A while in the past half century the United States has made significant overall progress toward the objective of ensuring equal treatment under the law for all citizens, in the critical area of criminal justice, racial inequality appears to be growing, not receding, and our criminal laws, while facially neutral, are enforced in a manner that is massively and pervasively biased.
The above report and others also states that there were,"...serious findings of systematic unequal treatment of African-American and Hispanic-Americans and other minorities, as compared to their similarly situated white counterparts within the criminal justice system "(Dunnaville).
Another aspect that should be taken into consideration and which has an impact on the understanding of causative factors in terms of race, are findings that the biases and anomalies in the legal system seem to begin at the very early stages of the legal process. This means that the possible prejudice that leads to a higher incarceration ratio has its origins in areas such as the investigation of a crime. (Dunnaville)
These initial biases and distortions in the system result in different incarceration rates from the beginning that tend to be exacerbated and increased within the criminal and legal process, according to a number of reports. All of these studies can be seen to be a serious possible indictment of the legal system that can be ascribed to internal bias and prejudice.
However, what concerns many commentators are that these disparities and possible biases are perpetuated in various areas of the criminal and legal system. This results in a cumulative effect and a perception of discrimination that further exacerbates the situation for minorities and increases their crime and incarceration rates..
These disparities often have a cumulative effect, whereby decisions made at one stage of the system contribute to increasing disparities at the following stages. For example, if bail practices result in similarly situated minorities being detained before trial at greater rates than whites, they will also be disadvantaged at trial and sentencing by having less access to defense counsel, community resources, and treatment options.
Reducing Racial Disparity in the Criminal Justice System)
This overrepresentation is also a cause of concern, as there is a very high percentage of minority youth in our country.
One of the aspects relating to the accusations of bias in the system that may lead to increased incarceration rates refers to the notorious issue of 'racial profiling'. From this perspective is it asserted by some that, "..., minority youth do not commit more crimes than any other youth; they merely get treated differently and more harshly at various points in the system." (Markowitz and Jones-Brown 229)
Another view that is generally opposed to the assertion of bias within the legal system is that there is higher propensity of crime and delinquency among minority youth, mainly as a result of societal, cultural and economic factors such as environment and poverty. This view suggests that, "....the nature and volume of offenses committed by minority youth are the real issue. In other words, minority youth commit more offenses...than other youth because of the social and economic conditions in which they are forced to live."(Markowitz snd Jones-Brown 229)
Related to the above view that social and cultural factors are a central cause of the high incarceration rate is the prevalence of ethic gangs and ethnic organized crime. Thus has the implication that police arrest groups rather then single individuals in crime situations, which consequently results in a higher number of people being arrested and incarcerated.
Racial profiling has already been referred to as a causal element. Some commentators see racial profiling as the main factor in high incarceration rates among minorities. In this view, profiling by its very selective and discriminatory nature automatically leads to higher incarceration rates among minority groups.
3.3. Legal aspects and new laws
Changes in the law and legal system over time have also had an impact on rates of incarceration. One example is the change in criminal transfer. Due to the increase of juvenile crime in the country, children are being more easily transferred from juvenile court jurisdiction to adult criminal court and into adult corrections. This means that while in the past a juvenile would be tried and referred within the juvenile judicial court system, he or she is now moves more readily to the adult prison population. (Prosecuting Juveniles in Adult Court)
This process has a number of consequences, which may inadvertently lead to an increase in criminal activity and hence to an increase in higher levels of incineration. This view is based on the fact that transfer from juvenile to adult court may have an negative impact on rehabilitation and may lead to an increase in repeat offences.
These transfers place children into a court setting in which they are at a disadvantage at every stage of the process. Children who are incarcerated in adult facilities are at great risk. Those who are convicted but not imprisoned may still suffer long lasting negative consequences.
Prosecuting Juveniles in Adult Court)
Studies show that the processing of juveniles in adult courts in many cases leads to increase in criminal activity when compared to the results obtained for children retained in the juvenile system. (Prosecuting Juveniles in Adult Court) This is also related to the fact that rehabilitation procedures such as therapy tend to be neglected when the child is moved into the adult court. It has been found that processing children in adult court, "... seems to produce an increase in criminal activity in comparison to the results obtained for children retained in the juvenile system" (Prosecuting Juveniles in Adult Court).
Another important legal aspect is the reduction of the age of criminal responsibility in both the United States and Canada. The minimum age for criminal responsibility is much lower in these two countries than anywhere else in the world - which is also cited as a contributing factor to the high rate of incarceration. (Roberts et al. 119) in the United States the Violent Crime Control and Law Enforcement Act of 1995 permits children 13 and older who commit violent crimes with a firearm on federal property to be prosecuted as adults" (Roberts et al. 119).
The above concerns lead to one of the most discussed and controversial aspects of the changing legal system and the way that this leads to increased incarceration rates. This refers to the view that the criminal justice system has moved away from an emphasis on rehabilitation, as was the case in the past, to a more conservative praxis based on increasing imprisonment instead of preventing crime and rehabilitating the offender. "... society's response to juvenile offenders is changing from primarily being oriented toward rehabilitation to increasingly becoming prone to subjecting juveniles to conservative criminal court practices. (Roberts et al. 119) Experts are also of the opinion that this policy has led to a cumulative effect increasing repeat offences and thereby increasing the rate of incarceration. (Steinberg 34)
Many critics view this decreased emphasis on rehabilitation in a very negative light. Jacobs (2003) describes it as a move from rehabilitation to "banishment." The change in penological philosophy is, from one of rehabilitation (or even punishment) to one of banishment. It is this philosophy that lies behind the so-called "three-strikes and you're out" laws and initiatives like Oregon's Measure 11 that established mandatory minimums for certain crimes. There is no attempt involved in these endeavors to seek justice, only a desire for revenge and a pretense that these prisoners are less than human and therefore deserve only a life behind bars or, in some cases, death by the state.
The above view also refers o the movement away for the focus on the individual rehabilitation to the control of large groups or " aggregates." This is a factor that has is seen by many experts to contribute to the high number of ethnic arrests. There is also, according to some a gender and racial bias to the process, which further increases incarceration rates. " These aggregates, or groups, are primarily composed of young men of color, although the number of women from these same groups continues to grow" (Jacobs)
The "three strikes" policy which mandates life imprisonment for a third conviction on a felon, y is a legal aspect that as has also been cited as being an important cause of the increased number of inmates in our prisons.
Drug abuse and the selling of drugs have been for many years one of the main contributing factors to the high prison population. As one commentator states, "...the primary reasons for the high incarceration rate remain the war on drug users....(Jacob S. 2003)
However, as a cause of these high rates there are a number of central aspects that should be noted.
In understanding drug abuse and drug commerce as a causative factor, one also has to take into account other concomitant variables. One of the most common of these is race…