The Color of Crime (Second Edition): Racial Hoaxes, White Fear, Black Protectionism, Police Harassment, and Other Macroaggressions

4. Discrimination or Disparity?

53 4 Discrimination or Disparity? Study after study shows that Blacks and Whites hold contrary viewpoints about the fairness of the criminal justice system. Blacks are more likely to believe that the justice system works against them, and Whites are more likely to believe that the justice system works for them. Two common expressions capture these opposing viewpoints: “The system works” (Whites) and “Justice means ‘just us’” (Blacks). Like Blacks, Latinos believe that they are more likely to experience racial profiling. Interestingly , where Blacks and Hispanics see racial bias, Whites see “rational discrimination.” Higher numbers of Blacks and Hispanics than Whites say that they have been unfairly treated by the police. In the wake of the September 11 attacks, Muslims have reported being increasingly subject to racial targeting by law enforcement officials. They have received heightened scrutiny and attention—in their homes, in their cars, and at the airport—as “potential terrorist threats.” These experiences influence racebased perceptions of how well the police do their job.1 Research on racial discrimination tends to support the view that isolated pockets of racial discrimination exist (e.g., drug-related offenses, capital punishment). The prevailing view, however, is that racial discrimination is not a serious problem. This “no discrimination” conclusion is largely based on research that focuses on select stages of the justice system , such as arrest, charge, sentencing, and conviction. Unfortunately the potential for racial bias exists at many points along the criminal justice system’s continuum. An expanded analysis would include, for instance, a consideration of prearrest actions, courtroom language, and postconviction decisions. By focusing on the bright lines of discrimination, criminal justice research tends to overlook these critical points. Until these other unmeasured stages are included within mainstream analyses, no conclusion can be drawn that the justice system is free of racial bias. This chapter provides an overview of the current research on racial discrimination, outlines the criticisms of this research, and demonstrates Russell-Brown_pp053-097.indd 53 Russell-Brown_pp053-097.indd 53 8/22/08 10:09:30 AM 8/22/08 10:09:30 AM 54 Discrimination or Disparity? why the most important informal stage—prearrest contacts with police —should be subject to official measurement. The findings challenge the mainstream view that racial discrimination exists only at certain points along the criminal justice system continuum. Without expanding our assessment of racial bias, we miss and therefore cannot accurately determine its prevalence. The other points need to be measured and included within the calculation of how race affects justice. Hysterical Blindness Depending on your vantage point, the existence of racial discrimination in the justice system might be considered a historical relic, an entrenched present-day reality, something that happens to the poor, a random and rare event, something that happens to the guilty, or a nagging side-effect of an otherwise well-working system. These varied takes on the presence of racially fair treatment make it difficult to “see” racial discrimination and, thus, hard to hear an SOS call to fix it. Further, consensus on what to do is hard to achieve because so many different standards are being used to evaluate whether racial justice exists. All told, these soup-to-nuts perspectives create a kind of hysterical blindness about the workings and viability of the justice system. There are many causes for the wildly varying viewpoints on the racial equity of the justice system. Criminal justice researchers have some responsibility for this state of affairs. In the post-civil-rights era, mainstream research has largely concluded that racial discrimination in the justice system is, with few exceptions, neither intentional nor widespread. What follows is a four-part critique of this research, which makes a strong argument for reconsidering a “no discrimination” thesis. Single versus Multistage Research Many studies that purport to examine the existence of racial discrimination evaluate a single phase of the justice system. These studies are fairly characterized as being marred by tunnel vision. Research that analyzes race discrimination at a single stage of the criminal justice system cannot detect racial discrimination that exists in other parts of the system. For example, a study of how race influences sentencing in State A may Russell-Brown_pp053-097.indd 54 Russell-Brown_pp053-097.indd 54 8/22/08 10:09:30 AM 8/22/08 10:09:30 AM Discrimination or Disparity? 55 find no racial disparity. This finding, however, does not mean that State A...