted, and imprisoned.

Routine Activity Theory

Routine activity theory shifts the focus of attention from offenders to criminal
incidents. Marcus Felson explains that the theory examines “how these incidents
originate in the routine activities of everyday life.”75 Particularly important, the

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138 C H A P T E R 3

theory emphasizes the extent to which the daily routine creates informal social
control that helps prevent crime or undermines those informal controls and leads
to higher involvement in crime. Informal social control includes, for example, the
watchfulness of family, friends, and neighbors. Formal social control is exercised
by the police and the rest of the criminal justice system. Felson offers the example
of parental supervision of teenagers. He cites data indicating that between 1940
and the 1970s, American juveniles spent an increasing amount of time away from
the home with no direct parental supervision.76

The changes in patterns of parental supervision were rooted in the chang-
ing nature of work and family life in contemporary society (as opposed to some
kind of moral failing). The new circumstances have increased the probability that
young people will engage in crime. To cite an earlier example, in the 1920s many
people were alarmed that the advent of the automobile created the opportunity
for young men and women to be alone together without direct parental supervi-
sion, with a resulting increase in premarital sexual behavior.

Applying the Theory

Routine activity theory is particularly useful in explaining crime when it is
integrated with other theories. If parental supervision represents an important
informal social control, then family breakdown and single-parent households
will involve less supervision and increase the probability of more involvement in
crime. High rates of teenage unemployment will mean that more young people
will have unsupervised time on their hands, and if unemployment is high in the
neighborhood, they will have more association with other unemployed young
people, including some who are already involved in crime.

The Limits of Current Theories

All of the theories discussed here attempt to explain the relationships among
race, ethnicity, and crime in terms of social conditions. Hawkins argues that this
approach represents the liberal political orientation that has dominated American
sociology and criminology since the early twentieth century. He also believes
that there are important limitations to this orientation. The liberal emphasis on
social conditions arose out of a reaction to racist theories of biological deter-
minism, which sought to explain high rates of crime among recent European
immigrants and African Americans in terms of genetic inferiority. Herrnstein and
Murray’s controversial book, The Bell Curve, represents a recent version of this
approach.77 (See our discussion of The Bell Curve controversy in Chapter 1.) The
liberal emphasis on social conditions, however, tends to become a form of social
determinism, as criminologists focus on the social pathologies of both minority
communities and lower-class communities. Although consciously avoiding bio-
logically based stereotypes, much of the research on social conditions has the
unintended effect of perpetuating a different set of stereotypes about racial and
ethnic minorities.

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Hawkins suggests that if we seek a comprehensive explanation of the rela-
tionships among race, ethnicity, and crime, the most promising approach will be
to combine the best insights from liberal criminology regarding social conditions
and conflict perspectives regarding both the administration of justice and inter-
group relations.78

I N E Q U A L I T Y A N D S O C I A L R E F O R M

The most disturbing aspect of social inequality in America has been its persistence
over 50 years despite a national effort to reduce or eliminate it. Paul E. Peterson
refers to this as the “poverty paradox”: the problem is not just the persistence of
poverty in the richest country in the world but its persistence in the face of a
major attack on it.79

The national effort has taken several different forms. The civil rights move-
ment fought to eliminate racial discrimination, and several different government
policies sought to create economic opportunity and eliminate poverty. In the
1960s, liberals adopted the War on Poverty and other Great Society programs. In
the 1980s, conservative economic programs of reducing both taxes and govern-
ment spending sought to stimulate economic growth and create job opportunities.

Not only has inequality persisted but as we discussed earlier the gap between
rich and poor and between whites and minorities has also gotten worse in many
respects.80 What happened? Did all the social and economic policies of the past
generation completely fail?

There are four major explanations for the persistence of inequality, pov-
erty, and the growth of the underclass.81 Many liberals argue that it is the result
of an inadequate social welfare system. Social welfare programs in the United
States are not nearly as comprehensive as those in other industrialized coun-
tries, lacking paid family leave, publicly supported child care programs, compre-
hensive unemployment insurance, and until the advent of the Affordable Care
Act (“Obamacare”), a national health care system. Other liberals argue that it
is the result of globalization, which involves the transformation of the national
(and international) economy, including the shift of industr ial production,
with its good-paying blue-collar jobs, overseas. This process has steadily elimi-
nated economic opportunities in the inner city and reduced earnings of many
blue-collar jobs.

Many conservatives argue that the persistence of poverty is the result of a
“culture of poverty” that encourages attitudes and behavior patterns that keep
people from rising out of poverty.82 Closely related to this view is the conser-
vative argument that many government social and economic programs provide
disincentives to work. These conservatives believe, for example, that the wel-
fare system encourages people not to work and that the minimum wage causes
employers to eliminate rather than create jobs.83

The prominent African-American social critic Cornell West argues that
the traditional liberal–conservative debate on the relative importance of social

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140 C H A P T E R 3

structure versus individual character is unproductive. He points out that “struc-
tures and behavior are inseparable, that institutions and values go hand in hand.”84

In short, the problem of the persistence of inequality is extremely complex. The
next section examines some of the major forces that have reshaped American life
in the past generation and their impact on inequality.

The Impact of the Civil Rights Movement

The civil rights movement between 1945 and 1965 was one of the most import-
ant events in U.S. history. A revolution in the law ended de jure discrimination in
public schools (the Supreme Court’s landmark 1954 decision in Brown v. Board
of Education) and public accommodations in the South (the 1964 Civil Rights
Act), ended discrimination in voting (the 1965 Voting Rights Act), and established
equality as national policy.85 The movement inspired attacks on other forms of
discrimination. Title VII of the 1964 Civil Rights Act banned employment dis-
crimination against women. The 1990 Americans with Disabilities Act outlawed
employment discrimination against people with disabilities. In 1967, the Supreme
Court in Loving v. Virginia declared unconstitutional a Virginia law barring inter-
racial marriage. A number of states and cities have banned discrimination against
people on the basis of their sexual orientation.86

The civil rights revolution had a profound impact on the operations of
every social institution, including the criminal justice system. Public schools in
the South were racially integrated. Police departments began hiring African-
American officers. As a result of the 1965 Voting Rights Act and the resulting
greater voter participation, the number of African-American-elected officials
increased dramatically nationwide, from 33 in 1941 to 1,469 in 1965 and 8,830
in 1998. The total number of Hispanic-elected officials increased from 3,174 in
1985 to 5,129 in 2007.87

With the development of educational and employment opportunities,
African-American and Hispanic middle classes emerged, and some individuals
became wealthy business owners or professionals. As we learned in our discus-
sion of wealth, as measured by family net worth, the gap between higher-income
African Americans and Hispanics and their lower-income counterparts increased
in the decades of the 2000s. The gaps between white and African American and
white non-Hispanic and Hispanic remain large.

The National Academy of Sciences in 1989, for example, found a large gap
between middle-class and poor African Americans.88 Not everyone agrees with
this pessimistic assessment, however. In America in Black and White: One Nation,
Indivisible, Stephan Thernstrom and Abigail Thernstrom argue that African Amer-
icans have made remarkable progress since the 1940s, economically, socially, and
politically, observing that “the signs of progress are all around us.”89 Using Gunnar
Myrdal’s classic study of American race relations, An American Dilemma (1944), as
their baseline, they find that the percentage of African-American families in pov-
erty fell from 87 percent in 1940 to 21.9 percent in 2000. The number of African
Americans enrolled in college increased 30-fold in the same period, increasing

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141R A C E , E T H N I C I T Y , S O C I A L S T R U C T U R E , A N D C R I M E

from 45,000 students in 1940 to 1,400,000 in the late 1990s. Contrary to Hacker’s
pessimistic assessment that we are “two nations” (p. 116 of this chapter), they argue
that we are today less separate; less unequal; and, in their view, less hostile than was
the case in 1940.90

Where does the truth lie? Is the United States progressing, stagnating, or
regressing in terms of social and economic inequality? The answer is that there is
a degree of truth in all three interpretations. It depends on which segment of the
population we are talking about. We can make sense of this complex subject by
examining different components and contexts.

First, it depends on what baseline you use. The Thernstroms use 1940 as a
baseline, and few can question the amount of progress since that time, when seg-
regation still prevailed in the South and there was much discrimination in the
rest of the country. When you use the mid-1970s as your baseline, however, a
very different picture emerges. African-American progress has stagnated (even the
Thernstroms concede this point), and in some respects their situation has gotten
worse. The real income for all working Americans has also fallen since then.91

Second, as we have already discussed, aggregate data for all racial and ethnic
groups mask very important differences within groups. So it is important to disag-
gregate the data for each group. Among African Americans, for example, there has
been the simultaneous development of a new middle class and the deteriorating
status of the very poor.92 A similar trend exists for Hispanics. Asian Americans are
also divided into those who are doing well and those who are not. Among Native
Americans, some individuals and entire tribes have benefited from the economic
opportunities provided by the development of tribal gaming, whereas others
remain mired in poverty.

Economists generally blame the economic stagnation since the 1970s on the
disappearance of industrial-level jobs, particularly from the inner city, including
the transfer of manufacturing plants to other countries. The economic policies
of both liberal Democratic and conservative Republican presidents since the
1960s have attempted to stimulate the economy and create jobs. The major liberal
Democratic effort was the War on Poverty, begun in 1965 with the Economic
Opportunity Act. The federal attack on poverty and inequality also included
major programs related to health care, education, Social Security, food stamps, and
other forms of government assistance. The major conservative Republican effort
in the 1980s involved tax cuts (e.g., Reaganomics in the 1980s, the Bush tax cuts
of 2002), which seek to stimulate investment that will create jobs.

The impact of these different measures is a matter of great controversy. Con-
servatives argue that the War on Poverty and other liberal policies of the 1960s
not only failed to eliminate poverty but actually made things worse by impeding
economic growth and removing the incentives for poor people to seek employ-
ment.93 Liberals, meanwhile, argue that Reaganomics and the Bush tax cuts
increased the gap between rich and poor, benefiting the wealthy and eliminating
programs for the poor.

The evidence suggests that neither liberal nor conservative policies over the
years have effectively addressed the fundamental changes that have overtaken

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142 C H A P T E R 3

American society. Neither policies have reduced the disappearance of manufac-
turing jobs or halted the increasing structural inequality in American society. The
disappearance of manufacturing jobs has led to high rates of unemployment or
underemployment, with all the disastrous impact of families and neighborhoods
that we have discussed in this chapter.

The complex changes in the economy over the past three decades have
directly affected the racial and ethnic dimensions of crime and criminal justice.
The persistence of severe inequality and the growth of the underclass have cre-
ated conditions conducive to high rates of crime. The different theories of crime
we discussed earlier—social strain theory, differential association theory, social dis-
organization theory, culture conflict theory, conflict theory, and routine activity
theory—all would predict high rates of crime, given the changes in the economy
that have occurred. Because racial and ethnic minorities have been disadvantaged
by these economic trends, these theories of crime help explain the persistently
high rates of crime among minorities.

C O N C L U S I O N

As we stated at the beginning of this chapter, if we want to understand crime in
America and its relationship to race and ethnicity, it is necessary to look beyond
the criminal justice system. The American social structure plays a major role in
shaping patterns of crime with respect to race and ethnicity. American society is
characterized by deep inequalities related to race, ethnicity, and economic status.
There are enormous and growing inequalities in income, wealth, and poverty.
These inequalities create conditions that are criminogenic: that is, they tend to
cause people to commit crime.

The major theories of crime explain the relationship between inequality and
criminal behavior. In different ways, social strain, differential association, social
disorganization, culture conflict, conflict, and routine activity theories all predict
higher rates of criminal behavior among the poor and racial and ethnic minorities.

D I S C U S S I O N Q U E S T I O N S

1. Do you agree with the Kerner Commission’s conclusion that we are “mov-
ing toward two societies, one black [and] one white”? Explain your answer.

2. Explain the difference between median family income and family wealth.
What does each one measure?

3. Explain how residential discrimination on the basis of race or ethnicity
contributes to crime.

4. What is meant by the concepts of social capital and cultural capital? How do
they affect criminal behavior?

5. What has been the impact of the civil rights movement on social and
economic conditions that affect crime and criminal justice?

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143R A C E , E T H N I C I T Y , S O C I A L S T R U C T U R E , A N D C R I M E

6. Which theory of crime do you think best explains the prevalence of crime
in the United States?

7. Explain the concept of collective efficacy. What impact does it have on
crime in a neighborhood?

N O T E S

1. Marc Maurer, “Justice for All? Challenging Racial Disparities in the Criminal Justice
System,” Human Rights 37, no. 4 (2010). http://www.americanbar.org/publications/
human_rights_magazine_home/human_rights_vol37_2010/fall2010/justice_for_
all_challenging_racial_disparities_criminal_justice_system.html.

2. Kerner Commission: National Advisory Commission on Civil Disorders, Report
(New York: Bantam Books, 1968), p. 1.

3. Andrew Hacker, Two Nations: Black and White, Separate, Hostile, Unequal (New York:
Scribner’s, 1992).

4. Credit Suisse Research Institute, Global Wealth Report 2015 (Zurich: Credit Suisse,
2015), pp. 11, 25, 33. Marina Vornovitsky, Alfred Gottschalck, and Adam Smith,
Distribution of Household Wealth in the U.S. 2000–2011 (Washington, DC: Bureau of
the Census, 2013). http://www.census.gov/people/wealth/files/Wealth%20High
lights%202011.pdf.

5. Bureau of Labor Statistics, The Employment Situation—January 2016 (Washington,
DC: Department of Labor, 2016). http://www.bls.gov/news.release/pdf/empsit.pdf.

6. Urban Institute, America’s Children in Brief: Key National Indicators of Well-Being, 2015
(Washington, DC: Urban Institute, 2010). http://www.childstats.gov/pdf/ac2015/
ac_15.pdf.

7. U.S. Census Bureau, Income and Poverty in the United States: 2014 (Washington, DC:
Department of Commerce, 2015). https://www.census.gov/content/dam/Census/
library/publications/2015/demo/p60-252.pdf.

8. Gerald David Jaynes and Robin Williams Jr., eds., A Common Destiny: Blacks and
American Society (Washington, DC: National Academy Press, 1989), p. 6.

9. Stephan Thernstrom and Abigail Thernstrom, America in Black and White: One Nation,
Indivisible (New York: Simon & Schuster, 1997).

10. Marina Vornovitsky, Alfred Gottschalck, and Adam Smith, Distribution of Household
Wealth in the U.S. 2000–2011 (Washington, DC: Bureau of the Census, 2013).
http://www.census.gov/people/wealth/files/Wealth%20Highlights%202011.pdf.

11. Ibid.

12. Ibid.

13. Bureau of Justice Statistics, Criminal Victimization, 2014 (Washington, DC: Depart-
ment of Justice, 2015).

14. Signe-Mary McKenrnan, Caroline Ratcliffe, Margaret Simms, and Sisi Zhang, Do
Financial Support and Inheritance Contribute to the Racial Wealth Gap? (Washington, DC:
Urban Institute, 2012).

15. Thomas Shapiro, The Hidden Cost of Being African American: How Wealth Perpetuates
Inequality (New York: Oxford University Press, 2004), pp. 67–71, 84.

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144 C H A P T E R 3

16. Thomas Shapiro, Tatjana Mesche, and Sam Osoro, The Roots of the Widening Racial
Wealth Gap: Explaining the Black-White Economic Divide (Waltham, MA: Institute on
Assets and Social Policy, 2013).

17. Credit Suisse Research Institute, Global Wealth Report 2015. https://www.credit-
suisse.com/ch/en/about-us/research/research-institute/global-wealth-report.html.

18. U.S. Department of Labor, Bureau of Labor Statistics, The Employment Situation—
January 2016 (February 5, 2016). http://www.bls.gov/news.release/archives/
empsit_02052016.pdf.

19. Ibid.

20. Federal Bureau of Investigation, Crime in the United States, 2014, Table 38. https://
ucr.fbi.gov/crime-in-the-u.s/2014/crime-in-the-u.s.-2014/tables/table-38.

21. Bureau of Labor Statistics, How the Government Measures Unemployment (2016).
http://www.bls.gov/cps/cps_htgm.htm.

22. “Getting Jobbed: 15 Tribes with Unemployment Rates over 80 Percent,”
Indian Country Today Media Network (August 29, 2013). http://
indiancountrytodaymedianetwork.com/2013/08/29/
danger-zone-15-tribes-unemployment-rates-over-80-percent-151078.

23. Kate W. Strully, “Job Loss and Health in the U. S. Labor Market,” Demography 46
(May 2009), pp. 221–246.

24. Pew Charitable Trusts, Payday Lending in America: Who Borrows, Where They Borrow, and
Why (Washington, DC: Pew Charitable Trusts, 2012). http://www.pewtrusts.org/~/
media/legacy/uploadedfiles/pcs_assets/2012/pewpaydaylendingreportpdf.pdf.

25. U.S. Census Bureau, Income and Poverty in the United States: 2014 (Washington, DC:
Department of Commerce, 2015). https://www.census.gov/content/dam/Census/
library/publications/2015/demo/p60-252.pdf.

26. U.S. Census Bureau, Health Insurance Coverage in the United States: 2014 (Washington,
DC: Department of Commerce, 2015).

27. National Center for Children in Poverty, Basic Facts about Low-Income Children: Chil-
dren Aged 12 through 17 Years, 2013 (New York: NCCP, 2015). http://www.nccp.org/
publications/pub_1099.html.

28. Theresa Tamkins, “Medical Bills Prompt More Than 60 Percent of U.S. Bankrupt-
cies,” CNN Health, June 5, 2009.

29. Pierre Bourdieu and Jean-Claude Passeron, Reproduction in Education, Society and
Culture (Newbury Park, CA: Sage, 1990).

30. Christiaan Grootaert and Thierry van Bastelaer, Understanding and Measuring Social
Capital: A Synthesis of Findings and Recommendations from the Social Capital Initiative
(Washington, DC: The World Bank, 2001), “Conceptual Framework: What Is Social
Capital,” pp. 4–10. http://siteresources.worldbank.org/INTSOCIALCAPITAL/
Resources/Social-Capital-Initiative-Working-Paper-Series/SCI-WPS-24.pdf.

31. Toby L. Parcel and Elizabeth G. Menaghan, Parents’ Jobs and Children’s Lives (New
York: Aldine deGruyter, 1994), p. 1.

32. Hartmut Esser, “The Two Meanings of Social Capital,” in Handbook of Social Capital,
Dario Castiglione, Jan W. Van Deth, and Guglielmo Wolleb, eds. (New York: Oxford
University Press, 2008), pp. 22–49.

33. Elliot Currie, Confronting Crime (New York: Pantheon Books, 1985), p. 243. The
original study is by William McCord and Jose Sanchez, “The Treatment of Deviant

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145R A C E , E T H N I C I T Y , S O C I A L S T R U C T U R E , A N D C R I M E

Children: A Twenty-Five Year Follow-Up Study,” Crime and Delinquency 29 (March
1983), pp. 239–251.

34. Alejandro Portes and Patricia Landolt, “The Downside of Social Capital,” The Amer-
ican Prospect 26 (May–June 1996), pp. 18–21, 94; Mark E. Warren, “The Nature and
Logic of Bad Social Capital,” in Handbook of Social Capital, Castiglione et al., eds.,
pp. 122–149.

35. Grootaert and Bastelaer, Understanding and Measuring Social Capital: A Synthesis of
Findings and Recommendations from the Social Capital Initiative. http://siteresources.
worldbank.org/INTSOCIALCAPITAL/Resources/Social-Capital-Initiative-
Working-Paper-Series/SCI-WPS-24.pdf.

36. William Julius Wilson, The Truly Disadvantaged (Chicago: University of Chicago Press,
1987); Christopher Jencks and Paul E. Peterson, eds., The Urban Underclass (Washing-
ton, DC: Brookings Institution, 1991); William Julius Wilson, ed., The Ghetto Under-
class (Newbury Park, CA: Sage, 1993).

37. Gary Orfield and Carole Ashkinaze, The Closing Door: Conservative Policy and Black
Opportunity (Chicago: University of Chicago Press, 1991), p. xiii.

38. Shelley v. Kraemer, 334 U.S. 1 (1948).

39. Gregory D. Squires, From Redlining to Reinvestment: Community Responses to Urban
Disinvestment (Philadelphia: Temple University Press, 1992).

40. Jaynes and Williams, A Common Destiny, pp. 78–79. Ben Feldmeyer, “The Effects of
Racial/Ethnic Segregation on Latino and Black Homicide,” Sociological Quarterly 51,
no. 4 (2010), pp. 600–623.

41. Economic Innovation Group, The 2016 Distressed Communities Index (Wash-
ington, DC: Economic Innovation Group, 2016). http://eig.org/wp-content/
uploads/2016/02/2016-Distressed-Communities-Index-Report.pdf. “Poorest Areas
Have Missed Out on Booms of Recovery, Study Finds,” New York Times, February 25,
2016.

42. Bureau of Justice Statistics, Criminal Victimization, 2014.

43. Robert D. Crutchfield, “Ethnicity, Labor Markets, and Crime,” in Ethnicity, Race, and
Crime, D. F. Hawkins, ed. (Albany: State University Press of New York, 1995), p. 196.

44. Wilson, The Truly Disadvantaged, pp. 137, 144; see also Bill E. Lawson, “Uplifting the
Race: Middle-Class Blacks and the Truly Disadvantaged,” in The Underclass Question,
Bill E. Lawson, ed. (Philadelphia: Temple University Press, 1992), pp. 90–113.

45. Wesley G. Skogan, Disorder and Decline (New York: Free Press, 1990), pp. 132–133.

46. James Q. Wilson and George Kelling, “Broken Windows: The Police and Neighbor-
hood Safety,” Atlantic Monthly 249 (March 1982), pp. 29–38.

47. Wesley Skogan, “Fear of Crime and Neighborhood Change,” in Communities and
Crime, A. Reiss and M. Tonry, eds. (Chicago: University of Chicago Press, 1986),
pp. 215–220.

48. Wesley G. Skogan and Susan M. Hartnett, Community Policing, Chicago Style (New
York: Oxford University Press, 1997).

49. “Beer Wars” described in Illinois Association for Criminal Justice, Illinois Crime
Survey [1929] (Montclair, NJ: Patterson Smith, 1968).

50. Urban Institute, America’s Children in Brief: Key National Indicators of Well-Being, 2010
(Washington, DC: Urban Institute, 2010). http://www.childstats.gov/pdf/ac2015/
ac_15.pdf.

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146 C H A P T E R 3

51. Robert J. Sampson, Stephen W. Raudenbush, and Felton Earls, “Neighborhoods and
Violent Crime: A Multilevel Study of Collective Efficacy,” Science 277 (August 15,
1997), pp. 918–924. Robert J. Sampson, Great American City (Chicago: University of
Chicago Press, 2012).

52. Robert K. Merton, Social Theory and Social Structure (New York: Free Press, 1957).

53. Steven F. Messner and Richard Rosenfeld, Crime and the American Dream, 5th ed.
(Belmont, CA: Cengage, 2012).

54. Michael Tonry and James Q. Wilson, eds., Drugs and Crime, Crime and Justice:
A Review of Research, vol. 13 (Chicago: University of Chicago Press, 1990).

55. David N. Nurco, Timothy W. Kinlock, and Thomas E. Hanlon, “The Drugs–Crime
Connection,” in Handbook of Drug Control in the United States, James A. Inciardi, ed.
(New York: Greenwood, 1990), pp. 71–90.

56. Alejandro Portes and Patricia Landolt, “Unsolved Mysteries: The Tocqueville
Files II,” The American Prospect 7, no. 26 (May–June 1996), p. 10.

57. Edwin H. Sutherland, Principles of Criminology, 3rd ed. (Philadelphia: Lippincott,
1939).

58. Crutchfield, “Ethnicity, Labor Markets, and Crime,” p. 196.

59. W. I. Thomas and Florian Znaniecki, The Polish Peasant in Europe and America (Bos-
ton: Gorham, 1920); Clifford R. Shaw, Frederick M. Forbaugh, and Henry D. McKay,
Delinquency Areas (Chicago: University of Chicago Press, 1929).

60. Robert J. Sampson and W. Byron Groves, “Community Structure and Crime: Test-
ing Social-Disorganization Theory,” American Journal of Sociology 94 (January 1989),
pp. 774–802; Sampson, Raudenbush, and Earls, “Neighborhoods and Violent Crime.”
Sampson, Great American City.

61. Ralph Taylor, Stephen Gottfredson, and Sidney Brower, “Block Crime and Fear:
Defensible Space, Local Social Ties, and Territorial Functioning,” Journal of Research
in Crime and Delinquency 21 (November 1984), pp. 303–331.

62. Robert J. Sampson, “Crime and Public Safety: Insights from Community-Level
Perspectives on Social Capital,” in Social Capital and Poor Communities, Susan Saegert,
et al., eds. (New York: Russell Sage Foundation, 2001), pp. 89–114.

63. Michael S. Scott, Problem-Oriented Policing: Reflections on the First 20 Years (Washing-
ton, DC: Department of Justice, 2000); Jack R. Greene, “Community Policing in
America: Changing the Nature, Structure, and Function of the Police,” in Policies,
Processes and Decisions of the Criminal Justice System (Washington, DC: Department of
Justice, 2000), pp. 299–370.

64. Scott, Problem-Oriented Policing: Reflections on the First 20 Years; Greene, “Community
Policing: Changing the Nature, Structure, and Function of the Police.”

65. Thorsten Sellin, Culture Conflict and Crime, Bulletin 41 (New York: Social Science
Research Council, 1938).

66. Christopher Vecsey, ed., Handbook of American Indian Religious Freedom (New York:
Crossroad, 1991).

67. James Davison Hunter, Culture Wars: The Struggle to Define America (New York: Basic
Books, 1991).

68. Gustavus Myers, History of Bigotry in the United States (New York: Random House,
1943).

69. Joseph R. Gusfield, Symbolic Crusade (Urbana: University of Illinois Press, 1966).

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147R A C E , E T H N I C I T Y , S O C I A L S T R U C T U R E , A N D C R I M E

70. Austin T. Turk, Criminality and Legal Order (Chicago: Rand McNally, 1969); Richard
Quinney, The Social Reality of Crime (Boston: Little, Brown, 1970).

71. Allen E. Liska, ed., Social Threat and Social Control (Albany: State University Press of
New York, 1992).

72. Darnell F. Hawkins, “Beyond Anomalies: Rethinking the Conflict Perspective
on Race and Criminal Punishment,” Social Forces 65 (March 1987), pp. 719–745;
Darnell F. Hawkins, “Ethnicity: The Forgotten Dimension of American Social Con-
trol,” in Inequality, Crime, and Social Control, George S. Bridges and Martha A. Myers,
eds. (Boulder, CO: Westview, 1994), pp. 99–116.

73. C. Vann Woodward, The Strange Career of Jim Crow, 3rd ed., rev. (New York: Oxford
University Press, 1974).

74. Gunnar Myrdal, An American Dilemma (New York: Harper & Brothers, 1944).

75. Marcus Felson and Rachel Boba, Crime and Everyday Life, 4th ed. (Thousand Oaks,
CA: Pine Forge Press, 2009), p. xi.

76. Ibid., p. 104.

77. Richard J. Herrnstein and Charles A. Murray, The Bell Curve: Intelligence and Class
Structure in American Life (New York: Free Press, 1994).

78. Darnell F. Hawkins, “Ethnicity, Race, and Crime: A Review of Selected Studies,” in
Ethnicity, Race, and Crime, pp. 31, 39–41.

79. Paul E. Peterson, “The Urban Underclass and the Poverty Paradox,” in The Urban
Underclass, pp. 3–27.

80. Hacker, Two Nations: Black and White, Separate, Hostile, Unequal. Orfield and
Ashkinaze, The Closing Door: Conservative Policy and Black Opportunity.

81. Peterson, “The Urban Underclass and the Poverty Paradox,” in The Urban Underclass,
pp. 3–27.

82. The concept of a culture of poverty originated with Oscar Lewis, Five Families:
Mexican Case Studies in the Culture of Poverty (New York: Basic Books, 1959).

83. Charles Murray, Losing Ground: American Social Policy, 1950–1980 (New York: Basic
Books, 1984).

84. Cornell West, Race Matters (Boston: Beacon, 1993), p. 12. Summarized in Peterson,
“The Urban Underclass and the Poverty Paradox,” in The Urban Underclass, pp. 9–16.

85. Hugh Davis Graham, The Civil Rights Era: Origins and Development of National Policy,
1960 –1972 (New York: Oxford University Press, 1990).

86. Loving v. Virginia, 388 U.S. 1 (1967). Peter Wallenstein, Tell the Court I Love My Wife:
Race, Marriage, and Law. An American History (New York: Palgrave, 2002).

87. Data on African-American and Hispanic-elected officials is available at the Gender
and Multi-Cultural Leadership Project. http://www.gmcl.org/library.htm.

88. Jaynes and Williams, A Common Destiny, p. 4.

89. Thernstrom and Thernstrom, America in Black and White, p. 17.

90. Ibid., p. 534. Gunnar Myrdal, An American Dilemma (1944; reprinted New York:
Harper and Row, 1962).

91. Thernstrom and Thernstrom, America in Black and White.

92. Ibid., Chapter 7, “The Rise of the Black Middle Class,” pp. 183–202. U.S. Census
Bureau, Income and Poverty in the United States: 2014.

93. Murray, Losing Ground: American Social Policy, 1950–1980.

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149

4

JUSTICE ON THE STREET?

The Police and People of Color

L E A R N I N G O B J E C T I V E S

This chapter explores the complex issues in the relationship between the
police and racial and ethnic minority communities, and helps sort through
the often conflicting evidence on policing, race, and ethnicity. The chapter
begins with a discussion of the national police crisis that erupted in 2014
as a result of the tragic shooting in Ferguson, Missouri, and the controver-
sies that followed. The next section outlines a contextual approach to polic-
ing that presents a full picture of policing and all the different racial and
ethnic groups in the United States. An examination of public opinion about
the police follows. The evidence compares the attitudes of whites, African
Americans, and Hispanics (unfortunately, there is little evidence on other
racial and ethnic groups).

The main part of the chapter reviews the evidence on police con-
duct, including the use of deadly force, use of less lethal force, stops and
frisks, arrests, and so on. An entirely new section discusses the issue of
unconscious bias among police officers and how it affects police actions.
The next section covers citizen complaints against the police, including
citizen oversight of the police. The chapter concludes with a discussion
of police employment practices, with attention to the law of employment
discrimination and the presence of officers of color in American police
departments.

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150 C H A P T E R 4

After you have read this chapter:

1. You will be familiar with the most important issues related to police and
people of color.

2. You will be able to make sense of the complex data on police shootings, use
of force, racial profiling, and other issues.

3. You will be able to discuss the difference between racial disparities and racial
discrimination.

4. You will be able to discuss the most important reforms in policing and
whether or not they have succeeded in reducing racial disparities.

5. You will be knowledgeable about police–community relations programs and
which ones work and do not work in terms of improving relations between
the police and communities of color.

6. You will be familiar with the trends in the employment of people of color
in policing, and you will be able to discuss what difference it makes in terms
of actual police work.

U N E Q U A L J U S T I C E ? T H E N AT I O N A L P O L I C E C R I S I S

The small community of Ferguson, Missouri, a suburb of St. Louis, burst into
national prominence on August 9, 2014, when police officer Darren Wilson shot
and killed Michel Brown, an unarmed 18-year-old African American. Protests
followed. Missouri authorities mobilized military equipment in response, which
only inflamed the protests, and rioting and property destruction followed. Sym-
pathy demonstrations occurred around the country, and the events in Ferguson
were carried live on cable television stations. Soon it was clear that a national
police crisis existed.1

The Post-Ferguson Events

Even before the Ferguson events, on July 17, 2014, New York City police officers
arrested Eric Garner, an African American, for selling illegal cigarettes. Officers
sat on him, holding him down, and not responding to his cries, “I can’t breathe!”
Garner died of suffocation. The incident was captured on a cell phone video,
which provoked national outrage when it was broadcast over national television.

Other incidents of gross police misconduct soon followed. In April 2015, a
white police officer shot in the back and killed Walter Scott, a 50-year-old African
American. The shooting was captured on a cell phone video and clearly showed
the lack of any justification for the shooting. A week later, on April 12, 2015,
Freddie Gray, a 25-year-old African American, was arrested by Baltimore police,
suffered neck injuries in a “rough ride” in a police van, and died on April 19.
Scott’s death touched off protests and then arson and looting.

In response to the growing national police crisis, President Barack Obama
appointed a President’s Task Force on 21st Century Policing, the first-ever

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151J U S T I C E O N T H E S T R E E T ?

national commission or task force exclusively devoted to policing. After extensive
public hearings, the Task Force issued a report in April 2015 with a sweeping set
of recommendations for improving policing and in particular improving relations
with communities of color. The report began by noting the “rifts in the relation-
ships between local police and the communities they protect and serve.”2

In short, by mid-2015, there had not been such national concern about the
police and communities of color since the riots of the 1960s. This chapter examines
the issues surrounding the police and communities of color. The evidence shows
that racial and ethnic disparities do exist with regard to police shootings, use of
physical force, stops and frisks, arrests, and other police actions. None of these issues
is a simple matter, however. Interactions between the police and people of color are
complex. The available data on police use of force and arrests, for example, require
careful analysis. As we discussed in Chapter 1, there is an important difference
between disparities and discrimination. By the end of the chapter, you will have a
clearer understanding of the nature of the patterns of injustice that do exist.

A Long History of Conflict

Police shootings, protests, and riots are nothing new in American history. Rela-
tions between the police and racial and ethnic communities of color have been
filled with conflict since the early twentieth century. With respect to African
Americans, there were three periods of major conflict and riots: during and after
World War I, during World War II, and in the 1960s.3

Discrimination and conflict have never been confined to the African-
American community, however. Controversies over injustice have also existed and
continue to exist today with respect to other racial and ethnic groups. The next
section provides a brief overview of the full context to racial and ethnic issues
involving the police.

A C O N T E X T U A L A P P R O A C H T O P O L I C I N G

C O M M U N I T I E S O F C O L O R

The African-American Community

African Americans experience greater contact with the police than any other
racial or ethnic group in America. Many years ago, David H. Bayley and Harold
Mendelsohn observed, “[T]he police seem to play a role in the life of minority
people out of all proportion to the role they play in the lives of the dominant
white majority.”4 This is still true today.

The pattern of greater contact with the police is a result of several factors.
Because of higher crime rates in low-income and African-American communities,
there are higher levels of police patrol in those areas, which make the police a far
more visible presence than in other areas. (In 2014, the violent crime victimiza-
tion rate for African Americans was 10.1 per 1,000, compared with 8.3 for His-
panics and 7.0 for whites.)5 It is also true that African Americans call the police at

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152 C H A P T E R 4

a higher rate than other groups, both as crime victims and in response to problems
requiring police assistance.6 Finally, certain police tactics such as aggressive preven-
tive patrol and stops and frisks involve high rates of police-initiated contacts with
African Americans. Those contacts are more likely to involve conflict, including the
use of force. A survey of Cincinnati residents found that nearly half (46.6 percent)
of all African Americans said they had been personally “hassled” by the police, com-
pared with only 9.6 percent of all whites. Hassled was defined as being “stopped or
watched closely by a police officer, even when you had done nothing wrong.”7

As police reform expert David Kennedy explains, and we will discuss later
in this chapter, the long history of police–community relations problems has left
a toxic legacy of mistrust on both sides of police–citizen encounters. Both sides
bring their own “narratives” of past conflict and distrust to an encounter, and that
creates a greater possibility of conflict in that encounter.8

The Hispanic Community

Hispanic Americans have a unique pattern of experiences with the police. Alfredo
Mirandé describes that history in terms of Gringo Justice, involving a fundamental
“clash between conflicting and competing cultures, world views, and economic,
political and judicial systems.”9 The most famous event was the so-called Zoot
Suit Riot in Los Angeles in 1943, which involved attacks on Hispanic men by
police and by white Navy personnel on shore leave.10

A report by the Julian Samora Institute at Michigan State University con-
cluded, “Latinos may have unique experiences with police which shape attitudes
toward law enforcement officials.”11 Immigration patterns are a major factor. His-
panics are the fastest growing racial or ethnic community in the United States,
along with Asian Americans. Relations with the police are complicated in part by
language barriers because of the number of Hispanics who do not speak English,
and the number of recent immigrants, some of whom are undocumented.

Unfortunately, there is much less research on Hispanics and the police, com-
pared with African Americans. Ronald Weitzer concludes that the existing research
is “rather scarce” and “suffers from some important deficiencies.”12 As we pointed
out in Chapter 1, official data on Hispanics and the criminal justice system are very
weak. Many agencies do not separate race and ethnicity and record Hispanics as
“whites.” Weitzer adds only a “handful” of public opinion surveys are large enough
to include samples of non-Hispanic whites, African Americans, and Hispanics. Addi-
tionally, studies ignore the diversity of the Hispanic community, failing to take into
account variations by ancestry and nativity: American-born versus foreign-born
people; and different national origins of immigrants (e.g., Mexico, Puerto Rico,
Central American countries). Most qualitative studies focus on Hispanics alone,
yielding no comparative findings with respect to whites and African Americans.

The Native American Community

Native Americans also have a unique history in the United States and spe-
cial problems related to the police. Native American tribes are legally recog-
nized as semi-sovereign nations with broad (although not complete) powers

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153J U S T I C E O N T H E S T R E E T ?

of self-government. There are about 330 federally recognized reservations, and
approximately 200 have separate law enforcement agencies. About 22 percent of
Native Americans live in areas off reservations.13

Law enforcement is complicated by the competing authority among tribal
police agencies, local county sheriff or city police departments, and federal
authorities. An additional complicating factor is that there are five different types
of tribal law enforcement agencies: (1) those operated and funded by the federal
Bureau of Indian Affairs (BIA); (2) those federally funded but operated by the
tribe under an agreement with the BIA (called PL 96–638 agencies); (3) those
operated and funded by the tribes themselves; (4) those operated by tribes under
the 1994 Indian Self-Determination Act; and (5) those operated by state and local
governments under Public Law 280.14

When a routine crime occurs, which law enforcement agency has juris-
diction depends on where the crime was committed, what the crime was, and
who committed it. Tribal police have jurisdiction only over crimes committed
on Indian lands by Native Americans. A crime committed by a non-Indian per-
son on a reservation is the responsibility of the county sheriff. In addition, tribal
authorities have jurisdiction only over less serious crimes. Murder and robbery,
for example, are the responsibility of federal authorities.15

Reservations suffer from high rates of violent crime, but tribal police depart-
ments suffer from inadequate budgets and equipment, poor management, high
levels of personnel turnover, and considerable political influence. There are also
serious practical problems on many reservations that inhibit effective law enforce-
ment. Some reservations involve vast territory (500,000 acres in some cases), and
many residents do not have telephones. Thus, it is often difficult for people to
receive basic police services.16

Asian, Native Hawaiian, and Pacific Islanders

The Asian, Native Hawaiian, and Pacific Islander American community is
extremely diverse in terms of country of origin. The six largest groups by country
of origin are Chinese (23.2 percent of all Asians), Filipino (19.7 percent), Indian
(18.4 percent; often referred to as South Asian Indians to distinguish them from
Native Americans), Vietnamese, Korean, and Japanese. Three quarters of Asian
American adults were born outside the United States, and about half report that
they speak English very well. They are also members of a variety of religious
faiths: Christian, Buddhist, Hindu, Muslim, Sikh, and other smaller groups.17

Asian Americans have the least amount of contact with the police, compared
with other racial and ethnic groups. They have lowest victimization rates of any
racial or ethnic group in the United States and as a result call the police less often
than other groups. Even when they are victimized, however, they are much less
likely to report property crimes to police than other racial or ethnic groups.18

The Arab-American Community

There are an estimated 4 million Arab Americans in the United States, represent-
ing about 2 percent of the U.S. population.19 The major concern among Arab

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154 C H A P T E R 4

Americans regarding law enforcement is racial profiling, whereby the police, par-
ticularly federal authorities, identify individuals as suspects solely on the basis of
their national origin. In the wake of 9/11, there were a number of incidents
involving discrimination against Arab Americans attempting to fly on airlines. A
2008 American-Arab Defense Committee (ADC) report found relatively few
instances of discrimination by local police and concluded that the most serious
problems involved the federal government’s Joint Terrorism Task Forces (JTTFs).20

A second issue involves hate crimes, specifically attacks on Arab Americans
because of their national origin or religion. The ADC reported more than 700
violent attacks on Arab Americans in the first nine weeks following the 9/11
terrorist attack.

P U B L I C AT T I T U D E S A B O U T T H E P O L I C E

Public attitudes about the police are a good starting point for understanding
relations between the police and communities of color. Race and ethnicity are
consistently the most important factors in shaping attitudes about the police. Yet,
these attitudes are complex and often surprising.

A sizeable racial and ethnic gap exists among Americans in their perception
of police fairness. When asked in 2016 whether “blacks are treated less fairly than
whites in this country” by the police, 84 percent of African Americans answered yes,
compared with 50 percent of whites. A gap of nearly the same size existed when
the same question involved the courts. Unfortunately, the survey did not include
Hispanics, but see the 2014 data in Table 4.1.21 Two aspects of the survey deserve
comment. The gap between white and African-American opinions about the police
has persisted at almost the same level for 50 years. In a 2012 survey, 23 percent
of African Americans expressed “very little” confidence in the police, compared
with 14 percent of whites. In 1967, the President’s Crime Commission reported
that twice as many people of color as whites felt the police did a “poor” job, and
10 times as many believed the police were “corrupt.”22 This gap has persisted for
decades despite continuing police reform efforts. Second, the gap between the atti-
tudes of African Americans and Hispanics illustrates the point the different racial
and ethnic groups have different experiences and opinions regarding the police.

T A B L E 4.1 Perception of Police Unfairness,
by Race and Ethnicity, 2014

Q: African Americans in your community are treated less
fairly than whites.

Percentage answering yes.

37 70 51

Whites African Americans Hispanics

SOURCE: Monica Anderson, Vast Majority of Blacks View the Criminal Justice System
as Unfair (Washington, DC: Pew Hispanic Center, August 12, 2014).

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155J U S T I C E O N T H E S T R E E T ?

In this chapter, we will examine the police practices that are at the source of
African-American alienation from the police, particularly among young men. We
will find racial disparities in arrests (pp. 166), traffic stops (pp. 169), and stops and
frisks (pp. 176). In their interviews with people in the Kansas City metropoli-
tan area, Epp, Maynard-Moody, and Haider-Markel found that African Americans
“deeply resent” investigatory stops, where the stop is not prompted by speeding
or other traffic safety concerns but suspicion about the driver (is a gang member
or active criminal, for example).23

Policing is a highly complex enterprise, and many seeming contradictions
often appear. While African Americans complain about excessive policing, in
arrests, stops and frisk, and uses of force, for example, they also see too little
policing in their communities. The lack of adequate policing can include insuf-
ficient levels of patrol in the neighborhood, failure to respond quickly to 911
calls, and failure to make arrests in some cases, particularly domestic violence
incidents. A Police Foundation survey in Washington, DC, found that 54.8 per-
cent of African-American residents feel there are “too few” police officers
in their neighborhood; only 25.7 percent of whites felt that way about their
neighborhoods.24

The attitudes of African Americans about the police are not monolithic,
however, and are also affected by social class. Weitzer found that middle-class Afri-
can Americans in Washington, DC, had a much more favorable view of relations
with the police in their neighborhood than did poor African Americans. Their
attitudes on this point, in fact, were much closer to those of white, middle-class
Washington residents than of poor African Americans.25

Shootings and other highly publicized incidents involving the police have a
significant short-term effect on public attitudes. In the immediate aftermath of
the 1991 beating of Rodney King by Los Angeles police officers, the percentage
of white Los Angeles residents who said they “approve” of the Los Angeles police
fell from more than 70 percent to 41 percent. The approval ratings by African
Americans and Hispanics in the city, which were low to begin with, also fell.
The approval ratings of all groups eventually returned to their previous levels,
but white attitudes rose much more quickly than those of African Americans and
Hispanics.26

Age has an important impact on attitudes toward the police. This is not sur-
prising, and it is important for most of the controversies over police conduct,
which we will discuss in this chapter. Young men are more likely to be out on
the street and have more contact with the police. Young people are also more
involved in illegal activity than middle-aged or older people and have more con-
tact with the police as a result. A series of interviews of young African Ameri-
cans on Chicago’s South Side by Craig Futterman and his colleagues found that
for 14- to 18-year-old African Americans being stopped by the police was “an
everyday thing.” How often does it occur?, one teenager was asked. He repelled,
“Pretty much every times I go outside.”27 A 2009 PEW Hispanic Center national
report on young Hispanics, meanwhile, found that 29 percent of all Hispanic
young males and 13 percent of females had been questioned by the police in the
past year. That is an extraordinarily high percentage.28

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156 C H A P T E R 4

How Police Officer Conduct Shapes Attitudes

A growing body of research has found that citizen attitudes are heavily influenced
by how they feel officers treat them in an encounter. The theory of procedural
justice holds that attitudes are shaped not just by what the police do, but how they
do it.29 In everyday terms, a traffic ticket is the outcome of an encounter, while the
attitude of the officer (rudeness, for example) is the process. There is a close anal-
ogy to this in in education. As a student you are naturally upset by a low grade
(for example, a D). But if the teacher takes the time to explain the basis for the
grade (failure to mention important points covered in class, incomplete sentences,
and so on), you are more likely to understand and accept the result. If the teacher,
on the other hand, refuses to meet with you and explain the grade, you are likely
to be very upset.

