Ethical disparities in criminal justice treatment of minorities and white defendants

Ethics in Justice System-How we treat Minorities vs. The whites.

Ethics in the Justice System- How We Treat Minorities vs. Whites

Ethics or the moral philosophy is the study of right and wrong. The Criminal Justice System is comprised of numerous participants who include police, prosecutors, defense counsel, probation officers and judges (Ohio Commission on Racial Fairness, 1999, p.36). When it comes to the process of procedural fairness, Americans are highly sensitive. The single most important source of popular dissatisfaction with the American legal system is the perception of unfair or unequal treatment (Burke and Leben, 2007, p.4). The public's dissatisfaction with the judicial branch can be alleviated by the judges paying critical attention to the key elements of procedural fairness. They should also be aware of the dissonance existing between how they view the legal process and how the public before them views it. Though it is important for judges to continue to pay attention to creating fair outcomes, they should also tailor their actions, language and responses to the public's expectations of procedural fairness (Burke and Leben, 2007, p.4).

The American criminal justice system is plagued by many unwarranted racial disparities with the most significant contributing factor being the exercise of prosecutorial discretion, especially at the charging and plea bargaining stages of the process (Davis, 2008, p.202). The number of prosecutors who consciously favor criminal defendants or victims based on race or class is small. Most of them are usually motivated by a desire to enforce the law in a way that will produce justice all in the communities they serve. Prosecutors will, however, bring about a dissimilar treatment of similarly situated victims and defendants, sometime along the race and class lines, even with their well-intentioned charging and plea bargaining decisions. Davis (2008) writes that the unwarranted racial disparities can only be eliminated with the active participation of prosecutors and their agreeing to institute reform measures (p.203-4). They along with other criminal justice officials must be willing to acknowledge the role they play in contributing to these disparities and also agree to institute reform measures (p.204). Securing the prosecutors cooperation in this effort will prove to be a challenging undertaking. They have in the past resisted even modest efforts to reform the way they use to perform their duties and responsibilities. Due to the fact that they are elected officials, their constituents are forced to view the issue as a high priority and insist upon prosecutorial action (Davis, 2008, p.204).

Proposals for reform based on allegations of racial bias will be met with particular resistance. Chances of prosecutors taking responsibility for contributing to racial disparity in the criminal justice system are slim even if it is an unintended consequence of their race-neutral charging and plea bargaining decisions. To add on to this, the ability of prosecutors to resist reform will be enabled by the Supreme Court decisions which have shielded prosecutorial decisions from scrutiny in a variety of contexts, including cases where there have been claims of discrimination based on race (Davis, 2008, p.204). Davis had written an article called Prosecution and Race: The Power and Privilege of Discretion, where she proposed the use of racial impact studies in prosecutors' offices as a way to advance the nondiscriminatory exercise of discretion and also reduce racial disparities in the criminal justice system. Since writing the article nearly ten years before, there has been increased awareness of the role prosecutors' play in perpetuating the disparities (Davis, 2008, p.204). Criminal justice organizations and institutions have urged prosecutors to take responsibility for how decisions they make may contribute to racial disparities and also that the role that they have undertaken in leadership is to help in eliminating them.

The Ohio Commission on Racial Fairness conducted personal interviews, reviewing and digesting numerous reports and statistical data and observing the criminal justice system as it relates to disparate sentencing in Ohio. The commission, based on its work, concluded that many minorities perceived that Ohio's criminal justice system discriminated against them due to their race and/or minority status (Ohio Commission on Racial Fairness, 1999, p.36). The perception is not unique to Ohio only, but also represents the views of many minorities living throughout the United States. The commission also recognizes that racial discrimination does not account for all the differences in treatment of white people and the minorities but concludes that a factual basis for this perception clearly exists. There are many factors which affect the sentence ultimately imposed by each sentencing judge. The police decision to arrest, the prosecution decision to charge as well as the charges brought forward, the criminal code in itself, the skills, abilities and resources of defense counsel; the willingness of the parties to plea bargain; the particular jury selected; the nature of the particular criminal conduct; the background of the accused; the manner in which the pre-sentence report is prepared; the predilections of the particular sentencing judge, as well as other factors all effect the penalty which an individual defendant may be required to endure.

