Underground Codes: Race, Crime and Related Fires

1. “Petit Apartheid” in the Justice System

“Petit Apartheid” in the Justice System I. Introduction For decades, sociologists and criminologists have sought to explain the ceiling-high arrest, conviction, and incarceration rates of African Americans . Whether these disproportionately high rates can be reconciled by Black offense rates, racial bias, or a combination of both is subject to debate . Academic conclusions as to the presence and degree of racial bias have varied over several “waves” of research on racial disparity.1 At the dawn of the twenty-first century, however, social scientists still had not reached accord on the impact of racial bias within the criminal justice system . On the one side, there are researchers who argue that the evidence of overall bias in the justice system is inconclusive.2 On the other side, there are researchers who conclude that there is clear proof of race-based processing.3 For the most part, these two camps, mainstream and alternative , respectively, employ different methods for measuring racial bias.4 Those in the former camp rely on standard measures for evaluating the role of race. Those in the latter camp argue that the standard measures capture only observable, overt racial bias—a fraction of the overall bias within the justice system. Daniel Georges-Abeyie, whose research falls into the second group, observes that mainstream measures of racial bias begin with arrest.5 He notes, however, that there are numerous opportunities for racial bias to occur prior to arrest. One example is the point at which an officer decides whether to make a traffic stop. Unmeasured stages, Georges-Abeyie argues , may have causal consequences, determining, for instance, who enters the justice system. He uses the term “petit apartheid” to describe race-influenced practices in the justice system, those that are not incorporated into mainstream analyses of racial bias. In addition to pre-arrest 1 5 (e.g., racially targeted stops and searches), petit apartheid encompasses trial court processes (e.g., biased judges’ instructions).6 The goal of this chapter is to detail Georges-Abeyie’s argument, which, to date, has received scant research attention.7 The discussion has three objectives: first, to highlight the limitations of current measures of racial discrimination; second, to place petit apartheid within a theoretical framework that provides a context for understanding issues addressed in later chapters; and, third, to outline a typology that identifies the sites for racial bias within the justice system that have been overlooked by mainstream measures of racial bias. The discussion concludes that mainstream measures of racial bias function as an underground code, sending the message that crime is justifiably linked to race, Blackness in particular. II. Choosing a Yardstick As noted, the mainstream and alternative approaches to racial bias vary greatly. More detail on these differences is appropriate and necessary before there is a discussion of whether there is theoretical support for the alternative approach. The mainstream perspective views the criminal justice system as a series of discrete, observable stages, referred to as “formal ” stages. As a general rule, the mainstream continuum begins with the arrest stage and ends with the sentencing stage (intervening stages include prosecutor’s charge, setting of bail, jury selection, and conviction). Mainstream research on racial bias evaluates one or more of the stages between arrest and conviction; for example, whether race affects the probability of conviction or whether Blacks are more likely to be found guilty of a felony offense than similarly situated Whites. Formal stages, the hallmark of the mainstream approach, are those that are subject to official recordkeeping. For example, each year, the FBI’s Uniform Crime Reports presents data on annual arrests. As well, at the federal and state level, data are maintained in criminal cases (e.g., criminal charge, race of defendant/race of victim, type of counsel, conviction , type of sentence, and sentence length). Mainstream studies are commonly divided into two categories; singleand multistage. Empirical evaluations that examine the effect of race at one point in the process, such as sentencing, are known as single-stage 6 | “Petit Apartheid” in the Justice System studies. All others, such as those that focus on two or more points, such as sentencing and conviction, are known as multistage studies. In contrast to academic approaches, alternative assessments incorporate informal stages into their analyses of racial disparity and bias. Thus, an assessment of race effects is not confined to particular stages or research methods. For example, the...