Wesley G. Skogan found that people who had been stopped by the police had
more favorable attitudes if they felt they were treated fairly, if the officer(s) explained
the situation to them, were polite, and paid attention to what they had to say on their
own behalf. Procedural justice research in other areas of life (e.g., employment)
consistently finds that people are more satisfied if they feel they had a chance to
tell their side of the story. Skogan also found important racial and ethnic differ-
ences in citizen perceptions, however. African Americans and Spanish-speaking
Hispanics, for example, were “far less likely to report that police had explained
why they had been stopped.” Less than half of the African Americans and Hispan-
ics thought the police treated them politely, and both groups thought they were
treated unfairly.30 The 2011 Police-Public Contact Survey also found that African
Americans were less likely to believe that the traffic stop was legitimate (with
67.5 percent believing the stop was legitimate), compared with Hispanics (73.6
percent) and whites (80 percent).31

The 2015 report of the President’s Task Force on 21st Century Policing
strongly recommended that police departments “adopt procedural justice as the
guiding principle … to guide their interactions with the citizens they serve.”32

We will discuss the implications of procedural justice and police conduct when
we get to the subjects of stops and frisks and abusive language by police officers.

P O L I C E U S E O F D E A D LY F O R C E

The police are a unique agency in American society. Police officers are the only
government officials who have the legal authority to take human life. As the
events in Ferguson, Missouri, and other cities in 2014–2016 dramatically illus-
trated, the fatal shooting of African Americans by the police is a very volatile issue
in this country. The slogan “Black Lives Matter” reflects the deeply held percep-
tion among African Americans that the police shoot and kill far too many young
African-American men, many of whom are unarmed. In the 1970s, the police
fatally shot eight African Americans for every one white person.33 James Fyfe, one
of the leading experts on the subject, asked whether the police have “two trigger
fingers,” one for whites and one for African Americans and Hispanics.34

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157J U S T I C E O N T H E S T R E E T ?

The Lack of National Data on Police Shootings

The national police crisis of 2014–2016 exposed the scandalous fact that we do
not have reliable data on the number of people shot and killed by the police
every year. The FBI reports data on people shot and killed by the police, but the
data collection system is voluntary. Local police departments are not required to
submit their data on police shootings and many do not. The official FBI figure
for 2014 was 444 people shot and killed by the police.35 The Washington Post
began collecting data on police shootings using all possible sources (local news
media, public records, internet sources) and found that in 2015 the police shot
and killed 986 people—twice what the FBI had been reporting in the preceding
years. Additionally, African Americans were shot and killed at three times the rate
of whites.36The Guardian undertook a similar count of police shootings using
all possible sources of information, and its report The Counted reached an even
higher count for 2015: 1,134 people shot and killed by the police.37 Both the
Washington Post and The Guardian continued their counts into 2016.

The lack of reliable national data on persons shot and killed is inexcusable. We
have very detailed data, for example, on death rates for all types of cancer and deaths
in motor vehicle accidents. These data are readily available and are widely used in
research.38 A reliable national data system would permit analyses of local variations
and possible causes. Data on cities where the police have high and low rates of
police shootings, for example, would permit analyses of whether the variations are
associated with local crime rates, department deadly force policies, or other factors.

Patterns in Police Shootings

Despite the shortcomings of national data on police shootings, several patterns
are evident. The first is that African Americans are overrepresented among peo-
ple shot and killed by the police. In the 1960s, the ratio of African Americans
to whites shot and killed was 8 to 1. That ratio declined from 4 to 1 in the
1980s, and by 2015 it was about 3 to 1.39 The comprehensive data for 2015 com-
piled by the Washington Post found that African Americans were three times as
likely to be shot and killed as whites. Particularly, alarming was the finding that

B o x 4.1 People Shot and Killed by the Police, 2014–2015

444 986 3:1 40%

Official FBI Data,
2014

Washington Post
Estimate, 2015

Ratio of African
Americans to
Whites Killed,
2015

Percentage of
Unarmed People
Shot and Killed by
Police Who Were
African American

SOURCE: FBI, Crime in the United States 2014, 2014 Expanded Homicide Data Table 14. “Final Tally,”
Washington Post, January 6, 2015

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158 C H A P T E R 4

African Americans represented 40 percent of all unarmed people shot and killed
by the police. The racial disparity is especially high for young men, the age group
that is the most likely to have contact with the police.

There is little data on the shootings of Hispanics and none on Native Amer-
icans or Asian Americans. As we discussed in Chapter 1 (pp. 21), criminal justice
agencies did not begin doing a good job of collecting data on Hispanics until
recent years. In the past, Hispanics shot and killed by the police were probably
classified as “whites.” In an earlier study, William A. Geller and Kevin J. Karales
found that between 1974 and 1978, Hispanics were about twice as likely to be
shot and killed by the Chicago police as whites, but only half as likely to be shot
as African Americans.40

A second pattern in police shootings is that the police are more likely to
shoot unarmed African Americans than unarmed whites. In 2015, as we men-
tioned, 40 percent of all unarmed people shot and killed were African American.
The disparity used to be even worse. Between 1969 and 1974, for example, police
officers in Memphis shot and killed 13 African Americans but only one white
person in the “unarmed and not assaultive” category (Table 4.2). In fact, half of all
the African Americans shot and killed were unarmed. When the Memphis police
replaced the permissive fleeing felon rule with the more restrictive defense of life
policy, the overall number of people shot and killed dropped significantly and no
unarmed people were shot and killed.41 As we will discuss shortly, department
policies that limit police use of deadly force have had a significant impact in terms
or reducing the number of fatal shootings and also in reducing the racial dispari-
ties in shootings.

Research involving simulated shootings has found that unconscious racial
bias plays a significant role in the shooting of African Americans. We discuss this
later in this chapter in the section on “Unconscious Bias” (pp. 160).42

A third important pattern is that there are substantial—and surprising—
differences among police departments regarding the number of people shot and
killed. The Mapping Police Violence project found that in 2015, Bakersfield,
California, Oklahoma City, Oklahoma, Oakland, California, and Indianapolis,
Indiana, had the four highest rates of fatal shootings. Surprising to many people,

T A B L E 4.2 Citizens Shot and Killed by Police Officers, Memphis

1969–1974 1985–1989

White
African

American White
African

American

Armed and assaultive 5 7 6 7

Unarmed and assaultive 2 6 1 5

Unarmed and not assaultive 1 13 0 0

Totals, by race 8 26 7 12

Total 34 19

SOURCE: Adapted from Jerry R. Sparger and David J. Glacopassi, “Memphis Revisited: A Reexamination of Police Shoot-
ings after the Garner Decision,” Justice Quarterly 9 (June 1992), pp. 211–225.

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159J U S T I C E O N T H E S T R E E T ?

New York City had one of the lowest shooting rates, one-tenth of Bakersfield,
and less than one half of the largest 60 cities. Detroit and Philadelphia also had
shooting rates below the national average. The kind of systematic national data
that the Mapping Police Violence Project has compiled (but which the FBI has
not) can provide a starting point for analyzing why some police departments do
so much better than others with respect to fatal shootings.43

Controlling Police Use of Deadly Force

One of the most significant police shootings in the U.S. history occurred on
October 3, 1974, in Memphis, Tennessee. Two Memphis police officers shot and
killed Edward Garner, a 15-year-old African American. Garner was 5’4″ tall,
weighed 110 pounds, and was shot in the back of the head while fleeing with a
stolen purse containing $10.44

The Memphis officers acted under the old fleeing felon rule, which allowed a
police officer to shoot to kill, for the purpose of arrest, any fleeing suspected felon.
The rule gave police officers very broad discretion, allowing them to shoot, for
example, a juvenile suspected of stealing a bicycle worth only $50. Edward Gar-
ner’s parents sued, and in 1985, the Supreme Court in the landmark case of Ten-
nessee v. Garner declared the fleeing felon rule unconstitutional. The Court ruled
that the fleeing felon rule violated the Fourth Amendment protection against
unreasonable searches and seizures, holding that shooting a person was a seizure.45

Even before the Garner decision, mainly in response to civil rights protests,
police departments had been adopting the defense of life rule to limit shoot-
ings. The turning point came in 1972 when New York City Police Commis-
sioner Patrick V. Murphy replaced the fleeing felon rule with a defense of life
policy, which meant that officers could only resort to deadly force if there was
an immediate threat to the life of the officer or another person. The new pol-
icy also prohibited warning shots, shots to wound the suspect, and shots at or
from a moving vehicle. To ensure compliance with the new policy, officers were
required to file a written report on each firearms discharge (e.g., any time the
weapon was fired, regardless of the circumstance), and reports were automati-
cally reviewed by supervisors.

James J. Fyfe studied the impact of the new defense of life policy and found
that it reduced the total number of firearm discharges by almost 30 percent over
the next three years. Moreover, the new policy did not cause the crime rate to go
up nor did it result in more officer injuries.46 Other police departments quickly
began adopting similar deadly force policies. As a result, the number of people
shot and killed by police declined from a peak of 559 in 1975 to 300 in 1987.
(But remember, even current official data undercount the number of people shot
and killed, and it is very likely that the undercount was even greater in the 1970s
and 1980s.)47

The important lesson from what we know about police shootings is that
unacceptable police conduct can be brought under control by effective depart-
ment policies. Later in this chapter, we will discuss how that lesson applies to
police use of excessive force, stops and frisks, and offensive language.

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160 C H A P T E R 4

The Role of Unconscious Bias in Police Shootings

One factor in some police shootings involves unconscious stereotypes and bias
regarding race and ethnicity. Racial prejudice pervades American society, and
police officers are no exception. Bias is not always conscious, as in someone say-
ing “I don’t want to sit next to that black guy.”

In policing, one of the most prevalent stereotypes is the association of African-
American men with “dangerousness.” This stereotype can lead officers to stop and
frisk young African-American men in the belief that they are gang members or
active criminals. Another example is where many people associate Hispanics with
being immigrants, and even undocumented immigrants. Lorie Fridell, director
of the Fair and Impartial Policing project, explained that many police recruits
underestimate the dangerousness of women and in training situations do not
search for the gun hidden in a woman’s back “because they stereotype women as
not being a threat.”48

Research using computer simulations of encounters between police officers
and suspects of different race or ethnicity has confirmed that racial or ethnic ste-
reotypes affect the decision to shoot. In one study, three different groups partici-
pated in a video game simulation, which included images of armed and unarmed
white and African-American men in a variety of situations. They included 25
images each of an armed white, unarmed white, armed African American, and
unarmed African American. The unarmed images included objects that were not
weapons: wallets, cell phones, a beer or soft drink can, and so forth. Participants
were instructed to shoot as quickly as possible anyone who appeared to be an
“imminent threat” and to push the “don’t-shoot” button as quickly as possible for
those who did not pose an imminent threat. The three groups included Denver
police officers, citizens from the community those officers served, and a group of
police officers attending a training seminar.49

The study found “robust racial bias” in the speed with which both the offi-
cers and the non-officers fired their simulated weapons. In terms of accuracy
in correctly assessing an imminent threat, the non-officer participants were less
accurate than the officer participants, meaning they were more likely to see an
imminent threat from the African-American images where one does not exist. In
a replication study, participants had a shorter time frame to make their decisions;
as a result, the error rate increased. In the end, the study confirmed that racial
stereotypes played a significant role in the decision to shoot. Police officers, the
study directors concluded, performed better than other participants because of
their formal police training on use of deadly force.

Does Skin Tone Matter?

Does skin tone matter in police decisions? Are people who are very dark-skinned
more likely to be stopped, arrested, or even shot than light-skinned African
American?

In a pioneering study, Karletta M. White investigated the impact of skin tone
on the likelihood of being stopped by the police. Wave III of the National Lon-
gitudinal Study of Adolescent Health (generally referred to as ADD Health) had

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161J U S T I C E O N T H E S T R E E T ?

the investigators conducting in-home surveys to record respondents’ skin tone
on a five-point scale (black, dark brown, medium brown, light brown, white).
Respondents reported their own race and identity and also their experience in
being stopped by the police.50

White found that “skin tone is related to the likelihood of being stopped or
arrested by the police” for African Americans. “As skin tone darkens,” she found,
“the odds of being stopped or arrested increase significantly.” The findings with
regard to Hispanics were ambiguous, however, because of the small number of
dark-skinned Hispanics.

More research on the issue of skin tone is needed. If skin tone affects police
decisions to stop people, does it also have an effect on police shootings or use of
physical force?

“ P O L I C E B R U TA L I T Y ” : P O L I C E

U S E O F P H Y S I C A L F O R C E

“Q: Did you beat people up who you arrested?”

“A: No. We’d just beat people in general. If they’re on the street, hanging around
drug locations . . .”

“Q: Why?”

“A: To show who was in charge.”51

What Is “Police Brutality?”

This exchange between the Mollen Commission and a corrupt New York City
police officer in the mid-1990s dramatized the unrestrained character of police bru-
tality in poor, high-crime neighborhoods in New York City. There is much contro-
versy and misunderstanding about the issue of police use of force and the prevalence
of excessive force. Let’s sort our way through this important and complex issue.

The term police brutality is a political term with no precise legal meaning.
A proper understanding of this issue begins with the category of force, meaning
all uses of physical force by a police officer. A police officer is legally justified in
using force to protect himself or herself from physical attack, to subdue a suspect
who is resisting arrest, or to accomplish a lawful police purpose. Force can include
grabbing a person’s arm in order to handcuff him; taking someone to the ground;
use of a police baton; or a choke hold (although they are banned by many depart-
ments). The term excessive force is defined as any physical force that is more than
reasonably necessary to accomplish a lawful police purpose.

The Prevalence of Force and Excessive Force

The prevalence of both police use of force and excessive force is a matter of con-
troversy. Many critics of the police argue that excessive force is a routine, nightly
occurrence, whereas others believe that it is a rare event. There is a wide racial

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162 C H A P T E R 4

disparity in the perception of police use of excessive force. Ronald Weitzer and
Stephen A. Tuch asked Washington, DC, residents if they felt police used exces-
sive force in their neighborhood. Among African Americans, 30 percent felt it
happened “very often” or “fairly often,” compared with only 8 percent of whites
and 23 percent of Hispanics.52 The study of African-American teenagers on Chi-
cago’s South Side found powerful testimony that all police encounters are terrify-
ing. “It’s scary because you don’t know that’s gonna happen next,” explained one
female high school senior. As many others explained,” They [the cops] have all the
power.”53

Research using direct observation of police patrol work has consistently esti-
mated that police officers use force in about 1 and 2 percent of all encounters
with citizens and that excessive force incidents represent about one third of those
incidents.54 Many people find these estimates hard to believe because they are so
low. When we put the 1–2 percent estimate in the context of routine police work,
however, it takes on new meaning.

In patrol work, the vast majority of police–citizen encounters are uneventful:
a residential burglary call where the officer simply takes a report, a call for police
assistance, and so on. If you take 1.5 percent of all 911 calls to a police department
and then divide that figure by 52, you will get an estimate of the number for force
incidents every week. Divide that by seven and you get an estimate of the num-
ber per day—every day, 365 days a year. (But remember, these are estimates and
not counts of actual incidents.) In most cases, the resulting estimates are startling
and disturbing. Divide the weekly or daily estimates by one third and you get the
estimates for excessive force. And remember, 911 calls represent only a portion
of all police–citizen contacts. You need to add traffic stops and police-initiated
pedestrian tops to get a more complete estimate.

The observational studies of police patrol work consistently find that police
use of force is higher in certain situations. Police officers are four or five times more
likely to use force against males, people being arrested, people who are disrespectful
or challenge their authority, and people who are drunk or under the influence of drugs.
African Americans are also more likely to have force used against them, in part,
because they are more likely to be disrespectful or believed to be disrespectful by
the officer. This complex and important issue requires closer analysis.

Race, Police–Community Relations, and Disrespect for the Police

The issue of disrespect for the police needs serious discussion. There is a long
history of police officers inappropriately using force against and making arrests
of people they believe are disrespectful, even where there is no physical challenge
to the officer. This phenomenon has been labeled “contempt of cop”: the officer
perceives a challenge to authority and escalates the encounter to assert his or her
authority. See, for example, the Mollen Commission testimony we cited (p. 161)
where an officer said he used excessive force “to show who was in charge.” The
perceived disrespect may involve not looking the officer in the eye, not answering
the officer’s questions, a look of contempt on the person’s face, verbal disrespect,
or a verbal challenge to the officer’s authority. Christy Lopez argues that “there is

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163J U S T I C E O N T H E S T R E E T ?

abundant evidence that police overuse disorderly conduct and similar statutes to
arrest people who ‘disrespect’ them or express disagreement with their actions.”55

Patterns of real or perceived disrespect for the police have an important racial
dimension. Donald Black found that after controlling for all other variables, Afri-
can Americans were far more likely to be disrespectful to the police than were
whites.56 The explanation for this lies in the long history of police–community
relations problems. African Americans are more likely to bring to an encounter
the community memory of past abuses by the police, including knowledge of
recent incidents, and express disrespect for the officer. Albert Reiss argued that in
low-income, high-crime, and predominantly African-American neighborhoods,
incidents of police abuse accumulate over time, creating a perception of systematic
harassment.57 A police program of frequent stops and frisks and/or traffic stops
reinforces this sense of harassment.58 Additionally, the police are the symbolic rep-
resentatives of the established order, including societal race discrimination. The
officer, meanwhile, brings to the encounter a memory of community criticisms
of the police, and many officers see hostility everywhere in African-American
neighborhoods.

Police reform expert David Kennedy explains the dynamic we just described
in terms of each side bringing its own “narrative” (or script) to an encounter:
people on the street see a continuation of a long history of police abuse; officers
see bad communities (high crime rates and other problems) and bad people (gang
members, drug dealers, and criminals). In his book, Don’t Shoot, he suddenly real-
ized he had been seeing this phenomenon for 15 years in his research “but had
never put a name to it.” “The real issue,” he concluded, is that “the relationship
between the police and community was being poisoned by toxic racial narra-
tives.”59 The result is a vicious cycle of misconduct, disrespect, use of force, more
disrespect, and so on.

The question is how to break the vicious cycle and replace the toxic racial
narrative with a positive cycle of mutual respect. Procedural justice, where officers
treat people with respect and answer their questions is one approach. Another
alternative is the policy of police de-escalating encounters to keep them from
escalating into uses of force. We discuss this important innovation on pp. 165.
Other approaches, which we also discuss are better police department policies to
control officer use of force (pp. 164) and to curb offensive language by officers
which can provoke citizens and lead to a use of force incident (pp. 177).

Force in Traffic and Pedestrian Stops

A second estimate of police use of force is in the BJS Police–Public Contact Sur-
vey. This estimate uses the victimization survey technique of calls to citizens and
is confined to traffic stops (and more recently pedestrian stops). A 2015 PPCS
report, using all the survey data from 2002 to 2011, found that police threatened
or used force in 1.6 percent of all contacts with people. Respondents in the sur-
vey reported that officers threatened or used excessive force in 1.2 percent of all
contacts (representing 75 percent of all force incidents). There are two important
points to keep in mind about these data. First, the survey reports citizen perceptions

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164 C H A P T E R 4

of officer conduct and not an independent assessment (as is the case in the direct
observations of patrol work). Second, it reports threatened as well as actual use
of force, which will necessarily yield a higher estimate than actual uses of force.
Despite these differences from direct observation research, the 1.6 percent esti-
mate is remarkably close to the estimate from direct observation studies.

The PPCS report found significant racial disparities in both overall threatened
use of force and actual use of force, and also use of excessive force. Non-Hispanic
whites reported police threatening or using force in 1.4 percent of all contacts,
compared with 2.1 percent for Hispanics and 3.5 percent for African Americans.60

The race or ethnicity of the officer has little apparent influence on patterns
of the use of physical force. Some people have the erroneous stereotype that
police use of excessive force involves white cops beating up African-American
men. Observational studies of police patrol work have not found a clear racial
pattern of officer use of force.61 The data on citizen complaints against police
reinforce the point that the race or ethnicity of the officer is not a significant
factor in police misconduct. In New York City, whites represented 53.4 percent
of all officers in 2009 and 49.5 percent of all officers receiving citizen complaints;
African Americans represented 16.4 percent of all officers and 17.2 percent of
those receiving complaints; Hispanics represented 28.4 percent of all officers and
25.2 percent of those receiving complaints. A similar pattern was found in San
Jose, California.62

At the same time, however, it is important to note that police officers of
different races have very different perceptions of how the police in general use
force and treat people of color and the poor. A Police Foundation survey of offi-
cers nationwide found that 57 percent of African-American officers agreed or
strongly agreed with the statement, “Police officers are more likely to use physical
force against blacks and other minorities than against whites in similar situations,”
compared with only 5 percent of white officers. The responses to this statement
reflected not what officers said they personally do but what they perceived officers
in general do (which probably means other officers in their own department).63

The Control of Police Use of Force

The standard police department approach to controlling officer use of force is to
have a formal policy indicating the circumstances in which force may be used
and requiring the officer to complete a report on every use of force incident.
This requirement follows the approach we discussed earlier (pp. 156) with respect
to the use of deadly force. Some poorly managed police departments, however,
allow officers to not file force reports at all or to file reports that do not accu-
rately state what happened in the incident (and justify the officer’s use of force in
the process). The 2014 Justice Department investigation of the Cleveland, Ohio,
police department, for example, found that “force incidents often are not prop-
erly reported, documented, investigated, or addressed with corrective measures.”
Also, “until recently, each officer at the scene was not required to write a report
documenting the incident.” Reports often did not “adequately convey the force
[the officers used] and why.”64

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165J U S T I C E O N T H E S T R E E T ?

Do these policies work in terms of controlling office use of force? The Los
Angeles Police Department (LAPD) has had a long history of bad community
relations, marked by riots in 1965 and 1992. Because of its problems with use of
force, the U.S. Justice Department intervened and obtained a consent decree in
2001 requiring the department to improve its procedures for the reporting and
investigation of officer use of force. An evaluation of the impact of the consent
decree by a team from Harvard University found that between 2004 and 2008,
use of the most serious forms of force by LAPD officers declined by 30 percent.
Additionally, use of force incidents involving African-American and Hispanic
people declined more than they did against whites.65

The Oakland, California, police department also had a history of abu-
sive practices regarding the use of excessive force. A lawsuit by private plaintiffs
resulted in a consent decree that required reforms similar to those in the LAPD
case. It took several years for the department to fully implement the reforms, but
when it finally did, the results were significant. Use of force incidents dropped
from 1,200 in 2014 to 606 in 2014. Complaints against officers dropped from
2,593 in 2012 to 1,067 in 2014. And officer-involved shootings fell from 15 in
2011–2012 to only 2 in 2014–2015.66

The lesson of these two cases is similar to the experience with the New
York City police department deadly force policy: the implementation of policies
limiting officer use of force can effectively reduce uses of force and related police
performance problems.

De-Escalation: A New Approach to Reducing Police Use of Force

The most important new approach to reducing police use of force involves de-
escalation. De-escalation is a policy under which officers are instructed that unless
force is absolutely necessary they should attempt to use alternative techniques to
resolve a citizen encounter without conflict or the use of force. Those techniques
include keeping some distance from the person in question, in order to avoid a
direct confrontation, verbal persuasion to gain compliance, or simply saying noth-
ing in response to disrespectful words by the person.

The new Seattle Police Department policy adopted in late 2013 states,
“When Time, Circumstances, and Safety Permit, Officers Will Take Steps to
Gain Compliance and De-escalate Conflict Without Using Physical Force.” It is
important to note that the policy says “will take steps. De-escalation is the required
option when the circumstances permit. The policy lists the possible de-escalation
techniques: “advisements, warning, verbal persuasion, and other tactics in order
to reduce the need to use force.” A later section of the policy emphasizes the
importance of taking steps to increase the options in an incident by gaining time,
maintaining distance from the person, and calling in backup. De-escalation does
not represent a “weak” or “soft” style of law enforcement, as some critics charge.
The Seattle policy clearly states that when no other option is available an officer
may use force.67

Since the use of force, and the perception that the police use excessive force
and use it frequently, is such a major issue in police–community relations, reducing

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166 C H A P T E R 4

the use of force through the use of de-escalation can be a major step in the direc-
tion of building community trust in the police. Law enforcement participants at
a Police Executive Research Forum meeting explained how de-escalation can be
very effective in dealing with mentally ill people and that de-escalation can reduce
uses of force and help to improve community relations.68 The President’s Task Force
Report on 21st Century Policing, meanwhile, strongly recommended that police
“training on use of force should emphasize de-escalation … where appropriate.”69

D I S C R I M I N AT I O N I N A R R E S T S ?

Allegations of race discrimination in arrests have been a controversy in Ameri-
can policing for decades. Civil rights advocates charge that police arrest people of
color without probable cause and in cases where whites are not arrested for the
same offense. FBI data on arrests clearly indicate racial disparities in arrests for some
crimes, especially robbery, but not for all crimes. African Americans, for example,
were 56 percent of all people arrested for robbery in 2014, but only 30 percent of
those arrested for burglary and 13 percent of those arrested for drunk driving.70

The question of whether race is a factor in arrests is a complex matter,
because the likelihood of arrest is shaped by several factors: the seriousness of the
offense, the strength of the evidence, the preference of the crime victim, the rela-
tionship of the victim to the offender (especially if they are married or have an
ongoing relationship vs. being strangers), and other factors.71

Tammy Rinehart Kochel, David B. Wilson, and Stephen D. Mastrofski under-
took a systematic review of all available studies of police arrests. They found 40
studies, reaching back into the 1960s, that met the highest standards of research,
including controls for all relevant variables in arrest decisions. In the end, they
found that “race matters,” and that there is “a clear pattern of evidence” that
“minorities and Blacks have higher odds of arrest” than whites. On average, the
probability of an African American was 30 percent higher than for a white per-
son. The race effect existed even when they controlled for the seriousness of the
crime (a factor they hypothesized might even out the likelihood of an arrest).72

One underlying cause of racial disparities in arrests involves aggressive anti-
crime programs by police in high-crime neighborhoods, which are typically
predominantly African American or Hispanic. Programs such as a heavy police
presence in certain neighborhoods or aggressive stops and frisks have a number of
destructive effects. One is the sense of harassment on the part of young African-
American men in the community. As one African-American teenager on Chicago’s
South Side explained, “I’ll just be walking with my friends or something . . . And
then they [the cops] pull up and yell ‘Get on the car!, Or, Get on the wall! [mean-
ing line up with your hands on the patrol car or a wall] Spread your legs. Put your
hands up.’73Another is the cumulative effect of arrests on subsequent decisions in
the criminal justice system. Kimberly Kempf Leonard’s observations about juvenile
justice apply to the adult justice system as well: there is a “cumulative effect that may
grow like a downhill snowball,” with the result that “early-stage decisions create an
inequity” that “influence[s] decisions at subsequent stages.”74

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167J U S T I C E O N T H E S T R E E T ?

High levels of arrests in a community have a destructive community effect,
making arrest and imprisonment seem “normal.” The Sentencing Project in 2013
estimated that one in three African-American males can expect to go to prison
at some point in his lifetime. This compared with 1 in 6 Hispanic males and
1 in 17 white males.75 For these reasons, the President’s Task Force on 21st Cen-
tury Policing recommended that police departments “should consider the poten-
tial damage to public trust when implementing crime fighting strategies.” 76

The demeanor of a person on the street, particularly where an officer perceives
disrespect, has an important impact on arrest patterns. As we have already mentioned,
observational studies of police arrest patterns have consistently found that officers’
decisions to arrest are determined largely by situational factors: the seriousness of the
crime, the strength of the evidence, the preference of the victim for arrest, the rela-
tionship of the victim and the suspect, and also the demeanor of the suspect. Donald
Black found that African Americans are more likely to be disrespectful to the officer
than whites and therefore more likely to be arrested.77 Christy Lopez, meanwhile,
characterizes demeanor-based arrests as “contempt of cop”: the officer makes an arrest
for disorderly conduct, for example, because he or she regards the perceived disrespect
as contempt for his or her authority as a police officer. And finally, as David Kennedy
argues, the higher levels of disrespect by young African-American men are rooted in
the shared community “narrative” of police–community relations problems.78

Arrests and the War on Drugs

The war on drugs is the most extreme case of race discrimination in arrests, and
it has resulted in an enormous prison population, which Michelle Alexander has

FOCUS ON AN ISSUE

The Scandal of Ferguson: Arrests as a Revenue Source

The word “Ferguson” became a house-

hold word in America because of the fatal

shooting of Michael Brown in Ferguson,

Missouri, on August 9, 2014, and the pro-

tests and violence that followed. When the

U.S. Justice Department investigated the

incident, it uncovered a deeper scandal that

was at the heart of the conflict between

the African-American community and the

Ferguson police.

The Justice Department report found

that “Ferguson’s law enforcement practices

are shaped by the City’s focus on revenue

rather than by public safety needs.” City

officials applied direct pressure on the

police to write tickets in order to raise

funds to support city government oper-

ations. In March 2010, for example, the

Finance Director wrote the chief of police

to warn that “unless ticket writing ramps

up significantly,” the city would face a

budget crisis.79

The pressure to raise funds, the Justice

Department concluded, had “a profound

effect” on the police department’s oper-

ations, shaping “patrol assignments and

schedules” in the direction of “aggressive

enforcement,” with little concern about

(Continued )

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168 C H A P T E R 4

labeled “mass incarceration.”80 A 2013 ACLU report found that between 2001 and
2010 there were over 8 million arrests for marijuana possession in the United States,
which accounted for half of all drug arrests. African Americans were 3.73 times more
likely than whites to be arrested for marijuana possession. The pattern in marijuana
arrests, moreover, was nationwide and not confined to particular cities or regions.81

The enormous disparity in arrests for drug possession is not consistent with
patterns of marijuana usage. The 2014 survey of drug use by the Monitoring
the Future project found that reported marijuana use by 12th-grade high school
seniors was nearly identical for whites (35.1 percent all students), African Amer-
icans (35.9 percent), and Hispanics (37.1 percent).82 No national survey of drug
use has found a significant racial disparity between usage by whites and African
Americans that approaches the 3.73 disparity found in arrests.

The ACLU report added that the enormous racial disparity in marijuana
arrests imposed “a tremendous human and financial cost” on those arrested, a cost
that can “linger for years, if not a lifetime.”83 As Kimberly Kemp-Leonard argues,
an arrest can “snowball” and result in adverse effects later in the criminal jus-
tice system.84 A conviction can affect a person’s sentence in a subsequent offense,
where prior criminal history is taken into account. An arrest record can affect
chances of employment or housing. If one group is disproportionately arrested,
their employment opportunities will be adversely affected to the same degree. In
addition, Justice Department surveys of state criminal history information systems
have consistently found that many do not include information on the final dispo-
sition of cases. As a result, someone whose case was dismissed, or who was acquit-
ted, will still have an official arrest record with the implication of a conviction.85

The argument in the ACLU report is supported by a longitudinal study of
drug arrests by Ojmarrh Mitchell and Michael S. Caudy, using data from 13 waves
of data from the National Longitudinal Survey of Youth (NLS), beginning in

effective public safety. Officers on the

street responded to the pressure with

arrests for minor or false charges. The

report cited one case where eight sepa-

rate arrest charges included not wearing a

seat belt even though the car was parked,

using a short version of his name (“Mike”)

instead of his full legal name (“Michael”),

providing an address that was legitimate

but different from the one on his driver’s

license, and others.

The result of Ferguson’s revenue-

generating approach to policing “under-

mine[d] community trust and coopera-

tion.” It seems evident that the lack of trust

and anger toward the police were a major

part of the fuel that exploded in the pro-

tests that followed Michael Brown’s fatal

shooting.

Many observers believe that other

small towns in America have a policy of

writing tickets to generate revenue for the

city. In that regard, Ferguson, Missouri, is

only one example of a broader misuse of

the police for purposes having nothing to

do with public safety.

SOURCE: U.S. Department of Justice, Civil

Rights Division, Investigation of the Ferguson

Police Department (March 4, 2015), p. 3. https://

www.justice.gov/sites/default/files/crt/leg-

acy/2015/03/04/ferguson_findings_3-4-15.pdf.

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169J U S T I C E O N T H E S T R E E T ?

1997. Their study found that racial disparities in arrests were not due to reported
differences in drug usage or to different patterns in drug purchasing (from strang-
ers vs. friends) or patterns in use (public places vs. private places). Instead, the
racial disparities were explained by “racial bias in law enforcement,” meaning the
strategic and tactical decisions by police departments and officers about how to
conduct the war on drugs.86

T R A F F I C S T O P S : R A C I A L P R O F I L I N G

Robert Wilkins, an African-American attorney, was stopped by the Maryland
state police on Interstate 95 and subjected to a prolonged detention and ille-
gal search. To support Wilkins’s legal challenge to the stop, his lawyers sponsored
observational research on traffic and enforcement patterns on I-95. The research
found that African Americans did not speed on I-95 at a higher rate than white
drivers but constituted 73 percent of all drivers stopped for possible violations.
Even worse, they represented 81 percent of all drivers whose cars were searched
after being stopped.87

FOCUS ON AN ISSUE

The Chicago Gang Ordinance

In an effort to control gangs and gang-

related crime, the city of Chicago enacted

a Gang Congregation Ordinance in 1992.

The story of the law is an excellent exam-

ple of a “crackdown” approach to crime

fighting: a policy designed to “get tough”

with crime that in practice resulted in

massive arrests of people of color.

The Chicago gang ordinance made

it a crime for a known “gang member” to

“loiter” on the street with one or more

people with “no apparent purpose.” In

enforcing the law, Chicago police officers

had to “reasonably believe” the person

was a gang member, order the person to

disperse, and make an arrest if the person

did not disperse. Violations could be pun-

ished by a fine of $500, six months in jail,

and/or 120 days of community service.88

In three years, the Chicago police

issued 8,000 dispersal orders and arrested

42,000 people. Enforcement of the law fell

heavily on the African-American and His-

panic communities in Chicago. The police

department enforced it only in areas where

it believed gangs were a problem, but it did

not inform the public about which areas

they were. The basic question was whether

the law gave the police too much discre-

tion in enforcing the law.

The Supreme Court ruled the

Chicago Gang Ordinance unconstitutional

in the case of Chicago v. Morales (1999),

concluding that it was unconstitution-

ally vague, because it failed to “give the

ordinary citizen adequate notice of what

is forbidden and what is permitted.” The

definition of loitering was vague and

did not distinguish between standing on

the street for a good purpose (waiting

for a friend) or a bad purpose (planning

a crime). There was also no mens rea

(Continued )

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170 C H A P T E R 4

requirement: the police did not have to

show that a person had criminal intent.

Almost comically, the law did not apply

to people who were walking and excluded

specific acts that are the most intimidating

kinds of conduct: for example, approaching

someone in a possibly threatening manner.

Finally, the law violated the First Amend-

ment right of freedom of association,

which includes the right to freely travel in

public places.

The Chicago gang ordinance also

raised questions about the lists of gang

members that are maintained by police

departments. The Chicago law authorized

officers to enforce the law against people it

“reasonably believed” to be gang members.

But how does an officer reasonably know

that a young man on the street is a gang

member? Is there an official gang list, or is

the officer making a subjective judgment

on the spot? If the department does have a

gang list, how was it compiled? Who pro-

vided the information? Was the informa-

tion verified? If a young man dropped out

of a gang he belonged to, was he still listed

as a “gang member”? How do you ever

get off the list? In many cities, there have

been controversies over the arbitrary and

discriminatory uses of police department

gang lists.89

F U RT H E R R E A D I N G

Chicago v. Morales, 527 U.S. 41 (1999).

Malcolm Klein, The American Street Gang

(New York: Oxford, 1995).

Charles M. Katz, “The Establishment of a

Police Gang Unit: An Examination

of Organizational and Environmental

Factors,” Criminology 39 (2001),

pp. 37–75.

The Wilkins case focused national attention on racial disparities in traffic
enforcement and helped to give it a name: racial profiling, defined as the use of
race or ethnicity as part of a profile of criminal suspects, with the result that
African-American and Hispanic drivers are stopped either entirely or in part
because of their race or ethnicity and not because of any illegal activity. The term
driving while black is also used to describe this practice. A 2014 poll found that
70 percent of Americans disapproved of racial profiling (in an earlier 2004 poll,
50 percent of white Americans believed that racial profiling exists, compared with
67 percent of African Americans and 63 percent of Hispanics). Interestingly, the
2014 poll found that while 78 percent of Americans had a “favorable” view of the
police, 45 percent believed that officers are not held accountable for their conduct.
The issue of profiling is not confined to traffic enforcement. All racial and ethnic
groups also believe that racial profiling is widespread in shopping malls and stores.90

Profiling Contexts

Racial profiling occurs in at least three different contexts. One context is the war
on drugs, where officers are targeting African Americans or Hispanics in the belief
that they are very likely to be engaged in drug trafficking. This approach represents a
profile of criminal suspects based on racial and ethnic stereotypes. The ACLU argues
that the Drug Enforcement Administration (DEA) encouraged racial profiling by state
and local departments through its “Operation Pipeline.” DEA training materials, they
claim, stereotype African Americans and Hispanics as drug traffickers.91

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171J U S T I C E O N T H E S T R E E T ?

A second context involves stopping citizens who appear to be out of place,
such as an African American in a predominantly white neighborhood or a white
person in a predominantly African-American neighborhood. Police actions in
this context involve racial stereotypes about who “belongs” in a particular area.
It ignores the possibilities that, for example, an African American in a predomi-
nantly white neighborhood may live there, may have friends who live there, or
may be there on a legitimate business call (e.g., an insurance salesperson calling
on a customer). Similarly, the white person in a predominantly African-American
neighborhood might be there for similar reasons: to see a friend, a classmate, or a
teammate. In a study of traffic stops in a predominantly white community bor-
dering a largely African-American city, Albert J. Meehan and Michael J. Ponder
found that the “proactive surveillance” of African-American drivers “significantly
increases as African Americans travel farther from ‘black’ communities and into
white communities.”92 Epp et al. in their study of traffic stops in the Kansas City,
Missouri, metropolitan area found that “investigatory stop especially target Afri-
can Americans in Kansas City’s white suburbs.”93

A third context involves a crackdown on crime. A police department may have
an aggressive anticrime policy that emphasizes traffic stops or stops and frisks of
people on the street. In the next section (pp. 176), we will discuss the New York
City stop and frisk program that a federal court found to be a violation of the
Equal Protection Clause of the Fourteenth Amendment because of the huge dis-
parities in African-American and Hispanic men that were stopped.94

The Data on Traffic Enforcement

The racial profiling controversy led to the first significant research on police
traffic enforcement. National data are collected by the Bureau of Justice Statistics
Police-Public Contact Survey (PPCS). The surveys have yielded two basic find-
ings. First, traffic stops are the most common form of contact between the police
and the public. Second, there are racial and ethnic disparities existing in contacts
with the police, searches, arrests, and uses of force.

The 2011 PPCS found that 15 percent of Native American drivers reported
having been stopped by the police, compared with 12.8 percent of African American,
10.4 percent of Hispanic, 9.8 percent of white drivers, and 9.4 percent of Asian
American drivers. Disparities also existed among those who were ticketed: 8 per-
cent of African American, 6.2 percent of Hispanic, and 4.8 percent of white drivers.
The greatest disparities involved searches by the police: 6.6 percent of Hispanic, 6.3
percent of African American, but only 2.3 percent of white drivers were searched.95

As Lorie Fridell’s report By the Numbers explains in detail, racial and eth-
nic dispar ities in traffic stops pose a difficult question with respect to
whether the disparities represent discrimination.96 (See our discussion of the
Discrimination–Disparity Continuum in Chapter 1, pp. 28.) Disparities can be
explained by a number of different factors. The resident population of a city or
county does not reflect the racial composition of the people who are actually
driving. There are differences in who actually drives. The Monitoring the Future
survey found similar racial differences. In 2009, 34.1 percent of African American

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172 C H A P T E R 4

high school students responded that they drove “not at all,” compared with only
13.6 percent of whites.97 Among those who do drive, there are significant differ-
ences in driving habits. Whites have the highest rates of reported driving while
impaired by alcohol (which is likely to increase the chances of being stopped by
the police), while African Americans report a comparatively low rate.98

A best method for studying traffic stops is through direct observations of traffic on a
particular roadway and comparing the racial and ethnic composition of those observed
speeding compared with those who are stopped by the police. The direct observation
method is very expensive, however, and is rarely used. An alternative method involves
peer officer comparisons, or internal benchmarking. Comparing officers working similar
assignments (e.g., a high-crime area on the same shift), it is possible to identify those
officers who stop more African-American or Hispanic drivers than their peers.

Determining whether traffic stop disparities represent illegal discrimination
depends on how we look at the issue. Official data on aggregate traffic stops do
not allow us to determine whether an individual traffic stop was motivated by
racial or ethnic bias. Official data on racial or ethnic patterns of traffic stops can,
however, be used to determine that a department is guilty of discrimination. A
mere disparity is not sufficient. The data have to be sufficiently powerful to con-
vince a judge that an illegal pattern of discrimination exists. That happened in
the case of the New York City stop and frisk program (see pp. 176) where a U.S.
District Court judge found the statistical evidence powerful enough to rule the
program an unconstitutional violation of the Fourteenth Amendment.

“A Deep Racial Chasm”: The Experience of Traffic Stops

In a study of traffic stops in the Kansas City, Missouri, metropolitan area, using
both qualitative and quantitative methods, Epp et al. found “a deep racial chasm”
in the experience of traffic stops.99

Traffic stops, they remind us, are the common experience with law enforce-
ment for all Americans. But there is a vast difference in the kind of stops whites
and African Americans experience, how they are treated in stops, and how they
interpret that experience. There are two basic kinds of stops: traffic safety stops,
mainly for speeding or suspected drunk driving, and investigatory stops, where the
purpose is to investigate the driver, for possible possession of a weapon or drugs,

T A B L E 4.3 Traffic Stops by Race and Ethnicity

Percentage of
Drivers in the Racial

Group Stopped

Percentage of
Those Stopped

Who Were
Searched

Percentage
Who Felt The Stop

Was Legitimate

White 10 2.3 83.6

African American 13 6.3 67.5

Hispanic 13 6.6 73.6

SOURCE: Bureau of Justice Statistics, Police Behavior during Traffic and Street Stops, 2011 (Washington, DC: Department
of Justice, 2015).