Racially Disproportionate Sentencing and Figures

A report written by Marc Mauer an assistant director of the Washington-based Sentencing Project, African-Americans are arrested, convicted and sentenced to prison almost 10 times more frequently than their Caucasian counterparts. One in 523 Caucasians in Ohio will spend some time in prison, while for African-Americans the figure is one in 53. The state's ratio of incarceration of African-Americans to Caucasians is 9.81, making it higher than the national average (Ohio Commission on Racial Fairness, 1999, p.37). Hurwitz and Peffley (2001) write that a contributing factor to the perceptions of bias being pervasive among many blacks is the differential (mis)treatment which begins early, even in the sense that black students are more often victims of corporal punishment as opposed to white children (p.6). More significantly, once individuals face widespread discrimination which is omnipresent once they have contact with the juvenile justice system. African-American youths face more punitive "control" at virtually every phase of the juvenile justice system: they become more likely to be detained by the police, are more likely to be subjects of juvenile court intake, more likely to be held for preliminary detention and more likely to be sentenced to a juvenile detention center (Hurwitz and Peffley, 2001, p.6). It is further argued that racial bias becomes worse as juveniles are processed deeper into the system: it was found in one department that was examined that African-Americans comprise 35% of the city youths, 55% of youths in police records, 57% of youths referred to court and 77% of those brought to secure detention. This basically means that discrimination becomes more pronounced as stakes become higher (Hurwitz and Peffley, 2001, p.6)

Racial bias in the criminal justice system is not limited to discriminatory treatment from the agents in the system, but is can also be argued to infiltrate the law itself. A good example given by Hurwitz and Peffley (2001) is the notorious 100:1 provision of the Federal Crack Cocaine Law of 1986 (U.S.C. 841) which mandates the same five-year prison sentence for one hundred grams of powder cocaine (primarily used by Caucasians) as for one gram of crack cocaine (used primarily by African-Americans), this being despite the gram-for-gram pharmacological equivalence of the two drugs. Courts have also upheld laws affecting minorities disproportionately like gang loitering laws and public housing authority mass building search laws.

Policies Affecting Particular Communities

During the late 1980s and early 1990s, criminologists started developing some problem-solving techniques that recognized that there was a concentration of criminal behavior in certain places as it would be the case of certain individuals (Taxman, Byrne and Pattavina, 2005, p.66). Criminal hotspots gave rise to the idea that public safety goals can be achieved by attending to the behavior of individuals in the specific area. Many of these hotspots resulted in certain communities being the target of law enforcement actions. The areas are defined by areas of law enforcement actions and requests by citizens or assistance through calls for service or policy initiatives. The communities are where churning occurs due to the residents being subject to the heightened police efforts made in an attempt to reduce disorder and criminal activities. These communities are commonly plagued by a lack of support services, high levels of poverty, elevated high school dropout rates and similar indicators of unhealthy communities which include higher rates of communicable disease and mortality. Another factor affecting disorder is police misconduct which has been shown to contribute to violence in these communities.

