Race and the Criminal Justice System

Plea Bargaining and the For Profit Prison Industrial Complex
Any discussion of systemic racism in America would be incomplete without mentioning how race impacts the criminal justice system. It should not be surprising to anyone to hear that the black population is overrepresented in the what Angela Davis has termed the prison industrial complex (Lentin, 2020). 37% of America’s prison population is black, yet blacks are only 12% of the total US population (Bureau of Justice Statistics, 2014). In fact, the for-profit private prison industry uses the labor of the prisoners by farming it out to American corporations, who pay pennies on the dollar for prison labor (Pelaez, 2019). And this is just part of the problem. Clearly there is a conflict of interest in the criminal justice system if there is a for-profit industry that profits from incarcerations. But why do blacks make up such a large percentage of the prison population? Most people will say it is because they are the ones committing all the crime. But that answer neglects to consider how the criminal justice system actually works and the role that plea bargaining plays in the system.
Defense attorneys are expensive, and everyone knows that one gets what one pays for. Public defenders are not going to provide the best defense for the accused. They might provide some, but the reality of the situation is that most people who are charged accept a plea bargain because they are pressured into it by the office of the prosecutor; they are threatened with a stiffer sentence if they fight the charges in court and lose; and they are generally made to feel afraid for their future if they don’t accept the “generous” deal being offered them if they would just plead guilty. Plus, they do not understand the system or their right to due process. In fact, the pressure that gets put on them to plead guilty and forego a trial is a process that tramples all over their Constitutional right to due process—but that is the system and the excuse is that prosecutors must take this tactic as the courts are so busy with too many trials as is that they have no other choice but to push people who are accused of crime to take plea deals. And of course many of these people are black and so by pleading guilty, they get funneled into the prison industrial complex and the rest is history. As Grossman (2005) notes, “the process by which criminal convictions come about through guilty pleas in exchange for sentencing considerations carries with it the almost inevitable result that those who refuse a plea bargain are punished for exercising the right to trail” (p. 101). The prosecutor is equally to blame in this trampling of the Constitution: he invariably lets the defendant know that “sentences are longer and meaner, prison conditions are more degrading and dangerous, and post-release reintegration is severely hobbled by numerous barriers that guarantee a permanent underclass” (Nilsen, 2007, p. 111). Yet none of this is really contested. The system keeps right on going.
This should not really be seen as acceptable, however. If the system as is cannot handle the amount of cases that should be brought to trial, perhaps some other approach to law and order is required. People say that blacks are disproportionately represented in America’s prisons because they disproportionately commit the crime. Or maybe the reality is that they are disproportionately prosecuted for crimes. No one would argue that white collar crime is not a problem in America—yet how many cases of white collar crime get prosecuted? Blacks in America are targeted because they come from generally poor communities and do not have the resources (education or finances) to defend themselves or to know their Constitutional rights. The laws that exist are on the books mainly because it provides law enforcement with an excuse to profile and arrest. Many of those incarcerated are there for non-violent crimes, and many of them have mental health issues as well—yet their crimes are not seen as mental health problems. The system is not interested in helping these people but rather in exploiting them in what essentially amounts to a new slavery plantation system.
Instead of punitive sentencing and relying on plea deals to send blacks to prisons, the system should instead focus on alternative sentencing, restorative justice in cases where it can be applied, and improved policing techniques such as community policing. Instead, the cries of Black Lives Matter and Antifa protestors are all about defunding the police and banning police. This is a complete diversion from the real problem. The problem is that policing is being used in the wrong way. Community policing is a much better way to serve communities with law and order. It allows communities to get to know the police officers and the police officers to get to know the community. Policing should not be simply a system in which a distress call is sent out and the police show up to arrest someone.
The criminal justice system needs to change the way it polices, the way it prosecutes and the way the prison complex profits off incarceration. The black community is not served in any of this, but the emphasis on plea bargaining is one that especially needs more focus because without it, the entire system would likely collapse. Police could not go on arresting blacks if the system could not handle the cases. The laws would have to change or the culture would have to change. The system should be focusing on rehabilitating people—but also communities.
References
Bureau of Justice Statistics. (2014). Prisoners in 2013. Retrieved from https://www.bjs.gov/content/pub/pdf/p13.pdf
Grossman, S. P. (2005). An Honest Approach to Plea Bargaining. Am. J. Trial Advoc., 29, 101.
Lentin, R. (2020). Incarceration, Disavowal and Ireland’s Prison Industrial Complex. In The Carceral Network in Ireland (pp. 259-278). Palgrave Macmillan, Cham.
Nilsen, E. S. (2007). Decency, Dignity, and Desert: Restoring Ideals of Humane Punishment to Constitutional Discourse. UC Davis L. Rev., 41, 111.
Pelaez, V. (2019). The Prison Industry in the United States: Big Business or a New Form of Slavery? Retrieved from https://www.globalresearch.ca/the-prison-industry-in-the-united-states-big-business-or-a-new-form-of-slavery/8289