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173J U S T I C E O N T H E S T R E E T ?

or an outstanding warrant. Most traffic safety stops are nondiscretionary: the car is
dangerously speeding or weaving. Investigatory stops are highly discretionary, made
at the choice of the officer. Typically, the pretext of a minor violation is used for the
stop: a burned out tail light, or failure to signal for a lane change, for example.100

Epp and his colleagues found that investigatory stops are at the heart of racial
profiling controversy. African Americans experience far more investigatory stops
than whites. Forty percent of African Americans under the age 25 in their study
were likely to be stopped in any year, compared with only 13 percent of whites.
In fact, African-American women were more likely to be stopped (about 17 per-
cent) than white men.101

Investigatory stops are far more intrusive than traffic safety stops, and Epp and
his colleagues found that they are “deeply resented” by African Americans. The
officer is looking for something incriminating about you and is not concerned
with your driving. In the case of traffic safety stops, people of both races typically
concede that they were speeding; it’s not about you, it’s your driving. Investigatory
stops more often lead to a search and even possible arrest. And because it is about
you, investigatory stops are seen as “deeply unfair.” And for this reason, investiga-
tory stops have a powerful effect in undermining trust in the police. The personal
experience of being singled out as a suspicious person is deeply alienating. Per-
sonal experiences, meanwhile, are compounded by knowledge of similar experi-
ences of friends. Epp et al. found that 37 percent of the African Americans they
surveyed had heard a story of police disrespect, compared with only 15 percent of
whites. The overall experience is one of “ongoing, pervasive surveillance.”102

Epp et al. argue that investigatory stops are an institutionalized practice: the prod-
uct of an organizational decision to use traffic stops as a crime-fighting strategy. The
practice is supported by the endorsement of law enforcement professional associa-
tions, a department policy choice, and the training-provided officers. Investigatory
stops are a classic example of institutionalized discrimination in our Discrimination–
Disparity Continuum, which we discussed in Chapter 1 (pp. 28). It is not a matter of
bad people (in this case, patrol officers) making bad decisions; it is a matter of an orga-
nizational policy choice made for what are believed to be a good reason: fighting crime.

Pulled Over makes a powerful case for the argument that the impact of inves-
tigatory traffic stops goes far beyond the criminal justice system. As the book’s
subtitle indicates, stops “define race and citizenship.” A pattern of investigatory
stops, which involve suspicion about you, and not just your driving, “convey[s]
powerful messages about citizenship and equality.”103 The message is that you are
not a full member of our society. The sense of constant surveillance and being the
object of suspicion has a profound alienating impact. It is almost impossible to
gauge the effect on peoples’ commitment to American society and its institutions,
including a commitment to law-abiding behavior.

Legitimate and Illegitimate Use of Race and Ethnicity in

Policing: The PERF Model Policy

The racial profiling controversy focused attention on the question of when police
officers can legitimately use race or ethnicity in a traffic stop, making an arrest,

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174 C H A P T E R 4

or taking some other police action. Obviously, if a robbery victim describes the
robber as a tall Hispanic wearing a Los Angeles Dodgers baseball jersey and base-
ball cap, the police are justified in looking for a Hispanic suspect dressed that way.
What is not permissible is stopping all Hispanic men.

To guide police officers in the proper use of race and ethnicity in traffic stops
and other police actions, the Police Executive Research Forum issued a model policy
in its report, Racially Biased Policing: A Principled Response.104 (See Box 4.2.) It clearly
states that race cannot be the sole or even the primary factor in determining whether
to stop a citizen. Officers may, however, take race or ethnicity into account when
it is information related to a “specific suspect or suspects” that links the suspect or
suspects to a particular crime. This information, moreover, must come from a “trust-
worthy” source. In practice, the police can use race, for example, when they have a
credible report of a robbery committed by a young African-American male wearing
a baseball cap and a red jacket. If they have a description of the suspect’s vehicle, they
can stop similar vehicles. They cannot, however, stop all African-American men.

The PERF policy also recommends specific steps that police officers should
take to help reduce the perception of bias. Officers should “be courteous and pro-
fessional” in a traffic stop, “state the reason for the stop as soon as practical,” “answer
any questions the citizen may have,” “provide name and badge number when
requested,” and “apologize and/or explain if he or she determines that the reason-
able suspicion was unfounded.” Procedural justice research (p. 175) has found that
how the police act has a major impact on citizen attitudes toward police.105

Eliminating Bias in Traffic Enforcement

Several strategies have been developed to combat racial and ethnic bias in traf-
fic stops. The traditional strategy of law enforcement organizations involves a
combination of exhortation and training. Many police chief executives have issued
statements that race discrimination is prohibited. Some have adopted the PERF
Model Policy as their own department policy. Such statements are an import-
ant function of leadership. Departments have also offered specific training on the
proper use of race in traffic stops. These steps, while important, are just a first step
in controlling officer actions on the street.

Another strategy, favored by civil rights groups, has been to demand that law
enforcement agencies collect data on all traffic stops. Several states passed laws requir-
ing data collection, and some departments collected data voluntarily. A federal
data collection law has been pending in Congress for several years. But as we have
discussed (pp. 171), traffic stop data are difficult to interpret in terms of whether a
clear pattern of discrimination exists.106

A third strategy involves law enforcement agencies adopting policies and proce-
dures governing how officers conduct traffic stops. We have already discussed this
approach with respect to controlling the use of deadly force (pp. 156) and the use
of excessive force (pp. 161). With respect to traffic stops, this approach requires
departments to have specific policies on traffic enforcement and to require offi-
cers to document each stop in an official report. Typically, reports include the
reason for the stop, the race or ethnicity of the driver and any passengers, and

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175J U S T I C E O N T H E S T R E E T ?

the action taken by the officer (warning, ticket, search, etc.). The next section
describes a success story in the use of this approach.

How Formal Policies Can Reduce Bias in Stops and Searches:

The Case of the Customs Bureau

The U.S. Customs Bureau represents a case study in how formal policies can
effectively control racial bias. A 2000 report on the Customs Bureau found sig-
nificant disparities in stops and searches of passengers entering the United States.
African-American women were more likely to be searched than either white women
or African-American males, even though they were less likely to be found possess-
ing contraband. Customs agents had almost unlimited discretion to choose who to
search, and the guidelines for identifying suspicious people were extremely vague.107

In response, the Customs Bureau developed a short and more specific list of indi-
cators that could justify a stop and search and a requirement that agents obtain super-
visors’ approval for particular kinds of searches. The result was a much lower number
of searches and a higher “hit rate” (the percentage of searches that found contraband).
These changes reduced the number of unnecessary searches where no contraband
was found, most of which involved people of color. In short, the Customs Bureau
was “working smarter”: instead of indiscriminate searches that are unproductive and
offend many innocent people, searches were better targeted toward possible suspects.

B o x 4.2 Excerpts from the Police Executive Research Forum (PERF)
Recommended Policy on Traffic Stops

A. Policing Impartially

1. Investigative detentions, traffic stops, arrests, searches, and property seizures
by officers will be based on a standard of reasonable suspicion or probable
cause in accordance with the Fourth Amendment of the U.S. Constitution.
Officers must be able to articulate specific facts and circumstances that sup-
port reasonable suspicion or probable cause for investigative detentions,
traffic stops, arrests, nonconsensual searches, and property seizures.

Except as provided below, officers shall not consider race/ethnicity in
establishing either reasonable suspicion or probable cause. Similarly, except as
provided below, officers shall not consider race/ethnicity in deciding to initiate
even those nonconsensual encounters that do not amount to legal detentions
or to request consent to search.

Officers may take into account the reported race or ethnicity of a specific
suspect or suspects based on trustworthy, locally relevant information that
links a person or persons of a specific race/ethnicity to a particular unlawful
incident(s). Race/ethnicity can never be used as the sole basis for probable
cause or reasonable suspicion.

2. Except as provided above, race/ethnicity shall not be motivating factors in
making law enforcement decisions.

SOURCE: Police Executive Research Forum, Racially Biased Policing: A Principled Response (Washington,
DC: Author, 2001), pp. 51–53.

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176 C H A P T E R 4

T H E S T O P A N D F R I S K C O N T R O V E R S Y

One of the major police controversies of recent years involved the New York City
program of aggressive stops and frisks of people on the street. In the end, a federal
District Court found the program an unconstitutional violation of both the Fourth
Amendment (illegal searches) and the Fourteenth Amendment (denial of equal pro-
tection to people of color).108

Stops of people on the street, sometimes referred to as field interrogations
(FIs), is a traditional police practice. The underlying crime-fighting strategy is that
stops will both successfully catch criminal offenders and deter people in the area
from committing crime. The Supreme Court in Terry v. Ohio held that a “stop”
(which is less intrusive than an arrest) is constitutional if the officer has reasonable
suspicion that a person is committing or about to commit a crime.109 The offi-
cer has to have some specific and articulable reason to justify the suspicion. The
Court also held that an officer may “frisk” (which is less intrusive than a search) a
stopped person through a pat down of the person for the purpose of determining
whether the person has a weapon. The purpose of a frisk is limited to ensuring
officer safety and does not extend to a search for evidence (although a weapon or
other incriminating evidence might be discovered).

In the New York City Police Department (NYPD) stop and frisk program, the
number of stops increased from 97,296 in 2002 to 685,724 in 2011. Over half of
those stopped (55.7 percent) were frisked. A strong pattern of racial and ethnic bias
existed in the pattern of stops. Young African-American and Hispanic males between
the ages 14 and 24 accounted for 41.6 percent of all stops in 2011, even though
they represented only 4.7 percent of the city’s population. The frisks were extremely
unproductive in terms of both officer safety and crime control. Only 1.9 percent of
all frisks resulted in the finding of a weapon.110

P
e
rc

e
n
ta

g
e

60

50

40

30

20

10

0

9.3

33.2

Percentage
of People
Stopped

Percentage
of City

Population

22.9

52.9

Percentage
of People
Stopped

Percentage
of City

Population

33.7
28.7

Percentage
of People
Stopped

Percentage
of City

Population

F I G U R E 4.1 Persons Stopped by New York City Police versus Percentage of the City
Population, by Race and Ethnicity
Source: New York Civil Liberties Union, Stop and Frisk 2011: NYCLU Briefing (New York: NYCLU, 2012).

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177J U S T I C E O N T H E S T R E E T ?

Civil rights groups sued the NYPD, and in 2013, a U.S. District Court ruled
the NYPD policy to be an unconstitutional violation of the Fourteenth Amend-
ment guarantee of equal protection of the law, and the Fourth Amendment pro-
tection against unreasonable searches and seizures. The court ordered the NYPD
to revise its policy on stops and frisks, including an improved stop and frisk report
form, and also to improve its training of officers on the law of stops and frisks.111

In short, the court-ordered reforms followed the policy approach we have dis-
cussed with regard to deadly force, excessive force, and traffic stops.

The Problem of Stereotyping and Routine Police Work

A special problem regarding racial and ethnic bias in both traffic stops and stops
and frisks involves stereotypes about categories of people. In his classic study of
police practices, Jerome Skolnick argued stereotyping is inherent in police work.
Officers are trained to be suspicious and look for criminal activity. As a result,
they develop “a perceptual shorthand to identify certain kinds of people” as sus-
pects, relying on visual “cues”: dress, demeanor, context, gender, and age. In short,
they develop a “profile” of suspects. Thus, a young, low-income man in a wealthy
neighborhood presents several cues that trigger an officer’s suspicion in a way that
a middle-aged woman or even a young woman in the same context does not.112

In their study of traffic stops in the Kansas City metropolitan area, Epp et al. found
that in investigatory stops (as opposed to traffic safety stops), the “most important
influence” in making stops was not driving behavior but “how they look.” The
“cues” included African Americans, men, and younger drivers. The “perceptual
shorthand” (or profile), in short, involved a clear racial stereotype.113

There are two major ways police departments can curb the illegitimate use of
racial stereotyping. The first is to adopt and enforce the PERF Model Policy on
the proper use of race or ethnicity in policing (pp. 173). A second approach is to
have all officers in the department trained on unconscious bias (see our discussion
on pp. 160). The Fair and Impartial Policing project provides training for both
rank and file officers and supervisors on how to recognize unconscious bias and
how to curb it.114

V E R B A L D I S R E S P E C T A N D A B U S E

Verbal abuse by police officers is one of the more common criticisms civilians
have about the police. Some words, such as racial, ethnic, or gender epithets, are
clearly wrong. Other words, or a harsh tone of voice, are often perceived as rude
or discourteous. Common vulgarities such as “asshole” or “scumbag” are not
racially or ethnically specific, but they are insulting nonetheless.

In testimony to the President’s Task Force on 21st Century Policing, Samuel
Walker argued that disrespectful language by police officers inflicts several harms.
It is a psychological harm to the individual. It harms communities of color when there
is a pattern of abusive language. It often provokes hostility that leads to a physical
confrontation and officer use of force. And if allowed to continue, it undermines

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178 C H A P T E R 4

standards of professionalism in the department. The President’s Task Force on 21st
Century Policing recommended that police departments should “adopt policies
directing officers to speak to individuals with respect.”115

Verbal abuse is especially hard to control. The typical incident occurs on the
street, often without any witnesses except other police officers or friends of the
civilian, and it leaves no tangible evidence (unlike many uses of force). Conse-
quently, most citizen complaints about verbal abuse become “swearing contests”
in which the civilian claims verbal abuse and the officer denies it.

Police Officer Attitudes versus Institutional Practices

Are police officers prejudiced? Do prejudicial attitudes explain racial and dispar-
ities in stops, uses of force, and arrests? What is the relationship between police
officer attitudes and the behavior of police on the street? Or are those disparities
explained by departmental policies and practices?

The impact of officer attitudes on use of force or arrests is extremely complex.
As Douglas A. Smith, Nanette Graham, and Bonney Adams explain, “Attitudes
are one thing and behavior is another.”116 Reiss found that officer attitudes did
not reflect behavior. About 75 percent of the officers in his study made racially
derogatory remarks in the presence of members of the observation team, yet the
observations of police work did not find a clear pattern of race discrimination in
arrests or uses of physical force.117

One factor limiting the influence of officer attitudes on their behavior is the
bureaucratic nature of the criminal justice system. An arrest is reviewed first by
the officer’s sergeant and then by other criminal justice officials: the prosecutor,
defense attorney, and judge (and this typically involves more than one judge; one
at the preliminary hearing and another at the trial). Sergeants can and do refuse
to sign off on an arrest if the evidence is weak or there are other problems with
the arrest. Judges can dismiss the case if the evidence is weak, or they can exclude
evidence that was obtained in violation of the Fourth Amendment. In short, the
other criminal justice officials can serve as a check on some of the most blatant
forms of discrimination by individual officers.

Trying to explain racial and ethnic disparities in terms of officer attitudes,
however, is looking in the wrong place for an explanation. As we explained, Epp
et al. argue that patterns of racial injustice in traffic stops are rooted in police
department crime control policies and practices that have the effect of targeting
people of color. This represents a form of institutionalized discrimination, which
we discussed in Chapter 1 (pp. 29).

P O L I C E C O R R U P T I O N A N D C O M M U N I T I E S O F C O L O R

Police corruption has historically had a special impact on minority communities.
Most police corruption involves vice activities, such as drug trafficking, gambling,
prostitution, or after-hours night clubs. Historically these activities have been
confined to low-income and racial minority neighborhoods where residents lack
the political clout to ensure full and fair law enforcement.118

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179J U S T I C E O N T H E S T R E E T ?

In the 1990s, the New York City Mollen Commission exposed a pattern of
corruption and violence in the poorest African-American and Hispanic neigh-
borhoods in which corruption was at the root of abusive and illegal behavior.
Officers took bribes for protecting the drug trade, beat up drug dealers, broke
into apartments, and stole drugs and money.119

Police corruption harms communities of color in several ways. First, allowing
vice activities to flourish in these communities represents an unequal and discrimina-
tory pattern of law enforcement. Second, the existence of open drug dealing or pros-
titution degrades the quality of neighborhood life, and criminologists argue that this
has criminogenic effects. Third, open drug dealing provides an opportunity for young
people to become involved in drug use and dealing. Fourth, vice activities encour-
age secondary crime—the patrons of prostitutes are robbed; after-hours clubs are the
scenes of robbery and assault; and competing drug gangs have shoot-outs with rival
gangs. Fifth, community awareness of police corruption damages the reputation of
the police. In 2008, 16 percent of African Americans thought the ethical standards
of the police were “low” or “very low,” compared with only 8 percent of whites.120

I M P R O V I N G P O L I C E – C O M M U N I T Y R E L AT I O N S

In response to the riots of the 1960s, most big-city police departments established
special police–community relations (PCR) programs to resolve racial and ethnic
tensions. Most of these programs involved a separate PCR unit staffed by officers
who spent most of their time speaking to community groups or in schools.121

Other PCR programs involved neighborhood storefront offices where commu-
nity residents could bring their concerns or complaints. Finally, many depart-
ments developed “ride-along” programs, which allowed citizens to ride in a patrol
car and view policing from an officer’s perspective.

The PCR programs of the 1960s were not effective, however. A Justice
Department report concluded that they “tended to be marginal to the operations
of the police department,” with little direct impact on patrol and criminal inves-
tigations, the most important police operations.122 Public education and ride-
along programs generally reached only people who already had favorable attitudes
toward the police. By the 1970s, PCR units almost all disappeared.

In recent years, a number of other programs designed to improve relations
with communities of color have been developed. Some community policing pro-
grams, for example, have involved regular neighborhood meetings between the
police and the local residents. Skogan and Hartnett found that in the Chicago
community policing effort (known as CAPS), the neighborhood “beat meetings”
had a positive impact on public attitudes. Both African Americans and whites
who lived in community policing districts were less likely to believe that police
use of excessive force was a problem; similarly they were less likely to believe that
the police stopped too many people.123

The most important way to improve police–community relations is to reduce
officer misconduct, which angers and alienates communities of color. As we have
already discussed, the basic approach is to adopt policies that clearly spell out

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180 C H A P T E R 4

FOCUS ON AN ISSUE

Improving Police–Community Relations: Recommendations of the
President’s Task Force on 21st Century Policing

The President’s Task Force on 21st Cen-

tury Policing made a number of recom-

mendations designed to build community

trust and confidence in the police. Depart-

ment’s should:

■ “adopt procedural justice as the guid-

ing principle for internal and external

policies and practices to guide their inter-

actions with the citizens they serve” (Rec-

ommendation 1.1);

■ “establish a culture of transparency

and accountability in order to build

public trust and legitimacy” (Recommen-

dation 1.3);

■ “acknowledge the role of policing in

past and present injustice and discrimina-

tion” (Recommendation 1.2);

■ “collaborate with community

members to develop policies and strat-

egies” for policing for communities

“disproportionately affected by crime”

(Recommendation 2.1);

■ establish “some form of civilian over-

sight” of the department (Recommenda-

tion 2.8);

■ officers “should be required to iden-

tify themselves” by name and rank “and

provide that information in writing to

individuals they have stopped” (Recom-

mendation 2.11);

■ police departments should direct offi-

cers “to speak to individuals with respect”

(Action Item 4.4.1);

■ police training programs should

include “content around recognizing and

confronting implicit bias and cultural

responsiveness” (Recommendation 5.9).

These are but a few of the many Task

Force recommendations directly related to

improving police–community relations.124

lawful and appropriate officer actions. To summarize that discussion, sound poli-
cies should address the issues we have discussed: use of deadly force, use of phys-
ical force, stops and frisks, and offensive language. The accompanying “Focus on
an Issue” lists some of the recommendations of the President’s Task Force on 21st
Century Policing for improving police–community relations.

C I T I Z E N C O M P L A I N T S A G A I N S T T H E P O L I C E

For decades, civil rights groups have argued that police departments do not seri-
ously investigate citizen complaints against officers and do not discipline officers
found guilty of misconduct. They have denounced internal police complaint pro-
cedures as “white washes” and “cover-ups.”125 In fact, only a small percentage of
complaints are successfully sustained in favor of complainants. Sustain rates across
the country generally average between 10 and 15 percent of all complaints.126 All
racial and ethnic groups express some dissatisfaction with police complaint pro-
cedures. A survey in Washington, DC, found that 81.8 percent of Asians, 75.3 per-
cent of African Americans, 65.6 percent of Hispanics, and 56.1 percent of whites
think that police complaint investigations are biased.127

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181J U S T I C E O N T H E S T R E E T ?

Police departments have had a long practice of discouraging people from
filing complaints and even threatening potential complainants. The 1991 Chris-
topher Commission report found that officers at Los Angeles police stations dis-
couraged people from filing complaints and sometimes even threatened them
with arrest. Additionally, officers frequently did not complete the official com-
plaint form after people had come into a police station to file a complaint, which
meant that there was no official complaint and therefore no investigation.128

African Americans are disproportionately represented among people filing com-
plaints against the police. In New York City, for example, African Americans made
56.3 percent of all complaints filed with the Civilian Complaint Review Board
(CCRB) in 2014, even though they represent only 23 percent of the city’s population.
The Hispanic complaint rate (25 percent of all complaints), on the other hand, was
slightly lower than the percentage of Hispanics in the city’s population (27 percent).129

Several factors explain the low complaint rate among Hispanics. As we learned
in our discussion of “Insecure Communities” in Chapter 1 (pp. 26), many Hispan-
ics, even those who are legal residents, are reluctant to contact the police out of fear
of triggering an investigation of the immigration status of themselves, family, or
friends. Many recent immigrants are not fluent in English, and if a police depart-
ment does not provide information and materials in Spanish, they will be hindered
in filing a complaint. Many immigrants (including immigrants from all countries)
do not always understand the American legal process and incorrectly think that you
need a lawyer to file a police complaint.130 Some immigrants, moreover, come from
countries where complaining against the police can result in serious retaliation,
including death. Finally, as we learned in our discussion of “Insecure Communities”
in Chapter 1, many Hispanics worry that filing a complaint will invite a police
investigation of the immigration status of themselves, family members, or friends.131

One of the greatest barriers to sustaining citizen complaints has been the
police officer “code of silence.” The traditional police subculture has emphasized
group solidarity and a refusal to testify against fellow officers.132 The Mollen
Commission investigating police corruption in New York City found “the per-
vasiveness” of the code of silence “alarming.” The commission asked one officer,
“Were you ever afraid that one of your fellow officers might turn you in?” He
answered, “Never,” because “cops don’t tell on cops.”133

An alternative to traditional complaint investigation is to mediate complaints.
Mediation is a voluntary process in which the complainant and the officer meet
face-to-face (usually for about an hour) with a professional mediator supervis-
ing the session. Mediation is not designed to determine whether the officer was
guilty of misconduct but instead to foster a dialogue between a complainant and
an officer and to build mutual understanding.134 The Denver Office of the Inde-
pendent Monitor for the police department in 2014 successfully mediated 53 cit-
izen complaints, making it the most successful mediation program in the country
in terms of mediations per 1,000 officers.135

Mediation has special relevance to issues of race and ethnicity. Vivian Berger,
an experienced mediator in New York City, argues that while many complaints
are officially about discourtesy or disrespect, “they are really about race.” That is,
the complaint is the result of misunderstandings and distrust that are rooted in

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182 C H A P T E R 4

racial or cultural differences. Mediation provides a structured process in which
both sides have to listen to each other. In important ways, this process can help
bridge the racial divide in American policing.136

Citizen Oversight of the Police

Because of widespread distrust of police internal affairs units, civil rights groups have
demanded external or citizen oversight agencies. There are two models of oversight
agencies: CCRBs and police auditors or inspectors general.137

Citizen review boards involve an agency independent of the police depart-
ment and staffed by people who are not police officers. The assumption is that
investigators who are not officers will be more independent and objective in
investigating complaints. Despite strong opposition from police unions, civilian
review has spread rapidly in recent years. According to the National Association
for Citizen Oversight of Law Enforcement (NACOLE), there are now about 200
oversight agencies in the United States, covering almost all of the big cities and
many smaller cities.138

The San Francisco Office of Citizen Complaints (OCC) and the New York
City CCRB are among the few independent complaint procedures that have
original jurisdiction over complaints and do the initial investigations. Most citizen
review agencies, however, examine the complaint files that represent the inves-
tigations done by the police department’s internal affairs unit. The Kansas City
OCC is one example of this approach.139

No matter who does the investigation, citizen complaints are inherently dif-
ficult to sustain in favor of the complainant. Typically, there are no independent
witnesses and the complaint becomes a “swearing contest” between the com-
plainant and the officer. And as we have already discussed, the police officer “code
of silence” is a major barrier to the effective investigation of complaints. This is
one major factor underlying the low sustain rates for citizen complaints.140

The police auditor or inspector general form of citizen oversight involves an
independent agency that has the authority to investigate any and all issues within
a police department. The purpose is to identify policies and practices that need
correcting and then to issue public reports with recommendations for reform.
Police auditors and inspectors general do not investigate individual citizen com-
plaints, but they do audit the police department’s citizen complaint process. The
Inspector General for the NYPD, which began operations only in 2014, has
already issued major reports on the NYPD’s use of force policies and on lawsuits
against the department.141

P O L I C E E M P L OY M E N T P R A C T I C E S

“Not Your Father’s Police Department”

As America changes, police departments have also changed their recruitment pat-
terns (although not as fast as communities of color would like). As a result, today’s
police departments are far more diverse in terms of race, ethnicity, and gender.

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183J U S T I C E O N T H E S T R E E T ?

Law Professor David Sklansky sums up the changes by characterizing today’s
police department as “Not Your Father’s Police Department.”142

Discrimination on the basis of race and ethnicity in the employment of offi-
cers of color has a long history. During the segregation era (1890s–1960s), south-
ern cities did not hire any African-American officers. Even in northern cities,
African-American officers were seriously underrepresented. The Kerner Com-
mission found that in 1967, African Americans were 23 percent of the population
in Oakland, California, but only 2.3 percent of the police officers. And the issue of
Hispanic officers was not even discussed in those years.143 In Chapter 1 (pp. 31),
we discussed the laws that prohibit employment discrimination on the basis of
race or national origins: the 1964 Civil Rights Act; the 1972 Equal Employment
Opportunity Act; and the federal regulations governing affirmative action.

The former Boston police commissioner Paul Evans recognized the need
for a diverse workforce in terms of practical law enforcement. He stated, “I know
that having African American and Hispanic and Vietnamese officers, people of
different backgrounds and cultures who can conduct comfortable interviews with
crime victims and can infiltrate crime rings that aren’t white—I know the need
for that is just common sense.”144

Employment discrimination occurs in three different areas of policing: initial
hiring, assignment to shifts and specialized units, and promotion to higher rank.
Initial hiring is the most visible and easiest to control. Assignment to specialized
units is much less visible to the public, but it has significant impact on an officer’s
potential for promotion.

Trends in African-American and Hispanic Employment

Since the 1960s, significant progress has been made in the employment of police
officers of color. In 1960, an estimated 3.6 percent of all sworn officers in the
United States were African Americans. By 2013, the figure had increased to
12 percent, although that figure had not changed since 2007. Hispanics repre-
sented 11.6 percent of all sworn officers 2013, up from 10.3 in 2007. Asian/Native
Hawaiian/Pacific Islanders represented 2.4 percent, while Native American/
Alaska Native represented 0.6 percent of all officers.145

More important than national data on police employment is the racial and
ethnic composition of local departments. The key issue is whether a department
reflects the community it serves. The accreditation standards for law enforcement
agencies require that “the agency has minority group and female employees in
the sworn law enforcement ranks in approximate proportion to the makeup of
the available work force in the law enforcement agency’s service community.”146

Few departments reach the ideal of having their officer workforce match
the city population. In San Jose, California, Hispanics are 33 percent of the pop-
ulation, but only 23 percent of the police officers. For African Americans, the
figures are 3 percent of the population and 4 percent of the police officers. Asian
Americans are 32 percent of the population but only 15 percent of the police
officers. Non-Hispanic whites are 29 percent of the population and 54 percent
of the police officers.147 In New York City in 2014, 34 percent of population

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184 C H A P T E R 4

was white, compared with 52 percent of the police officers; 29 percent of the
population was Latino, compared with 26 percent of the officers; 23 percent of
the population was African American, but only 16 percent of the police officers;
finally 12 percent of the population was Asian, compared with only 6 percent of
the officers.148

Employing more officers who can speak Spanish facilitates positive relations
with the Hispanic community. On a 911 call, officers need to be able to com-
municate effectively with the people involved. Hispanic officers who are fluent
in Spanish will accomplish this goal, but a department can also recruit white
non-Hispanic officers who speak Spanish and/or offer incentives to officers to
learn Spanish. Full fluency in the language is not necessary, as officers can master
a level of “street Spanish” related to police work. A study of police and Hispanic
civilian interactions in a midwestern city found that although language barriers
did not create any major crises (even violent incidents arising from an inability to
communicate), they did create delays in the delivery of services and some frustra-
tion on the part of officers. When handling a situation in which the civilians did
not speak English, officers either found a family member or bystander who could
translate or simply “muddled through” with “street Spanish.”149

With just a few exceptions, relatively few Native Americans and Asian Amer-
icans are employed as sworn police officers in big-city departments. In tribal law
enforcement agencies, Native Americans are about 56 percent of all sworn offi-
cers.150 And in cities with large Asian American populations, there are often more
Asian American officers. In New York City, for example, Asian Americans were
6 percent of all officers in 2014.151

Discrimination in Assignment

Discrimination also occurs in the assignment of police officers. In the South
during the segregation era, African-American officers were not assigned to white
neighborhoods and were not permitted to arrest whites.152 Many northern cities
also confined minority officers to minority neighborhoods. Reiss found that some
police departments assigned their incompetent white officers to racial minority
neighborhoods.153 Seniority rules that govern the assignment in most depart-
ments today make blatant discrimination difficult. Officers with the most senior-
ity, regardless of race, ethnicity, or gender, have first choice for the most desirable
assignments. Seniority rules can have an indirect race effect, however.

A particular problem today involves discrimination in assignment to special
units, such as criminal investigation, the gang unit or the canine unit. In most
departments, assignments to special units are discretionary and are not governed
by seniority rules. Special units involve desirable types of police work (especially
criminal investigation) and because they are important steps toward promotion
to higher rank. The Special Counsel to the Los Angeles County Sheriff Depart-
ment identified two categories of desirable positions. “Coveted” positions were
those that officers sought because they are interesting, high paying, or conve-
nient (in terms of work schedule): the Narcotics Bureau and precinct station
detective assignments. “High-profile” positions, however, are those likely to lead

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185J U S T I C E O N T H E S T R E E T ?

to promotion and career advancement. These include operations deputy, the
Recruitment Training Bureau, and field training officer positions.154

An investigative study by the New York Times found that African-American
male officers were seriously underrepresented in the elite units of the NYPD.
The 124-officer mounted patrol unit had only three African Americans, and there
were only two in the 159-officer harbor patrol unit. It is well understood in
the NYPD that selection for an elite unit depends on having a friend who will
sponsor you—a “hook” or a “rabbi” in the slang of the NYPD. With few people
in high command and in elite units, African-American officers often find their
career paths blocked in those areas.155

Does the Composition of a Police Department Make

a Difference?

Does the racial or ethnic composition of a police department make a difference?
The assumption behind having a diverse police workforce is that it will improve
police–community relations. But does it?

There has been little research on this subject. One study, however, found
positive changes in the attitudes of police officers over 15 years as a result of a
consent decree requiring the LAPD to hire both more officers of color and more
women. The study surveyed officers in two waves: 1992 and 2007, asking offi-
cers whether “in your opinion, closer personal contact between police and the
community will”: “improve citizen’s opinions of police officers”; “make people
more willing to help police stop crime”; and make officers “more sensitive” to the
community. It also asked three questions regarding a possible negative effect (e.g.,
“give citizens two much control over officers”).156

In the initial 1992 survey, African-American and Hispanic officers were more
positive about the effect of police–community contact than were whites. The atti-
tudes of all officers became more favorable by the time of the 2007 survey. Partic-
ularly significant, the attitudes of white officers rose at a higher rate than they did
for African-American and Hispanic officers (which did rise). The authors of the
study argue that this “unexpected finding” suggests that the introduction of more
African-American and Hispanic officers into a department “served to ‘unfreeze’
and change many of the preexisting, less community-oriented attitudes” held by
white officers. In short, diversifying the workforce can help to change internal
culture of a police department.

Do Officers of Color Perform Better?

Civil rights activists have traditionally argued that police departments should
employ more African-American and Hispanic officers because they will be bet-
ter able to relate to communities of color and be less likely to use deadly force
or physical force. Is there any truth to this argument? The evidence on police
work clearly indicates that race or ethnicity is not a factor in how police officers
perform. Fyfe’s research on the use of deadly force found that African- American

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186 C H A P T E R 4

officers were neither more nor less likely to use deadly force. Being assigned to
a high-crime precinct was the most important predictor of officers’ use of fire-
arm.157 Albert Reiss found that white and African-American officers used exces-
sive physical force at about the same rate, while Donald Black, using the same data,
found no significant differences in the arrest patterns of white and African-Amer-
ican officers.158 It is also worth noting that the performance of male and female
officers on these issues does not differ in any significant ways. (The one exception
involves officers with repeated instances of brutality or other forms of serious
misconduct; in every study, these officers are all male.)159 Finally, the data on cit-
izen complaints in both San Jose, California, and New York City indicate that
officers of different races and ethnicities receive citizen complaints in almost the
same proportion as they exist in their departments.160 In short, race, ethnicity, and
gender are not strong factors in police officer performance.

Some community activists have argued that departments should assign more
African-American officers to African-American neighborhoods and more His-
panic officers to Hispanic neighborhood. The problem with this idea is that it
would “ghettoize” officers of color and deny them the variety of assignments and
experience that helps lead to promotion. With respect to the Hispanic commu-
nity, as we mentioned earlier, departments can recruit Hispanic or non-Hispanic
officers who are fluent in Spanish, or offer incentives for officers, regardless of
their race or ethnicity, to achieve a level of fluency that will allow them to do
police work more effectively.

C O N C L U S I O N

Is there justice on the street? Is American policing free of racial and/or ethnic
bias? The evidence we have examined in this chapter indicates that patterns of
racial and ethnic disparities do exist, along with other indicators of patterns of
injustice. They include:

■ African Americans hold significantly less favorable attitudes toward the
police compared with whites, while the attitudes of Hispanics are less favor-
able than whites but not to the extent that African-American attitudes are;

■ A three-to-one disparity in African Americans shot and killed by the police,
compared with whites;

■ Problematic relations between the police and the Hispanic community, in
part because of significant immigrant populations that make many Hispanics
reluctant to call the police to report crimes or seek police assistance;

■ A pattern of police using force against young African-American men more
often than against whites or Hispanics;

■ Inadequate police protection on Native American reservations, with the
result that many Native Americans do not receive protection against crimes
of violence;

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187J U S T I C E O N T H E S T R E E T ?

■ African-American men are more often the subjects of intrusive investigatory
traffic stops than are white men, and with that pattern of stops causing deep
resentment against the police and the American society as a whole.

■ The New York City stop and frisk program resulted in blatant racial and
ethnic disparities in persons stopped by the police until a federal court
declared the program unconstitutional.

We have also found many examples of where sound policies and practices
can significantly reduce racial and ethnic disparities.

■ The defense of life police on the use of deadly force has reduced the dispar-
ities in the fatal shooting of African Americans by police, particularly in the
shooting of unarmed men;

■ A strict policy governing stops and searches reduced racial and ethnic dis-
parities by U.S. Customs agents;

■ The Police Executive Research Forum Model Policy on the use of race and
ethnicity in police work provides specific guidelines to reduce stops and
other police actions based solely on the race or ethnicity of the person;

■ The Fair and Impartial Policing Project provides training for rank and file
officers and supervisors on how to identify and control police actions based
on unconscious racial or ethnic stereotypes;

■ The policy of de-escalation holds great promise in reducing unnecessary
police use of force;

■ The President’s Task Force on 21st Century Policing made many recom-
mendations for improving police–community relations.

In the end, many problems exist with respect to relations between the police
and the communities of color. At the same time, however, a number of effective
policies have been developed to address those problems and improve the quality
and fairness of policing. Much more, however, remains to be done.

D I S C U S S I O N Q U E S T I O N S

1. What is meant by a contextual approach to examining policing, race, and
ethnicity?

2. How is policing in Native American communities different from policing in
the rest of the United States?

3. When does police use of force become “excessive” or “unjustified”? Give a
definition of excessive force.

4. Are there any significant differences between how Hispanics and African
Americans interact with the police? Explain.

5. Is there racial or ethnic discrimination in arrests? What is the evidence on
this question?

6. Discuss how traffic stops can be more or less intrusive, and how the differ-
ence affects communities of color.

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188 C H A P T E R 4

7. This book argues that some significant progress has been made in con-
trolling police use of deadly force. What is that evidence? Do you find it
persuasive?

8. This book also argues that some progress has been made in reducing racial
profiling. What evidence supports that view? Are you persuaded? Why or
why not?

9. Substantial progress has been made with regard to the employment of peo-
ple of color in policing. Does that make a difference in actual police opera-
tions on the street? In what ways? Explain.

N O T E S

1. U.S. Department of Justice, Civil Rights Division, Investigation of the Ferguson Police
Department (2015). https://www.justice.gov/sites/default/files/opa/press-releases/
attachments/2015/03/04/ferguson_police_department_report.pdf.

2. President’s Task Force Report on 21st Century Policing, Final Report (Washington,
DC: Department of Justice, 2015), p. 1. http://www.cops.usdoj.gov/pdf/taskforce/
taskforce_finalreport.pdf.

3. Samuel Walker, Popular Justice: A History of American Criminal Justice, 2nd ed. (New
York: Oxford University Press, 1998), pp. 148–49, 193–99.

4. David H. Bayley and Harold Mendelsohn, Minorities and the Police: Confrontation in
America (New York: Free Press, 1969), p. 109.

5. Bureau of Justice Statistics. Criminal Victimization, 2014 (Washington, DC: Depart-
ment of Justice, 2015). http://www.bjs.gov/content/pub/pdf/cv14.pdf.

6. Ibid.

7. Sandra Lee Browning, Francis T. Cullen, Liqun Cao, Renee Kopache, and Thomas J.
Stevenson, “Race and Getting Hassled by the Police: A Research Note,” Police Studies
17, no. 1 (1994), pp. 1–11.

8. David M. Kennedy, Don’t Shoot: One Man, A Street Fellowship, and the End of Violence
in Inner-City America (New York: Bloomsbury, 2012).

9. Alfredo Mirandé, Gringo Justice (Notre Dame, IN: University of Notre Dame Press, 1987).

10. Eduardo Obregon Pagan, Murder at the Sleepy Lagoon: Zoot Suits, Race, and Riots in
Wartime L.A. (Chapel Hill: University of North Carolina Press, 2003).

11. Cynthia Perez McCluskey, Policing the Latino Community (East Lansing, MI: Julian
Samora Research Institute, 1998), p. 3, 38.

12. Ronald Weitzer, “The Puzzling Neglect of Hispanic Americans in Research on
Police-Citizen Relations,” Ethnic and Racial Studies 37, no. 11 (2014), pp. 1995–2013.

13. U.S. Bureau of the Census, Facts for Figures: American Indian and Alaska Native Heritage
Month, November 2011 (Washington, DC: U. S. Bureau of the Census, 2011). https://
www.census.gov/newsroom/releases/archives/facts_for_features_special_editions/
cb11-ff22.html.

14. Eileen M. Luna, “The Growth and Development of Tribal Police,” Journal of
Contemporary Criminal Justice 14, no. 1 (1998), pp. 75–86. Stewart Wakeling,
Miriam Jorgensen, Susan Michaelson, and Manley Begay, Policing on American

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189J U S T I C E O N T H E S T R E E T ?

Indian Reservations: A Report to the National Institute of Justice (Washington, DC: U.S.
Department of Justice, 2001), p. 7.

15. Wakeling et al., Policing on American Indian Reservations.

16. Wakeling et al., Policing on American Indian Reservations. Clarice Fineman, “Police Prob-
lems on the Navajo Reservation,” Police Studies 9 (Winter 1986), pp. 194–198. Ronet
Bachman, Heather Zaykowski, Rachel Kallmyer, Margarita Poteyeva, and Christina
Lanier, Violence against American Indian and Alaska Native Women and the Criminal Justice
Response: What Is Known (Washington, DC: Department of Justice, 2008).

17. Pew Research Center, The Rise of Asian Americans (Washington, DC: Pew Research
Center, 2013). Pew Research Center, Asian Americans: A Mosaic of Faiths (Washing-
ton, DC: Pew Research Center, 2012).

18. Bureau of Justice Statistics, Asian, Native Hawaiian, and Pacific Islander Victims of Crime
(Washington, DC: Department of Justice, 2009).

19. Leadership Conference on Civil Rights, Confronting the New Faces of Hate: Hate
Crimes in America 2009, Hate Crimes against Arab Americans, Muslims, and Sikhs
(Washington, DC: Leadership Conference on Civil Rights Education Fund, 2009).
http://www.civilrights.org/publications/hatecrimes/arab-americans.html.

20. Ibid.

21. Pew Research Center, On Views of Race and Inequality, Blacks and Whites Are Worlds
Apart (Washington, DC: Pew Research Center, 2016).

22. Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics, Table 2.12 2012.
Online edition: http://www.albany.edu/sourcebook/. National Advisory Commis-
sion on Civil Disorders, Report (New York: Bantam Books, 1968), p. 256.

23. Charles R. Epp, Steven Maynard-Moody, Donald Haider-Markel, Pulled Over: How
Police Stops Define Race and Citizenship (Chicago: University of Chicago Press, 2014).

24. Police Foundation, Metropolitan Police Department, Biased Policing Project, Final Report
(Washington, DC: The Police Foundation, 2004), p. 67.

25. Ronald Weitzer, “Racialized Policing: Residents’ Perceptions in Three Neighbor-
hoods,” Law and Society Review 34, no. 1 (2000), pp. 129–155. See also Ronald
Weitzer and Steven Tuch, Race and Policing in America: Conflict and Reform (New York:
Cambridge University Press, 2006).

26. Ronald Weitzer, “Incidents of Police Misconduct and Public Opinion,” Journal of
Criminal Justice 30, no. 5 (2002), pp. 397–408. Weitzer and Tuch, Race and Policing in
America: Conflict and Reform.

27. Craig Futterman, Chaclyn Hunt, and Jamie Kalven, “They Have All the Power,”
Youth/Police Encounters on Chicago’s South Side (Chicago: University of Chicago Law
Forum, forthcoming 2016), p. 6. Available at http://papers.ssrn.com/sol3/papers.
cfm?abstract_id=2754761.

28. Pew Hispanic Center, Between Two Worlds: How Young Latinos Come of Age in America (Los
Angeles: Pew Hispanic Center, 2009), Figure 9.7, p. 86. http://pewhispanic.org/.

29. A. Allen Lind and Tom R. Tyler, The Social Psychology of Procedural Justice (New York:
Plenum, 1988).

30. Wesley G. Skogan, “Citizen Satisfaction with Police Encounters,” Police Quarterly 8
(September 2005), pp. 298–321.

31. Bureau of Justice Statistics, Police Behavior during Traffic and Street Stops, 2011
(Washington, DC: Department of Justice, 2015), Table 4.

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190 C H A P T E R 4

32. President’s Task Force on 21st Century Policing, Final Report, Recommendation 1.1,
p. 26.

33. William A. Geller and Michael S. Scott, Deadly Force: What We Know (Washington,
DC: Police Executive Research Forum, 1992).

34. James J. Fyfe, “Reducing the Use of Deadly Force: The New York Experience,” in
Police Use of Deadly Force (Washington, DC: Department of Justice, 1978), p. 29.

35. Federal Bureau of Investigation, Crime in the United States, 2014, Expanded Homi-
cide Data, Table 14. https://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2014/
crime-in-the-u.s.-2014/offenses-known-to-law-enforcement/expanded-offense.