One of the three dominant themes in these communities is coercive dominance which means the concentration of arrest from and reentry into certain neighborhoods. The second theme is collective efficacy which means the building of trust and cohesion to reinforce prosocial norms. Third and last of the three themes is social capital which is the social relations, norms, trust and obligations which define the resources available in the community (Taxman, Byrne and Pattavina, 2005, p. 66). Local areas are therefore important to consider when thinking about the impact of incarceration and reentry and criminal justice actions because it is these neighborhoods are the contexts for the lives of offenders and non-offenders alike. Research also showed that offenders tend to be part of or return to communities with high concentrations of offenders. The concentration of offenders in these neighborhoods affects the community negatively by increasing the stigma associated with the community and also saddling the community with additional problems without providing added resources needed for restoring or maintaining order. The ultimate consequence is the that the criminal justice system destabilizes informal networks of social control and increases poor attitudes towards formal social controls, both of which have been shown to contribute to increases in crime and disorder in the communities. Churning results in unnecessary pressure being put on the other residents of the communities who are law-abiding in disadvantaged communities. The removal of men from the community through incarceration has the chilling effect of changing the family's socio-economic structure. The families of incarcerated members, especially men, of the community also face stigma and negative identity from the community as well as drain in financial resources. Families are faced with the added burden of maintaining a certain level of contact with their loved ones who are in and out of prison. Financially, the family is forced to tap into limited monetary resources so as to maintain contact, either through phone calls, or visits to the prison which are usually far from them, and to provide psychological support. Former offenders have the burden of suffering from the stigma of their status as convicts which in turn limit their ability to take up a productive role in society. Communities also acquire a related stigma with residents becoming ashamed of areas in which they reside as a result of the bad reputation (Taxman, Byrne and Pattavina, 2005, p. 66).

The role of the police: profiling or public safety

Actions by the police departments determine how the citizens perceive the criminal justice system. The police have experimented with a number of initiatives to improve law enforcement in the community ranging from foot patrols to community policing in their bid to reduce drug-related and violent crime. Recent studies have documented a growing concern that certain segments of society perceive police actions to be biased specifically in the practice of racial profiling (Taxman, Byrne and Pattavina, 2005, p.68). A study conducted by the Bureau of Justice Statistics in 2001 found that 63% of whites surveyed expressed confidence in the police as opposed to only 31% of African-Americans. The same study found that African-Americans and Hispanics were found to be twice as likely that non-Hispanic whites to feel that traffic stops that were requested by law enforcement were unjustified and they were also twice as likely as non-Hispanic whites to be searched. Research done in this study found that individuals individual and community judgments about whether the police were profiling or whether their actions were legitimate depends on the way the police exercise their authority. Police misconduct tends to contribute to more deviance and disorder within communities (Taxman, Byrne and Pattavina, 2005, p.69).

Concerns of minority residents

There have been several issues which have come up as significant concerns across non-white racial and ethnic groups. These concerns include differential sentencing and acquiring quality legal services (Neeley, 2004, p. 27). There are also other group-specific concerns. Differential sentencing is a dominant theme which emerges from public hearings whereby minorities receive harsher sentences that non-whites. This belief is held for all decisions made in the legal process ranging from decision to prosecute, the setting of bail/bonds, the length of the sentence among others (Neeley, 2004, p. 27). For example, in Nebraska, a person interviewed for a study described how the second-degree murder statute is misused by saying that the law allows for an arbitrary choice between conviction for the crime of second-degree murder and manslaughter upon a certain quarrel. The problem is seen when an arbitrary choice between convicting someone for second-degree murder or only for manslaughter. It is possible for authorities to choose to prosecute and convict minorities of second-degree murder and prosecute and convict non-minorities of manslaughter. When such a statement is made, there is suggestion that discretion is perceived as a discriminatory treatment. Several participants believed that differential treatment is also present when it comes to the setting of bail and/or bond. Some participants believed that judges tend to give minorities larger bonds as opposed to what they do to the whites. Juveniles of African-American or Hispanic or Latin descent are more apt to be sent to a correctional facility than any white youth.

When it comes to legal services which is the second dominant theme to emerge from public hearing testimony was dissatisfaction with legal services. The issues of concern included the availability of low-income services, the reliance on public defender services and dissatisfaction with the plea-bargaining system. In Nebraska for instance, testimony suggests that there are not sufficient resources to provide legal aid to low-income individuals. A representative of Nebraska Legal Services described the lack of available legal help for low-income groups (Neeley, 2004, p. 28). Costs appear to be a significant barrier to gaining access to legal representation. Many participants, for instance, hold the perception that quality legal services are directly affected by one's ability to pay. When one is arrested and charged in a criminal matter, many low-income minorities must rely on the services of public defenders. Several minorities of limited income relayed their specific dealings with court-appointed counsel. They believed that their court-appointed counsel did not work for their best interest or care about their case outcomes. There is an example given whereby a suspect was given a court appointed counsel who assured them that if they pleaded guilty to two to zero to five-year felonies and eight zero to one year misdemeanors that would receive no more than four to eight years due to the fact that they were not violent crimes. When the day for sentencing arrived, they received 20 months to five years on each felony and six months to a year on each misdemeanor, all to run consecutive to one another (Neeley, 2004, p. 28). The attorney representing this suspect did not seem surprised and packed up her briefcase and left without saying a word to them. Some other individuals fell trapped by the insistence of their lawyers to plea-bargain as opposed to devoting time to their case. There is a general belief that the court is concerned more with closing cases quickly as opposed to the administration of justice (Neeley, 2004, p. 28).