36. “Final Tally: Police Shot and Killed 986 People in 2015,” Washington Post, January 6,
2016. Federal Bureau of Investigation, Crime in the United States, 2014, Expanded
Homicide Data, Table 14. https://www.fbi.gov/about-us/cjis/ucr/crime-in-the-
u.s/2014/crime-in-the-u.s.-2014/tables/expanded-homicide-data/expanded_
homicide_data_table_14_justifiable_homicide_by_weapon_law_enforcement_
2010-2014.xls.

37. The Guardian, “The Counted.” https://www.theguardian.com/us-news/2015/
dec/31/the-counted-police-killings-2015-young-black-men.

38. See the data on mortality from different causes in the Statistical Abstract published
by the U.S. Census Bureau. https://www.census.gov/library/publications/2011/
compendia/statab/131ed.html.

39. Geller and Scott, Deadly Force: What We Know, Figure 30, p. 111. Bureau of Justice
Statistics, Policing and Homicide, 1976–98: Justifiable Homicide by Police, Police Officers
Murdered by Felons (Washington, DC: U.S. Government Printing Office, 2001).

40. William A. Geller and Kevin J. Karales, Split-Second Decisions (Chicago: Chicago Law
Enforcement Study Group, 1981), p. 119.

41. Jerry R. Sparger and David J. Giacopassi, “Memphis Revisited: A Reexamination of
Police Shootings after the Garner Decision,” Justice Quarterly 9 (June 1992),
pp. 211–225.

42. See the materials on the Fair and Impartial Policing website:
http://www.fairimpartialpolicing.com/.

43. The Mapping Police Violence Project website: http://mappingpoliceviolence.org/.

44. Tennessee v. Garner, 471 U.S. 1 (1985).

45. Ibid.

46. James J. Fyfe, “Administrative Interventions on Police Shooting Discretion,” Journal of
Criminal Justice 7 (Winter 1979), pp. 309–323.

47. The actual extent of the undercount in previous decades has not been researched.
The argument for a greater undercount in past decades is based on the assumption
that police departments have become more professional, in particular with regard to
data collection, and especially with regard to deadly force record-keeping. On the
role of the NYPD deadly force policy as a model for administrative rulemaking to
control other critical police actions, see Samuel Walker and Carol Archbold, The New
World of Police Accountability, 2nd ed. (Thousand Oaks, CA: Sage, 2014), Ch. 3.

48. Lorie Fridell, quoted in Police Executive Research Forum, Re-Engineering Training on
Police Use of Force (Washington, DC: Police Executive Research Forum, 2015), p. 38.

49. Joshua Correll, Bernadette Park, Charles M. Judd, Bernd Wittenbrink, Melody S.
Sadler, and Tracie Keesee, “Across the Thin Blue Line: Police Officers and Racial

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191J U S T I C E O N T H E S T R E E T ?

Bias in the Decision to Shoot,” Journal of Personality and Social Psychology 92, no. 6
(2007), pp. 1006–1023. The article and other publications on unconscious bias are
available on the Fair and Impartial Policing website.

50. Karletta M. White, “The Salience of Skin Tone: Effects on the Exercise of Police
Enforcement Authority,” Ethnic and Racial Studies 38, no. 6 (2015), pp. 993–1010.

51 Commission to Investigate Allegations of Police Corruption [Mollen Commission],
Commission Report (New York: City of New York, 1994), p. 48.

52. Ronald Weitzer and Steven A. Tuch, “Race and Perceptions of Police Misconduct,”
Social Problems 51, no. 4 (2004), pp. 305–325. Weitzer and Tuch, Race and Policing in
America: Conflict and Reform.

53. Futterman et al., “They Have All the Power:” Youth/Police Encounterson Chicago’s South
Side, p. 10.

54. Kenneth Adams, “Measuring the Prevalence of Police Abuse of Force,” in And Justice for
All, William A. Geller and Hans Toch, eds. (Washington, DC: Police Executive Research
Forum, 1995), pp. 61–98, 78. Robert E. Worden, “The ‘Causes’ of Police Brutality: The-
ory and Evidence on Police Use of Force,” in And Justice for All, Geller and Toch, eds.

55. Christy Lopez, Disorderly (Mis)Conduct: The Problem with ‘Contempt of Cop’ Arrests
(Washington, DC: American Constitution Society, 2010).

56. Donald Black, “The Social Organization of Arrest,” in The Manners and Customs of
the Police, Donald Black, ed. (New York: Academic Press, 1980), pp. 85–108.

57. Albert J. Reiss, The Police and the Public (New Haven: Yale University Press, 1971), p. 151.

58. Charles R. Epp, Steven Maynard-Moody, and Donald Haider-Markel, Pulled Over:
How Police Stops Define Race and Citizenship (Chicago: University of Chicago Press,
2014).

59. Kennedy, Don’t Shoot, p. 139.

60. Bureau of Justice Statistics, Police Use of Nonfatal Force, 2002-11 (Washington, DC:
Department of Justice, 2015), Figure 1. http://www.bjs.gov/content/pub/pdf/
punf0211.pdf.

61. Reiss, The Police and the Public, pp. 147-155. Worden, “The ‘Causes’ of Police Brutality:
Theory and Evidence on Police Use of Force,” in And Justice For All, William A. Geller
and Hans Toch, eds. (Washington, DC: The Police Foundation, 1993), pp. 31-59.

62. New York City, Civilian Complaint Review Board, Status Report January–December
2009, Statistical Appendices (New York: CCRB, 2010), Table 9. http://www.nyc.gov/
html/ccrb/. San Jose Independent Police Auditor, 2004 Year End Report (San Jose,
CA: Independent Police Auditor, 2005). http://www.sanjoseca.gov/ipa.

63. David Weisburd, Rosann Greenspan, Edwin E. Hamilton, Kellie A. Bryant, and
Hubert Williams, The Abuse of Police Authority: A National Study of Police Officers’ Atti-
tudes (Washington, DC: Police Foundation, 2001).

64. U.S. Department of Justice, Civil Rights Division, Investigation of the Cleveland
Division of Police (2014), pp. 5, 29. https://www.justice.gov/sites/default/files/opa/
press-releases/attachments/2014/12/04/cleveland_division_of_police_findings_
letter.pdf.

65. Christopher Stone, Todd Fogelsong, and Christine M. Cole, Policing Los Angeles
Under a Consent Decree: The Dynamics of Change at the LAPD (Cambridge: Harvard
University, 2009). On the role of consent decrees in effecting police reforms, see
Walker and Archbold, The New World of Police Accountability, 2nd ed.

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192 C H A P T E R 4

66. Deputy Chief Danielle Outlaw, quoted in Police Executive Research Forum, Re-
Engineering Police Training on Use of Force. Data on the Oakland Police Department
and the Settlement Agreement that ordered the reforms related to use of force are
available on the department’s website: http://www2.oaklandnet.com/
Government/o/OPD/index.htm.

67. Seattle Police Department, Seattle Police Manual, Section 8.000, Use of Force Policy.
http://www.seattle.gov/police/compliance/finished_policy/Use_of_Force_
Policy_11_27_2013.pdf.

68. Police Executive Research Forum, An Integrated Approach to De-Escalation and Min-
imizing Use of Force (Washington, DC: Police Executive Research Forum, 2012).
http://www.policeforum.org/assets/docs/Critical_Issues_Series/an%20inte-
grated%20approach%20to%20de-escalation%20and%20minimizing%20use%20
of%20force%202012.pdf.

69. President’s Task Force on 21st Century Policing, Final Report, Action Item 2.2.1, p. 20.

70. Federal Bureau of Investigation, Crime in the United States, 2014, Table 43, Arrests
by Race, 2014. https://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2014/
crime-in-the-u.s.-2014/tables/table-43.

71. Black, “The Social Organization of Arrest.”

72. Tammy Rinehart Kochel, David B. Wilson, and Stephen D. Mastrofski, “Effects of Sus-
pect Race on Officers’ Arrest Decisions,” Criminology 49, no. 2 (2011), pp. 473–511.

73. Futterman et al., “They Have All the Power:” Youth/Police Encounters on Chicago’s South
Side, p. 6.

74. Kimberly Kempf Leonard, “Minority Youths and Juvenile Justice: Disproportionate
Minority Contact after Nearly 20 Years of Reform Efforts,” Youth Violence and Juve-
nile Justice 5 (January 2007), p. 80.

75. The Sentencing Project, Report of the Sentencing Project to the United Nations Human
Rights Committee (Washington, DC: The Sentencing Project, August 2013). http://
sentencingproject.org/doc/publications/rd_ICCPR%20Race%20and%20Justice%20
Shadow%20Report.pdf. See also the earlier estimate by Robert Tillman, “The Size
of the Criminal Population: The Prevalence and Incidence of Adult Arrest,” Crimi-
nology 25 (August 1987), pp. 561–579.

76. President’s Task Force on 21st Century Policing, Final Report, Recommendation 1.6,
p. 16.

77. Black, “The Social Organization of Arrest.”

78. David Kennedy, Don’t Shoot.

79. U.S. Department of Justice, Investigation of the Ferguson Police Department (Washington,
DC: Department of Justice, 2015). https://www.justice.gov/sites/default/files/crt/
legacy/2015/03/04/ferguson_findings_3-4-15.pdf.

80. Michelle Alexander, The New Jim Crow: Mass Incarceration in the Era of Colorblindness
(New York: The New Press, 2012).

81. American Civil Liberties Union, The War on Marijuana in Black and White (New York:
ACLU, 2013).

82. Richard A. Miech, Lloyd D. Johnston, Patrick O’Malley, Jerald Bachman, and John
E. Schulenberg, National Survey Results on Drug Use 1975-2014, Vol. 1 (Ann Arbor:
Monitoring the Future, 2014), Table 4-6.

83. American Civil Liberties Union, The War on Marijuana in Black and White.

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193J U S T I C E O N T H E S T R E E T ?

84. Kempf-Leonard, “Minority Youth and Juvenile Justice.”

85. Bureau of Justice Statistics, Survey of State Criminal History Information Systems, 2008
(Washington, DC: Department of Justice, 2009).

86. Ojmarrh Mitchell and Michael S. Caudy, “Examining Racial Disparities in Drug
Arrests,” Justice Quarterly 32 (April 2015), pp. 288–313 (quote on p. 310).

87. David Harris, Profiles in Injustice: Why Racial Profiling Won’t Work (New York: New
Press, 2001). ACLU, Driving While Black (New York: ACLU, 1999).

88. Information about the Chicago gang ordinance is available at http://www.
gangresearch.net/GangResearch/Policy/law.html.

89. Charles M. Katz, Vincent J. Webb, and David R. Schaefer, “The Validity of Police
Intelligence Gang Lists: Examining Differences in Delinquency between Docu-
mented Gang Members and Nondocumented Delinquent Youth,” Police Quarterly 3
(December 2000), pp. 413–437.

90. October 2014 Reason-Rupe Poll (October 9, 2014). http://reason.com/poll/2014/10/14/
poll-70-of-americans-oppose-racial-profi. 2004 Poll Data: Bureau of Justice Statistics,
Sourcebook of Criminal Justice Statistics, Table 2.26, “Respondents Attitudes toward Racial
Profiling,” 2004. http://www.albany.edu/sourcebook/pdf/t226.pdf.

91. ACLU, Driving While Black.

92. Albert J. Meehan and Michael J. Ponder, “Race and Place: The Ecology of Racial Profil-
ing African American Motorists,” Justice Quarterly 19 (September 2002), pp. 399–430.

93. Epp, Maynard-Moody, and Haider-Markel, Pulled Over: How Police Stops Define Race
and Citizenship, p. 71.

94. Floyd et al., v. City of New York (2013). Data and other information about the case,
including the court’s decision, are available on the website of the Center for Con-
stitutional Rights. www.ccrjustice.org.

95. Lynn Langton and Matthew Durose, Police Behavior during Traffic and Street Stops,
2011 (Washington, DC: Department of Justice, 2013). http://www.bjs.gov/
content/pub/pdf/pbtss11.pdf.

96. Lorie A. Fridell, By the Numbers: A Guide for Analyzing Race Data from Vehicle Stops
(Washington, DC: Police Executive Research Forum, 2004).

97. L. D. Johnston, J. G. Bachman, and P. M. O’Malley, Monitoring the Future: Question-
naire Responses from the Nation’s High School Seniors, 2009 (Ann Arbor, MI: Institute
for Social Research, 2009), Question C27, p. 26.

98. National Highway Traffic Safety Administration Alcohol and Highway Safety, Spe-
cial Report on Race/Ethnicity and Impaired Driving (Washington, DC: Department of
Transportation, 2010), pp. 15, 16, 29. http://www.nhtsa.gov/About+NHTSA/
Traffic+Techs/current/Racial+And+Ethnic+Differences+In+Drinking+And+
Driving+Attitudes+And+Behaviors.

99. Epp, Maynard-Moody, and Haider-Markel, Pulled Over: How Police Stops Define Race
and Citizenship, p. 71

100. Ibid., pp. 7–8.

101. Ibid., pp. 66–67.

102. Ibid., p. 135.

103. Ibid., p. 2.

104. Police Executive Research Forum, Racially Biased Policing (Washington, DC: Police
Executive Research Forum, 2001), pp. 51–53.

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194 C H A P T E R 4

105. Skogan, “Citizen Satisfaction with Police Encounters.”

106. Lorie A. Fridell, By the Numbers: A Guide for Analyzing Race Data from Vehicle Stops
(Washington, DC: Police Executive Research Forum, 2004).

107. General Accounting Office, U.S. Customs Service: Better Targeting of Airline Passengers
for Personal Searches Could Produce Better Results, GAO/GGD-00-38 (March 2000).

108. Floyd et al., v. City of New York.

109. Terry v. Ohio, 392 U.S. 1 (1968).

110. New York Civil Liberties Union, Stop and Frisk 2011. NYCLU Briefing (New York:
NYCLU, 2012). www.nyclu.org. Additional details about the case are available at
www.ccrjustice.org.

111. Floyd et al., v. City of New York (2013).

112. Jerome Skolnick, Justice without Trial: Law Enforcement in a Democratic Society, 3rd ed.
(New York: Macmillan, 1994), pp. 44–47.

113. Epp, Maynard-Moody, and Haider-Markel, Pulled Over: How Police Stops Define Race
and Citizenship, p. 64.

114. Fair and Impartial Policing Project website: http://www.fairimpartialpolicing.com/.

115. Samuel Walker, Testimony, President’s Task Force on 21st Century Policing, Janu-
ary 6, 2015. President’s Task Force on 21st Century Policing, Final Report, Recom-
mendation 4.4.1, p. 45.

116. Douglas A. Smith, Nanette Graham, and Bonney Adams, “Minorities and the Police:
Attitudinal and Behavioral Questions,” in Race and Criminal Justice, Michael J. Lynch
and E. Britt Patterson, eds. (New York: Harrow & Heston, 1991), p. 31.

117. Reiss, The Police and the Public, p. 147.

118. Herman Goldstein, Police Corruption (Washington, DC: The Police Foundation, 1975).

119. Commission to Investigate Allegations of Police Corruption [Mollen Commission],
Commission Report.

120. Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics, online edition,
Table 2.21, 2008. http://www.albany.edu/sourcebook/pdf/t2212008.pdf.

121. Fred A. Klyman and Joanna Kruckenberg, “A National Survey of Police–Community
Relations Units,” Journal of Police Science and Administration 7 (March 1979), p. 74.

122. U.S. Department of Justice, Improving Police/Community Relations (Washington, DC:
Department of Justice, 1973).

123. Wesley G. Skogan and Susan M. Hartnett, Community Policing: Chicago Style (New
York: Oxford University Press, 1997), p. 217.

124. President’s Task Force on 21st Century Policing, Final Report. http://www.cops.
usdoj.gov/pdf/taskforce/taskforce_finalreport.pdf.

125. Human Rights Watch, Shielded from Justice: Police Brutality and Accountability in the
United States (New York: Human Rights Watch, 1998), pp. 63–65.

126. Samuel Walker, Police Accountability: The Role of Citizen Oversight (Belmont:
Wadsworth, 2001), pp. 119–145.

127. Police Foundation, Metropolitan Police Department, Biased Policing Project: Final Report
(Washington, DC: Police Foundation, 2004).

128. Christopher Commission, Report of the Independent Commission on the Los Angeles
Police Department (Los Angeles: Christopher Commission, 1991). The history of

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195J U S T I C E O N T H E S T R E E T ?

problems with police citizen complaint procedures is examined in Walker, Police
Accountability: The Role of Citizen Oversight, pp. 19-49.

129. New York City Civilian Complaint Review Board, 2014 Annual Report (New York
City: CCRB, 2015), Appendix A, CCRB Complaint Data 2014, Table 8. http://
www.nyc.gov/html/ccrb/downloads/pdf/2014-annual-report-stats-appendix.pdf.

130. Cecilia Menjivar and Cynthia L. Bejarano, “Latino Immigrants’ Perceptions of
Crime and Police Authorities in the United States: A Case Study from the Phoenix
Metropolitan Area,” Ethnic and Racial Studies 27 (January 2004), pp. 120–148.

131. Nik Theodore, Insecure Communities: Latino Perceptions of Police Involvement in Immigration
Enforcement (Chicago: University of Illinois at Chicago, 2013). https://www.policylink.
org/sites/default/files/INSECURE_COMMUNITIES_REPORT_FINAL.PDF.

132. William A. Westley, Violence and the Police: A Sociological Study of Law, Custom, and
Morality (Cambridge, MA: MIT Press, 1970).

133. Commission to Investigate Allegations of Police Corruption [Mollen Commission],
Commission Report, p. 53.

134. Samuel Walker, Carol Archbold, and Leigh Herbst, Mediating Citizen Complaints
Against Police Officers: A Guide for Police and Community Leaders (Washington, DC:
Department of Justice, 2002).

135. Denver Office of the Independent Monitor, 2014 Annual Report (Denver: Office of
the Independent Monitor, 2015), pp. 55–56. https://www.denvergov.org/content/
dam/denvergov/Portals/374/documents/2014_Annual_Report%20Final.pdf.

136. Walker, Archbold, and Herbst, Mediating Citizen Complaints against Police Officers: A
Guide for Police and Community Leaders.

137. The history of citizen oversight of the police is in Walker, Police Accountability: The
Role of Citizen Oversight, Ch. 2, pp. 19-49.

138. The website of the National Association for Citizen Oversight of the Police: www.
nacole.org.

139. Walker, Police Accountability: The Role of Citizen Oversight.

140. Walker, Police Accountability: The Role of Citizen Oversight, Ch. 5, pp. 119–145.

141. Police auditors and inspectors general are examined in Walker, Police Accountability.
The website of the New York City Inspector General for the police department is:
http://www.nyc.gov/html/doi/html/inspector/inspector-general.shtml.

142. David Alan Sklansky, “Not Your Father’s Police Department: Making Sense of the
New Demographics of Law Enforcement,” Journal of Criminal Law and Criminology
96 (Spring 2006), pp. 1209–1243.

143. National Advisory Commission on Civil Disorders, Report, p. 321.

144. “From Court Order to Reality: A Diverse Boston Police Force,” New York Times
(April 4, 2001), p. 1.

145. Bureau of Justice Statistics, Local Police Departments, 2013: Personnel, Policies, and Prac-
tices (Washington, DC: Department of Justice, 2015), Table 5. http://www.bjs.gov/
content/pub/pdf/lpd13ppp.pdf.

146. Commission on Accreditation for Law Enforcement Agencies, Standards for Law
Enforcement Agencies, 3rd ed., Standard 31–2 (Fairfax, VA: Author, 1994).

147. San Jose Independent Police Auditor, 2014 Annual Report, Appendix I, p. 116.
http://www.sanjoseca.gov/DocumentCenter/View/42029.

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196 C H A P T E R 4

148. New York City Civilian Complaint Review Board, 2014 Annual Report, Appendix
A, CCRB Complaint Data 2014, Tables 8, 9. http://www.nyc.gov/html/ccrb/
downloads/pdf/2014-annual-report-rev2layout.pdf.

149. Leigh Herbst and Samuel Walker, “Language Barriers in the Delivery of Police Ser-
vices: A Study of Police and Hispanic Interactions in a Midwestern City,” Journal of
Criminal Justice 29, no. 4 (2001), pp. 329–340.

150. Bureau of Justice Statistics, Local Police Departments, 2013, Table 5. Wakeling et al.,
Policing on American Indian Reservations: A Report to the National Institute of Justice.

151. New York City CCRB. http://www.nyc.gov/html/ccrb/downloads/pdf/2014-
annual-report-rev2layout.pdf.

152. Gunnar Myrdal, “Police and Other Public Contacts,” in An American Dilemma
(New York: Harper & Brothers, 1944). W. Marvin Dulaney, Black Police in America
(Bloomington, IN: Indiana University Press, 1996).

153. Reiss, The Police and the Public, p. 167.

154. Merrick J. Bobb Special Counsel, 9th Semiannual Report (Los Angeles: Los Angeles
County, 1998), pp. 59–61. http://www.parc.info.

155. “For Black Officers, Diversity Has Its Limits,” New York Times (April 2, 2001),
p. 1. “Alone, Undercover, and Black: Hazards of Mistaken Identity,” New York Times
(November 22, 1992), p. A1. New York State Task Force on Police-on-Police
Shootings, Reducing Inherent Danger: Report of the Task Force on Police-on-Police Shoot-
ings (Albany, June 2010).

156. James R. Lasley, James Larson, Chandrika Kelso, and Gregory Chris Brown, “Assess-
ing the Long-term Effects of Officer Race on Police Attitudes towards the Com-
munity: A Case for Representative Bureaucracy Theory,” Police Practice and Research
12 (December 2011): 474–491.

157. James J. Fyfe, “Who Shoots? A Look at Officer Race and Police Shooting,” Journal
of Police Science and Administration 9, no. 4 (1981), pp. 367–382.

158. Donald Black, “The Social Organization of Arrest.” Reiss, The Police and the Public,
pp. 147–155.

159. Peter Bloch and Deborah Anderson, Policewomen on Patrol: Final Report
(Washington, DC: The Police Foundation, 1974).

160. San Jose Independent Police Auditor, 2014 Year End Report (San Jose, CA: IPA,
2015), Appendix I, Table 1, p. 116. http://www.sanjoseca.gov/DocumentCenter/
View/42029. New York City Civilian Complaint Review Board, 2014 Annual Report,
Statistical Appendices, Appendix A, CCRB Complaint Data 2014, Table 9. http://www.
nyc.gov/html/ccrb/downloads/pdf/2014-annual-report-rev2layout.pdf.

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197

5

THE COURTS:

A Quest for Justice during

the Pretrial Process

[I]t is clear to me that if America ever is to eradicate racism,
lawyers will have to lead. We must cleanse the justice system,

because until the justice system is truly colorblind, we cannot have
any genuine hope for the elimination of bias in the other segments

of American life.
PHILIP S. ANDERSON,

PRESIDENT, AMERICAN BAR ASSOCIATION1

L E A R N I N G O B J E C T I V E S

In this chapter and in Chapter 6, we discuss the treatment of racial minori-
ties in court. The focus in this chapter is on pretrial decision making. Our
goal is to determine whether people of color are more likely than whites to
be tried without adequate counsel to represent them or to be denied bail or
detained in jail prior to trial. In addition, we review research on prosecutors’
charging and plea bargaining decisions for evidence of differential treatment
of racial minorities and whites. We argue that recent reforms adopted vol-
untarily by the states or mandated by court decisions have reduced, but not
eliminated, racial discrimination in the pretrial process.

After you have read this chapter:

1. You will be able to explain the concept of “double jeopardy” as it
applies to racial minorities who appear in court as criminal defendants.

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198 C H A P T E R 5

2. You will be able to discuss the right to counsel and explain how the U.S.
Supreme Court has interpreted the right.

3. You will be able to evaluate arguments regarding the quality of legal
representation provided to indigent defendants.

4. You will be able to assess whether affirmative action has helped or hurt
African-American law students.

5. You will be able to explain how decisions regarding bail and charging
are affected by race/ethnicity and how these decisions, in turn, influence
sentence severity.

6. You will be able to evaluate arguments regarding selective prosecution of
African-American pregnant women who abuse drugs.

A F R I C A N A M E R I C A N S I N C O U R T:

T H E C A S E O F T H E S C O T T S B O R O B OY S

In March 1931, nine African-American teenage boys were accused of raping two
white girls on a slow-moving freight train traveling through Alabama. They were
arrested and taken to Scottsboro, Alabama, where they were indicted for rape, a
capital offense. One week later, the first case was called for trial. When the defen-
dant appeared without counsel, the judge hearing the case simply appointed all
members of the local bar to represent him and his codefendants. An out-of-state
lawyer also volunteered to assist in the defendants’ defense, but the judge ap-
pointed no counsel of record.

The nine defendants were tried and convicted, and eight were sentenced to
death. They appealed their convictions, arguing that their right to counsel had
been denied. In 1932, the U.S. Supreme Court issued its ruling in the case of
Powell v. Alabama,2 one of the most famous Supreme Court cases in U.S. history.
The Court reversed the defendants’ convictions and ruled that due process of law
required the appointment of counsel for young, inexperienced, illiterate, and in-
digent defendants in capital cases.

The Supreme Court’s ruling in Powell provided the so-called Scottsboro Boys
with only a short reprieve. They were quickly retried, reconvicted, and resen-
tenced to death, despite the fact that one of the alleged victims had recanted and
questions were raised about the credibility of the other victim’s testimony. Once
again, the defendants appealed their convictions, this time contending that their
right to a fair trial by an impartial jury had been denied. All of the defendants had
been tried by all-white juries. They argued that the jury selection procedures used
in Alabama were racially biased. Although African Americans who were registered
to vote were eligible for jury service, they were excluded in practice because state
officials refused to place their names on the lists from which jurors were chosen.
In 1935, the Supreme Court, noting that the exclusion of all African Americans
from jury service deprived African-American defendants of their right to the
equal protection of the laws guaranteed by the Fourteenth Amendment, again
reversed the convictions.3

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199T H E C O U R T S

The Supreme Court’s decision was harshly criticized in the South. The
Charleston News and Courier, for example, stated that racially mixed juries were
“out of the question” and asserted that the Court’s decision “can and will be
evaded.”4 Southern sentiment also strongly favored yet another round of trials.
Thomas Knight, Jr., the attorney who prosecuted the Scottsboro cases the second
time, noted that “approximately ninety jurors have been found saying the defen-
dants were guilty of the offense with which they are charged and for which the
penalty is death.” Knight reported that he had been “retained by the State to pros-
ecute the cases and [would] prosecute the same to their conclusion.”5

Less than eight months after the Supreme Court’s decision, a grand jury
composed of 13 whites and 1 African American returned new indictments against
the 9 defendants. Haywood Patterson, the first defendant to be retried, again
faced an all-white jury. Although there were 12 African Americans among the
100 potential jurors, 7 of the 12 asked to be excused and the prosecutor used
his peremptory challenges to remove the remaining 5 African Americans. In his
closing argument, the prosecutor also implied that an acquittal would force the
women of Alabama “to buckle six-shooters about their middles” in order to pro-
tect their “sacred secret parts.” He pleaded with the jurors to “get it done quick
and protect the fair womanhood of this great State.”6

Patterson was convicted and sentenced to 75 years in prison. The sentence,
although harsh, represented “a victory of sorts.”7 As the Birmingham Age-Herald
noted, the decision “represents probably the first time in the history of the South
that a Negro has been convicted of a charge of rape upon a white woman and has
been given less than a death sentence.”8

Three of the remaining eight defendants were tried and convicted in July
1937. One of the three, Clarence Norris, was sentenced to death; the other two
received prison sentences of 75 and 99 years. Shortly thereafter, Ozie Powell pled
guilty to assaulting an officer after the state agreed to dismiss the rape charge. That
same day, in an unexpected and controversial move, the state dropped all charges
against the remaining four defendants. In a prepared statement, Attorney General
Thomas Lawson asserted that the state was “convinced beyond any question of
doubt . . . that the defendants that have been tried are guilty.” However, “after
careful consideration of all the testimony, every lawyer connected with the pros-
ecution is convinced that the defendants Willie Roberson and Olen Montgom-
ery are not guilty.” Regarding the remaining two defendants, who were 12 and
13 years old when the crime occurred, Dawson stated that “the ends of justice
would be met at this time by releasing these two juveniles on condition that they
leave the State, never to return.”9

The state’s decision to drop charges against four of the nine defendants led
editorial writers for newspapers throughout the United States to call for the im-
mediate release of the defendants who previously had been convicted. The Rich-
mond Times-Dispatch stated that the state’s action “serves as a virtual clincher to
the argument that all nine of the Negroes are innocent,” and the New York Times
called on the state to “do more complete justice later on.”10

Charles Norris’s death sentence was commuted to life imprisonment in 1938,
but the Alabama Pardon and Parole Board repeatedly denied the five defendants’

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200 C H A P T E R 5

requests for parole. One of the defendants finally was granted parole in 1943, and
by 1950 all of them had gained their freedom. Collectively, the nine Scottsboro
Boys served 104 years in prison for a crime that many believe was “almost cer-
tainly, a hoax.”11

T H E S I T U AT I O N T O D AY

The infamous Scottsboro case illustrates overt discrimination directed against
African-American criminal defendants. However, those events took place in the
1930s and 1940s, and much has changed since then. Legislative reforms and Su-
preme Court decisions protecting the rights of criminal defendants, coupled with
changes in attitudes, have made it less likely that criminal justice officials will treat
defendants of different races differently. Racial minorities are no longer routinely
denied bail and then tried by all-white juries without attorneys to assist them
in their defense. They are no longer brought into court in chains and shack-
les. They are no longer referred to by prosecutors in demeaning and pejorative
terms. They no longer receive “justice” at the hands of white lynch mobs.

Despite these reforms, inequities persist. Racial minorities, and particularly
those suspected of crimes against whites, remain the victims of unequal justice. In
1983, for example, Lenell Geter, an African-American man, was charged with the
armed robbery of a Kentucky Fried Chicken restaurant in Balch Springs, Texas.
Despite the absence of any physical evidence to connect him to the crime and
despite the prosecution’s failure to establish his motive for the crime, Geter was
convicted by an all-white jury and sentenced to life in prison.

Geter’s conviction was particularly surprising given the fact that he had an
ironclad alibi. Nine of his coworkers, all of whom were white, testified that Geter
was at work on the day of the crime. His supervisor testified that there was no
way Geter could have made the 50-mile trip from work to the site of the crime
by 3:20 P.M., the time the robbery occurred. According to one coworker, “Unless
old Captain Kirk dematerialized him and beamed him over there, he couldn’t
have made it back by then. He was here at work. There’s no question in my
mind—none at all.”12

Prosecutors in the county where Geter was tried denied that race played a
role in Geter’s conviction. As one of them put it, “To say this is a conviction based
on race is as far out in left field as you can get.”13 Geter’s coworkers disagreed;
they argued that Geter and his codefendant (who also was African American)
would not have been charged or convicted if they had been white.

Events that occurred following the trial suggest that Geter’s coworkers were
right. Another man arrested for a series of armed robberies eventually was linked
to the robbery of the Kentucky Fried Chicken restaurant. Geter’s conviction and
sentence were overturned after the employees who originally identified Geter
picked this suspect out of a lineup. Geter served more than a year in prison for a
crime he did not commit.

Like Lenell Geter, James Newsome, an African American sentenced to life in
prison for the armed robbery and murder of a white man, also had an alibi. At his

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201T H E C O U R T S

trial for the 1979 murder of Mickey Cohen, the owner of Mickey’s Grocery
Store in Chicago, Newsome’s girlfriend and her two sisters testified that he was
with them at the time of the murder. The prosecutor trying the case argued that
Newsome’s girlfriend, who was a convicted burglar, was not a credible witness.
He also introduced the testimony of three eyewitnesses who identified Newsome
as Cohen’s killer.14

Despite the fact that there was no physical evidence linking Newsome to the
crime, and despite the fact that Newsome’s fingerprints were not found on the
items in the store handled by the killer, the jury hearing the case found Newsome
guilty. Although Cook County prosecutors had sought the death penalty, the jury
recommended life in prison.

Newsome, who steadfastly maintained his innocence, spent the next 15 years
appealing his conviction. With the help of Norval Morris, a University of Chi-
cago Law School professor, and two noted Chicago defense attorneys, Newsome
was able to convince the Cook County Circuit Court to order that the finger-
prints obtained from the crime scene be run through the police department’s
computerized fingerprint database to see if they matched any of those on file. The
tests revealed that the fingerprints matched those of Dennis Emerson, a 45-year-
old Illinois death row inmate who, at the time of Cohen’s murder, was out on
parole after serving three years for armed robbery.

Two weeks later, Newsome was released from prison. Shortly thereafter,
Illinois governor Jim Edgar pardoned Newsome and ordered his criminal re-
cord expunged. Following his release, James Newsome, who spent 15 years in
prison for a crime he did not commit, said, “I finally felt vindicated. I had de-
feated a criminal-justice giant. Fifteen years ago, they told me that I would never
walk the streets again in my life. What did I do? I slayed a giant—a criminal jus-
tice giant.”15

Like Geter, Newsome contended that race played a role in his arrest and
conviction. “In the most [racially] polarized city in the world,” Newsome stated,
“racism was a factor. I was a suspect and I was convenient.”16

Race also played a role in the case of Clarence Brandley, an African Ameri-
can who in 1981 was sentenced to death for the rape and murder of Cheryl Dee
Ferguson, a white student at a high school north of Houston where Brandley
worked as a janitor. Brandley and a coworker found the body and were the initial
suspects in the case. Brandley’s coworker, who was white, reported that during
their interrogation one of the police officers stated, “One of you two is going
to hang for this.” Then he turned to Brandley and said, “Since you’re the nigger,
you’re elected.”17 The police investigating the case claimed that three hairs found
on the victim implicated Brandley. Although the hairs were never forensically
tested, the police claimed that they were identical “in all observable characteris-
tics” to Brandley’s.

Brandley was indicted by an all-white grand jury and tried before an all-
white jury, which hung 11-to-1 in favor of conviction. He was retried by a sec-
ond all-white jury after the district attorney trying the case used his peremptory
challenges to strike all of the prospective African-American jurors. During his
closing argument, the district attorney referred to Brandley as a “necrophiliac”

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202 C H A P T E R 5

and a “depraved sex maniac.” This time, the jurors found Brandley guilty and rec-
ommended a death sentence, which the judge imposed.

Brandley spent six years on death row before a Texas district court, citing
misconduct on the part of police and prosecutors, threw out his conviction. The
judge, who noted that there was strong evidence that the crime was committed
by two white men, stated that “the color of Clarence Brandley’s skin was a sub-
stantial factor which pervaded all aspects of the State’s capital prosecution against
him, and was an impermissible factor which significantly influenced the investiga-
tion, trial and post-trial proceedings of [Brandley’s] case.”18

In 2014, Ricky Jackson, an African-American man who had been impris-
oned for 39 years for murder, was exonerated after the only witness to the case
recanted his testimony. Jackson, who was 18 years old at the time, and two other
teenagers were convicted of murdering a money-order collector in Cleveland
after a 12-year-old boy testified that he saw them commit the crime. Nearly four
decades later, the witness admitted that the police had fed him details about the
crime and coached him regarding how to testify; they also threatened to imprison
his parents if he failed to cooperate. There were no other witnesses and no evi-
dence connecting any of the three teens to the crime. In 2015, the Ohio Court of
Claims awarded Jackson $2 million for his wrongful imprisonment.

These four recent cases, of course, do not prove that there is a pattern of sys-
tematic discrimination directed against racial minorities in courts throughout the
United States. One might argue, in fact, that these four cases are simply excep-
tions to the general rule of impartiality. As we explained in Chapter 1, the validity
of the discrimination thesis rests not on anecdotal evidence that racial minorities
are treated differently than whites but on the results of empirical studies of crim-
inal justice decision making.

D E C I S I O N S R E G A R D I N G C O U N S E L A N D B A I L

As we explained in Chapter 3, racial minorities are at a disadvantage in court both
because of their race and because they are more likely than whites to be poor.
This “double jeopardy” makes it more difficult for minority defendants to obtain
competent attorneys or secure release from jail prior to trial. This, in turn, hinders
their defense and may increase the odds that they will be convicted and sentenced
harshly. Given these consequences, decisions regarding provision of counsel and
bail obviously are important.

Racial Minorities and the Right to Counsel

The Sixth Amendment to the U.S. Constitution states, “In all criminal prosecu-
tions, the accused shall enjoy the right to have the assistance of counsel for his
defense.” Historically, this meant simply that if someone had an attorney, he could
bring the attorney along to defend him. The problem, of course, was that this was
of no help to the majority of defendants, and particularly minority defendants,
who were too poor to hire their own attorneys.

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203T H E C O U R T S

The U.S. Supreme Court, recognizing that defendants could not obtain fair
trials without the assistance of counsel, began to interpret the Sixth Amendment
to require the appointment of counsel for indigent defendants. The process be-
gan in 1932, when the Court ruled in Powell v. Alabama19 that states must pro-
vide attorneys for indigent defendants charged with capital crimes (see the earlier
discussion of the Scottsboro case). The Court’s decision in a 1938 case, Johnson
v. Zerbst,20 required the appointment of counsel for all indigent defendants in
federal criminal cases, but the requirement was not extended to the states until
Gideon v. Wainwright21 was decided in 1963. In that 1963 decision, Justice Black’s
majority opinion stated:

[R]eason and reflection require us to recognize that in our adversary
system of criminal justice, any person haled into court, who is too poor
to hire a lawyer, cannot be assured a fair trial unless counsel is provided
for him . . . . The right of one charged with crime to counsel may not be
deemed fundamental and essential to fair trials in some countries, but it
is in ours.

(See “The Importance of a Lawyer in a Criminal Case” for further evidence
of this.)

The Importance of a Lawyer in a Criminal Case

Even the intelligent and educated layman has small and sometimes no
skill in the science of law. If charged with crime, he is incapable, gen-
erally, of determining for himself whether the indictment is good or
bad. He is unfamiliar with the rules of evidence. Left without the aid of
counsel he may be put on trial without a proper charge, and convicted
upon incompetent evidence, or evidence irrelevant to the issue or oth-
erwise inadmissible. He lacks both the skill and knowledge adequately
to prepare his defense, even though he have a perfect one. He requires
the guiding hand of counsel at every step in the proceedings against him.
Without it, though he be not guilty, he faces the danger of conviction
because he does not know how to establish his innocence.

– POWELL V. ALABAMA, 287 U.S., 45, PP. 68–69 (1932).

In subsequent decisions, the Court ruled that “no person may be imprisoned,
for any offense, whether classified as petty, misdemeanor, or felony, unless he is
represented by counsel,”22 and that the right to counsel is not limited to trial but
applies to all “critical stages” in the criminal justice process.23 As a result of these
rulings, most defendants must be provided with counsel from arrest and interro-
gation through sentencing and the appellate process. As illustrated in Box 5.1, the
Supreme Court also has ruled that defendants are entitled to effective assistance of
counsel.24

At the time the Gideon decision was handed down, 13 states had no statewide
requirement for appointment of counsel except in capital cases.25 Other states re-
lied on members of local bar associations to defend indigents, often on a pro bono

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204 C H A P T E R 5

basis. Following Gideon, it became obvious that other procedures would be re-
quired if all felony defendants were to be provided attorneys.

States moved quickly to implement the constitutional requirement articu-
lated in Gideon, either by establishing public defender systems or by appropriating
money for court-appointed attorneys. The number of public defender systems
grew rapidly. In 1951, there were only seven public defender organizations in the
United States; in 1964, there were 136; by 1973, the total had increased to 573.26

According to a 2010 Bureau of Justice Statistics report, in 2007 there were 957
public defender offices across the nation; they received more than 5.5 million

In the News: The New Orleans
Public Defenders’ Office Is Sued

for Refusing New Cases.
In January 2016, the American Civil Liberties Union (ACLU) filed a class-action lawsuit
against the Orleans Parish (New Orleans) public defenders’ office, and the Louisiana
Public Defender Board after the public defenders’ office said that it would no longer
take certain felony cases where defendants were facing long prison sentences. This
move followed a November 2015 request from the public defenders’ office that the
office not be assigned new cases until its resources were increased and its workload
reduced. According to Brandon Buskey, a staff attorney with the ACLU’s Criminal
Law Reform Project, the lack of legal representation for indigent defendants in
New Orleans violates defendants’ Sixth Amendment rights, adding that “so long as
you’re on the public defender waiting list in New Orleans, you’re helpless. Your legal
defense erodes along with your constitutional rights.”

Derwyn Bunton, chief of the Orleans Parish Public Defenders’ Office, testified at
the November hearing that cuts to his budget, and staff attrition had made it impos-
sible for his office to perform its work and meet the standards imposed by the U.S.
Constitution and the Louisiana Rules of Professional Conduct. Bunton also pointed
out that his budget was about half of that of the district attorney’s and that the DA’s
Office had more than 80 attorneys and 30 investigators helping prepare cases, com-
pared to the 53 attorneys and 8 investigators in his office.

Ellen Yaroshefsky, a legal ethics professor at New York’s Cardozo School of Law,
agreed with Bunton’s analysis. Noting that attorneys in the office were handling
caseloads that were two to three times heavier than that recommended by national
standards, she stated that she was “very troubled by the situation this public defend-
ers’ office is in. To call this a ‘justice system’ is really a misnomer . . . I believe that this
entire office is operating as a conflict of interest. The lawyers here are compromising
some clients in order to represent others. They make a decision to triage, and triage
is a conflict of interest.” Yaroshefsky also stated that she agreed with Bunton’s deci-
sion to not take any new cases. Otherwise, she said, the courthouse would become
nothing more than “a plea mill,” where defendants’ only option is to enter a guilty
plea “without even the most basic level of investigation and counsel” by the public
defenders’ office.

SOURCE: Ken Daley, “Orleans Public Defenders’ Bombshell: No New Cases for Us, Please.” The Times-
Picayune, November 20, 2015. For information about the history and development of the New Orleans Public
Defenders’ Office, see Albert Samaha, “Indefensible: The Story of the New Orleans’ Public Defenders.” BuzzFeed,
August 13, 2105. http://www.buzzfeed.com/albertsamaha/indefensible-new-orleans-public-defenders-office#.
ewdG7xBbR.

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205T H E C O U R T S

B o x 5.1 The Supreme Court and “Effective” Assistance of Counsel

In 1984, the Supreme Court articulated constitutional standards for determining
whether a defendant had ineffective assistance of counsel. The Court ruled, in the
case of Strickland v. Washington (466 U.S. 668 [1984], at 687), that to establish inef-
fectiveness, a defendant must prove:

■ First, “that counsel’s performance was deficient. This requires showing that
counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.”

■ Second, “that the deficient performance prejudiced the defense. This requires
showing that counsel’s errors were so serious as to deprive the defendant of a
fair trial, a trial whose result is reliance.”

The so-called Strickland test thus consists of both a performance prong and a prej-
udice prong. The Court also stated that to establish ineffective performance, a “de-
fendant must show that counsel’s representation fell below an objective standard
of reasonableness.” To establish prejudice, he or she “must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.”

The Court revisited this issue in 2000, ruling that Terry Williams had been de-
nied effective assistance of counsel (Williams v. Taylor 529 U.S. 420 [2000]). Williams
was convicted of robbery and murder and sentenced to death after a Virginia jury
concluded that he had a high probability of future dangerousness.

At the sentencing hearing, Williams’s lawyer failed to introduce evidence that
Williams was borderline mentally retarded and did not advance beyond sixth grade.
He also failed to introduce the testimony of prison officials, who described Williams
as among the inmates “least likely to act in a violent, dangerous, or provocative
way.” Instead Williams’s lawyer spent most of his time explaining that he realized it
would be difficult for the jury to find a reason to spare Williams’s life. His comments
included the following: “I will admit too that it is very difficult to ask you to show
mercy to a man who maybe has not shown much mercy himself . . . . Admittedly, it is
very difficult to . . . ask that you give this man mercy when he has shown so little of
it himself. But I would ask that you would.”

The Supreme Court ruled that Williams’s right to effective assistance of counsel
had been violated. According to the Court, “There was a reasonable probability that
the result of the sentencing proceeding would have been different if competent
counsel had presented and explained the significance of all the available evidence.”

The rulings discussed above establish that defendants are entitled to effective
assistance of counsel at trial. Two recent Supreme Court cases make it clear that the
right extends to plea negotiations as well. In one case, Missouri v. Frye (132 S. Ct.
1399, 2012), the defense attorney failed to make the defendant aware of a plea
offer from the prosecutor and the defendant subsequently pled guilty not know-
ing that the prosecutor had offered to reduce the seriousness of the charge. In the
second case, Lafler v. Cooper (132 S. Ct. 1376, 2012), the defense attorney advised
the defendant, who was charged with assault with intent to murder, to reject a plea
offer that would have resulted in a sentence of 52–85 months in prison because, in
his view, the prosecutor would be unable to prove intent to murder given that Lafler
had shot the victim below the waist. The defendant went to trial, was convicted, and
was sentenced to 185–360 months in prison. In both cases, the Supreme Court ruled
5-4 that the defendants had not been provided effective assistance of counsel. Given
that 90–95 percent of all criminal convictions result from guilty pleas, these decisions
clearly have consequences for criminal defendants.

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206 C H A P T E R 5

indigent cases, employed more than 15,000 full-time attorneys, and their expen-
ditures exceeded $2.3 billion.27 A survey of inmates incarcerated in state and fed-
eral prisons in 1997 revealed that about 73 percent of the state inmates and 60
percent of the federal inmates were represented by a public defender or assigned
counsel. This survey also revealed that African Americans and Hispanics were
more likely than whites to be represented by a public defender or assigned coun-
sel. Among state prison inmates, for example, 77 percent of the African Ameri-
cans, 73 percent of the Hispanics, and 69 percent of the whites reported that they
were represented by a publicly funded attorney.28 (See “In the News: The New
Orleans Public Defenders Office Is Sued for Refusing New Cases.”)

Quality of Legal Representation As a result of Supreme Court decisions ex-
panding the right to counsel and the development of federal and state policies
implementing these decisions, African Americans and other racial minorities are
no longer routinely denied legal representation at trial or at any of the other crit-
ical stages in the process. Questions have been raised, however, about the quality
of legal representation provided to indigent defendants by public defenders. An
article in the Harvard Law Review, for example, claimed:

Nearly four decades after Gideon, the states have largely, and often out-
rageously, failed to meet the Court’s constitutional command. The wide-
spread, lingering deficiencies in the quality of indigent counsel have led
some to wonder whether this right, so fundamental to a fair and accurate
adversarial criminal process, is unenforceable.29

A 2003 report on Mississippi’s indigent defense system reached a similar con-
clusion. The authors of the report, who noted that the system was “among the
most poorly funded in the nation,” concluded that “in Mississippi justice is avail-
able only to those with the means to pay for it. And sadly, our country’s shameful
history of racial discrimination is still readily apparent in the low quality represen-
tation provided to the State’s poor, predominately black defendants.”30

There is evidence suggesting that defendants share this view. In fact, one of
the most oft-quoted statements about public defenders is the answer given by an
unidentified prisoner in a Connecticut jail to the question of whether he had
a lawyer when he went to court. “No,” he replied, “I had a public defender.”31

David Neubauer similarly notes that in prison “‘PD’ stands not for ‘public de-
fender’ but for ‘prison deliverer.’”32 Some social scientists echo this negative as-
sessment, charging that public defenders, as part of the courtroom workgroup,
are more concerned with securing guilty pleas as efficiently and as expeditiously
as possible than with aggressively defending their clients.33 As Ronald Weitzer34

notes (and as the examples in Box 5.2 confirm), “In many jurisdictions, public
defenders and state-appointed attorneys are grossly underpaid, poorly trained, or
simply lack the resources and time to prepare for a case—a pattern documented
in cases ranging from the most minor to the most consequential, capital crimes.”

Other social scientists disagree. Citing studies showing that criminal de-
fendants represented by public defenders do not fare worse than those repre-
sented by private attorneys,35 these researchers suggest that critics “have tended to

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207T H E C O U R T S

B o x 5.2 Are Indigent Capital Defendants Represented by Incompetent
Attorneys?

In “Judges and the Politics of Death,” Stephen Bright and Patrick Keenan claimed,
“Judges often fail to enforce the most fundamental protection of an accused, the
Sixth Amendment right to counsel, by assigning an inexperienced or incompetent
lawyer to represent the accused.” In support of their assertion, they offered the fol-
lowing examples:

■ A capital defendant who was represented by a lawyer who had passed the bar
exam only six months earlier, had not taken any classes in criminal law or crimi-
nal procedure, and had never tried a jury or a felony trial.

■ An attorney who described his client as “a little old nigger boy” during the
penalty phase of the trial.

■ A judge in Harris County, Texas, who responded to a capital defendant’s com-
plaints about his attorney sleeping during the trial with the assertion that
“the Constitution doesn’t say the lawyer has to be awake.”

■ A Florida attorney who stated during the penalty phase of a capital case,
“Judge, I’m at a loss. I really don’t know what to do in this type of proceed-
ing. If I’d been through one, I would, but I’ve never handled one except
this time.”

■ A study of capital cases in Philadelphia that found that “even officials in charge
of the system say they wouldn’t want to be represented in Traffic Court by some
of the people appointed to defend poor people accused of murder.”

SOURCE: Stephen Bright and Patrick Keenan 1995, 800.

underestimate the quality of defense provided by the public defender.”36 Paul B.
Wice, in fact, concluded that the public defender is able to establish a working re-
lationship with prosecutors and judges “in which the exchange of favors, so nec-
essary to greasing the squeaky wheel of justice, can directly benefit the indigent
defendant.”37 As part of the courtroom workgroup, in other words, public de-
fenders are in a better position than private attorneys to negotiate favorable plea
bargains and thus to mitigate punishment. A 2008 survey of 666 federal and state
judges confirmed these perceptions, at least with respect to public defenders who
represent criminal defendants in the federal court system.38 This study found that
although both federal and state judges believed that there were significant differ-
ences in the quality of legal representation in criminal cases, federal judges did
not believe that these differences were due to the type of attorney; in fact, federal
judges rated public defenders as comparable to prosecutors and as significantly
more competent than court-appointed attorneys or privately retained counsel. In
contrast, state court judges gave somewhat higher ratings to private attorneys than
to either public defenders or court-appointed counsel.

The results of studies investigating case outcomes for defendants represented
by different types of attorneys are inconclusive. For example, a 2000 report by
the Bureau of Justice Statistics (BJS) revealed that case outcomes for state and
federal defendants represented by public attorneys do not differ dramatically from

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208 C H A P T E R 5

those represented by private counsel.39 There were only very slight differences
in the conviction rates of defendants represented by public and private attor-
neys but somewhat larger differences in the incarceration rates. At the federal
level, 87.6 percent of the defendants represented by public attorneys were sen-
tenced to prison, compared with 76.5 percent of the defendants with private
attorneys. The authors of the report attributed this to the fact that public coun-
sel represented a higher percentage of violent, drug, and public-order offenders,
whereas private attorneys represented a higher percentage of white-collar de-
fendants. Felony defendants in state courts also faced lower odds of incarceration
if they were represented by private attorneys (53.9 percent) rather than public
defenders (71.3 percent). In both state and federal court, on the other hand, de-
fendants  represented by private attorneys got somewhat longer sentences than
those represented by public defenders. At the federal level, the mean sentences
were 58 months (public attorneys) and 62 months (private attorneys); at the
state level, they were 31.2 months (public attorneys) and 38.3 months (private
attorneys).40

A more nuanced and methodologically sophisticated study of the effect
of type of counsel on outcomes in murder cases found very different results.41

Anderson and Heaton used data on more than 3,000 defendants charged with
murder between 1994 and 2005 in Philadelphia. In this jurisdiction, one in every
five indigent murder defendants is randomly assigned representation by a non-
profit public defender organization, the Defender Association of Philadelphia;
the remaining defendants are assigned to attorneys in private practice who are
appointed by a judge and paid by the county. The authors of the study found
that although the likelihood of conviction was not affected by the type of attor-
ney, there were large and statistically significant differences on a number of out-
comes examined. Defendants represented by public defenders were less likely to
be convicted of murder and less likely to receive a life sentence; they also received
sentences that were significantly shorter than those imposed on defendants repre-
sented by assigned attorneys. In Philadelphia, in other words, murder defendants
represented by public defenders fared better than those represented by private
attorneys.

Interviews with criminal justice officials in Philadelphia revealed that these
differences may reflect the fact that appointed counsel receive minimal compen-
sation and thus have few if any incentives to mount a vigorous defense, as well
as the fact that, compared to public defenders, appointed attorneys operate in
relative isolation. As the authors noted, “We believe that these systemic factors
cause appointed counsel generally to spend less time with defendants and in-
vestigate and prepare cases less thoroughly.”42 The fact that the type of attorney
to which the case was assigned had an impact on the outcome of the case obvi-
ously is troubling. According to the authors, “Perhaps the most disturbing aspect
of our analysis is the fact that we identify a factor—whether or not a defendant
is initially assigned to the public defender—that has an important impact on case
outcomes but that is completely unrelated to the culpability or conduct of the
defendant.”43

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209T H E C O U R T S

What Makes a Good Lawyer? What makes a good lawyer? Is it the training
that he/she receives? The ranking of the law school that he/she attended? His/
her years of experience, gender, race, or other demographic characteristics?

A study published in The University of Chicago Law Review attempted to an-
swer this question using data on felony cases prosecuted by the public defender’s
office in Clark County, Nevada (Las Vegas is the largest city in the county) be-
tween 2003 and 2005.44

In this jurisdiction, felony cases are randomly assigned to public defenders;
thus, there should be no differences in the characteristics of cases assigned to at-
torneys, and differences in case outcomes can therefore be attributed, not to the
characteristics of the case but to the background and experience of the attorney
to whom the case is assigned.

The authors of the study found that the likelihood of incarceration and the
length of the sentence were affected by the attorney’s experience; attorneys who
had served longer in the public defender’s office got more favorable outcomes
for their clients. Neither outcome was affected by the ranking of the law school
that the attorney attended or by the attorney’s gender, and the likelihood of in-
carceration did not vary based on the race of the attorney. In contrast, Hispanic
public defenders obtained significantly shorter sentences for their clients than ei-
ther white or African-American public defenders. These results led the authors to
conclude that “drawing a good attorney in the random assignment process can
save a defendant several months of incarceration, on average . . . [and] a veteran
PD could reduce the likelihood of incarceration by as much as a fourth” (p. 1176).

Race, Type of Counsel, and Case Outcome The data presented thus far
do not address the question of racial discrimination in the provision of coun-
sel. Although it is true that African-American and Hispanic defendants are more
likely than white defendants to be represented by public defenders, it does not
necessarily follow from this that racial minorities will be treated more harshly
than whites as their cases move through the criminal justice system. As we have
noted, studies have not consistently shown that defendants represented by public
defenders fare worse than defendants represented by private attorneys.

Most studies have not directly compared the treatment of African- American,
Hispanic, and white defendants represented by public defenders and private at-
torneys. It is possible that racial minorities represented by public defenders re-
ceive more punitive sentences than whites represented by public defenders or that
whites who hire their own attorneys receive more lenient sentences than racial
minorities who hire their own attorneys. To put it another way, it is possible that
hiring an attorney provides more benefits to whites than to racial minorities, and
representation by a public defender has more negative consequences for racial
minorities than for whites.

Malcolm D. Holmes, Harmon M. Hosch, Howard C. Daudistel, Dolores
A. Perez, and Joseph B. Graves found evidence supporting these possibilities in
one of the two Texas counties where they explored the interrelationships among
race/ethnicity, legal resources, and case outcomes.45 The authors of this study

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210 C H A P T E R 5

found that in Bexar County (San Antonio) both African-American and Hispanic
defendants were significantly less likely than white defendants to be represented
by a private attorney, even after such things as the seriousness of the crime, the
defendant’s prior criminal record, and the defendant’s gender, age, and employ-
ment status were taken into account. The authors also found that defendants who
retained a private attorney were more likely to be released prior to trial and re-
ceived more lenient sentences than those represented by a public defender.46 In
this particular jurisdiction, then, African-American and Hispanic defendants were
less likely than whites to be represented by a private attorney, and as a result, they
received more punitive treatment than whites.

An examination of the sentences imposed on defendants convicted of fel-
onies in three large urban jurisdictions in 1993 and 1994 produced somewhat
different results. Cassia Spohn and Miriam DeLone47 compared the proportions
of white, African-American, and Hispanic defendants who were represented by
a private attorney in Chicago, Miami, and Kansas City. As shown in Table 5.1, in
all three jurisdictions, whites were substantially more likely than African Amer-
icans to have private attorneys. In Chicago, 22.5 percent of white defendants,
but only 6.9 percent of African-American defendants, had a private attorney. In
Miami, Hispanics also were less likely than whites to be represented by a private
attorney.

Although the data presented in Table 5.1 reveal that smaller proportions
of racial minorities than whites had access to the services of a private attorney,
they do not provide evidence of differential treatment based on either type
of attorney or race/ethnicity. In fact, when Spohn and DeLone examined the
sentences imposed on racial minorities and whites in each jurisdiction, they
found an interesting pattern of results. As shown in Figure 5.1, in Chicago and
Kansas City only whites benefited from having a private attorney. Among Af-
rican Americans, the incarceration rates for defendants represented by private
attorneys were only slightly lower than the rates for defendants represented by
public defenders; among Hispanics in Chicago, the rate for defendants with
private attorneys was actually somewhat higher than the rate for those with
public defenders. In Miami, both whites and African Americans benefited from
representation by private counsel, but Hispanics with private attorneys were

T A B L E 5.1 Race/Ethnicity and Type of Attorney in
Chicago, Miami, and Kansas City

Percentage Represented by a Private Attorney

Race of Defendant Chicago Miami Kansas City

White 22.5 34.5 37.8

African American 6.9 23.4 24.8

Hispanic 21.2 27.3 NAa

aThere were only 47 Hispanic defendants in Kansas City.

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211T H E C O U R T S

sentenced to prison at a slightly higher rate than Hispanics represented by the
public defender.

The incarceration rates displayed in Figure 5.1 do not take into account dif-
ferences in the types of cases handled by private attorneys and public defenders.
It is certainly possible that the incarceration rates for defendants represented by
private attorneys generally are lower than the rates for defendants represented
by public defenders, not because private attorneys are more experienced, more
competent, and more zealous but because the types of cases they handle are less
serious or because the defendants they represent have less serious prior crimi-
nal records. If private attorneys, in other words, usually represent first offenders
charged with relatively minor crimes and public defenders represent recidivists
as well as first offenders and violent offenders as well as nonviolent offenders, we
would expect the sentences imposed on defendants with private attorneys to be
less severe than those imposed on defendants with public defenders, irrespective
of the quality of representation provided by the attorney.

To test this possibility, Spohn and DeLone analyzed the relationship between
race/ethnicity, type of attorney, and the likelihood of incarceration, controlling
for several indicators of the seriousness of the crime and for the offender’s prior
criminal record, age, gender, and employment status. They found that, with one
exception, the type of attorney had no effect on the odds of incarceration for any
racial/ethnic group in any jurisdiction. The only exception was in Miami, where
African Americans represented by private attorneys faced significantly lower odds
of incarceration than African Americans represented by public defenders.

These results cast doubt on assertions that racial minorities are disadvantaged
by their lack of access to private counsel. At least in these three jurisdictions,

70

60

50

40

30

20

10

0

%
I
n
c
a
rc

e
ra

te
d

White African
American

Hispanic White African
American

Hispanic White African
American

Private Attorney Public Defender

CHICAGO MIAMI KANSAS CITY

F I G U R E 5.1 Race/Ethnicity, Type of Attorney, and Incarceration Rates in Chicago,
Miami, and Kansas City

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212 C H A P T E R 5

public defenders do not appear to “provide a lower caliber defense than what
private attorneys offer.”48

In summary, although it would be premature to conclude on the basis of
research conducted to date either that decisions concerning the provision of
counsel are racially neutral or that the consequences of these decisions for racial
minorities are unimportant, significant changes have occurred since the 1930s.
(See the “Focus on an Issue: Racial Minorities and the Legal Profession” box for a
discussion of racial minorities and the legal profession.) It is clear that scenes from
the infamous Scottsboro case will not be replayed in the twenty-first century. The
Supreme Court has consistently affirmed the importance of the right to counsel
and has insisted that states provide attorneys to indigent criminal defendants at
all critical stages in the criminal justice process. Although some critics have ques-
tioned the quality of legal services afforded indigent defendants, particularly in
capital cases where the stakes are obviously very high, the findings of a number
of methodologically sophisticated studies suggest that “indigent defenders get the
job done and done well.”49 In short, it is no longer true that racial minorities “are
without a voice”50 in courts throughout the United States.

Racial Minorities and Bail Decision Making

Critics of the traditional money bail system, in which defendants either pay the
amount set by the judge or pay a bail bondsman to post bond for them, argue
that the system discriminates against poor defendants. They also charge that the
system discriminates, either directly or indirectly, against racial minorities. Critics
contend that historically African-American and Hispanic defendants were more
likely than white defendants to be detained prior to trial, either because the judge
refused to set bail or because the judge set bail at an unaffordable level.51 “As a re-
sult,” according to one commentator, “the country’s jails are packed to overflow-
ing with the nation’s poor—with red, brown, black, and yellow men and women
showing up in disproportionate numbers.”52

Bail Reform Concerns about the rights of poor defendants and about the con-
sequences of detention prior to trial led to the first bail reform movement, which
emerged in the 1960s and emphasized reducing pretrial detention. Those who
lobbied for reform argued that the purpose of bail was to ensure the defendant’s
appearance in court and that bail therefore should not exceed the amount nec-
essary to guarantee that the defendant would show up for all court proceedings.
Proponents of this view asserted that whether a defendant was released or de-
tained prior to trial should not depend on his or her economic status or race.
They also cited research demonstrating that the type and amount of bail imposed
on the defendant and the time spent by the defendant in pretrial detention af-
fected the likelihood of a guilty plea, the likelihood of conviction at trial, and the
severity of the sentence.53

Arguments such as these prompted state and federal reforms designed to re-
duce pretrial detention. Encouraged by the results of the Manhattan Bail Project,
which found that the majority of defendants released on their own recognizance

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213T H E C O U R T S

FOCUS ON AN ISSUE

Racial Minorities and the Legal Profession

In the early 1930s, one of the defendants

in the Scottsboro case described the court-

room where he was convicted and sen-

tenced to death as “one big smiling white

face.” With the exception of the defendants

themselves, no racial minorities were pres-

ent in the courtroom.

Although the situation obviously has

changed since then, racial minorities still

represent a very small proportion of the

lawyers and judges in the United States.

Among those enrolled in law schools in

2013–2014, only 28.5 percent were Af-

rican American, Hispanic, Asian, or Na-

tive American.54 In fact, a report on the

Columbia Law School’s website noted

that although the number of first-year

law students grew by nearly 3,000 from

1993 to 2008, the proportion of students

who were African American declined by

7.5 percent and who were Hispanic de-

clined by 11.7 percent.55 There is even less

racial diversity among practicing attorneys.

In 2010, 88 percent of all licensed lawyers

were white and only 12 percent were racial

minorities: 4.8 percent were African Amer-

ican, 3.4 percent were Asian, and 3.7 per-

cent were Hispanic.56 A 2015 report by the

Stanford Criminal Justice Center found

that whites were overrepresented and

Hispanics were underrepresented among

prosecutors in California. Although whites

comprised only 38 percent of the popula-

tion in that state, they made up 70 percent

of prosecutors; by contrast, Latinos made

up 39 percent of the California population,

but only 9 percent of prosecutors.57

Racial minorities also comprise a

very small proportion of the judiciary.

A 2004 report by the American Bar

Association revealed that only 10.1 per-

cent of all state court judges were racial

minorities. Of these judges, 5.9 percent

were African American, 2.8 percent were

Hispanic, 1.1 percent were Asian, and only

13 (0.1 percent) were Native American.58

The situation is somewhat more positive

at the federal level, where 12.5 percent of

all district court judges and 13 percent of

all court of appeal judges on the bench in

2014 were African American. Hispanics

comprised 10.1 percent of the district

court bench and 8 percent of the appellate

court bench. There were, however, very

few Asian Americans or Native Americans

on the federal bench.59 Moreover, most of

the racial minorities on the federal bench

were men. Among court of appeal judges,

16.7 percent were non-white men and

only 6.8 percent were nonwhite women;

the figures for district court judges were

similar—15.4 percent were nonwhite

men and 9.8 percent were nonwhite

women.60 And only three nonwhites

have served on the U.S. Supreme Court:

Thurgood Marshall (African American)

was appointed in 1967, Clarence Thomas

(African American) in 1991, and Sonia

Sotomayor (Hispanic) in 2009.

The American Bar Association’s 2000

report on the progress of minorities in the

legal profession concluded that minority

entry into the profession had stalled and

that the obstacles to minority entry into

the profession had grown more formida-

ble. The report noted that the campaign

to end affirmative action in law school

admissions, which had spread rapidly

throughout the United States, threatened

“to stifle minority entry and advancement

in the profession for years to come.”61

According to the American Bar Associa-

tion, “The legal profession—already one

of the least integrated professions in the

(Continued )

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214 C H A P T E R 5

country—threatens to become even less

representative of the citizens and society it

serves.”62

ARE AFRICAN-AMERICAN LAW

STUDENTS HURT OR HELPED BY

AFFIRMATIVE ACTION?

In 1997, Barbara Grutter, a white resident

of Michigan with a 3.8 undergraduate

GPA and a 161 LSAT score, was denied

admission to the University of Michigan

Law School. (See “In the Courts: Grut-

ter v. Bollinger” for a more detailed discus-

sion of this case.) She sued, claiming that

she was rejected because the law school

used race as a “predominant factor” and

gave preference to applicants from certain

minority groups. She argued that doing

so violated the Equal Protection Clause of

the Fourteenth Amendment and Title VI

of the Civil Rights Act of 1964. In 2003,

the U.S. Supreme Court ruled that “the

law school’s narrowly tailored use of

race in admissions decisions to further

a compelling interest in obtaining the

educational benefits that flow from a

diverse student body is not prohibited

by the Equal Protection Clause or Title

VI” (Grutter v. Bollinger, 288 F.3d 732

[2003]).

One year later, Richard Sander, a law

professor at the University of California

Los Angeles, argued in the Stanford Law

Review that affirmative action policies

hurt, not help, African-American law

students.63 Sander contended that the

African-American students who get pref-

erential treatment as a result of affirmative

action enter law school with weaker grades

and lower LSAT scores—the two best

predictors of law school success—than

white students. Noting that 43 percent

of the African-American students who

entered law school in the fall of 1991 ei-

ther did not graduate or did not pass the

bar exam, Sander asserted that affirmative

action sets up African-American students

for failure by placing them in schools

where they cannot compete academically.

He also predicted that “the number of

black lawyers produced by American law

schools each year and subsequently passing

the bar would probably increase if those

schools collectively stopped using racial

preferences.”64

Sander’s methods and conclusions

were called into question by social scientists

and legal scholars. The harshest criticism

came from David L. Chambers, Timothy T.

Clydesdale, William C. Kidder, and Richard

O. Lempert, who argued in the Stanford

Law Review that Sander’s conclusions were

“simple, neat, and wrong.”65 They asserted

that ending affirmative action would

lead not to an increase in the number of

African-American lawyers, as Sander had

predicted, but to a 30–40 percent decline in

the number of African Americans entering

the legal profession.66 Other critics stated

that even if Sander’s findings were correct,

his study failed to take into consideration

the academic benefits of diversity, for which

“there is universal celebration” on college

campuses.67

THE PERCEPTIONS OF AFRICAN-

AMERICAN AND WHITE LAWYERS:

DIVIDED JUSTICE?

A 1998 survey of African-American and

white lawyers commissioned by the ABA

Journal and the National Bar Association

Magazine revealed stark racial differences in

perceptions of the justice system.68 When

asked about the amount of racial bias that

Copyright 2018 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-202

215T H E C O U R T S

currently exists in the justice system, more

than half of the African-American lawyers,

but only 6.5 percent of the white lawyers,

answered “very much.” In fact, 29.6 per-

cent of the white lawyers stated that they

believed there was “very little” racial bias

in the justice system.

Responses to other questions also

varied by race:

■ How does the amount of racial bias

in the justice system compare with other

segments of society?

African
Americans % Whites %

More 22.7 5.7

Same 69.6 40.5

Less 5.9 45.8

■ Have you witnessed an example of

racial bias in the justice system in the past

three years?

African
Americans % Whites %

Yes 66.9 15.1

No 31.1 82.4

■ What is your assessment of the ability

of the justice system to eliminate racial bias

in the future?

African
Americans % Whites %

Hopeful 59.1 80.7

Pessimistic 38.2 15.1

■ Should police be allowed to create

profiles of likely drug dealers or other

criminals as a way to combat crime?

African
Americans % Whites %

Yes 17.8 48.6

No 74.6 36.9

■ Should race be a factor in creating the

profiles?

African
Americans % Whites %

Race OK 5.5 19.5

Race Not OK 91.2 67.9

■ Have you seen an attempt to skew

a jury racially because of the race of the

defendant?

African
Americans % Whites %

Yes 51.7 22.4

No 45.8 73.6

■ Are minority women lawyers treated

less fairly than white women lawyers in

hiring and promotion?

African
Americans % Whites %

Yes 66.5 10.9

No 14.3 60.4

As these results clearly suggest,

African-American lawyers are substan-

tially more likely than white lawyers to

believe that the justice system is racially

biased. As the author of the study noted,

“Though they have made the justice sys-

tem their life’s work, many black lawyers

believe the word ‘justice’ has a white spin

that says ‘just us’.”69

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216 C H A P T E R 5

In the Courts: Grutter v. Bollinger

In 1997, Barbara Grutter, a white resident of Michigan with a 3.8 undergraduate
GPA and a 161 LSAT score, was denied admission to the University of Michigan Law
School. She filed suit, arguing the law school’s admission policies discriminated
against her on the basis of race in violation of the Fourteenth Amendment and Title
VI of the Civil Rights Acts of 1974.

The law school’s admission policy, which was designed to achieve a diverse
student body, required officials to evaluate the candidate’s undergraduate GPA and
LSAT score along with the quality of the undergraduate institution; the difficulty
of the courses taken as an undergraduate; and the candidate’s personal statement,
letters of recommendation, and essay describing how he or she “would contribute
to law school life and diversity.” Although the policy did not define diversity solely
in terms of race and ethnicity or restrict the types of diversity that would be given
substantial weight in admissions decisions, it did state that the goal was to accept
“a mix of students with varying backgrounds and experiences who will respect and
learn from each other.”70 The policy stated explicitly that the law school was commit-
ted to “racial and ethnic diversity with special reference to the inclusion of students
from groups which have been historically discriminated against, like African Ameri-
cans, Hispanics, and Native Americans, who without this commitment might not be
represented in our student body in meaningful numbers.”71

Grutter claimed that she was not admitted to the University of Michigan Law
School in large part because the school took the race/ethnicity of the applicant into
account and, in doing so, gave African-American and Hispanic applicants a signifi-
cantly greater chance of admission than white students with similar credentials. She
argued that the school did not have a “compelling interest” to justify the use of race
as an admissions factor.

The U.S. Supreme Court did not agree with Grutter’s arguments. The court
ruled that “the Law School’s narrowly tailored use of race in admissions decisions to
further a compelling interest in obtaining the educational benefits that flow from
a diverse student body is not prohibited by the Equal Protection Clause” or Title VI
of the Civil Rights Act of 1964.72 The Supreme Court stated that student body diver-
sity was, in fact, a compelling state interest “that can justify using race in university
admissions.” The court acknowledged that it would be “patently unconstitutional”
to enroll a certain number of minority students “simply to assure some specified
percentage of a particular group,” but stated that this was not the case with respect
to the law school’s admission policy. Rather, “the Law School defines its critical mass
concept by reference to the substantial, important, and laudable educational ben-
efits that diversity is designed to produce, including cross-racial understanding and
the breaking down of racial stereotypes.”73

The Supreme Court also noted that the admissions plan was “narrowly tai-
lored,” in that it considered each applicant’s race/ethnicity as only one factor
among many. The court reiterated that although “universities cannot establish
quotas for members of certain racial or ethnic groups or put them on separate
admission tracks,” they can structure their admission policies to give serious con-
sideration to all of the ways an applicant might contribute to a diverse educational
environment.

Three years after the Supreme Court handed down its decision, Michigan voters
enacted the Michigan Civil Rights Initiative (MCRI), which added the following lan-
guage to the Michigan Constitution:

The University of Michigan, Michigan State University, Wayne State University,
and any other public college or university, community college, or school district

Copyright 2018 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-202

217T H E C O U R T S

shall not discriminate against, or grant preferential treatment to, any individual
or group on the basis of race, sex, color, ethnicity, or national origin in the oper-
ation of public employment, public education, or public contracting.

In 2008, a federal district court judge ruled that the initiative did not violate the
U.S. Constitution.74 Four years later, the U.S. Court of Appeals for the Sixth Circuit
overturned MCRI, but in 2014 the U.S. Supreme Court voted 6-2 to uphold the consti-
tutionality of the ballot initiative (Schuette v. Coalition to Defend Affirmative Action,
134 S. Ct. 1623, 2014). The plurality opinion, which was authored by Justice Anthony
M. Kennedy, held that voters of a state may choose, via a ballot initiative, to pro-
hibit the use of race-based preferences in decisions by government bodies, including
universities.

The issues raised in the Grutter case have generated additional litigation. In
December 2015, the Supreme Court heard oral arguments Fisher v. University of
Texas, a case involving a challenge to the use of race in undergraduate admission
decisions at the University of Texas. Similar challenges were filed against Harvard
University and the University of North Carolina at Chapel Hill in November 2014.
In June 2016, the Supreme Court decided 4-3 that the admission process used by
the University of Texas did not violate the Constitution’s guarantee of equal pro-
tection of the law (Fisher v. University of Texas, 579 U.S. ____ 2016). According to
Justice Anthony Kennedy, who wrote the majority opinion, “A university is in large
part defined by those intangible qualities which are incapable of objective mea-
surement but which make for greatness.” “Considerable deference is owed to a
university in defining those intangible characteristics, like student body diversity,
that are central to its identity and educational mission.” Legal experts indicated
that the Fisher decision made it unlikely that the Court would strike down the
affirmative action policies at Harvard, University of North Carolina, and other
universities.

did appear for trial,75 local jurisdictions moved quickly to reduce reliance on
money bail and to institute programs modeled after the Manhattan Bail Project.
Many states revised their bail laws, and in 1966 Congress passed the Bail Reform
Act, which proclaimed release on recognizance the presumptive bail decision in
federal cases.

Then, as Samuel Walker noted, “the political winds shifted.”76 The ris-
ing crime rate of the 1970s generated a concern for crime control and led to
a reassessment of bail policies. Critics challenged the traditional view that the
only function of bail was to assure the defendant’s appearance in court. They ar-
gued that guaranteeing public safety was also a valid function of bail and that
pretrial detention should be used to protect the community from “dangerous”
offenders.

These arguments fueled the second bail reform movement, which emerged
in the 1970s and emphasized preventive detention. Conservative legislators and
policy makers lobbied for reforms allowing judges to consider “public safety”
when making decisions concerning the type and amount of bail.77 By 1984,
34 states had enacted legislation giving judges the right to deny bail to defendants
deemed dangerous.78 Also in 1984, Congress passed a law authorizing preventive
detention of dangerous defendants in federal criminal cases.79

Copyright 2018 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-202

218 C H A P T E R 5

The Effect of Race on Bail Decision Making Proponents of bail reform
argued that whether a defendant was released or detained prior to trial should
not depend on his or her economic status or race. They argued that bail decisions
should rest either on assessments of the likelihood that the defendant would ap-
pear in court or on predictions of the defendant’s dangerousness.

The problem, of course, is that there is no way to guarantee that judges will
not take race into account in making these assessments and predictions. As Cora-
mae Richey Mann asserted, even the seemingly objective criteria used in making
these decisions “may still be discriminatory on the basis of economic status or
skin color.”80 If judges stereotype African Americans and Hispanics as less reliable
and more prone to violence than whites, they will be more inclined to detain
people of color and release whites, irrespective of their more objective assess-
ments of risk of flight or dangerousness.

Studies examining the effect of race on bail decisions have yielded contra-
dictory findings. Some researchers conclude that judges’ bail decisions are based
primarily on the seriousness of the offense and the defendant’s prior criminal
record and ties to the community; race has no effect once these factors are taken
into consideration.81 Other researchers contend that the defendant’s economic
status, not race, determines the likelihood of pretrial release.82 If this is the case,
one could argue that bail decision making reflects indirect racial discrimination
because African-American and Hispanic defendants are more likely than white
defendants to be poor.

A number of studies document direct racial discrimination in bail decisions.
A study by George S. Bridges of bail decision making in King County, Washing-
ton, for example, examined the effect of race/ethnicity on four bail outcomes:
whether the defendant was released on his or her own recognizance; whether
the court set monetary bail; the amount of bail required; and whether the defen-
dant was held in custody pending trial.83 As shown in Table 5.2, he found that
racial minorities were less likely than whites to be released on their own recog-
nizance and were more likely than whites to have bail set. Racial minorities also
were held in pretrial detention at higher rates than whites. The detention rate was
55 percent for Native Americans, 54 percent for Hispanics, 36 percent for African
Americans, and 28 percent for whites. There were, however, no differences in the
median amount of bail required.

Bridges noted that although “at face value these differences may seem alarm-
ing,”84 they might be the result of legitimate factors that criminal justice officials
take into consideration when establishing the conditions of pretrial release: the
defendant’s ties to the community, the perceived dangerousness of the defendant,
and any previous history of the defendant’s failure to appear at court proceedings.
When he controlled for these legally relevant variables and for the defendant’s age
and gender, however, he found that the race effects did not disappear. Racial mi-
norities and men were less likely than whites and women to be released on their
own recognizance and more likely than whites and women to be required to pay
bail as a condition of release. For both of these decisions, the prosecutor’s recom-
mendation regarding the type and amount of bail was the strongest predictor of
outcome. In contrast, race had no effect on the likelihood of pretrial detention

Copyright 2018 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-202

219T H E C O U R T S

once the bail conditions and the amount of bail set by the judge were taken into
account.

Interviews with King County criminal justice officials revealed that most of
them believed the racial differences in bail outcomes could be attributed to three
factors: racial minorities’ lack of resources and consequent inability to retain a
private attorney; the tendency of judges to follow the recommendations of prose-
cutors; and cultural differences and language barriers that made it difficult to con-
tact the defendant’s references or verify information provided by the defendant.
Because racial minorities were more likely than whites to be poor, they were
more likely to be represented by public defenders with large caseloads and lim-
ited time to prepare for bail hearings. Resource constraints similarly limited the
amount of time that judges and pretrial investigators were able to devote to bail
decisions, which led to reliance on the recommendations proffered by the pros-
ecutor. Although Bridges stressed that his study produced no evidence “that dis-
parities are the product of overt, prejudicial acts by court officials,” he nonetheless
concluded that “race and ethnicity matter in the disposition of criminal cases.”85

He added that this “is a serious concern for the courts in Washington” because it
“implies that, despite the efforts of judges and others dedicated to fairness in the
administration of justice, justice is not administered fairly.”86

Other evidence of direct racial discrimination is found in an analysis of pre-
trial release outcomes for felony defendants in the nation’s 75 largest counties
during the 1990s.87 As shown in Figure 5.2, Stephen Demuth and Darrell Stef-
fensmeier found that African Americans and Hispanics were more likely than
whites to be detained in jail prior to trial. Among female defendants, the detention
rates were 23.5 percent (whites), 28.4 percent (African Americans), and 34.7 per-
cent (Hispanics). Among males, the rates were 33.1 percent (whites), 44.8 percent
(African Americans), and 50.5 percent (Hispanics). The pretrial detention rate for
Hispanic males, in other words, was more than twice the rate for white females.

T A B L E 5.2 Race/Ethnicity and Bail Outcomes in King County,
Washington

Whites
All Racial
Minorities

African
Americans Hispanics

Native
Americans

Asian
Americans

Released
on personal
recognizance 25% 14% 14% 10% 8% 18%

Monetary
bail set 34% 56% 46% 60% 60% 50%

Median bail
amount $10,000 $10,000 $10,000 $10,000 $10,000 $15,000

In custody
prior to trial 28% 39% 36% 54% 55% 35%

SOURCE: George S. Bridges, A Study on Racial and Ethnic Disparities in Superior Court Bail and Pre-Trial Detention
Practices in Washington (Olympia: Washington State Minority and Justice Commission, 1997), Table 1.

Copyright 2018 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-202

220 C H A P T E R 5

As was the case with the Washington State study, these differences did not
disappear when the authors controlled for the seriousness of the charges against
the defendant, the number of charges the defendant was facing, whether the de-
fendant previously had failed to appear for a court proceeding, and the defen-
dant’s prior record and age. Demuth and Steffensmeier found that males were
more likely than females and that African Americans and Hispanics were more
likely than whites to be detained in jail prior to trial. They also found that white
females faced a significantly smaller likelihood of pretrial detention than any of
the other groups, particularly Hispanic and African-American males.88

Findings from this study also provided some clues as to the reasons why de-
fendants were held in jail prior to trial. For African Americans, the increased like-
lihood of detention was because they were almost two times more likely than
whites to be held on bail; African Americans, in other words, were less likely than
whites to be able to pay bail and secure their release. For Hispanics, however, the
increased likelihood of detention reflected not only their inability to pay bail
but also the fact that they were more likely than whites to have to pay bail for
release and the amount they were required to pay was higher than the amount
that similarly situated whites were required to pay.89 The authors also found that
both female and male white defendants were more likely than their racial/eth-
nic counterparts to be released prior to trial and that this was largely because of
their greater ability to make bail. As they noted, “White defendants of both sexes
apparently have greater financial capital or resources either in terms of their per-
sonal bankroll/resources, their access to family or social networks willing to post
bail, or their greater access to bail bondsmen for purposes of making bail.”90

A recent study using data on those arrested for misdemeanors and felonies
in New York City provided additional evidence that race and ethnicity influence
pretrial detention decisions.91 Kutateladze and his colleagues found that the se-
riousness of the charges, the offender’s criminal justice status and criminal his-
tory, the offender’s gender, and whether the offender had a private attorney all

60

50

40

30

20

10

0

%
H

e
ld

i
n
P

re
tr

ia
l
D

e
te

n
ti
o
n

Female Defendants Male Defendants

Whites African Americans Hispanics

23.5
28.4

34.7 33.1

44.8

50.5

F I G U R E 5.2 Race/Ethnicity, Gender, and Pretrial Detention in 75 U.S. Counties
SOURCE: Stephen Demuth and Darrell Steffensmeier, “The Impact of Gender and Race-Ethnicity in the Pretrial Release
Process,” Social Problems 51 (2004), pp. 222–242.

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221T H E C O U R T S

affected the likelihood that the defendant would be detained prior to trial. When
they controlled for these (and other) factors, they found that the pretrial deten-
tion rate for African Americans was 10 percent higher than the rate for whites,
and the rate for Hispanics was 3 percent higher than the rate for whites; by con-
trast, the rate for Asian Americans was 21 percent less than the rate for whites.
Among those arrested for misdemeanor person offenses, the rate for African
Americans exceeded the rate for white by 20 percent.92

There is also evidence that defendant race interacts with other variables re-
lated to bail severity. Margaret Farnworth and Patrick Horan,93 for example, found
that the amount of bail imposed on white defendants who retained private attor-
neys was less than the amount imposed on African-American defendants who
retained private attorneys. Theodore G. Chiricos and William D. Bales similarly
found that the likelihood of pretrial detention was greatest for African-American
defendants who were unemployed.94

Bail and Case Outcomes Concerns about discrimination in bail decision
making focus on two facts: African-American and Hispanic defendants who are
presumed to be innocent are jailed prior to trial and those who are detained prior
to trial are more likely to be convicted and receive harsher sentences than those
who are released pending trial. These concerns focus, in other words, on the pos-
sibility that discrimination in bail decision making has “spillover” effects on other
case processing decisions.

An analysis of pretrial release of felony defendants by the BJS attests to the
validity of these concerns.95 Using data from 1994 to 2004, the BJS compared the
conviction rates for released and detained defendants in the 75 largest counties in
the United States. They found that 78 percent of those who were detained prior
to trial, but only 60 percent of those who were released, were convicted. Felony
defendants who were released also were less likely than those who were detained
to be convicted of a felony: the rates were 46 percent for those who were released
but 69 percent for those who were detained.

Although these data suggest that pretrial release does have important spill-
over effects on case outcomes, the higher conviction and imprisonment rates for
defendants who were detained pending trial could result from the fact that de-
fendants who are held in jail prior to trial tend to be charged with more serious
crimes, have more serious prior criminal histories, and have a history of non-
appearance at court proceedings. A BJS study of felony defendants processed in
state courts in 2006, for example, found that defendants charged with murder had
the lowest release rate and that defendants with more serious prior records or a
history of nonappearance were more likely to be detained prior to trial.96 Given
these findings, it is possible that the relationship between pretrial status and case
outcomes would disappear once controls for case seriousness and prior criminal
record were taken into consideration.

Data collected for a study of sentencing outcomes in Chicago, Miami, and Kan-
sas City during 1993 and 1994 were used to explore this possibility.97 Spohn and
DeLone found that the offender’s pretrial status was a strong predictor of the likeli-
hood of imprisonment, even after other relevant legal and extralegal variables were

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222 C H A P T E R 5

taken into account. In all three cities, offenders who were released prior to trial
faced substantially lower odds of a prison sentence than did offenders who were
detained pending trial. Further analysis of sentences imposed by judges in Chicago
and Kansas City revealed that pretrial detention had a similar effect on incarceration
for each racial/ethnic group and for males and females.98 As shown in Table 5.3,
among both males and females, African-American, Hispanic, and white defendants
who were detained prior to trial faced substantially greater odds of incarceration
than African-American, Hispanic, and white defendants who were released pending
trial. In Chicago, the highest incarceration rates were found for African-American
(73 percent), Hispanic (72 percent), and white (63 percent) males who were detained
prior to trial; the lowest rates were found for white (7 percent), African-American
(11 percent), and Hispanic (11 percent) females who were released pending trial.

The results of this study suggest that defendants who were detained prior to
trial received more punitive sentences than those who were released and that the
highest incarceration rates were for African Americans and Hispanics who were
detained prior to trial. In Chicago, this “detention penalty” is compounded by
the fact that African Americans were significantly more likely than whites to be
detained prior to trial. Because they were detained more often than whites in the
first place, African-American defendants were more likely than whites to suffer
both the pains of imprisonment prior to trial and the consequences of pretrial
detention at sentencing.