Group specific concerns

There are themes that are specific to certain racial and/or ethnic groups because it is possible for minority groups' different views of the court system are based upon group-specific experiences. The Latino/Latina has a major issue of interpreter services not being provided for them during public hearings. This led to the prevalence of misinterpretations due to the lack of interpreter services both prior to and following court appearances, how interpreter services are compromised by an insistence on moving cases quickly and a general lack of knowledge about courts and legal proceedings among new immigrants (Neeley, 2004, p. 29). In Nebraska, for instance, there are only 11 certified court interpreters in the entire state which makes it nearly impossible for courts to utilize certified court interpreters in all cases. There are cases where children were providing interpreter services. There are instances where clients have been told to bring friends, cousins or relatives who speak both languages to serve as an interpreter (Neeley, 2004, p. 29). The lack of interpreter services for certain languages combined with an increasing number of dialects being spoken in the state can lead to situations where more than one interpreter is needed. This makes the process time consuming and at times, the meaning can be lost in translation. There have been many incidents of incorrect translations being reported across multiple public-hearing sites. There are also several individual who believed that courts were simply not concerned with providing quality interpreter services. There was an instance of an individual who said that the presiding judge yelled at them in front of the court saying that she did not care whether the suspect understood what was going on and that they did not have time to waste. The judge further said that it was the suspect's problem if they did not understand and that they needed to move their cases in a hurry (Neeley, 2004, p. 29).

Native Americans who were interviewed for the research said that they were concerned about the cross-jurisdictional problems related to sovereign lands. Nebraska has tow territories considered sovereign in the northeastern part of the state (Neeley, 2004, p. 29). Citizens of these nations argued that often law enforcement officers as well as courts use jurisdictional differences as a reason to hold Native Americans for charges which are unworthy of bond. Jurisdictional issues have extended into the justice system which creates barriers to access, particularly for Native Americans (Neeley, 2004, p. 29). For instance, jurisdictional disagreements have created situations where criminals go uncharged. Additionally, jurisdictional disagreements sometimes have impacted a prosecutor's willingness to proceed with charges even in the most severe situations (Neeley, 2004, p. 29).

With the African-Americans, their main issue is their representation as court employees and legal professionals. The lack of representation of minorities as employees and administrators of the justice system leads to a perception of injustice. There have also been expressions by black individuals in Nebraska of the importance of having black judges in their community. Individuals believe that by having a court system which is representative of the community is important as not only for the perception of the justice but because a diverse workforce is likely to be a more accepting community, sensitive to racial and ethnic issues and the unrecognized biases of those in the majority. They should be hired, not because of their color but on the basis they judge the Caucasian employees.

The importance of Fairness

The consequences of cynicism toward the criminal justice system are more than just a sour taste towards the American political system. For those who judge the system as unfair, the potential for disaffection and disobedience is high (Hurwitz and Peffley, 2001, p.8). It is the process and not the outcome that has the capacity to shape these judgments of the system. In a study carried out by Tyler and Folger in 1980 found that when citizens are stopped by police or called the police for assistance, it was their perception of the fairness with which they were treated, as opposed to the outcomes, whether they would be cited by the police or solved the problem about which the citizen called, that determined individuals' sense of satisfaction with the encounter. If fairness is perceived in the process, it can serve as a buffer against unpopular outcomes.