A study of pretrial detention and case outcomes in three U.S. district courts
found a similar pattern of results.99 Spohn compared pretrial detention rates and
sentences for African-American and white offenders who were convicted of
drug trafficking offenses in the Southern District of Iowa, the District of Min-
nesota, and the District of Nebraska. She found that 67.7 percent of the African-
American offenders, but only 43.3 percent of the white offenders, were held in
custody until their sentencing hearing. These differences did not disappear when
she controlled for offender characteristics, including measures of the offender’s
dangerousness and community ties, access to financial resources, the offender’s
criminal history, and the seriousness of the crime. Even after these legally rel-
evant predictors of pretrial detention were taken into consideration, African
Americans faced higher odds of pretrial detention than did whites.100 Spohn also
found that the likelihood of pretrial custody was substantially higher for African-
American male offenders than for other offenders. The odds of pretrial detention
for African-American males were twice those for white males, and the differ-
ences between African-American males and either African-American females or
white females were even larger. In fact, African-American males were 3.7 times
more likely than white females and 3 times more likely than African-American
females to be held in custody before trial. There also were large differences be-
tween white females and white males, but the difference between white females
and African-American females was not statistically significant. Thus, African-
American males were treated more harshly than all other offenders, but white
females were not treated any differently than African-American females.101

To determine whether the race of the offender had indirect and/or cumula-
tive effects on sentence severity through its effect on pretrial detention, Spohn

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223T H E C O U R T S

estimated a model of sentence length, controlling for the offender’s pretrial status
and for the offender and case characteristics identified by prior research as pre-
dictors of sentences imposed under the federal sentencing guidelines. Her analysis
revealed that offenders who were in custody at the time of the sentence hearing
received sentences that averaged almost 8 months (b = 7.95) longer than those
imposed on offenders who were not detained before the hearing.102

Spohn speculated that the pattern of results she uncovered might reflect
judges’ interpretation of the federal bail statute, which allows them to take the of-
fender’s dangerousness into consideration when deciding between pretrial release
and detention. As she noted:

If, as prior research has shown, judges stereotype black drug traffickers
and male drug traffickers as more dangerous and threatening than whites
or females engaged in drug trafficking, their interpretation of the legally
relevant criteria may lead to higher rates of pretrial detention for black
offenders and for male offenders.103

Although the findings are somewhat contradictory, it thus appears that the re-
forms instituted since the 1960s have not produced racial equality in bail decision
making. It is certainly true that racial minorities are no longer routinely jailed
prior to trial because of judicial stereotypes of dangerousness or because they
are too poor to obtain their release. Nevertheless, there is evidence that judges

T A B L E 5.3 The Effect of Pretrial Detention on Incarceration Rates
for Typical Felony Offenders in Chicago and Kansas City

% Sentenced to Prison

Detained
Prior to Trial

Released
Prior to Trial

Chicago

African-American male 73 23

Hispanic male 72 22

White male 63 16

African-American female 53 11

Hispanic female 55 11

White female 42 7

Kansas City

African-American male 29 16

White male 24 13

African-American female 13 6

White female 10 5

NOTE: These probabilities were calculated for defendants who were 30 years old, were charged with one count of
possession of narcotics with intent, had one prior felony conviction, were not on probation at the time of the current
offenses, were represented by a public defender, and pled guilty.

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224 C H A P T E R 5

in some jurisdictions continue to take race into account in deciding on the type
and amount of bail. There also is evidence that race interacts with factors such as
prior record or employment status to produce higher pretrial detention rates for
African-American defendants than for white defendants. Given the consequences
of pretrial detention, these findings are an obvious cause for concern.

C H A R G I N G A N D P L E A B A R G A I N I N G D E C I S I O N S

Regrettably, the evidence is clear that prosecutorial discretion is system-
atically exercised to the disadvantage of black and Hispanic Americans.
Prosecutors are not, by and large, bigoted. But as with police activity,
prosecutorial judgment is shaped by a set of self-perpetuating racial
assumptions.104

Thus far we have examined criminal justice decisions concerning appoint-
ment of counsel and bail for evidence of racial discrimination. We have shown
that, despite reforms mandated by the Supreme Court or adopted voluntarily by
the states, inequities persist. African Americans and Hispanics who find them-
selves in the arms of the law continue to suffer discrimination in these important
court processing decisions.

In this section, we examine prosecutors’ charging and plea bargaining de-
cisions for evidence of differential treatment of minority and white defendants.
We argue that there is compelling evidence of racial disparity in charging and
plea bargaining. We further contend that this disparity frequently reflects racial
discrimination.

Prosecutors’ Charging Decisions

Prosecutors exercise broad discretion in deciding whether to file formal charges
against individuals suspected of crimes and in determining the number and se-
riousness of the charges to be filed. According to the Supreme Court, “So long
as the prosecutor has probable cause to believe that the accused committed an
offense defined by statute, the decision whether or not to prosecute, and what
charge to file or bring before a grand jury, generally rests entirely in his discre-
tion.”105 As Justice Jackson noted in 1940, “The prosecutor has more control over
life, liberty, and reputation than any other person in America.”106

The power of the prosecutor is reflected in the fact that in most states, from
one-third to one-half of all felony cases are dismissed by the prosecutor prior to
a determination of guilt or innocence.107 Prosecutors can reject charges at the
initial screening, either because they believe the suspect is innocent or, more typi-
cally, because they believe the suspect is guilty but a conviction would be unlikely.
Prosecutors also can reject charges if they feel it would not be in the “interest of
justice” to continue the case—because the crime is too trivial; because of a per-
ception that the suspect has been punished enough; or because the suspect has

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225T H E C O U R T S

agreed to provide information about other, more serious, cases.108 Finally, prose-
cutors can reject charges as felonies but prosecute them as misdemeanors.

If a formal charge is filed by the prosecutor, it still can be reduced to a less-se-
rious felony or to a misdemeanor during plea bargaining. It also can be dismissed
by the court on a recommendation by the prosecutor. This usually happens when
the case “falls apart” prior to trial. A witness may refuse to cooperate or may fail
to appear at trial, or the judge may rule that the confession or other essential evi-
dence is inadmissible. Unlike the prosecutor’s initial decision to reject the charge,
the decision to dismiss a charge already filed requires official court action.

The Effect of Race on Charging Decisions Although the prosecutor’s discre-
tion is broad, it is not unlimited. The Supreme Court, in fact, has ruled that the
decision to prosecute may not be “deliberately based upon an unjustifiable standard
such as race, religion, or other arbitrary classification.”109 The prosecutor, in other
words, cannot legitimately take the race of the suspect into account in deciding
whether to file charges or in deciding on the seriousness of the charge to be filed.

Relatively few studies have examined the effects of race and ethnicity on pros-
ecutorial charging decisions, and those few studies conducted reach contradictory
conclusions.110 Some researchers found either that race/ethnicity did not affect
charging decisions at all or that race/ethnicity played a very minor role in the de-
cision of whether to prosecute.111 Two recent studies, one of charging decisions in
federal courts and one of charging outcomes in state courts, illustrate this conclu-
sion. Lauren Shermer and Brian Johnson examined U.S. attorneys’ decisions to re-
duce the severity of the charges that defendants were facing in U.S. district courts.112

They found that males were less likely than females to receive charge reductions but
that neither race/ethnicity nor age affected the likelihood of charge reduction. Fur-
ther analysis revealed that race, ethnicity, gender, and age did not interact to affect
charge reductions in the predicted way; that is, young male African-American and
Hispanic offenders were not less likely than older white male offenders to receive
a reduction in the charges. Although they were careful to point out that they only
examined one aspect of charging in federal courts, Shermer and Johnson concluded
that the results of their study “are encouraging in that they support a general lack
of systematic bias in the charge reduction decisions of federal prosecutors.”113 Travis
Franklin found a similar pattern of results using state court data to examine whether
the prosecutor dismissed the case against the defendant (after charges were initially
filed).114 Race did not affect the likelihood of dismissal, and black males were no
less likely than black females, white males, or white females to have the charges
against them dismissed. Both of these recent and methodologically sophisticated
studies, then, found no evidence of racial/ethnic bias in prosecutors’ decisions to
reduce or dismiss the charges. (For a discussion of a case of reverse discrimination in
a prosecutor’s charging decision, see Box 5.3, “In the Media: Mike Nifong and the
Duke Lacrosse Case.”)

Several studies concluded that prosecutors’ charging decisions are affected
by race. For example, a study that examined the decision to reject or dismiss
charges against felony defendants in Los Angeles County revealed a pattern of

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226 C H A P T E R 5

B o x 5.3 In the Media: Mike Nifong and the Duke Lacrosse Case

Gunnar Myrdal, a Swedish social scientist and the author of a book examining
the “Negro Problem” in the Unites States in the late 1930s and early 1940s, found
substantial discrimination against African Americans in the decision of whether to
charge. As Myrdal noted:

State courts receive indictments for physical violence against Negroes in an
infinitesimally small proportion of the cases. It is notorious that practically
never have white lynching mobs been brought to court in the south, even
when the killers are known to all in the community and are mentioned by
name in the local press. When the offender is a Negro, indictment is easily
obtained, and no such difficulty at the start will meet the prosecution of
the case.115

Discrimination of a different type surfaced in a recent, and highly publicized,
case involving three members of the Duke University lacrosse team. In April 2006,
Durham County (North Carolina) District Attorney Mike Nifong filed first-degree
forcible rape, first-degree sexual offense, and kidnapping charges against the play-
ers, all of whom were white, after an African-American woman who had been hired
as a stripper for a team party claimed that she had been repeatedly raped. The
charges were filed in spite of the fact that the complainant’s story changed several
times and that DNA tests failed to connect any of the accused to the alleged sexual
assault.

In the weeks and months following the filing of charges, District Attorney Ni-
fong gave dozens of interviews to local and national media. He stated repeatedly
that he was “confident that a rape occurred,”116 and he called the players “a bunch
of hooligans” whose “daddies could buy them expensive lawyers.”117 Professors at
Duke University were even blunter, emphasizing the race of the victim and the sus-
pects and implying that justice would not be served. For example, William Chafe, a
professor of history, published an op-ed piece in which he argued that there were
similarities between the Duke case and the case involving whites who kidnapped,
beat, and murdered an African-American boy named Emmett Till in 1950s in
Mississippi:

Sex and race have always interacted in a vicious chemistry of power, privilege
and control. Emmett Till was brutalized and lynched in Mississippi in 1954 for
allegedly speaking with too easy familiarity to a white woman storekeeper. . . .
What has all this to do with America today? Among other things, it helps to put
into context what occurred in Durham two weeks ago. The mixture of race and
sex that transpired on Buchanan Boulevard is not new.118

The case against the three Duke University students began to unravel during
the summer and fall of 2006. In mid-December, it was revealed that Nifong had
withheld exculpatory DNA evidence (i.e., evidence that proved none of the three
men accused of the assaults was involved) from defense lawyers, and on Decem-
ber 22, Nifong dropped the rape charges, but not the sexual offense and kidnapping
charges. Six days later the North Carolina Bar Association filed ethics charges against
Nifong, alleging that he had engaged in “conduct that involves dishonesty, fraud,
deceit or misrepresentation, as well as conduct that is prejudicial to the adminis-
tration of justice.”119 In January 2007, Nifong asked to be taken off the case, which
was then turned over to the North Carolina Attorney General, Roy Cooper. After
conducting his own investigation, Cooper dropped all of the remaining charges on

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227T H E C O U R T S

April 11. Cooper stated that his office “believed these three individuals are innocent
of these charges.” He also alleged that the charges resulted from a “tragic rush to
accuse and a failure to verify serious allegations” and showed “the enormous conse-
quences of overreaching by a prosecutor.”120

Nifong resigned from his position as Durham County District Attorney on
June 18. Two days earlier, he had been disbarred after a disciplinary hearing
committee of the North Carolina Bar ruled that he had committed numerous
violations of the state’s rules of professional conduct. In August, Nifong was held
in criminal contempt of court and sentenced to one day in jail for his actions in
the case.

As this case illustrates, prosecutors have an ethical obligation to “do justice.”
Their charging decisions cannot be motivated by “personal or political advantages or
disadvantages which might be involved” or by “a desire to enhance [their conviction
records].”121

discrimination in favor of female defendants and against African-American and
Hispanic defendants.122 The authors controlled for the defendant’s age and prior
criminal record, the seriousness of the charge against the defendant, and whether
the defendant used a weapon in committing the crime. As shown in Table 5.4,
they found that Hispanic males were most likely to be prosecuted fully, followed
by African-American males, white males, and females of all ethnic groups.

The authors of this study speculated that prosecutors took both race and
gender into account in deciding whether to file charges in “marginal cases.” They
reasoned that strong cases would be prosecuted and weak cases would be dropped,
regardless of the race or gender of the suspect. In marginal cases, however,

prosecutors may simply feel less comfortable prosecuting the dominant
rather than the subordinate ethnic groups. They might feel the dominant
groups are less threatening. Or they might believe they can win convic-
tions more often against blacks and Hispanics than against Anglos.123

Similar results surfaced in a study of prosecutors’ charging decisions in King
County, Washington.124 When the authors of this study examined the prosecutor’s
decision to file felony charges (rather than file misdemeanor charges or decline to
prosecute the case), they found that prosecutors were substantially more likely to
file felony charges against racial minorities than against whites. These differences
were especially pronounced for violent crimes and drug offenses. Moreover, the
racial disparities did not disappear when the authors controlled for the seriousness
of the crime, the defendant’s prior criminal record, and the defendant’s age and
gender. Even taking these factors into account, Native Americans were 1.7 times
more likely than whites to be charged with a felony, and African Americans were
1.15 times more likely than whites to face felony charges.125

Robert D. Crutchfield and his coauthors stressed that these racial differ-
ences were not “necessarily the result of individuals making biased decisions.”126

Rather, the differences probably reflected race-linked legal, economic, and social
factors that prosecutors take into account in deciding whether to charge, as well

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228 C H A P T E R 5

as officials’ focus on drug offenses involving crack cocaine. As we have repeatedly
emphasized, however, this type of subtle or indirect discrimination is problematic.
It is difficult to disentangle the effects of race/ethnicity, social class, employment
history, and family situation. Even if criminal justice officials are justified in taking
these social and economic factors into account, doing so will necessarily produce
unintended race effects.

Prosecutorial Discretion in the Context of Mandatory

Minimum Sentences and Habitual Offender Laws

An important component of prosecutorial discretion is found in the context of
mandatory minimum sentences and habitual offender laws. In many jurisdictions,
prosecutors have discretion whether to file charges that trigger mandatory min-
imum sentences, three-strikes-and-you’re-out provisions, and habitual offender
sentencing requirements. All of these provisions lead to more punitive sentences.
If such charges are filed, the judge’s discretion at sentencing is reduced or, in some
jurisdictions, eliminated entirely. By determining whether defendants will face
charges that trigger these sentence enhancements, prosecutors in essence influ-
ence the sentences that judges impose.

There is compelling evidence that prosecutors do exercise their discretion
in these types of cases. A study by the U.S. Sentencing Commission, for example,
showed that only about half of all federal offenders who were potentially sub-
ject to mandatory minimums actually received a mandatory minimum sentence,
and there are a number of studies at the state level that reveal that mandatory
minimums, sentencing enhancements for use of a firearm, and habitual offender
provisions are applied to only a small proportion of eligible defendants.127

T A B L E 5.4 The Effect of Race and Gender on Prosecutors’ Charging
Decisions

Adjusted Meansa

Rejected at
Screening %

Dismissed
by Court %

Fully
Prosecuted %

Group

African-American male 46 34 39

African-American female 57 42 30

Hispanic male 46 33 42

Hispanic female 54 43 31

White male 54 33 26

White female 59 42 19

aMeans have been adjusted for the effect of four independent variables: age of the defendant, prior record of the de-
fendant, seriousness of the charge, and whether the defendant used a weapon.

SOURCE: Table adapted from Cassia Spohn, John Gruhl, and Susan Welch, “The Impact of the Ethnicity and Gender of
Defendants on the Decision to Reject or Dismiss Felony Charges,” Criminology 25 (1987), pp. 175–191.

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229T H E C O U R T S

There also is evidence that race and ethnicity influence prosecutors’ de-
cisions in these situations. Both David Bjerk128 and Jill Farrell129 found that
racial minorities were more likely than whites to be sentenced under manda-
tory minimum sentences, and two studies130 found that eligible racial minorities
were substantially more likely than eligible whites to be sentenced as habitual
offenders. A somewhat different pattern of results was found by Jeffery Ulmer
and his colleagues, who used data from Pennsylvania (which operates under
sentencing guidelines) to examine cases that were eligible to receive a manda-
tory minimum sentence.131 The outcome of interest was whether the prosecu-
tor filed a motion to apply the mandatory sentence. Their analysis controlled
for the severity of the offense, the offender’s prior criminal record, the type
of offense, whether the defendant went to trial or pled guilty, and the defen-
dant’s race, ethnicity, gender, and age. They found, consistent with the research
discussed earlier, that prosecutors applied the mandatory minimums to a small
fraction of eligible offenders. They also found that Hispanics, but not African
Americans, were more likely than whites to receive mandatory minimums, and
that young Hispanic males were singled out for mandatory application, partic-
ularly in drug trafficking cases.132 The authors of this study concluded that “le-
gally relevant factors, case processing concerns (i.e., rewarding guilty pleas), and
social statuses (i.e., gender, ethnicity and age) shape prosecutors’ perceptions of
blameworthiness and community protection and thus their decisions to apply
mandatories.”133

The Effect of Offender Race and Victim

Race on Charging Decisions

The research discussed thus far suggests that the race/ethnicity of the offender
affects prosecutors’ charging decisions. There also is evidence that charging deci-
sions vary depending on the race of the offender and the race of the victim. Gary
D. LaFree,134 for example, found that African Americans arrested for raping white
women were more likely to be charged with felonies than were either African
Americans arrested for raping African-American women or whites arrested for
raping white women. One study found that defendants arrested for murdering
whites in Florida were more likely to be indicted for first-degree murder than
those arrested for murdering African Americans.135 Another study of prosecutors’
charging decisions in death penalty cases found that homicide cases involving
African-American defendants and white victims were more likely than simi-
lar cases involving other offender–victim racial combinations to result in first-
degree murder charges.136 The prosecutor in the midwestern jurisdiction where
this study was conducted was also more likely to file a notice of aggravating cir-
cumstances and to proceed to a capital trial if the defendant was an African Amer-
ican who was accused of killing a white.

Research on sexual assault case processing decisions in Detroit reached a
different conclusion. Cassia Spohn and Jeffrey Spears137 used data on sexual as-
saults bound over for trial in Detroit Recorder’s Court to examine the effect of

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230 C H A P T E R 5

offender race, victim race, and other case characteristics on the decision to dismiss
the charges against the defendant (versus the decision to fully prosecute the case).
Building on previous research demonstrating that African Americans who murder
or rape whites receive more punitive treatment than other victim–offender racial
combinations, they hypothesized that African American-on-white sexual assaults
would be more likely than either African American-on-African American or
white-on-white sexual assaults to result in the dismissal of all charges. They found
just the opposite: the likelihood of charge dismissal was significantly greater for
cases involving African-American offenders and white victims than for the other
two groups of offenders. They also found that African Americans prosecuted for
assaulting whites were less likely to be convicted than whites charged with sexu-
ally assaulting whites.138

Spohn and Spears concluded that their “unexpected findings” suggest that
African American–on–white sexual assaults with weaker evidence are less likely
to be screened out during the preliminary stages of the process.139 Police and
prosecutors, in other words, may regard sexual assaults involving African-Amer-
ican men and white women as inherently more serious than intraracial sexual
assaults; consequently, they may be more willing to take a chance with a reluctant
victim or a victim whose behavior at the time of the incident was questionable.
According to the authors of this study:

The police may be willing to make an arrest and the prosecutor may be
willing to charge, despite questions about the procedures used to obtain
physical evidence or about the validity of the defendant’s confession. If this
is true, then cases involving black offenders and white victims will be more
likely than other types of cases to “fall apart” before or during trial.140

A study of charging decisions in California reached a similar conclusion. Joan
Petersilia found that white suspects were more likely than African-American or
Hispanic suspects to be formally charged.141 Her analysis of the reasons given for
charge rejection led her to conclude that the higher dismissal rates for nonwhite
suspects reflected the fact that “blacks and Hispanics in California are more likely
than whites to be arrested under circumstances that provide insufficient evidence
to support criminal charges.”142 Prosecutors were more reluctant to file charges
against racial minorities than against whites, in other words, because they viewed
the evidence against racial minorities as weaker and the odds of convicting them
as lower.

Race, Drugs, and Selective Prosecution The results of Petersilia’s study in Los
Angeles and Spohn and Spears’s study in Detroit provide evidence suggestive of a
pattern of selective prosecution—that is, cases involving racial minorities, or certain
types of racial minorities, are singled out for prosecution, whereas similar cases
involving whites are either screened out very early in the process or never enter
the system in the first place.

This argument has been made most forcefully with respect to drug of-
fenses. In Malign Neglect, for example, Michael Tonry143 argues that “urban black

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231T H E C O U R T S

Americans have borne the brunt of the War on Drugs.” More specifically, he
charges that “the recent blackening of America’s prison population is the prod-
uct of malign neglect of the war’s effects on black Americans.”144 Jerome Miller
similarly asserts that “from the first shot fired in the drug war African-Americans
were targeted, arrested, and imprisoned in wildly disproportionate numbers.”145

There is ample evidence that the war on drugs is being fought primarily
in African-American and Hispanic communities. In 2014, for example, racial
minorities comprised nearly three-fourths of all offenders prosecuted in fed-
eral district courts for drug trafficking: 24.5 percent of these offenders were
white, 24.8 percent were African American, and 47.6 percent were Hispanic.146

These figures are inconsistent with national data on use of drugs, which reveal
that whites are more likely than either African Americans or Hispanics to re-
port having “ever” used a variety of drugs, including cocaine, PCP, LSD, and
marijuana.147

Some commentators cite evidence of a different type of selective prosecu-
tion in drug cases (see Box 5.4 for the U.S. Attorney General’s memorandum
regarding racial neutrality in federal prosecution). Noting that the penalties for
use of crack cocaine mandated by the federal sentencing guidelines are substan-
tially harsher than the penalties provided under many state statutes, these critics
suggest that state prosecutors are more likely to refer crack cases involving racial

B o x 5.4 The U.S. Attorney General and Racial Neutrality in Prosecution

In January 1999, Janet Reno, then attorney general for the United States, issued a
memorandum on “Ensuring Racial Neutrality in Prosecution Practices” to all U.S.
Attorneys.148 Excerpts from the memo included the following:

■ “Each United States Attorney should examine his or her office’s practices and
procedures and take all necessary measures to ensure the use of race-neutral
policies in the exercise of prosecutorial discretion within a district. Absent com-
pelling, specific law enforcement imperatives there is ordinarily no justification
for differing policies and practices within a district with respect to similarly
situated defendants. Moreover, any race-neutral policy that has a disparate
racial impact should be carefully reviewed to determine whether the disparity
is justified by law enforcement necessity and not the product of conscious or
unconscious racial bias.”

■ “Care must be taken to ensure that race plays no part in the Government’s
decision whether to file a substantial assistance motion or the amount of any
recommended reduction.”

■ “As the chief federal law enforcement officer in the district, the United States
Attorney should take a leadership role in ensuring that all agencies within the
district are aware of issues of racial disparity [O]ur constant vigilance will ensure
that there is no perception of racial disparity in the discharge of our duties. The
public recognition that our policies are administered in a race-neutral fashion is
as important as the reality that we do so administer them.”

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232 C H A P T E R 5

minorities to the federal system for prosecution. Richard Berk and Alec Camp-
bell,149 for example, compared the racial makeup of defendants arrested for sale of
crack cocaine in Los Angeles to the racial makeup of defendants charged with sale
of crack cocaine in state and federal courts. They found that the racial makeup of
arrestees was similar to the racial makeup of those charged with violating state
statutes. However, African Americans were overrepresented in federal cases; in
fact, over a four-year period, no whites were prosecuted for the sale of crack co-
caine in federal court.

This issue was addressed by the Supreme Court in 1996. The five defen-
dants in the case of U.S. v. Armstrong et al.150 alleged that they were selected for
prosecution in federal court (the U.S. District Court for the Central District of
California) rather than in state court because they were African American. They
further alleged that this decision had serious potential consequences. Christopher
Armstrong, for example, faced a prison term of 55 years to life under federal
statutes, compared to 3–9 years under California law. Another defendant, Aaron
Hampton, faced a maximum term of 14 years under California law but a manda-
tory life term under federal law.

Following their indictment for conspiring to possess with intent to distribute
more than 50 grams of crack cocaine, the defendants filed a motion for discovery
of information held by the U.S. Attorney’s office regarding the race of people
prosecuted by that office. In support of their motion, they offered a study show-
ing that all of the defendants in the crack cocaine cases closed by the Federal
Public Defender’s Office in 1991 were African American.

The U.S. District Court ordered the U.S. Attorney’s office to provide the data
requested by the defendants. When federal prosecutors refused to do so, noting
that there was no evidence that they had refused to prosecute white or Hispanic
crack defendants, U.S. District Judge Consuelo Marshall dismissed the indict-
ments. The 9th Circuit U.S. Court of Appeals affirmed Judge Marshall’s dismissal
of the indictments. The appellate court judges stated that they began with “the
presumption that people of all races commit all types of crimes—not with the
premise that any type of crime is the exclusive province of any particular racial
or ethnic group.”151 They stated that the defendant’s evidence showing that all
24 crack defendants were African American required some response from federal
prosecutors.

The U.S. Supreme Court disagreed. In an 8-to-1 decision that did not settle
the issue of whether the U.S. Attorney’s Office engaged in selective prosecution,
the Court ruled that federal rules of criminal procedure regarding discovery do
not require the government to provide the information requested by the defen-
dants. Although prosecutors are obligated to turn over documents that are “mate-
rial to the preparation of the . . . defense,” this applies only to documents needed
to mount a defense against the government’s “case-in-chief ” (in other words, the
crack cocaine charges) and not to documents needed to make a selective prose-
cution claim. Further, the Court ruled that “for a defendant to be entitled to dis-
covery on a claim that he was singled out for prosecution on the basis of his race,
he must make a threshold showing that the Government declined to prosecute
similarly situated suspects of other races.”152

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233T H E C O U R T S

Justice Stevens, the lone dissenter in the case, argued that the evidence of
selective prosecution presented by the defendants “was sufficiently disturbing to
require some response from the United States Attorney’s Office.” According to
Stevens:

If a District Judge has reason to suspect that [the United States Attorney
for the Central District of California], or a member of her staff, has sin-
gled out particular defendants for prosecution on the basis of their race,
it is surely appropriate for the Judge to determine whether there is a
factual basis for such a concern.153

Stevens added that the severity of federal penalties imposed for offenses in-
volving crack cocaine, coupled with documented racial patterns of enforcement,
“give rise to a special concern about the fairness of charging practices for crack
offenses.” His concerns are echoed by U.S. District Court Judge Consuelo B.
Marshall, who observed, “We do see a lot of these [crack] cases and one does ask
why some are in state court and some are being prosecuted in federal court . . .
and if it’s not based on race, what’s it based on?”154

Prosecution of the Jena Six In September 2006, an African-American student
at Jena (Louisiana) High School defied tradition and sat under a large oak tree in
the center of campus that was “reserved” for whites. The next day, three hang-
man’s nooses were found dangling from the tree. This led to a series of altercations
involving white and African-American students and, eventually, to the beating of
a white student, Justin Barker, by six African-American youths who also attended
the school. Barker was treated at a local hospital and released. The white students
who admitted hanging the nooses were suspended from school for three days.

Although the incident was widely regarded as nothing more than a “schoolyard
brawl,”155 the six students, five of whom were juveniles at the time of the inci-
dent, were expelled from school and charged, not with assault, but with attempted
second-degree murder and conspiracy to commit second-degree murder. All but
one of the students—Jesse Ray Beard, who was 14 at the time of the incident—
were charged as adults and were facing sentences of up to 100 years in prison.

Rapides Parish District Attorney Reed Walters, who initially justified the mur-
der charges by classifying the tennis shoes the African-American students were
wearing during the incident as “deadly weapons,” reduced the charges against
Mycah Bell, who was 16 when the incident occurred, to aggravated second-
degree battery and conspiracy to commit aggravated second-degree battery just be-
fore the case was to go to trial. He was convicted of these charges by an all-white
jury, but a Louisiana appellate court threw out the conviction, ruling that Bell’s
case should have been heard in juvenile court. Bell pled guilty to simple battery in
juvenile court and was sentenced to serve 18 months in a juvenile facility. In 2009,
the remaining five defendants pleaded no contest to misdemeanor simple battery
and were sentenced to seven days unsupervised probation and ordered to pay fines
of $500.

Walters’s decisions to charge the Jena Six with felonies in adult court and to
not file charges against the students who hung the nooses were widely criticized.

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234 C H A P T E R 5

In September 2007, Walters answered those criticisms in an op-ed piece for the
New York Times.156 Although he acknowledged that hanging the nooses was “ab-
horrent and stupid,” he nonetheless argued that “it broke no law.” He also con-
tended that the attack on Justin Barker was not a “schoolyard fight” but rather was
a brutal and unprovoked attack on an individual who had nothing to do with the
noose incident. According to Walters:

I can understand the emotions generated by the juxtaposition of the
noose incident with the attack on Mr. Barker and the outcomes for the
perpetrators of each. In the final analysis, though, I am bound to enforce
the laws of Louisiana as they exist today, not as they might in someone’s
vision of a perfect world.157

Walters’s explanation did not placate his critics. In 2007, the Harvard Civil
Rights-Civil Liberties Law Review devoted an entire issue to the case of the Jena
Six, with a focus on the actions of the prosecuting attorney. Andrew E. Taslitz
and Carole Steiker, who wrote the lead article for the issue, argued that Walters’s
decisions and the racial conflict they sparked “provide important windows into
how race operates in the American criminal justice system.”158 According to these
authors:

The racialized meaning of modern actions also affects public attitudes
toward crime, the content of resulting legislation, the ways in which ju-
dicial and prosecutorial discretion are exercised, and the nature of what
are likely to be effective solutions to the problems of racial bias and dis-
parity. Once again, these meanings may do their work at a subconscious
level, yet their influence cannot be denied. All Americans, but especially
those with power to change the criminal justice system, have a duty to
expose the subconscious and institutional influences at work in their
own choices (and in those of other criminal justice system actors) and to
correct racism’s pernicious effects.159

Prosecution of Pregnant Women Who Abuse Drugs:

Racial Discrimination?

In 1989, Jennifer Clarise Johnson, a 23-year-old African-American crack addict,
became the first woman in the United States to be convicted for exposing a baby
to illegal drugs during pregnancy. The Florida court gave Johnson 15–20 years’
probation and required her to enter drug treatment and report subsequent preg-
nancies to her probation officer. According to the prosecutor who filed charges
against Johnson, “We needed to make sure this woman does not give birth to
another cocaine baby.”160

Other prosecutions and convictions in other state courts followed; by 1992,
more than 100 women in 24 states had been charged with abusing an unborn
child through illegal drug use during pregnancy.

Many of these cases were appealed and, until 1997, all of the appeals resulted
in the dismissal of charges. Then in October 1997, the South Carolina Supreme

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235T H E C O U R T S

Court became the first court in the United States to rule that a viable fetus could
be considered a person under child abuse laws and that a pregnant woman who
abused drugs during the third trimester of pregnancy therefore could be charged
with child abuse or other, more serious, crimes.161 Two months later, Talitha Re-
nee Garrick, a 27-year-old African-American woman who admitted that she
smoked crack cocaine an hour before she gave birth to a stillborn child, pled
guilty to involuntary manslaughter in a South Carolina courtroom.

Do Prosecutors “Target” Pregnant African-American Women? A number
of commentators contend that prosecutors’ charging decisions in these types of
cases reflect racial discrimination. Humphries and colleagues, for example, as-
serted, “The overwhelming majority of prosecutions involve poor women of
color.”162 Dorothy Roberts163 similarly argued that “poor Black women are the
primary targets of prosecutors, not because they are more likely to be guilty of
fetal abuse, but because they are Black and poor.”164

To support her allegations, Roberts cited evidence documenting that most
of the women who have been prosecuted have been African American; she noted
that the 52 women prosecuted through 1990 included 35 African Americans,
14 whites, 2 Hispanics, and 1 Native American. Ten out of 11 cases in Florida
and 17 out of 18 cases in South Carolina were brought against African-American
women.165 According to Roberts, these glaring disparities create a presumption
of racially selective prosecution.

Randall Kennedy, an African-American professor of law at Harvard Uni-
versity and the author of Race, Crime, and the Law, acknowledged that Roberts’s
charges of selective prosecution and racial misconduct “are surely plausible.” As he
noted, “Given the long and sad history of documented, irrefutable racial discrim-
ination in the administration of criminal law . . . no informed observer should
be shocked by the suggestion that some prosecutors treat black pregnant women
more harshly than identically situated white pregnant women.”166

Kennedy claimed, however, that Roberts’s contention that prosecutors target
women “because they are black and poor,”167 although plausible, was not persuasive.
He noted that Roberts relied heavily on evidence from a study designed to esti-
mate the prevalence of alcohol and drug abuse among pregnant women in Pinellas
County, Florida. This study revealed that there were similar rates of substance abuse
among African-American and white women but that African-American women
were 10 times more likely than white women to be reported to public health
authorities (as Florida law required).

Kennedy argued that the Florida study does not provide conclusive evidence
of racial bias. He noted, in fact, that the authors of the study themselves suggested
that the disparity in reporting rates might reflect either the fact that newborns
who have been exposed to cocaine exhibit more severe symptoms at birth or the
fact that African-American pregnant women are more likely than white pregnant
women to be addicted to cocaine (rather than to alcohol, marijuana, or some
other drug). Kennedy asserted that Roberts failed to address these alternative hy-
potheses and simply insisted “‘racial prejudice and stereotyping must be a factor’
in the racially disparate pattern of reporting . . .”168

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236 C H A P T E R 5

Kennedy also contended that Roberts’s analysis failed to consider the prob-
lem of underprotection of the law. Imagine, he asked, what the reaction would be
if the situation were reversed and prosecutors brought child-abuse charges solely
against drug-abusing white women. “Would that not rightly prompt suspicion
of racially selective devaluation of black babies on the grounds that withholding
prosecution deprives black babies of the equal protection of the laws?”169

A more recent study of arrest and forced interventions on pregnant women
calls Kennedy’s criticisms of Robert’s study into question.170 Lynn M. Paltrow
and Jeanne Flavin collected data on 413 cases in which pregnant women were ar-
rested and/or charged with crimes in state and federal jurisdictions of the United
States between 1973 and 2005. The authors of the study found that in 84 per-
cent of these cases, illicit drug use by the woman was an issue and over half of
the women were charged with child abuse or neglect. Paltrow and Flavin also
pointed out that nearly three quarters of the women were economically disad-
vantaged, as indicated by the fact that they qualified for indigent defense coun-
sel and that more than half of the 368 women for whom information on race/
ethnicity was available were racial minorities; in fact, 52 percent of them were
African- American women. The racial disparity was even greater in some states.
In South Carolina, for example, African Americans made up 30 percent of the
state’s population, but 74 percent of the cases in the state were brought against
African-American women. An even more glaring disparity was found in Flor-
ida, where African Americans comprised 15 percent of the state’s population, but
75 percent of the cases brought against pregnant women. Noting that “rates of
drug use and dependency are similar across races,” the authors concluded that
“the clear racial disparities identified cannot be explained as the consequences
of ‘color-blind’ decisions to exercise state control over pregnant women who use
drugs or more specifically those who use cocaine.”171

What do you think? Do prosecutors concerned about drug use/abuse “tar-
get” pregnant women who are poor and African American or Hispanic? What
would the reaction be (among whites? among racial minorities?) if only white
women were prosecuted?

Race and Plea Bargaining Decisions

Although the prosecutor’s decision to file charges or not obviously is a critical de-
cision, prosecutors also exercise considerable discretion in the context of plea bar-
gaining. They decide whether to offer the defendant concessions—for example,
a reduction in the severity or number of charges or a recommendation regarding
the sentence the defendant should serve—in exchange for a guilty plea. Some ju-
risdictions limit the prosecutor’s ability to plea bargain in certain types of cases or
require that plea offers be documented in writing, but in most jurisdictions plea
bargaining is an unregulated and largely invisible phenomenon.

There has been relatively little research focusing explicitly on the effect of
race on prosecutors’ plea bargaining decisions. The research that has been con-
ducted reveals that prosecutors’ plea bargaining decisions are strongly deter-
mined by the strength of evidence against the defendant, by the defendant’s prior

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237T H E C O U R T S

criminal record, and by the seriousness of the offense.172 Prosecutors are more
willing to offer concessions to defendants who commit less serious crimes and
have less serious prior records. They also are more willing to alter charges when
the evidence against the defendant is weak or inconsistent.

A number of studies conclude that white defendants are offered plea bar-
gains more frequently and get better deals than racial minorities (for a detailed
discussion of this, see “New York City and Prosecution of Marijuana Offenses”).
A study of the charging process in New York, for example, found that race did
not affect charge reductions if the case was disposed of at the first presentation.
Among defendants who did not plead guilty at the first opportunity, however,
African Americans received less substantial reductions than whites.173 An analysis
of 683,513 criminal cases in California concluded that “whites were more suc-
cessful in getting charges reduced or dropped, in avoiding ‘enhancements’ or extra
charges, and in getting diversion, probation, or fines instead of incarceration.”174

An analysis of plea bargaining under the federal sentencing guidelines also
concluded that whites receive better deals than racial minorities.175 This study,
which was conducted by the U.S. Sentencing Commission, examined sentence
reductions for offenders who provided “substantial assistance” to the government.
According to §5K1.1 of the Guidelines Manual, if an offender assists in the investi-
gation and prosecution of another person who has committed a crime, the pros-
ecutor can ask the court to reduce the offender’s sentence. Because the guidelines
do not specify either the types of cooperation that “count” as substantial assistance
or the magnitude of the sentence reduction that is to be given, this is a highly
discretionary decision.

The Sentencing Commission estimated the effect of race/ethnicity on both
the probability of receiving a substantial assistance departure and the magnitude
of the sentence reduction. They controlled for other variables such as the seri-
ousness of the offense, use of a weapon, the offender’s prior criminal record, and
other factors deemed relevant under the sentencing guidelines. They found that
African Americans and Hispanics were less likely than whites to receive a substan-
tial assistance departure; among offenders who did receive a departure, whites re-
ceived a larger sentence reduction than either African Americans or Hispanics.176

According to the Commission’s report, “The evidence consistently indicated that
factors that were associated with either the making of a §5K1.1 motion and/or
the magnitude of the departure were not consistent with principles of equity.”177

Similar results were reported by Celesta A. Albonetti,178 who examined the
effect of guideline departures on sentence outcomes for drug offenders. She found
that guideline departures (most of which reflected prosecutors’ motions to reduce
the sentence in return for the offenders’ “substantial assistance”) resulted in larger
sentence reductions for white drug offenders than for African- American or His-
panic drug offenders. A guideline departure produced a 23 percent reduction in
the probability of incarceration for white offenders, compared with a 14 percent
reduction for Hispanic offenders and a 13 percent reduction for African-Ameri-
can offenders.179 Albonetti concluded that her findings “strongly suggest that the
mechanism by which the federal guidelines permit the exercise of discretion op-
erates to the disadvantage of minority defendants.”180

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238 C H A P T E R 5

Two studies found that race did not affect plea bargaining decisions in the
predicted way. An examination of the guilty plea process in nine counties in Il-
linois, Michigan, and Pennsylvania revealed that defendant race had no effect on
four measures of charge reduction.181 The authors of this study concluded that
“the allocation of charge concessions did not seem to be dictated by blatantly
discriminatory criteria or punitive motives.”182 A study of charge reductions in
two jurisdictions found that racial minorities received more favorable treatment
than whites. In one county, African Americans received more favorable charge
reductions than whites; in the other county, Hispanics were treated more favor-
ably than whites.183 The authors of this study speculated that these results might
reflect devaluation of minority victims. As they noted, “If minority victims are
devalued because of racist beliefs, such sentiments could, paradoxically, produce
more favorable legal outcomes for minority defendants.” The authors also sug-
gested that the results might reflect overcharging of minority defendants by the
police; prosecutors may have been forced “to accept pleas to lesser charges from
black defendants because of the initial overcharging.”184

New York City and Prosecution of Marijuana Offenses In 2012, the Vera
Institute of Justice partnered with Cyrus R. Vance, the newly elected New York
district attorney, to study the effect of race and ethnicity on criminal justice
outcomes for defendants arrested for misdemeanors and felonies in New York
City. In a paper published in 2014 in Justice Quarterly, Kutateladze, Andiloro, and
Johnson used data on defendants arrested for misdemeanor marijuana offenses
to examine two types of plea offers—a prosecutor’s offer to allow the defen-
dant to plead to a lesser charge and a prosecutor’s offer to make a noncustodial
sentence recommendation to the judge (i.e., to recommend that the judge not
send the defendant to jail or prison).185 They focused on misdemeanor marijuana
offenses both because arrests for these types of offenses have been criticized for
targeting racial minorities and because processing of minor drug offenses is highly
discretionary and relatively straightforward (at least as compared to more serious
violent and property crimes).

The goal of this study was to determine if, among those arrested for misde-
meanor marijuana offenses, African Americans, Hispanics, and Asian Americans
were treated differently during the plea bargaining process than similarly situated
whites. When the researchers examined the two outcomes, they found that Af-
rican Americans and Hispanics were more likely and Asians were less likely than
whites to plead to the original charge. They also found that African Americans
were twice as likely as whites to receive a custodial plea offer, Hispanics were
somewhat more likely than whites to receive a custodial plea offer, and there were
no differences between whites and Asians in the odds of a custodial plea offer.

Because the researchers had access to case files, they were able to collect
detailed data on the characteristics of the defendant, the characteristics of the
offense, the strength of evidence in the case, and the circumstances of the arrest.
When they controlled for these offender and case characteristics, they found that
African Americans were still less likely than whites to receive a reduced charge
offer and that both African Americans and Hispanics were more likely to whites

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239T H E C O U R T S

to receive a custodial plea offer. In fact, African Americans were 2.4 times more
likely than whites and Hispanics were 1.4 times more likely than whites to re-
ceive a custodial plea offer.

The authors of the study concluded that their results offer support for “theo-
retical predictions grounded in implicit bias theory . . . which suggests that discre-
tionary decisions by prosecutors are affected by subconscious racial schemas” that
portray racial minorities as dangerous, violent, and prone to criminality.

In sum, although the evidence concerning the effect of race on prosecutors’
charging and plea bargaining decisions is both scanty and inconsistent, a num-
ber of studies have found that African-American and Hispanic suspects are more
likely than white suspects to be charged with a crime and prosecuted fully. There
also is evidence supporting charges of selective prosecution of racial minorities,
especially for drug offenses. The limited evidence concerning the effect of race on
plea bargaining is even more contradictory. Given the importance of these initial
charging decisions, these findings “call for the kind of scrutiny in the pretrial
stages that has been so rightly given to the convicting and sentencing stages.”186

C O N C L U S I O N

The court system that tried and sentenced the Scottsboro Boys in 1931 no longer
exists, in the South or elsewhere. Reforms mandated by the U.S. Supreme Court
or adopted voluntarily by the states have eliminated much of the blatant racism
directed against racial minorities in court. African-American and Hispanic crim-
inal defendants are no longer routinely denied bail and then tried by all-white
juries without attorneys to assist them in their defense. They are not consistently
prosecuted and convicted with less-than-convincing evidence of guilt.

Implementation of these reforms, however, has not produced equality of jus-
tice. As shown in the preceding sections of this chapter, there is evidence that
defendant race/ethnicity continues to affect decisions regarding bail, charging,
and plea bargaining. Some evidence suggests that race has a direct and obvious
effect on these pretrial decisions; other evidence suggests that the effect of race is
indirect and subtle. It is important to note, however, that discriminatory treatment
during the pretrial stage of the criminal justice process can have profound conse-
quences for racial minorities at trial and sentencing. If racial minorities are more
likely than whites to be represented by incompetent attorneys or detained in jail
prior to trial, they may, as a result of these differences, face greater odds of con-
viction and harsher sentences. Racially discriminatory charging decisions have
similar “spillover” effects at trial. We return to this issue in Chapter 7.

D I S C U S S I O N Q U E S T I O N S

1. Some commentators have raised questions about the quality of legal rep-
resentation provided to the poor. They also have suggested that racial
minorities, who are more likely than whites to be poor, are particularly

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240 C H A P T E R 5

disadvantaged. Is this necessarily the case? Are racial minorities represented
by public defenders or assigned counsel treated more harshly than those
represented by private attorneys? If you were an African-American, His-
panic, or Native American defendant and could choose whether to be
represented by a public defender or a private attorney, which would you
choose? Why?

2. Racial minorities comprise a very small proportion of the lawyers and
judges in the United States. What accounts for this? What difference, if any,
would it make if more of the lawyers representing criminal defendants were
racial minorities?

3. Do you agree or disagree with the Supreme Court’s decision (Grutter v.
Bollinger) in the case in which the University of Michigan Law School’s ad-
mission procedures were challenged? What is the basis for your agreement or
disagreement?

4. Assume that racial minorities are more likely than whites to be detained
prior to trial. Why is this a matter for concern? What are the consequences
of pretrial detention? How could the bail system be reformed to reduce this
disparity?

5. Randall Kennedy, the author of Race, Crime, and the Law, argues (p. 10) that
it is sometimes difficult to determine “whether, or for whom, a given dispar-
ity is harmful.” Regarding the prosecution of pregnant women who abuse
drugs, he states that “some critics attack as racist prosecutions of pregnant
drug addicts on the grounds that such prosecutions disproportionately bur-
den blacks.” But, he asks, “On balance, are black communities hurt by pros-
ecutions of pregnant women for using illicit drugs harmful to their unborn
babies or helped by intervention which may at least plausibly deter conduct
that will put black unborn children at risk?” How would you answer this
question?

6. Why did the case of the Jena Six spark so much controversy? Did Reed
Walters, the district attorney, overcharge the six African-American students?
Should the white students who hung the nooses in the tree have been
charged with hate crimes?

7. Assume that there is evidence that prosecutors in a particular jurisdiction
offer more favorable plea bargains to racial minorities than to whites—that
is, they are more willing to reduce the charges or to recommend a sentence
substantially below the maximum permitted by law if the defendant is a ra-
cial minority. What would explain this seemingly “anomalous” finding?

8. What conclusions can you draw about the fairness of the plea bargaining
process from the recent research conducted by Kutateladze and his col-
leagues in New York City?

9. What evidence would the defendants in U.S. v. Armstrong et al., the Supreme
Court case in which five black defendants challenged their prosecution for
drug offenses in federal rather than state court, need to prove that they had
been the victims of unconstitutional selective prosecution? How would they
obtain this evidence? Has the Supreme Court placed an unreasonable bur-
den on defendants alleging selection prosecution?

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241T H E C O U R T S

N O T E S

1. Philip S. Anderson, “Striving for a Just Society,” ABA Journal (February 1999), p. 66.

2. Powell v. Alabama, 287 U.S. 45 (1932).

3. Norris v. Alabama, 294 U.S. 587 (1935).

4. Dan T. Carter, Scottsboro: A Tragedy of the American South (Baton Rouge: Louisiana
State University Press, 1969), p. 326.

5. Ibid., p. 328.

6. Ibid., pp. 344–345.

7. Ibid., p. 347.

8. Birmingham Age-Herald, January 24, 1936 (quoted in Carter, Scottsboro, p. 347).

9. Carter, Scottsboro, pp. 376–377.

10. Ibid., p. 377.

11. Randall Kennedy, Race, Crime, and the Law (New York: Vintage Books, 1997), p. 104.

12. Peter Applebome, “Facts Perplexing in Texas Robbery,” New York Times, Decem-
ber 19, 1983, p. 17.

13. Ibid., p. 17.

14. Chicago Tribune, August 9, 1995, Section 5, pp. 1–2.

15. Ibid., p. 2.

16. Ibid.

17. The Justice Project website: http://www.justice.policy.net/cjreform/profiles.

18. Kennedy, Race, Crime, and the Law, p. 127.

19. Powell v. Alabama, 287 U.S. 45 (1932).

20. Johnson v. Zerbst, 304 U.S. 458 (1938).

21. Gideon v. Wainwright, 372 U.S. 335 (1963).

22. Argersinger v. Hamlin, 407 U.S. 25 (1972).

23. A defendant is entitled to counsel at every stage “where substantial rights of the ac-
cused may be affected” that require the “guiding hand of counsel” (Mempa v. Rhay,
389 U.S. 128, [1967]). These critical stages include arraignment, preliminary hearing,
entry of a plea, trial, sentencing, and the first appeal.

24. Strickland v. Washington, 466 U.S. 668 (1984).

25. Anthony Lewis, Gideon’s Trumpet (New York: Vintage Books, 1964).

26. Lisa J. McIntyre, The Public Defender: The Practice of Law in the Shadows of Repute
(Chicago: University of Chicago Press, 1987).

27. Bureau of Justice Statistics. Public Defender Offices, 2007—Statistical Tables (Washing-
ton, DC: U.S. Department of Justice, 2010), Table 5.

28. Bureau of Justice Statistics, Defense Counsel in Criminal Cases (Washington, DC: U.S.
Department of Justice, 2000), Tables 16 and 19.

29. “Notes: Gideon’s Promise Unfulfilled: The Need for Litigated Reform of Indigent
Defense,” Harvard Law Review 113 (2000), pp. 2062–2079.

30. Legal Defense and Educational Fund, National Association for the Advancement of
Colored People, Assembly Line Justice: Mississippi’s Indigent Defense Crisis (New York:
NAACP), p. 2.

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242 C H A P T E R 5

31. Jonathan D. Casper, “Did You Have a Lawyer When You Went to Court? No, I Had a
Public Defender,” Yale Review of Law & Social Action 1 (1971), pp. 4–9.

32. David W. Neubauer, America’s Courts and the Criminal Justice System, 7th ed. (Belmont,
CA: Wadsworth, 2002), p. 186.

33. See, for example, Abraham S. Blumberg, “The Practice of Law as a Confidence
Game: Organizational Cooptation of a Profession,” Law & Society Review 1
(1967), pp. 15–39; David Sudnow, “Normal Crimes: Sociological Features
of the  Penal Code in the Public Defender’s Office,” Social Problems 12 (1965),
pp. 255–277.

34. Ronald Weitzer, “Racial Discrimination in the Criminal Justice System: Findings
and Problems in the Literature,” Journal of Criminal Justice 24 (1996), p. 313.

35. Jonathan D. Casper, Criminal Courts: The Defendant’s Perspective (Englewood Cliffs,
NJ: Prentice-Hall, 1978); Richard D. Hartley, “Type of Counsel and Its Effects on
Criminal Court Outcomes in a Large Midwestern Jurisdiction: Do You Get What
You Pay For?” Diss. University of Nebraska at Omaha, 2005; Martin A. Levin, Urban
Politics and the Criminal Courts (Chicago: University of Chicago Press, 1977); Lisa J.
McIntyre, The Public Defender: The Practice of Law in the Shadow of Repute (Chicago:
University of Chicago Press, 1987); Dallin H. Oaks and Warren Lehman, “Lawyers
for the Poor,” in The Scales of Justice, Abraham S. Blumberg, ed. (Chicago: Aldine,
1970); Lee Silverstein, Defense of the Poor (Chicago: American Bar Foundation, 1965);
Gerald R. Wheeler and Carol L. Wheeler, “Reflections on Legal Representation of
the Economically Disadvantaged: Beyond Assembly Line Justice,” Crime and Delin-
quency 26 (1980), pp. 319–332.

36. Jerome Skolnick, “Social Control in the Adversary System,” Journal of Conflict Resolu-
tion 11 (1967), p. 67.

37. Paul B. Wice, Chaos in the Courthouse: The Inner Workings of the Urban Municipal Courts
(New York: Praeger, 1985).

38. Richard A. Posner and Albert H. Yoon, “What Judges Think of the Quality of Legal
Representation,” Stanford Law Review 63 (2011), pp. 317–350.

39. Bureau of Justice Statistics, Defense Counsel in Criminal Cases (Washington, DC: U.S.
Department of Justice, 2000).

40. Ibid.

41. James M. Anderson and Paul Heaton, “How Much Difference Does the Lawyer
Make? The Effect of Defense Counsel on Murder Case Outcomes,” The Yale Law
Journal 122 (2012), pp. 154–217.

42. Ibid., p. 200.

43. Ibid., p. 206.

44. David S. Abrams and Albert H. Yoon, “The Luck of the Draw: Using Random Case
Assignment to Investigate Attorney Ability,” The University of Chicago Law Review 74
(2007), pp. 1145–1177.

45. Malcolm D. Holmes, Harmon M. Hosch, Howard C. Daudistel, Dolores A. Perez,
and Joseph B. Graves, “Ethnicity, Legal Resources, and Felony Dispositions in Two
Southwestern Jurisdictions,” Justice Quarterly 13 (1996), pp. 11–30.

46. Ibid., p. 24.

47. The findings reported in this chapter are unpublished. For a discussion of the overall
conclusions of this study, see Cassia Spohn and Miriam DeLone, “When Does Race

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243T H E C O U R T S

Matter? An Examination of the Conditions under Which Race Affects Sentence Se-
verity,” Sociology of Crime, Law, and Deviance 2 (2000), pp. 3–37.

48. Weitzer, “Racial Discrimination in the Criminal Justice System,” p. 313.

49. Roger A. Hanson and Brian J. Ostrom, “Indigent Defenders Get the Job Done and
Done Well,” in Criminal Justice: Law and Politics, 6th ed., George Cole, ed. (Belmont,
CA: Wadsworth, 1993).

50. Gunnar Myrdal, An American Dilemma: The Negro Problem and Modern Democracy
(New York: Harper and Brothers, 1944), p. 547.

51. Ibid., p. 548.

52. Haywood Burns, “Black People and the Tyranny of American Law,” The Annals of the
American Academy of Political and Social Sciences 407 (1973), pp. 156–166.

53. Celesta A. Albonetti, “An Integration of Theories to Explain Judicial Discretion,”
Social Problems 38 (1991), pp. 247–266; Ronald A. Farrell and Victoria L. Swigert,
“Prior Offense Record as a Self-Fulfilling Prophecy,” Law & Society Review 12
(1978), pp. 437–453; Caleb Foote, “Compelling Appearance in Court: Adminis-
tration of Bail in Philadelphia,” University of Pennsylvania Law Review 102 (1954),
pp. 1031–1079; Joan Petersilia, Racial Disparities in the Criminal Justice System (Santa
Monica, CA: Rand Corporation, 1978); Gerald R. Wheeler and Carol L. Wheeler,
“Reflections on Legal Representation of the Economically Disadvantaged.”

54. American Bar Association, “Lawyer Demographics.” http://www.americanbar.
org/content/dam/aba/administrative/market_research/lawyer-demographics-
tables-2014.authcheckdam.pdf.

55. “A Disturbing Trend in Law School Diversity.” http://blogs.law.columbia.edu/salt.

56. Bureau of Labor Statistics, “Employed Persons by Detailed Occupation, Sex, Race,
and Hispanic or Latino Ethnicity, Employment and Earnings, Current Population
Survey” (2010). http://www.bls.gov/cps/cpsa2010.pdf.

57. Bies, Katherine J., Isaiah M. Deport, Darryl G. Long, Megan S. McKoy, Debbie A.
Mukamal, and David Alan Sklansky, Stuck in the ‘70s: The Demographics of California
Prosecutors (Stanford, CA: Stanford Criminal Justice Center, 2015).

58. American Bar Association, “National Database on Judicial Diversity in State Courts.”
http://www.abanet.org/judind/diversity/national.html.

59. Barry J. McMillion, U.S. Circuit and District Court Judges: Profile of Select Characteristics
(Washington, DC: Congressional Research Service, 2014), Figure 5 and Figure 10.

60. Ibid., Figure 6 and Figure 11.

61. American Bar Association, Commission on Racial and Ethnic Diversity in the
Profession, Miles to Go 2000: Progress of Minorities in the Legal Profession (Chicago:
American Bar Association, 2000), p. 28.

62. Ibid., p. 29.

63. Richard H. Sander, “A Systematic Analysis of Affirmative Action in American Law
Schools,” Stanford Law Review 57 (2004), pp. 367–585.

64. Ibid., p. 474.

65. David L. Chambers, Timothy T. Clydesdale, William C. Kidder, and Richard O.
Lempert, “The Real Impact of Eliminating Affirmative Action in American Law
Schools: An Empirical Critique of Richard Sander’s Study,” Stanford Law Review 57
(2005), pp. 1855–1898.

66. Ibid., p. 1857.

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244 C H A P T E R 5

67. John Hechinger, “Critics Assail Study of Race, Law Students,” Wall Street Journal,
November 5, 2004. http://www.wsj.com/articles/SB109960753547665313.

68. American Bar Association, “Race and the Law: Special Report,” February (1999),
pp. 42–70.

69. Terry Carter, “Divided Justice,” ABA Journal, February (1999), pp. 42–45.

70. The University of Michigan Law School, Report and Recommendations of the Admis-
sions Committee.

71. Ibid.

72. Grutter v. Bollinger, 288 F.3d 732 (2003).

73. Ibid.

74. Case No. 06-15024. U.S. District Court, Eastern District of Michigan.

75. Wayne Thomas, Bail Reform in America (Berkeley, CA: University of California Press,
1976).

76. Samuel Walker, Taming the System: The Control of Discretion in Criminal Justice, 1950–
1990 (New York: Oxford University Press, 1993).

77. J. Austin, B. Krisberg, and P. Litsky, “The Effectiveness of Supervised Pretrial Re-
lease,” Crime and Delinquency 31 (1985), pp. 519–537; John S. Goldkamp, “Danger
and Detention: A Second Generation of Bail Reform,” The Journal of Criminal Law
and Criminology 76 (1985), pp. 1–74; Walker, Taming the System.

78. Goldkamp, “Danger and Detention.”

79. This law was upheld by the U.S. Supreme Court in United States v. Salerno, 481 U.S.
739 (1987).

80. Coramae Richey Mann, Unequal Justice: A Question of Color (Bloomington, IN: Indi-
ana University Press, 1993), p. 168.

81. R. Stryker, Ilene Nagel, and John Hagan, “Methodology Issues in Court Research:
Pretrial Release Decisions for Federal Defendants,” Sociological Methods and Research
11 (1983), pp. 460–500; Charles M. Katz and Cassia Spohn, “The Effect of Race and
Gender on Bail Outcomes: A Test of an Interactive Model,” American Journal of Crim-
inal Justice 19 (1995), pp. 161–184.

82. S. H. Clarke and G. G. Koch, “The Influence of Income and Other Factors on
Whether Criminal Defendants Go To Prison,” Law & Society Review 11 (1976),
pp. 57–92.

83. George S. Bridges, A Study on Racial and Ethnic Disparities in Superior Court Bail and
Pre-Trial Detention Practices in Washington (Olympia, WA: Washington State Minority
and Justice Commission, 1997).

84. Ibid., p. 54.

85. Ibid., p. 98.

86. Ibid.

87. Stephen Demuth and Darrell Steffensmeier, “The Impact of Gender and
Race-Ethnicity in the Pretrial Release Process,” Social Problems 51 (2004),
pp. 222–242.

88. Ibid., Tables 2 and 4.

89. Ibid., p. 233.

90. Ibid., p. 238.

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245T H E C O U R T S

91. Besiki Kutateladze, Whitney Tymas, and Mary Crowley, Race and Prosecution in Man-
hattan (New York: Vera Institute of Justice, 2014).

92. Ibid., p. 5.

93. Margaret Farnworth and Patrick Horan, “Separate Justice: An Analysis of Race Dif-
ferences in Court Processes,” Social Science Research 9 (1980), pp. 381–399.

94. Theodore G. Chiricos and William D. Bales, “Unemployment and Punishment: An
Empirical Assessment,” Criminology 29 (1991), pp. 701–724.

95. Bureau of Justice Statistics, Pretrial Release of Felony Defendants, 1990–2004 (Wash-
ington, DC: U.S. Department of Justice, 2007), Table 5.

96. Bureau of Justice Statistics, Felony Defendants in Large Urban Counties, 2006 (Wash-
ington, DC: U.S. Department of Justice, 2010), Tables 5 and 8.

97. Spohn and DeLone, “When Does Race Matter?” Table 2.

98. Spohn and DeLone, unpublished data.

99. Cassia Spohn, “Race, Sex and Pretrial Detention in Federal Court: Indirect Ef-
fects and Cumulative Disadvantage,” University of Kansas Law Review 57 (2009),
pp. 879–902.

100. Ibid., p. 889.

101. Ibid., pp. 895–897.

102. Ibid., p. 893.

103. Ibid., pp. 898–899.

104. Leadership Conference on Civil Rights, Justice on Trial: Racial Disparities in the
American Criminal Justice System (Washington, DC: Leadership Conference on Civil
Rights, 2000).

105. Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978).

106. Kenneth Culp Davis, Discretionary Justice (Baton Rouge: Louisiana State University
Press, 1969), p. 190.

107. Barbara Boland (INSLAW Inc.), The Prosecution of Felony Arrests (Washington, DC:
Bureau of Justice Statistics, 1983); Kathleen B. Brosi, A Cross-City Comparison of Fel-
ony Case Processing (Washington, DC: Institute for Law and Social Research, 1979);
Vera Institute of Justice, Felony Arrests: Their Prosecution and Disposition in New York
City’s Courts (New York: Longman, 1981).

108. Charles E. Silberman, Criminal Violence, Criminal Justice (New York: Random House,
1978), p. 271.

109. Bordenkircher v. Hayes, supra, 434 U.S. 357, at 364 (1978).

110. For a review of this research, see Marvin Free, “Race and Presentencing Decisions
in the United States: A Summary and Critique of the Research,” Criminal Justice
Review 27 (2002), pp. 203–232. Free reviewed 24 studies of prosecutorial charging
decisions; his review revealed that 15 of them found that race (and, in some cases,
ethnicity) did not affect charging outcomes.

111. Celesta A. Albonetti, “Criminality, Prosecutorial Screening, and Uncertainty: Toward
a Theory of Discretionary Decision Making in Felony Case Processing,” Criminology
24 (1986), pp. 623–644; Dawn Beichner and Cassia Spohn, “Prosecutorial Charging
Decisions in Sexual Assault Cases: Examining the Impact of a Specialized Prosecution
Unit,” Criminal Justice Policy Review 16 (2005), pp. 461–498; Travis W. Franklin, “The
Intersection of Defendants’ Race, Gender, and Age in Prosecutorial Decision Making,”

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246 C H A P T E R 5

Journal of Criminal Justice 38 (2010), pp. 185–192; Martha A. Myers, The Effects of Victim
Characteristics in the Prosecution, Conviction, and Sentencing of Criminal Defendants, unpub-
lished Ph.D. dissertation (Bloomington, IN: Indiana University, 1977); Laureen O’Neil
Schermer and Brian D. Johnson, “Criminal Prosecutions: Examining Prosecutorial
Discretion and Charge Reductions in U.S. Federal District Courts,” Justice Quarterly 27
(2010), pp. 394–430; Cassia Spohn and David Holleran, “Prosecuting Sexual Assault: A
Comparison of Charging Decisions in Sexual Assault Cases Involving Strangers, Ac-
quaintances, and Intimate Partners,” Justice Quarterly 18 (2001), pp. 651–688.

112. Schermer and Johnson, “Criminal Prosecutions.”

113. Ibid., p. 422.

114. Franklin, “The Intersection of Defendant’s Race, Gender, and Age in Prosecutorial
Decision Making.”

115. Myrdal, An American Dilemma, pp. 552–553.

116. “Duke Suspends Lacrosse Team from Play amid Rape Allegations,” USA Today,
March 28, 2006.

117. “Duke Rape Suspects Speak Out,” 60 Minutes, October 15, 2006.

118. William Chafe, “Race and Sex,” Durham Chronicle, March 31, 2006, at A7.

119. “Duke DA Answers Critics: Denies Unethical Conduct, Wants Some Charges
Dropped,” ABC News Online (http://abcnews.go.com), February 28, 2007.

120. A. Beard, “Prosecutors Drop Charges in Duke Case,” Associated Press, April 11, 2007.

121. American Bar Association, Standards for Criminal Justice: The Prosecution Function.
Standard 3-3.9(d). http://www.americanbar.org/publications/criminal_justice_
section_archive/crimjust_standards_pfunc_toc.html.

122. Cassia Spohn, John Gruhl, and Susan Welch, “The Impact of the Ethnicity and
Gender of Defendants on the Decision To Reject or Dismiss Felony Charges,”
Criminology 25 (1987), pp. 175–191.

123. Ibid., p. 186.

124. Robert D. Crutchfield, Joseph G. Weis, Rodney L. Engen, and Randy R. Gainey,
Racial and Ethnic Disparities in the Prosecution of Felony Cases in King County (Olym-
pia, WA: Washington State Minority and Justice Commission, 1995).

125. Ibid., p. 32.

126. Ibid., p. 58.

127. David Bjerk, “Making the Crime Fit the Penalty: The Role of Prosecutorial Dis-
cretion under Mandatory Minimum Sentencing,” Journal of Law and Economics
48 (2005), pp. 591–625; Timothy S. Bynum, “Prosecutorial Discretion and the
Implementation of a Legislative Mandate,” in Implementing Criminal Justice Policies,
Merry Morash, ed. (Beverly Hills, CA: Sage, 1982), pp. 47–59; Charles Crawford,
“Gender, Race, and Habitual Offender Sentencing in Florida,” Criminology 38
(2000), pp. 263–280; Charles Crawford, Ted Chiricos, and Gary Kleck, “Race,
Racial Threat and Sentencing of Habitual Offenders,” Criminology 36 (1998),
pp. 481–513; Jill Farrell, “Mandatory Minimum Firearm Penalties: A Source of
Sentencing Disparity,” Justice Research and Policy 5 (2003), pp. 95–115; Paul Hofer,
“Federal Sentencing for Violent and Drug Trafficking Crimes Involving Firearms:
Recent Changes and Prospects for Improvement,” American Criminal Law Review 37
(2000), pp. 41–73; Paula Kautt and Miriam DeLone, “Sentencing Outcomes under
Competing but Coexisting Sentencing Interventions: Untying the Gordian Knot,”

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247T H E C O U R T S

Criminal Justice Review 31 (2006), pp. 105–131; Colin Loftin, Milton Heumann, and
David McDowall, “Mandatory Sentencing and Firearms Violence: Evaluating an
Alternative to Gun Control,” Law & Society Review 17 (1983), pp. 287–318; Jeffery
T. Ulmer, Megan C. Kurlychek, and John H. Kramer, “Prosecutorial Discretion and
the Imposition of Mandatory Minimum Sentences,” Journal of Research in Crime and
Delinquency 44 (2007), pp. 427–458.

128. Bjerk, “Making the Crime Fit the Penalty.”

129. Farrell, “Mandatory Minimum Firearm Penalties.”

130. Crawford, “Gender, Race, and Habitual Offender Sentencing in Florida”; Crawford
et al., “Race, Racial Threat and Sentencing of Habitual Offenders.”

131. Ulmer et al., “Prosecutorial Discretion and the Imposition of Mandatory Minimum
Sentences.”

132. Ibid., Tables 2 and 3.

133. Ibid., p. 452.

134. Gary D. LaFree, “The Effect of Sexual Stratification by Race on Official Reactions
to Rape,” American Sociological Review 45 (1980), pp. 842–854.

135. Michael L. Radelet, “Racial Characteristics and the Imposition of the Death Pen-
alty,” American Sociological Review 46 (1981), pp. 918–927.

136. Jon Sorensen and Donald H. Wallace, “Prosecutorial Discretion in Seeking Death:
An Analysis of Racial Disparity in the Pretrial Stages of Case Processing in a Mid-
western County,” Justice Quarterly 16 (1999), pp. 559–578.

137. Cassia Spohn and Jeffrey Spears, “The Effect of Offender and Victim Character-
istics on Sexual Assault Case Processing Decisions,” Justice Quarterly 13 (1996), pp.
649–679.

138. Ibid., pp. 661–662.

139. Ibid., p. 673.

140. Ibid., p. 674.

141. Joan Petersilia, Racial Disparities in the Criminal Justice System (Santa Monica, CA:
Rand, 1983).

142. Ibid., p. 26.

143. Michael Tonry, Malign Neglect: Race, Crime, and Punishment in America (New York:
Oxford University Press, 1995), p. 105.

144. Ibid., p. 115.

145. Jerome Miller, Search and Destroy: African-American Males in the Criminal Justice Sys-
tem (Cambridge: Cambridge University Press, 1996), p. 80.

146. U.S. Sentencing Commission, 2014 Sourcebook of Federal Sentencing Statistics
(Washington, DC: United States Sentencing Commission, 2015), Table 4.

147. U.S. Department of Health and Human Services, Substance Abuse and Mental
Health Services Administration, National Household Survey on Drug Abuse: Population
Estimates 1994 (Rockville, MD: U.S. Department of Health and Human Services,
1995).

148. https://www.justice.gov/ag/memo-ensuring-racial-neutrality-prosecution-process.

149. Richard Berk and Alec Campbell, “Preliminary Data on Race and Crack Charging
Practices in Los Angeles,” Federal Sentencing Reporter 6 (1993), pp. 36–38.

150. U.S. v. Armstrong et al., 517 U.S. 456 (1996).

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248 C H A P T E R 5

151. 48 F.3d 1508 (9th Cir. 1995).

152. U.S. v. Armstrong et al., 517 U.S. 456 (1996).

153. Ibid., (Stevens, J., dissenting).

154. Leadership Conference on Civil Rights, Justice on Trial, p. 14.

155. Andrew E. Taslitz and Carol Steiker, “Introduction to the Symposium: The Jena
Six, the Prosecutorial Conscience, and the Dead Hand of History,” Harvard Civil
Rights–Civil Liberties Law Review 44 (2009), pp. 275–296.

156. Reed Walters, “Op-Ed, Justice in Jena,” New York Times, September 26, 2007, at A27.

157. Ibid.

158. Taslitz and Steiker, “Introduction to the Symposium,” p. 295.

159. Ibid.

160. Drew Humphries, John Dawson, Valerie Cronin, Phyllis Keating, Chris Wisniewski,
and Jennine Eichfeld, “Mothers and Children, Drugs and Crack: Reactions to
Maternal Drug Dependency,” in The Criminal Justice System and Women, 2nd ed.,
Barbara Raffel Price and Natalie J. Sokoloff, eds. (New York: McGraw-Hill, 1995),
p. 169.

161. Whitner v. State of South Carolina (1996).

162. Ibid., p. 173.

163. Dorothy Roberts, “Punishing Drug Addicts Who Have Babies: Women of Color,
Equality, and the Right of Privacy,” Harvard Law Review 104 (1991), pp. 1419–1454.

164. Ibid., p. 1432.

165. Ibid., p. 1421, n. 6.

166. Kennedy, Race, Crime, and the Law, p. 354.

167. Ibid., p. 359.

168. Ibid., p. 360.

169. Ibid., p. 363.

170. Lynn M. Paltrow and Jeanne Flavin “Arrest of and Forced Interventions on
Pregnant Women in the United States, 1973-2005: Implications for Women’s Le-
gal Status and Public Health,” Journal of Health Politics, Policy and Law 38 (2013),
pp. 300–343.

171. Ibid., p. 333.

172. Lynn M. Mather, Plea Bargaining or Trial? (Lexington, MA: Heath, 1979).

173. Ilene Nagel Bernstein, Edward Kick, Jan T. Leung, and Barbara Schultz, “Charge
Reduction: An Intermediary State in the Process of Labelling Criminal Defen-
dants,” Social Forces 56 (1977), pp. 362–384.

174. Weitzer, “Racial Discrimination in the Criminal Justice System,” p. 313.

175. Linda Drazga Maxfield and John H. Kramer, Substantial Assistance: An Empirical Yard-
stick Gauging Equity in Current Federal Policy and Practice (Washington, DC: United
States Sentencing Commission, 1998).

176. Ibid., pp. 14–19.

177. Ibid., p. 21.

178. Celesta A. Albonetti, “Sentencing under the Federal Sentencing Guidelines: Effects
of Defendant Characteristics, Guilty Pleas, and Departures on Sentence Outcomes
for Drug Offenses, 1991–92,” Law & Society Review 31 (1997), pp. 789–822.

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249T H E C O U R T S

179. Ibid., p. 813.

180. Ibid., p. 818.

181. Peter F. Nardulli, James Eisenstein, and Roy B. Flemming, The Tenor of Justice: Crimi-
nal Courts and the Guilty Plea Process (Chicago: University of Chicago Press, 1988).

182. Ibid., p. 238.

183. Malcolm D. Holmes, Howard C. Daudistel, and Ronald A. Farrell, “Determinants
of Charge Reductions and Final Dispositions in Cases of Burglary and Robbery,”
Journal of Research in Crime and Delinquency 24 (1987), pp. 233–254.

184. Ibid., pp. 248–249.

185. Besiki Luka Kutateladze, Nancy R. Andiloro, and Brian D. Johnson, “Opening Pan-
dora’s Box: How Does Defendant Race Influence Plea Bargaining?” Justice Quar-
terly, published online May 2014. DOI:10.1080/07418825.2014.915340.

186. Spohn, Gruhl, and Welch, “The Impact of the Ethnicity and Gender of Defendants
on the Decision To Reject or Dismiss Felony Charges,” p. 189.

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251

6

JUSTICE ON THE BENCH?

Trial and Adjudication in

Criminal Court

In our courts, when it’s a white man’s word against a black man’s,
the white man always wins. They’re ugly but those are the facts

of life. The one place where a man ought to get a square deal is a
courtroom, be he any color of the rainbow, but people have a way

of carrying their resentments right into a jury box.
—HARPER LEE, TO KILL A MOCKINGBIRD1

L E A R N I N G O B J E C T I V E S

In this chapter, we focus on trial and adjudication in criminal court. We
begin with an examination of race and the jury selection process. We focus
on both the procedures used to select the jury pool and the process of
selecting the jurors for a particular case. We also discuss the role that race
plays in exonerations in rape cases and the issue of “playing the race card”
in a criminal trial. We end the chapter by summarizing the scholarly debate
surrounding the issue of racially based jury nullification.

After you have read this chapter:

1. You should be able to discuss the role of the jury and explain how the
U.S. Supreme Court has interpreted the requirement that jurors be
chosen from a random cross-section of the population.

2. You should be able to explain how race and ethnicity continue to be
taken into consideration during the jury selection process.

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252 C H A P T E R 6

3. You should be able to evaluate competing arguments regarding the peremp-
tory challenge and whether it should be eliminated.

4. You should be able to explain the concept of jury nullification and assess
competing arguments regarding the legitimacy of race-based nullification.

5. You should be able to clarify why Randall Kennedy asserts that playing the
race card in a criminal trial is “virtually always morally and legally wrong.”

R A C E / E T H N I C I T Y A N D T H E C R I M I N A L T R I A L

In 1997, Orange County (California) Superior Court Judge Everett Dickey
reversed Geronimo Pratt’s 1972 conviction for first-degree murder, assault with
intent to commit murder, and robbery.2 Pratt, a decorated Vietnam War veteran
and a leader in the Black Panther Party, was accused of killing Caroline Olsen
and shooting her ex-husband Kenneth Olsen on the Lincoln Park tennis court in
Santa Monica. Pratt, who claimed he had been in Oakland on Panther business
at the time of the crime, was convicted based in large part on the testimony of
another member of the Black Panther Party, Julius Butler. It was later revealed
that Butler had been a paid police informant and that police and prosecutors in
Los Angeles conspired to keep this information from the jury hearing Pratt’s case.

Over the next 25 years, Pratt’s lawyers filed a series of appeals, arguing that
Pratt’s conviction “was based on false testimony knowingly presented by the pros-
ecution.”3 Their requests for a rehearing were repeatedly denied by California
courts, and the Los Angeles District Attorney’s Office refused to reopen the case.
Then, in May 1997, Judge Dickey granted Pratt’s petition for a writ of habeas
corpus and reversed his conviction. Citing errors by the district attorney who
tried the case, Judge Dickey stated, “The evidence which was withheld about
Julius Butler and his activities could have put the whole case in a different light,
and failure to timely disclose it undermines confidence in the verdict.”4

Pratt—who spent 25 years in prison, including 8 years in solitary confinement—
was released on June 10, 1997. In April 2000, Pratt’s lawsuit for false imprisonment
and violation of his civil rights was settled out of court: the City of Los Ange-
les agreed to pay Pratt $2.75 million, and the federal government agreed to pay
him $1.75 million. Pratt’s attorney, Johnnie Cochran, Jr., described the settlement
as “unprecedented” and praised Pratt for “the relentless pursuit of justice.” Cochran
also stated that the settlement puts “to rest a matter that has dragged on for more
than three decades.”5

Trial and Adjudication in the Twenty-First Century

We began the previous chapter with a discussion of the Scottsboro case, a case
involving nine young African-American males who were convicted of raping two
white girls in the early 1930s. We noted that the defendants were tried by all-
white juries and that the Supreme Court overturned their convictions because of
the systematic exclusion of African Americans from the jury pool.

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253J U S T I C E O N T H E B E N C H ?

However, the Scottsboro Boys were tried in the 1930s, and much has changed
since then. Race relations have improved, and decisions handed down by the
Supreme Court have made it increasingly difficult for court systems to exclude
African Americans from jury service. Nevertheless, “racial prejudice still some-
times seems to sit as a ‘thirteenth juror.’ ”6 As the Geronimo Pratt case reveals,
the court system is not racially neutral. All-white juries continue to convict
African-American defendants on less-than-convincing evidence. All-white juries
continue to acquit whites who victimize African Americans despite persuasive
evidence of guilt. And police and law enforcement officials sometimes bend the
law in their zeal to obtain a conviction. Consider the following cases:

1991: Four white Los Angeles police officers were charged in the beat-
ing of Rodney King, an African-American man stopped for a traffic vio-
lation. A videotape of the incident, which showed the officers hitting
King with their batons and kicking him in the head as he lay on the
ground, was introduced as evidence at the trial. Los Angeles exploded in
riots after a jury composed of 10 whites, 1 Asian American, and 1 His-
panic American acquitted the officers on all charges. A poll conducted
in the aftermath of the jury verdict revealed that 45 percent of African
Americans but only 12 percent of whites attributed the not-guilty ver-
dicts to racism and lack of African-American participation on the juries
rather than to errors by the prosecutor or inadequate evidence of the
officers’ guilt.7

2005: Walter Rideau, a 62-year-old African American whom Life maga-
zine once called “the most rehabilitated prisoner in America,” walked out
of a Calcasieu (Louisiana) Parish jail a free man after a jury that included
four African Americans found him guilty of manslaughter rather than
murder. Rideau, who had previously been sentenced to death three times
by all-white, all-male juries, spent 44 years in prison for the 1961 murder
of a white female bank teller, a crime he did not deny. Each of his con-
victions and death sentences were overturned by federal courts. His first
conviction was overturned by the U.S. Supreme Court, which referred
to his trial as “kangaroo court proceedings.” A federal appellate court
overturned his second conviction and death sentence because the prose-
cutor removed potential jurors who said they would be hesitant, but not
completely unwilling, to sentence Rideau to death. In 2000, a federal
appellate court overturned his third conviction because of racial discrim-
ination in the selection of the grand jury. Following this decision, the
state of Louisiana decided to retry Rideau a fourth time, despite the fact
that many of the prosecution witnesses were dead or otherwise unable
to testify. The Calcasieu Parish district attorney (with the approval of the
judge in the case) had the testimony of the state’s witnesses in the ear-
lier trial read to the new jury. The jury found him guilty of manslaugh-
ter, which under Louisiana law carried a maximum penalty of 21 years
in prison. Theodore M. Shaw, president of the NAACP Legal Defense
and Educational Fund, which represented Rideau in the most recent

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254 C H A P T E R 6

case, stated, “This was not a case about innocence. It was about fair-
ness and redemption—fairness, because even the guilty are entitled to a
trial untainted by racial discrimination and misconduct, and redemption,
because in a real sense the teenager who committed the tragic crime
died while incarcerated for 44 years and was reborn as the man who paid
the price and struggled for redemption.”8

2010: Johannes Mehserle, a white for mer Bay Area Rapid Transit
(BART) police officer, was convicted of involuntary manslaughter for
killing Oscar Grant, a 22-year-old African American who was unarmed
and lying face down on an outdoor train platform in Oakland (Cali-
fornia) on New Year’s Day of 2009. Mehserle, who was charged with
second-degree murder, maintained that he shot Grant by mistake when
he pulled his gun, rather than his Taser, from its holster. The jury’s ver-
dict meant that the jury did not believe that Mehserle intended to
shoot Grant but instead believed that his behavior was so negligent
as to constitute a crime. After the jury’s verdict was revealed, the U.S.
Department of Justice’s Civil Rights Division announced that it was
launching an investigation into whether Mehserle violated Grant’s civil
rights. In a letter to U.S. Attorney General Eric Holder urging him to
open the investigation, U.S. Representative Barbara Lee wrote, “While
I understand this is a state criminal matter, certain issues surrounding
this case seem to invite further examination by the Civil Rights Divi-
sion of the Department of Justice. Given the ongoing tensions between
African-American communities, communities of color and law enforce-
ment, care must be taken to ensure that civil rights statutes are properly
enforced and positive relationships between these communities and law
enforcement are forged.”9

2014–2015: In three high-profile cases, grand juries refused to indict
white police officers in the deaths of African-American suspects. In
November 2014, the St. Louis County (Missouri) grand jury refused to
indict a white police officer who fatally shot an unarmed 18-year-old
African-American man, Michael Brown, in Ferguson, Missouri. Brown’s
killing and the grand jury’s decision not to indict the officer sparked days
of violent protests. In November 2015, a white police officer in Mem-
phis, Tennessee, was cleared by a grand jury in the shooting death of a
19-year-old African-American man, Darrius Stewart, in spite of the fact
that the district attorney recommended that the officer be indicted for
voluntary manslaughter. In December 2015, a grand jury in Cuyahoga
County (Ohio) refused to indict two white Cleveland police officers for
killing Tamir Rice, a 12-year-old African-American boy who was play-
ing with a toy gun. The prosecutor who presented the case to the grand
jury reported that he did not recommend that the grand jury bring
charges because he concluded that the officers reasonably believed that
Tamir had a real weapon and was about to pull it from his waistband
when he was shot.

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255J U S T I C E O N T H E B E N C H ?

S E L E C T I O N O F T H E J U RY P O O L

Three facts about jury discrimination are largely undisputed. First, the
all-white jury has been a staple of the American criminal justice system
for most of our history. Second, the Supreme Court has long condemned
discrimination in jury selection. And third, race discrimination in jury
selection remains a pervasive feature of our justice system to this day. The
interesting question is how all of these facts can be true at the same time.

—DAVID COLE, NO EQUAL JUSTICE10

The jury plays a critically important role in the criminal justice system.
Indeed, “the jury is the heart of the criminal justice system.”11 Although it is true
that most cases are settled by plea and not by trial, many of the cases that do go to
trial involve serious crimes in which defendants are facing long prison terms or
even the death penalty. In these serious—and highly publicized—cases, the jury
serves as the conscience of the community and, in the words of the U.S. Supreme
Court, as “an inestimable safeguard against the corrupt or overzealous prosecutor
and against the compliant, biased, or eccentric judge.”12 As the Court has repeat-
edly emphasized, the jury also serves as “the criminal defendant’s fundamental
‘protection of life and liberty against race or color prejudice.’ ”13

Racial Discrimination in Selection of the Jury Pool

The process of selecting a jury for a criminal case involves two stages: the selec-
tion of the jury pool—that is, the pool of eligible individuals from whom the
jurors for a particular case will be chosen—and the selection of the jurors who
will actually decide the case. The jury pool is selected from eligible members of
the community, who are selected at random, usually from voting records, auto-
mobile registrations, or other lists of community residents. Prospective jurors for
criminal cases on the court’s docket are then randomly selected from the jury
pool. These potential jurors are examined by the judge and/or the attorneys for
the prosecution and the defense to determine whether they have any bias, prej-
udice, or interests that would prevent them from deciding the case in a fair and
impartial way. Those who are biased or who have a conflict of interest can be
challenged for cause. These challenges, which must be approved by the judge, are
unlimited. Attorneys for each side also can remove potential jurors through the
use of peremptory challenges, which are limited in number and which do not
require the attorney challenging the juror to provide the reason for the challenge.
We begin our discussion of race and the jury selection process by focusing on the
selection of the jury pool.

The Fourteenth Amendment to the U.S. Constitution, which went into
effect in 1868, provides that no state shall “deny to any person within its juris-
diction the equal protection of the laws.” Enacted in the wake of the Civil War,
the Fourteenth Amendment was designed to protect the rights of the newly
freed slaves. As Congressman Stevens, one of the amendment’s sponsors, stated,

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256 C H A P T E R 6

“Whatever law punishes a white man for a crime shall punish the black man pre-
cisely in the same way and to the same degree. Whatever law protects the white
man shall afford ‘equal’ protection to the black man.”14

The interpretation of the equal protection clause—who was protected and
what types of actions violated the equal protection mandate—was left to the U.S.
Supreme Court. One of the first cases in which the Court was asked to apply the
Equal Protection Clause was an 1880 case involving jury selection. At issue was
the murder conviction of a black man, Taylor Strauder, by an all-white jury. In
Strauder v. West Virginia,15 the Court ruled that a West Virginia statute limiting jury
service to white males violated the Equal Protection Clause of the Fourteenth
Amendment and therefore was unconstitutional. The Court concluded that the
statute, which prohibited African Americans and other nonwhites—no matter
how well qualified—from serving on juries, inflicted two distinct harms. The first
was a harm that affected the entire African-American population. According to
the Court:

The very fact that colored people are singled out and expressly denied
by a statute all right to participate in the administration of the law, as
jurors, because of their color . . . is practically a brand upon them affixed
by the law, an assertion of their inferiority, and a stimulant to that race
prejudice which is an impediment to securing to individuals of the race
that equal justice which the law aims to secure to all others.16

The Court stated that the West Virginia statute inflicted a second harm that
primarily hurt African-American defendants, who were denied even the chance
to have people of their own race on their juries. “How can it be maintained,”
the Justices asked, “that compelling a man to submit to trial for his life by a jury
drawn from a panel from which the State has expressly excluded every man of
his race, because of his color alone, however well qualified in other respects, is
not a denial to him of equal legal protection?”17 The Court added that this was
precisely the type of discrimination the Equal Protection Clause was designed to
prevent.

After Strauder v. West Virginia, it was clear that states could not pass laws
excluding African Americans from jury service. This ruling, however, did not pre-
vent states, and particularly southern states, from developing techniques designed
to preserve the all-white jury. In Delaware, for example, local jurisdictions used
lists of taxpayers to select “sober and judicious” persons for jury service. Under
this system, African-American taxpayers were eligible for jury service but were
seldom, if ever, selected for the jury pool. The state explained this result by noting
that few of the African Americans in Delaware were intelligent, experienced, or
moral enough to serve as jurors. As the chief justice of the Delaware Supreme
Court concluded, “That none but white men were selected is in nowise remark-
able in view of the fact—too notorious to be ignored—that the great body of
black men residing in this State are utterly unqualified by want of intelligence,
experience, or moral integrity to sit on juries.”18

The U.S. Supreme Court refused to accept this explanation. In Neal v.
Delaware, decided two years after Strauder, the court ruled that the practice had

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257J U S T I C E O N T H E B E N C H ?

systematically excluded African Americans from jury service and was therefore a
case of purposeful—and unconstitutional—racial discrimination.19 Justice Harlan,
writing for the Court, stated that it was implausible “that such uniform exclusion
of [Negroes] from juries, during a period of many years, was solely because . . .
the black race in Delaware were utterly disqualified, by want of intelligence, expe-
rience, or moral integrity.”20

These early court decisions did not eliminate racial discrimination in jury
selection, particularly in the South. Gunnar Myrdal’s analysis of the “Negro prob-
lem” in the United States in the late 1930s and early 1940s concluded that the
typical jury in the South was composed entirely of whites.21 He noted that some
courts had taken steps “to have Negroes on the jury list and call them in occa-
sionally for service.”22 He added, however, that many southern courts, and par-
ticularly those in rural areas, had either ignored the constitutional requirement or
developed techniques “to fulfill legal requirements without using Negro jurors.”23

As a result, as Seymour Wishman noted, “For our first hundred years, blacks were
explicitly denied the right to be jurors, which meant that if a black defendant
was not lynched on the spot, an all-white jury would later decide what to do
with him.”24

Since the mid-1930s, the Supreme Court has made it increasingly difficult
for court systems to exclude African Americans from the jury pool. It consistently
has struck down the techniques used to circumvent the requirement of racial
neutrality in the selection of the jury pool. The Court, for example, ruled that it
was unconstitutional for a Georgia county to put the names of white potential
jurors on white cards, the names of African-American potential jurors on yellow
cards, and then “randomly” draw cards to determine who would be summoned.25

Similarly, the Court struck down the “random” selection of jurors from tax books
in which the names of white taxpayers were in one section and the names of
African-American taxpayers were in another.26 As the justices stated in Avery v.
Georgia, “The State may not draw up its jury lists pursuant to neutral procedures
but then resort to discrimination at other stages in the selection process.”27

The states’ response to the Supreme Court’s increasingly vigilant oversight of
the jury selection process was not always positive.28 The response in some south-
ern jurisdictions “was a new round of tokenism aimed at maintaining as much
of the white supremacist status quo as possible while avoiding judicial interven-
tion.”29 These jurisdictions, in other words, included a token number of racial
minorities in the jury pool in an attempt to head off charges of racial discrim-
ination. The Supreme Court addressed this issue as late as 1988.30 The Court
reversed the conviction of Tony Amadeo, who was sentenced to death for murder
in Putnam County, Georgia, after it was revealed that the Putnam County district
attorney asked the jury commissioner to limit the number of African Americans
and women on the master lists from which potential jurors were chosen.

The Exclusion of Mexican Americans from Jury Service

The cases discussed thus far focus on racial discrimination in the selection of the
jury pool. The issue of whether Hispanics—or, in the case of Texas, Mexican

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258 C H A P T E R 6

Americans—were similarly protected by the Equal Protection Clause of the
Fourteenth Amendment proved more contentious and was not settled until 1954,
a full 74 years after the Court ruled in Strauder that states could not ban African
Americans from jury service by statute.

In a series of cases challenging the exclusion of Mexican Americans from
jury service, Texas appellate courts consistently ruled against those challenging the
system.31 In early cases, the Texas courts ruled that the lack of Mexican American
jurors did not reflect purposeful discrimination but, rather, a lack of qualified can-
didates. For example, in Lugo v. Texas,32 which was decided in 1939, the Court of
Criminal Appeals heard testimony from the sheriff of San Patricio County that
only two Mexican Americans had been summoned for jury duty (and neither
of them served) in his 15 years as sheriff. However, the court ruled that this did
not constitute evidence of intentional discrimination, noting that the sheriff also
testified that “most of the Mexican population of this county are unable to speak
intelligently in English and are unable to read and write the English language.”

In later cases, the appellate courts in Texas shifted gears, arguing that there was
no discrimination against the “Mexican race” because, first, the Equal Protection
Clause recognized only two races or “classes” of people—whites and blacks—and,
second, Mexican Americans were part of the white race and therefore were not
discriminated against when juries were made up entirely of whites. As the court
stated in Hernandez v. State, “Mexican people . . . are not a separate race but are
white people of Spanish descent. In contemplation of the Fourteenth Amend-
ment, Mexicans are therefore members of and within the classification of the
white race, as distinguished from the members of the Negro race.”33

The Texas courts insisted that Mexican Americans were not a racial group,
but a nationality group, and, as such, the Equal Protection Clause did not apply
to them. As Clare Sheridan has pointed out, “The irony of absorbing Mexican
Americans into the category ‘white’ was that it denied them equal protection as
a group.”34

The U.S. Supreme Court weighed in on these issues in 1954. The case
involved Pete Hernandez, who was indicted for murder by a grand jury in
Jackson County, Texas; he was convicted and sentenced to life imprisonment.
Hernandez’s lawyers challenged the composition of both the grand jury that
indicted him and the petit jury that was selected for his trial, arguing that the
selection process, which systematically excluded persons of Mexican descent
from jury service, violated the Fourteenth Amendment. There was evidence that
no Mexican Americans had been on a jury in Jackson County for at least a
quarter century, despite the fact that there were Mexican Americans who were
qualified to serve.

Lawyers for the state of Texas argued that Mexican Americans were “whites
of Spanish descent” and that Hernandez therefore had an impartial jury, com-
posed of members of his own race (in other words, whites). The Texas Court of
Criminal Appeals agreed, concluding that Mexican Americans were a national-
ity, not a race, and that the Equal Protection Clause was not designed to ensure
equal rights to those of different nationalities. The court stated that Hernandez
was seeking “special privileges” that other whites did not have. According to the

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259J U S T I C E O N T H E B E N C H ?

court’s ruling, “It is apparent, therefore, that appellant seeks to have this court
recognize and classify Mexicans as a special class within the white race and to
recognize that special class as entitled to special privileges in the organization of
grand and petit juries in this state.”35

The U.S. Supreme Court disagreed with the Texas Court of Criminal
Appeals’ analysis. Writing for the majority, Chief Justice Earl Warren said, “The
State of Texas would have us hold that there are only two classes—white and
Negro—within the contemplation of the Fourteenth Amendment. The decisions
of this Court do not support that view.”36 According to the Court’s decision:

Throughout our history differences in race and color have defined easily
identifiable groups which have at times required the aid of the courts
in securing equal treatment under the laws. But community prejudices
are not static, and from time to time other differences from the commu-
nity norm may define other groups which need the same protection.
Whether such a group exists within a community is a question of fact.
When the existence of a distinct class is demonstrated, and it is further
shown that the laws, as written or as applied, single out that class for
different treatment not based on some reasonable classification, the guar-
antees of the Constitution have been violated. The Fourteenth Amend-
ment is not directed solely against discrimination due to a “two-class
theory”—that is, based upon differences between “white” and Negro.37

The Supreme Court overturned Hernandez’s conviction and, in doing so,
stated that the fact that there were no Mexican Americans on juries for over
25 years could not be due to chance. As the majority stated, “It taxes our credulity
to say that mere chance resulted in there being no members of this class among
the over six thousand jurors called in the past 25 years. The result bespeaks
discrimination, whether or not it was a conscious decision on the part of any
individual jury commissioner.”38

Techniques for Increasing Racial Diversity of the Jury Pool

Although the Supreme Court decisions discussed in the previous two sections
have made it more difficult for states to discriminate overtly on the basis of race
or ethnicity, the procedures used to select the jury pool are not racially neutral.
Many states obtain the names of potential jurors from lists of registered voters,
automobile registrations, or property tax rolls. The problem with this seemingly
objective method is that in some jurisdictions racial minorities are less likely than
whites to register to vote or to own automobiles or taxable property. As a result,
racial minorities are less likely than whites to receive a jury summons. Further
compounding the problem is the fact that “for a number of reasons, from skepti-
cism and alienation to the inability to take time off from their jobs, minorities and
the poor are also less likely to respond to those summonses they receive.”39 The
result is a jury pool that overrepresents white middle- and upper-class persons
and underrepresents racial minorities and those who are poor. (See Box 6.1 for
the requirements for serving on a jury in Massachusetts.)

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260 C H A P T E R 6

B o x 6.1 Excerpts from Massachusetts Jury Selection Statute

Juror Service

Juror service in the participating counties shall be a duty which every person who
qualifies under this chapter shall perform when selected. All persons selected for
juror service on grand and trial juries shall be selected at random from the popula-
tion of the judicial district in which they reside. All persons shall have equal opportu-
nity to be considered for juror service. All persons shall serve as jurors when selected
and summoned for that purpose except as hereinafter provided. No person shall be
exempted or excluded from serving as a grand or trial juror because of race, color,
religion, sex, national origin, economic status, or occupation. Physically handicapped
persons shall serve except where the court finds such service is not feasible. This
court shall strictly enforce the provisions of this section.

Disqualification from Juror Service

As of the date of receipt of the juror summons, any citizen of the United States,
who is a resident of the judicial district or who lives within the judicial district more
than fifty per cent of the time, whether or not he is registered to vote in any state
or federal election, shall be qualified to serve as a grand or trial juror in such judicial
district unless one of the following grounds for disqualification applies:

1. Such person is under the age of eighteen years.

2. Such person is seventy years of age or older and indicates on the juror confir-
mation form an election not to perform juror service.

3. Such person is not able to speak and understand the English language.

4. Such person is incapable by reason of a physical or mental disability of render-
ing satisfactory juror service.

5. Such person is solely responsible for the daily care of a permanently dis-
abled person living in the same household and the performance of juror
service would cause a substantial risk of injury to the health of the disabled
person.

6. Such person is outside the judicial district and does not intend to return to the
judicial district at any time during the following year.

7. Such person has been convicted of a felony within the past seven years or
is defendant in pending felony cases or is in the custody of a correctional
institution.

8. Such person has served as a grand or trial juror in any state or federal court
within the previous three calendar years or the person is currently scheduled to
perform such service.

SOURCE: 234A M.6.L.A. § et seq.

State and federal jurisdictions have experimented with a number of tech-
niques for increasing the racial diversity of the jury pool. When officials in Hen-
nepin County (St. Paul), Minnesota, which is 9 percent nonwhite, discovered that
most grand juries were all white, they instituted a number of reforms designed to
make jury service less burdensome. They doubled the pay for serving, provided

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261J U S T I C E O N T H E B E N C H ?

funding to pay jurors’ day care expenses, and included a round-trip bus pass with
each jury summons.40 As a result of these measures, the number of racial minori-
ties selected for grand juries increased.

A more controversial approach involves “race-conscious jury selection”41 or
“jurymandering.”42 (See Box 6.2 for an argument in favor of jurymandering.)
Some jurisdictions, for example, send a disproportionate number of summonses
to geographic areas with large populations of racial minorities. Others attempt to
select a more representative jury pool by subtracting the names of white prospec-
tive jurors until the proportion of racial minorities in the pool matches the pro-
portion in the population. A more direct effort to ensure racial diversity involves
setting aside a certain number of seats for racial minorities. Although no jurisdic-
tion has applied this approach to the selection of trial jurors, judges in Hennepin
County are required to select two minority grand jurors for every grand jury.43

A somewhat different approach was tried in a U.S. district court. In 2005, a
federal district court judge in Boston ordered court administrators to send a new
summons to another person in the same zip code if a summons was returned as
undeliverable.44 Judge Nancy Gertner took this step in an attempt to increase the
pool of African-American jurors available for a federal death penalty case involv-
ing two African-American men. Massachusetts pioneered the use of resident lists
rather than lists of registered voters in an attempt to increase the racial diversity
of the jury pool. However, defense attorneys in the case argued that resident lists
are more likely to be inaccurate in areas with the highest percentage of Afri-
can Americans, resulting in a large number of summonses returned as undeliver-
able. According to Patricia Garin, one of the defense attorneys, Gertner’s remedy,
although unlikely to make juries truly representative of the community, was “a
step in the right direction” and would increase the chances that people of color
would serve on juries.45

Opinions regarding these techniques are divided. Randall Kennedy argued
that “officials should reject proposals for race-dependent jury refor ms.”46

Although he acknowledged that these proposals are well intentioned, Kennedy

B o x 6.2 The Advantages of “Jurymandering”

In advocating for race-conscious jury selection, Hiroshi Furukai and Darryl Davies state:
. . . jury studies show that a number of legal and non-legal factors operate

together to cause the under-representation of racial minorities on the jury. Relying
on current color-blind jury selection procedures—in effect leaving the racial compo-
sition of the jury to chance—almost always leads to racially disproportionate repre-
sentation. One way to guarantee a mixed jury is through a race-conscious selection
policy, or its equivalent, the ‘jurymandering’ method. Jurymandering is the use of an
affirmative mechanism, such as a racial quota, to engineer mixed juries that may not
occur under current jury selection procedures.

SOURCE: Hiroshi Furukai and Darryl Davies, “Affirmative Action in Jury Selection,” Virginia Journal of Social
Policy & the Law 4 (1996), p. 653.

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262 C H A P T E R 6

maintained that they would have unintended consequences (e.g., jurors selected
because of their race might believe they are expected to act as representatives of
their race during deliberations) and would be difficult to administer (e.g., offi-
cials would be required to determine the race of potential jurors and defendants,
which would inevitably result in controversies over racial identification). Kennedy
also suggested that the more direct techniques may be unconstitutional. As he
noted, “Over the past decade, the U.S. Supreme Court has become increasingly
hostile to race-dependent public policies, even when they have been defended as
efforts to include historically oppressed racial minorities in networks of economic
opportunity and self-government.”47

Although the Supreme Court has not yet addressed this issue, in 1998 the
U.S. Court of Appeals for the Sixth Circuit ruled that subtracting whites from
jury panels so that all panels matched the racial makeup of the community vio-
lated the equal protection rights of white jurors.48 Four years later, the U.S.
Court of Appeals for the Second Circuit handed down a similar ruling. This case
involved the prosecution of an African American charged with the death of an
Orthodox Jewish student. The judge in the case believed that it was important
to seat a jury that was racially and religiously diverse. When one of the empan-
eled jurors was excused as a result of illness, the judge removed a second white
juror from the panel and filled the two slots with an African-American and a
Jewish juror, neither of whom was next in line on the list of alternate jurors. In
United States v. Nelson,49 the court recognized the motivations that led to the
judge’s decision, noting that they were “undoubtedly meant to be tolerant and
inclusive rather than bigoted and exclusionary,” but nonetheless ruled that “that
fact cannot justify the district court’s race-conscious actions. The significance of
a jury in our polity as a body chosen apart from racial and religious manipula-
tions is too great to permit categorization by race or religion even from the best
of intentions.”50

Those who disagree with these court rulings contend that race-conscious
plans that create representative jury pools should be allowed because they reduce
the likelihood that people of color will be tried by all-white juries. Albert
Alschuler, an outspoken advocate of racial quotas for juries, asserted that “few
statements are more likely to evoke disturbing images of American criminal jus-
tice than this one: ‘the defendant was tried by an all-white jury.’ ”51 He and other
critics of jury selection procedures contend that lack of participation by racial
minorities on juries that convict the African Americans and Hispanics who fill
court dockets in many jurisdictions leads to questions regarding the legitimacy
of their verdicts. (See Box 6.3 for anecdotal evidence of racial bias during jury
deliberations.) Advocates of race-conscious plans also argue that the inclusion
of greater numbers of racial minorities will counteract the cynicism and dis-
trust that minorities feel toward their government. As David Cole, a professor at
Georgetown University Law Center, wrote, “If the criminal justice system is to
be accepted by the black community, the black community must be represented
on juries. The long history of excluding blacks from juries is one important rea-
son why blacks as a class are more skeptical than whites about the fairness of the
criminal justice system.”52

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263J U S T I C E O N T H E B E N C H ?

T H E P E R E M P T O RY C H A L L E N G E :

R A C I A L P R O F I L I N G I N T H E C O U R T R O O M ?

The Supreme Court consistently has ruled that the jury should be drawn from a
representative cross-section of the community and that race is not a valid qualifi-
cation for jury service. These requirements, however, apply only to the selection
of the jury pool. They do not apply to the selection of individual jurors for a partic-
ular case. In fact, the Court has repeatedly stated that a defendant is not entitled
to a jury “composed in whole or in part of persons of his own race.”53 Thus, pros-
ecutors and defense attorneys can use their peremptory challenges—“challenges
without cause, without explanation, and without judicial scrutiny”54—as they see
fit (for evidence of this, see Box 6.4). They can use their peremptory challenges in
a racially discriminatory manner.

It is clear that lawyers do take the race of the juror into consideration during
the jury selection process. Prosecutors assume that racial minorities will side with
minority defendants, and defense attorneys assume that racial minorities will
be more inclined than whites to convict white defendants. As a result of these
assumptions, both prosecutors and defense attorneys have used their peremptory

B o x 6.3 Racial Bias and Jury Selection: A Juror’s Perspective

In an article on “Unconscious Bias and the Impartial Jury” that appeared in the Con-
necticut Law Review, Janet Bond Arterton, a U.S. District Court judge for the District
of Connecticut, discussed a note that she received from a juror at the conclusion of a
case involving an all-white jury and three African-American plaintiffs. The juror wrote:

I would like to convey to you, in confidence, a few thoughts about my expe-
rience. I recall walking into the Jury Assembly room last Thursday, and being
stunned by the singular ‘whiteness’ of the crowd. Out of almost 120 people
reporting, one—yes, one—was a person of color. While it is my feeling that con-
cern for quotas along racial lines can sometimes be excessive these days, no one
could argue that the juries formed that day were a fair representation of our
society. Couple that with the fact that the case involved three principals who
are African-American, and the selection process seems all the more problematic.

Personally, I have no qualms with our decision in the case. We were able to
size up the credibility of witnesses and their testimony without a great deal of
soul-searching or in-depth deliberation. I believe this was fortunate, considering
the makeup and predisposition of the jury. During deliberations, matter-of-fact
expressions of bigotry and broad-brush platitudes about ‘those people’ rolled off
the tongues of a vocal majority as naturally and unabashedly as if they were dis-
cussing the weather. . . . Had just one African-American been sitting in that room,
the content of the discussion would have been quite different. And had the case
been more balanced—one that hinged on fine distinction or subtle nuances—a
more diverse jury might have made a material difference in the outcome.

SOURCE: Honorable Janet Bond Arterton, “Unconscious Bias and the Impartial Jury,” Connecticut Law Review 40
(2008), pp. 1023–1033.

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264 C H A P T E R 6

challenges to strike racial minorities from the jury pool. Kennedy, in fact, char-
acterized the peremptory challenge as “a creature of unbridled discretion that,
in the hands of white prosecutors and white defendants, has often been used to
sustain racial subordination in the courthouse.”55

Dramatic evidence of this surfaced during an electoral campaign in Phila-
delphia. In April 1997, Lynne Abraham, Philadelphia’s district attorney, released a
1986 videotape made by Jack McMahon, a former assistant district attorney, and
her electoral opponent. In the hour-long training video, McMahon advised fel-
low prosecutors that “young black women are very bad for juries” and that “blacks
from the low-income areas are less likely to convict.” He also stated, “There’s
a resentment for law enforcement. There’s a resentment for authority. And as a
result, you don’t want those people on your jury”56 (emphasis added). A Philadel-
phia defense attorney characterized the videotape as “an abuse of the office,” not-
ing, “It was unconstitutional then, and it’s unconstitutional now. You don’t teach
young attorneys to exclude poor people, or black people or Hispanic people.”57

These comments notwithstanding, there is compelling evidence that prose-
cutors do use their peremptory challenges to strike racial minorities from the jury

B o x 6.4 Selecting a Jury: Stereotypes and Prejudice

A 1973 Texas prosecutor’s manual for jury selection provided the following advice:

■ You are not looking for a fair juror, but rather a strong, biased, and some-
times hypocritical individual who believes that defendants are different from
them in kind, rather than degree. You are not looking for any member of a
minority group which may subject him to oppression—they almost always
empathize with the accused. You are not looking for free thinkers or flower
children.

■ Observation is worthwhile. . . . Look for physical afflictions. These people
usually sympathize with the accused.

■ I don’t like women jurors because I can’t trust them. They do, however, make
the best jurors in cases involving crimes against children.

■ Extremely overweight people, especially women and young men, indicates a
lack of self-discipline and often times instability. I like the lean and hungry look.

■ If the veniremen have not lived in the county long, ask where they were born
and reared. People from small towns and rural areas generally make good
State’s jurors. People from the east or west coasts often make bad jurors.

■ Intellectuals such as teachers, etc. generally are too liberal and contemplative to
make good State’s jurors.

■ Ask veniremen their religious preference. Jewish veniremen generally make
poor State’s jurors. Jews have a history of oppression and generally empathize
with the accused. Lutherans and Church of Christ veniremen usually make good
State’s jurors.

SOURCE: Albert W. Alschuler, “The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the
Review of Jury Verdicts,” University of Chicago Law Review 56 (1989), p. 153. [Online].

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265J U S T I C E O N T H E B E N C H ?

pool. As a result, African-American and Hispanic defendants are frequently tried
by all-white juries. In 1964, for example, Robert Swain, a 19-year-old African
American, was sentenced to death by an all-white jury for raping a white woman
in Alabama. The prosecutor had used his peremptory challenges to strike all six
African Americans on the jury panel. In 1990, the State used all of its peremptory
challenges to eliminate African Americans from the jury that would try Marion
Barry, the African-American mayor of Washington, DC, on drug charges.

The Supreme Court and the Peremptory Challenge:

From Swain to Batson and Beyond

The Supreme Court initially was reluctant to restrict the prosecutor’s right to use
peremptory challenges to excuse jurors on the basis of race. In fact, in 1965 the
Court ruled in Swain v. Alabama that the prosecutor’s use of peremptory chal-
lenges to strike all six African Americans in the jury pool did not violate the
Equal Protection Clause of the Constitution.58 The Court reasoned:

The presumption in any particular case must be that the prosecutor is
using the State’s challenges to obtain a fair and impartial jury. . . . The
presumption is not overcome and the prosecutor therefore subjected
to examination by allegations that in the case at hand all Negroes were
removed from the jury or that they were removed because they
were Negroes.59

The Court went on to observe that the Constitution did place some limits
on the use of the peremptory challenge. The Justices stated that a defendant could
establish a prima facie case (i.e., a case in which the evidence appears to support
the claim being made) of purposeful racial discrimination by showing that the
elimination of African Americans from a particular jury was part of a pattern of
discrimination in that jurisdiction.

The problem, of course, was that the defendants in Swain, and in the cases that
followed, could not meet this stringent test. As Seymour Wishman observed, “A
defense lawyer almost never has the statistics to prove a pattern of discrimination,
and the state under the Swain decision is not required to keep them.”60 The ruling,
therefore, provided no protection to the individual African-American or Hispanic
defendant deprived of a jury of his or her peers by the prosecutor’s use of racially
discriminatory strikes. As Supreme Court Justice William Brennan later wrote:

With the hindsight that two decades affords, it is apparent to me that
Swain’s reasoning was misconceived. . . . Swain holds that the state may
presume in exercising peremptory challenges that only white jurors will
be sufficiently impartial to try a Negro defendant fairly. . . . Implicit in
such a presumption is profound disrespect for the ability of individual
Negro jurors to judge impartially. It is the race of the juror, and nothing
more, that gives rise to the doubt in the mind of the prosecutor.61

Despite harsh criticism from legal scholars and civil libertarians, who argued
that Swain imposed a “crushing burden  .  .  .  on defendants alleging racially

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266 C H A P T E R 6

discriminatory jury selection,”62 the decision stood for 21 years. It was not until
1986 that the Court, in Batson v. Kentucky, rejected Swain’s systematic exclusion
requirement and ruled “that a defendant may establish a prima facie case of purpose-
ful discrimination in selection of the petit jury solely on evidence concerning the
prosecutor’s exercise of peremptory challenges at the defendant’s trial.”63 The jus-
tices added that once the defendant makes a prima facie case of racial discrimination,
the burden shifts to the state to provide a racially neutral explanation for excluding
African-American jurors. (See Box 6.5 for a discussion of the use of the peremptory
challenge to exclude African-American jurors in cases involving white defendants.)

Interpreting and Applying the Batson Standard Although Batson seemed to
offer hope that the goal of a representative jury was attainable, an examination
of cases decided since 1986 suggests otherwise. State and federal appellate courts
have ruled, for example, that leaving one or two African Americans on the jury

B o x 6.5 White Defendants and the Exclusion of Black Jurors

The Supreme Court has interpreted the Equal Protection Clause to prohibit prose-
cutors from using their peremptory challenges in a racially discriminatory manner—
that is, to forbid prosecutors from striking African Americans or Hispanics from the
pool of potential jurors in cases involving African-American and Hispanic defen-
dants. But what about cases involving white defendants? Are prosecutors prohibited
from using their challenges to strike racial minorities when the defendant is white?

The Supreme Court has ruled that white defendants can challenge the exclusion
of racial minorities from the jury. In 1991, for example, the Court ruled that “a crim-
inal defendant may object to the race-based exclusion of jurors effected through
peremptory challenges regardless of whether the defendant and the excluded juror
share the same race” (Powers v. Ohio, 499 U.S. 400 [1991]). This case involved a
white criminal defendant on trial for homicide who objected to the prosecutor’s use
of peremptory challenges to remove African Americans from the jury. In 1998, the
Court handed down a similar decision regarding the grand jury, ruling that whites
who are indicted by grand juries from which African Americans have been excluded
can challenge the constitutionality of the indictment (Campbell v. Louisiana, 523 U.S.
392 [1998]).

In both of these cases, the Court stated that a white defendant has the right
to assert a violation of equal protection on behalf of excluded African-American
jurors. According to the Court, the discriminatory use of peremptory challenges by
the prosecution “casts doubt upon the integrity of the judicial process and places
the fairness of the criminal proceeding in doubt.” And, although an individual juror
does not have the right to sit on any particular jury, “he or she does possess the right
not to be excluded from one on account of race.” As the Court stated, “Both the
excluded juror and the criminal defendant have a common interest in eliminating
racial discrimination from the courtroom.” Because it is unlikely that the excluded
juror will challenge the discriminatory use of the peremptory challenge, the defen-
dant can assert this right on his or her behalf (Powers v. Ohio, 499 U.S. 400 [1991]).

What do you think? Should a white defendant be allowed to challenge the
prosecutor’s use of peremptory challenges to exclude African Americans and other
racial minorities from his or her jury?

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267J U S T I C E O N T H E B E N C H ?

precludes any inference of purposeful racial discrimination on the part of the
prosecutor,64 and that striking only one or two jurors of the defendant’s race does
not constitute a “pattern” of strikes.65

Trial and appellate courts have also been willing to accept virtually any
explanation offered by the prosecutor to rebut the defendant’s allegation of pur-
poseful discrimination.66 As Kennedy67 noted, “Judges tend to give the benefit of
the doubt to the prosecutor.” Kennedy cited as an example State v. Jackson, a case
in which the prosecutor used her peremptory challenges to strike four African
Americans in the jury pool. According to Kennedy:

The prosecutor said that she struck one black prospective juror because
she was unemployed and had previously served as a student counselor
at a university, a position that bothered the prosecution because it was
“too liberal a background.” The prosecution said that it struck another
black prospective juror because she, too, was unemployed, and, through
her demeanor, had displayed hostility or indifference. By contrast, two
whites who were unemployed were seated without objection by the
prosecution.68

Although Kennedy acknowledged that “one should give due deference to
the trial judge who was in a position to see directly the indescribable subtleties,”
he stated that he “still has difficulty believing that, had these prospective jurors
been white, the prosecutor would have struck them just the same.” Echoing these
concerns, Brian J. Serr and Mark Maney conclude, “The cost of forfeiting truly
peremptory challenges has yielded little corresponding benefit, as a myriad of
‘acceptable’ explanations and excuses cloud any hope of detecting racially based
motivations.”69 (For a more detailed discussion of the peremptory challenge, see
“Focus on an Issue: Should We Eliminate the Peremptory Challenge?”)

The validity of their concerns is illustrated by a 1995 Supreme Court case,
Purkett v. Elem.70 Jimmy Elem, an African American on trial for robbery in Mis-
souri, objected to the prosecutor’s use of peremptory challenges to strike two
African-American men from the jury panel. The prosecutor provided the follow-
ing racially neutral explanation for these strikes:

I struck [juror] number twenty-two because of his long hair. He had long
curly hair. He had the longest hair of anybody on the panel by far. He
appeared to me to not be a good juror for that fact, the fact that he had
long hair hanging down shoulder length, curly, unkempt hair. Also, he
had a mustache and a goatee type beard. And juror number twenty-four
also has a mustache and goatee type beard. Those are the only two peo-
ple on the jury . . . with the mustache and goatee type beard . . . . And
I don’t like the way they looked, with the way the hair is cut, both of
them. And the mustaches and the beards look suspicious to me.71

The U.S. Court of Appeals for the Eighth Circuit ruled that the prosecutor’s
reasons for striking the jurors were not legitimate race-neutral reasons because
they were not plausibly related to “the person’s ability to perform his or her duties
as a juror.” Thus, the trial court had erred in finding no intentional discrimination.

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268 C H A P T E R 6

The Supreme Court reversed the Circuit Court’s decision, ruling that Batson
v. Kentucky required only “that the prosecution provide a race-neutral justification
for the exclusion, not that the prosecution show that the justification is plausible.”
Noting that neither beards nor long, unkempt hair is a characteristic peculiar to
any race, the Court stated that the explanation offered by the prosecutor, although
it may have been “silly or superstitious,” was race-neutral. The trial court, in other
words, was required to evaluate the genuineness of the prosecutor’s explanation,
not its reasonableness. As the Court noted, “At this step of the inquiry, the issue is
the facial validity of the prosecutor’s explanation. Unless a discriminatory intent
is inherent in the prosecutor’s explanation, the reason offered will be deemed race
neutral.”

The two dissenting judges—Justice Stevens and Justice Breyer—were out-
raged. They argued that the Court in this case actually overruled a portion of
the opinion in Batson v. Kentucky. They stated that, the majority’s conclusions
notwithstanding, Batson clearly required that the explanation offered by the pros-
ecutor must be “related to the particular case to be tried.” According to Justice
Stevens:

In my opinion, it is disrespectful to the conscientious judges on the Court
of Appeals who faithfully applied an unambiguous standard articulated
in one of our opinions to say that they appear “to have seized on our
admonition in Batson . . . that the reason must be ‘related to the partic-
ular case to be tried.’ ” Of course, they “seized on” that point because we
told them to. The Court of Appeals was following Batson’s clear mandate.
To criticize those judges for doing their jobs is singularly inappropriate.72

Justice Stevens went on to say, “Today, without argument, the Court replaces
the Batson standard with the surprising announcement that any neutral explana-
tion, no matter how ‘implausible or fantastic,’ even if it is ‘silly or superstitious,’ is
sufficient to rebut a prima facie case of discrimination.”

Critics of Batson and its progeny maintain that until the courts articulate and
apply a more meaningful standard or eliminate peremptory challenges altogether
(see “In the Courts: Miller-El v. Dretke, Snyder v. Louisiana, and Foster v. Chatman”),
“peremptory strikes will be color-blind in theory only.”73

FOCUS ON AN ISSUE

Should We Eliminate the Peremptory Challenge?

In theory, the peremptory challenge is

used to achieve a fair and impartial jury.

The assumption is that each side will “size

up” potential jurors and use its challenges

to eliminate those who might be biased,

based on the prosecutor’s or defense attor-

ney’s hunches or initial impressions. Thus,

a prosecutor may routinely strike “liberal”

college professors, whereas a defense attor-

ney may excuse “prosecution-oriented”

business executives. The result of this

process, at least in principle, is a jury that

will decide the case based on the evidence

alone.

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269J U S T I C E O N T H E B E N C H ?

The reality is that both sides use

their peremptory challenges to “stack

the deck” (Levine 1992, 51). The pros-

ecutor attempts to pick a jury that will

be predisposed to convict, whereas

the defense attorney attempts to select

jurors who will be inclined to acquit.

In other words, rather than choosing

open-minded jurors who will withhold

judgment until they have heard all of the

evidence, each attorney attempts to pack

the jury with sympathizers. According

to one attorney, “Most successful lawyers

develop their own criteria for their choices

of jurors. Law professors, experienced

lawyers, and a number of technical books

suggest general rules to help select favor-

able jurors” [emphasis added] (Wishman

1986, 105).

DO PROSECUTORS USE PEREMPTORY

CHALLENGES IN A RACIALLY

DISCRIMINATORY MANNER?

The controversy over the use of the

peremptory challenge has centered on

the prosecution’s use of its challenges to

eliminate African Americans from juries

trying African-American defendants. It

centers on what Justice Marshall called

“the shameful practice of racial discrim-

ination in the selection of juries” (Batson

v. Kentucky, 479 U.S. 79 [1986]). Critics

charge that the process reduces minority

participation in the criminal justice system

and makes it difficult, if not impossible, for

racial minorities to obtain a “jury of their

peers.” They assert that peremptory chal-

lenges “can transform even a representative

venire into a white, middle-class jury,”

thereby rendering “meaningless the pro-

tections provided to the venire selection

process by Strauder and its progeny” (Serr

& Maney 1988, 7–8).

There is substantial evidence that

prosecutors exercise peremptory chal-

lenges in a racially discriminatory manner.

A study of challenges issued in Calcasieu

Parish, Louisiana, from 1976 to 1981, for

example, found that prosecutors excused

African-American jurors at a dispropor-

tionately high rate (Turner, Lovell, Young,

& Denny 1986, 61–69). Although the

authors also found that defense attorneys

tended to use their challenges to excuse

whites, they concluded that “because

black prospective jurors are a minority in

many jurisdictions, the exclusion of most

black prospective jurors by prosecution

can be accomplished more easily than the

similar exclusion of Caucasian prospec-

tive jurors by defense” (Hayden, Senna, &

Siegel 1978; Turner et al. 1986, 68).

African-American defendants chal-

lenging their convictions by all-white

juries also have produced evidence of racial

bias. One defendant, for example, showed

that Missouri prosecutors challenged

81 percent of the African- American jurors

available for trial in 15 cases with African-

American defendants (United States v.

Carter, 528 F. 2d 844, 848 [CA 8 1975]).

Another defendant presented evidence

indicating that in 53 Louisiana cases

involving African-American defendants,

federal prosecutors used more than two-

thirds of their challenges against African

Americans, who comprised less than

one-fourth of the jury pool (United States

v. McDaniels, 379 F. Supp. 1,243 [ED La.

1974]). A third defendant showed that

South Carolina prosecutors challenged

82 percent of the African-American

jurors available for 13 trials involving

African-American defendants (McKinney

v. Walker, 394 F. Supp. 1015, 1017–1018

[SC 1974]). Evidence such as this sup-

ports Justice Marshall’s contention (in a

(Continued )

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270 C H A P T E R 6

concurring opinion in Batson v. Kentucky)

that “misuse of the peremptory challenge

to exclude black jurors has become both

common and flagrant” (Batson v. Kentucky,

106 Sct. 1712, 1726 [1986] [Marshall, J.,

concurring]).

ARE ALL-WHITE JURIES INCLINED

TO CONVICT AFRICAN-AMERICAN

DEFENDANTS?

Those who question the prosecutor’s use

of peremptory challenges to eliminate

African Americans from the jury pool

argue that African-American defendants

tried by all-white juries are dispropor-

tionately convicted. They assert that

white jurors take the race of the defen-

dant and the race of the victim into

account in deciding whether to convict

the defendant.

Researchers have examined jury

verdicts in actual trials and in mock jury

studies for evidence of racial bias. Harry

Kalven and Hans Zeisel (1966), for exam-

ple, asked the presiding judge in more than

1,000 cases if he or she agreed with the

jury’s verdict. Judges who disagreed with

the verdict were asked to explain the jury’s

behavior. Judges disagreed with the jury’s

decision to convict the defendant in 22

cases; in 4 of these cases they attributed

the jury’s conviction to prejudice against

African-American defendants involved in

interracial sexual assault. Kalven and Zei-

sel also found that juries were more likely

than judges to acquit African-American

defendants who victimized other African

Americans.

Sheri Johnson (1985) argued, “Mock

jury studies provide the strongest evi-

dence that racial bias frequently affects

the determination of guilt.” She reviewed

nine mock jury studies in which the race

of the defendant was varied while other

factors were held constant. According to

Johnson, white “jurors” in all of the studies

were more likely to convict minority-race

defendants than they were to convict

white defendants (1,626).

One mock jury study found evidence

of racial bias directed at both the defendant

and the victim (Klein & Creech 1982, 21).

In this study, white college students read

two transcripts of four crimes in which the

race of the male defendant and the race of

the female victim were varied; they then

were asked to indicate which defendant

was more likely to be guilty. For the crime

of rape, the probability that the defendant

was guilty ranged from 70 percent for

crimes with black offenders and white vic-

tims to 68 percent for crimes with white

offenders and white victims, 52 percent

for crimes with black offenders and black

victims, and 33 percent for crimes with

white offenders and black victims (Klein &

Creech 1982, 24).

SHOULD THE PEREMPTORY

CHALLENGE BE ELIMINATED?

Defenders of the peremptory challenge,

although admitting that there is inherent

tension between peremptory challenges

and the quest for a representative jury,

argue that the availability of peremptories

ensures an impartial jury. Defenders of

the process further argue that requiring

attorneys to provide reasons for exercising

peremptory challenges would make selec-

tion of an impartial jury more difficult.

Those who advocate elimination of the

peremptory challenge assert that prose-

cutors and defense attorneys can use the

challenge for cause to eliminate biased or

prejudiced jurors. They argue that because

prosecutors exercise their peremptory

challenges in a racially discriminatory

manner, African-American defendants are

often tried by all-white juries predisposed

toward conviction.

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271J U S T I C E O N T H E B E N C H ?

In a concurring opinion in the Batson

case, Justice Marshall called on the Court

to ban the use of peremptory challenges

by the prosecutor and to allow states to

ban their use by the defense (Batson v.

Kentucky, 106 Sct. 1712, 1726 [1986]

[Marshall, J., concurring]). Marshall argued

that the remedy fashioned by the Court

in Batson was inadequate to eliminate

racial discrimination in the use of the

peremptory challenge. He noted that an

African- American defendant could not

attack the prosecutor’s discriminatory use

of peremptory challenges at all unless the

abuse was “so flagrant as to establish a

prima facie case,” and that prosecutors, when

challenged, “can easily assert facially neu-

tral reasons for striking a juror” (Batson v.

Kentucky, at 1727).

Other commentators, who acknowl-

edge that the solution proposed in Bat-

son is far from ideal and that reform is

needed, propose more modest reforms.

Arguing that the chances for abolition of

the peremptory challenge are slim, they

suggest that a more feasible alternative

would be to limit the number of chal-

lenges available to each side. As one legal

scholar noted, “Giving each side fewer

challenges will make it more difficult to

eliminate whole groups of people from

juries” (note, Batson v. Kentucky 1988, 298).

Another argued that courts must “enforce

the prohibition against racially discrimina-

tory peremptory strikes more consistently

and forcefully than they have done thus

far” (Kennedy 1997, 230). Another, more

radical, suggestion is to allow each side to

designate one or two prospective jurors

who cannot be challenged peremptorily

(see, e.g., Ramirez 1998, 161).

Those who lobby for reform of the

peremptory challenge maintain that the

system would be fairer without them. As

Morris B. Hoffman (2000) put it, “Imag-

ine a jury selection process that sends the

message to all 50 prospective jurors in the

courtroom that this is a rational process.

That we have rules for deciding who is

fair and not fair, just as we have rules for

deciding who prevails in the end and who

does not.”

In the Courts: Miller-El v. Dretke, Snyder v. Louisiana, and Foster v. Chatman

Miller-El v. Dretke (537 US 322 [2005])

In 1986, Thomas Joe Miller-El was convicted and sentenced to death by a Dallas
County (Texas) jury composed of 11 whites and 1 African American. The jury found
Miller-El, an African American, guilty of killing a hotel employee and severely
wounding another employee during the course of a robbery. During jury selection,
Miller-El challenged the prosecutor’s use of peremptory strikes against 10 of the
11 African Americans eligible to serve on the jury. He claimed that the strikes were
based on race, citing as proof both the prosecutor’s questioning of potential jurors in
his trial and the fact that the Dallas County district attorney had a history of exclud-
ing African Americans from criminal juries. The Texas courts that heard his appeal
ruled against him, stating that there was no evidence that the jurors were struck
because of their race and that the race-neutral reasons given by the prosecutor were
“completely credible and sufficient” (Miller-El v. State, 748 S. W. 2d 459 [1988]).

(Continued )

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272 C H A P T E R 6

Following a round of appeals in the federal courts, all of which agreed with
the state courts’ conclusions, Miller-El’s case reached the U.S. Supreme Court. In June
2005, the Supreme Court reversed Miller-El’s conviction, ruling 6–3 that there was
strong evidence of racial prejudice during jury selection and that the state court’s
conclusions were therefore “unreasonable as well as erroneous” (Miller-El v. Dretke,
537 US 322, 336 [2005]). Justice David H. Souter, writing for the majority, said, “The
prosecutors’ chosen race-neutral reasons for the strikes do not hold up and are so far
at odds with the evidence that pretext is the fair conclusion, indicating the very dis-
crimination the explanations were meant to deny.” To support their conclusion, the
justices cited the following evidence:

■ Out of 20 African American members of the 108-person jury panel for Miller-El’s
trial, only 1 served. Nine of the 20 were excused for cause; of the remaining
11 African Americans, 10 were peremptorily struck by the prosecution. As the
Court noted, “Happenstance is unlikely to produce this disparity.”

■ The “racially neutral” reasons given by the prosecution to explain the strikes
of African Americans applied just as well to whites who were not struck and, in
some cases, mischaracterized the testimony of African Americans regarding such
things as their willingness to impose the death penalty. In fact, the Court stated
that one of the African Americans who was struck expressed strong support of
the death penalty and, therefore, should have been “an ideal juror in the eyes
of a prosecutor seeking a death sentence.” The fact that he was struck, and that
whites who expressed weaker support for the death penalty were not, “sup-
ports a conclusion that race was significant in determining who was challenged
and who was not.” According to Justice Souter, “it blinks reality” to deny that
some of the African America jurors were struck because of their race.

■ Prosecutors repeatedly used their right to reshuffle the cards bearing potential
jurors’ names to reseat the African Americans at the back of the panel, where
they were less likely to be questioned during the voir dire (and more likely to
be dismissed without being questioned). The prosecution did not offer a racially
neutral reason for shuffling the jury. Justice Souter wrote, “At least two of the
jury shuffles conducted by the state make no sense except as efforts to delay
consideration of black jury panelists.”

■ The questions posed to African American and white jurors during voir dire were
different. Before asking potential jurors about their attitudes toward the death
penalty, for example, prosecutors gave them a description of the death penalty.
Ninety-four percent of the white jurors heard a bland description (“We anticipate
that we will be able to present to a jury the quantity and type of evidence nec-
essary to convict him of capital murder”), whereas more than half of the African
American jurors heard a graphic description that described the method of execu-
tion in detail (“at some point Mr. Thomas Joe Miller-El—the man sitting right down
there—will be taken . . . to the death house and placed on a gurney and injected
with a lethal substance until he is dead). The Court concluded that the graphic
script was used “to make a case for excluding black panel members opposed to
or ambivalent about the death penalty.” Race, according to the Court, “was the
major consideration when the prosecution chose to follow the graphic script.”

The Supreme Court concluded that the evidence proffered by Miller-El, which
clearly documented that prosecutors were selecting and rejecting potential jurors
because of race, “is too powerful to conclude anything but discrimination.”

Less than one month after the Supreme Court handed down its decision, Dallas
County District Attorney Bill Hill announced that the state would retry Miller-El and
would seek the death penalty. Instead, in March 2008, Thomas Joe Miller-El pled

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273J U S T I C E O N T H E B E N C H ?

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guilty to murder and aggravated robbery; he was sentenced to life in prison on the
murder charge and to 20 years on the aggravated robbery charge. In exchange for
the district attorney’s agreement to not seek the death penalty, Miller-El waived his
right to appeal his sentence.

Snyder v. Louisiana (552 U.S. 472 [2008])

Like Thomas Joe Miller-El, Allen Snyder, an African American, was convicted of first-
degree murder and sentenced to death by an all-white jury. In this case, 36 prospective
jurors survived the first stages of the jury selection process. Five of the 36 were African
American and the prosecutor used 5 of his 12 peremptory challenges to eliminate
them from the jury panel. On appeal, the Louisiana Supreme Court affirmed Snyder’s
conviction, and Snyder then filed for a writ of certiorari with the U.S. Supreme Court.
While his petition was pending before the Court, Miller-El v. Dretke was decided.

In Snyder v. Louisiana, the Supreme Court reiterated that “the Constitution for-
bids striking even a single prospective juror for a discriminatory purpose.” The Court
concluded that the prosecutor’s decision to strike one juror, Jeffrey Brooks, had been
racially motivated. The justices noted that when the defense attorney objected to
the strike of Mr. Brooks, a college senior, the prose