Racial and ethnic disparity and criminal justice: how much is too much?

• Author: Crutchfield, Robert D.
• Position: Centennial Symposium: A Century of Criminal Justice

1. INTRODUCTION: WHY IS THE "HOW MUCH IS Too MUCH" QUESTION IMPORTANT?

   Race differences in criminal involvement and racial patterns in the criminal justice system have been important topics since the beginning of American criminology. (1) The question of whether there are meaningful racial disparities in the justice system has been important since the 1960s. (2) In recent decades, a considerable literature focused on racial profiling by police and racial differences in imprisonment, sentencing, and other areas of criminal and juvenile justice processing has grown. There are both studies that report no significant racial differences in criminal justice processing and studies that report substantial differences. Taken together, how meaningful are observed differences? Wilbanks concludes that they are not. (3) He maintains that even in the studies that report statistically significant racial differences in criminal justice outcomes, the effect sizes are too small to really matter. In other words, Wilbanks argues that these differences are not "too much." Other criminologists have been heard to say that while the difference is statistically significant, it really isn't enough to make a real, cognizable difference in daily life. We cannot help but wonder, though, if the minority driver pulled over a few extra times by profiling officers, or the Latino sentenced to just a bit more time in prison, or the African American with just a slightly higher probability of receiving a capital sentence would agree that small effect sizes can be dismissed as inconsequential.

   We began this Article by acknowledging that there is a wide range of research results, but we do not concede that only small effect sizes have been observed. Some studies find no racial or ethnic differences. (4) Others find modest differences, (5) and some report rather substantial racial disparities in criminal justice processing. (6) Clearly, if we compare American criminal justice practices in the last decades of the twentieth century and the first of the twenty-first with earlier periods, the former probably looks to be fairer and more just than the latter. That does not necessarily mean that we have reached that Promised Land that Martin Luther King spoke hopefully of in his "I Have a Dream" speech. (7)

   1. EARLY AMERICAN HISTORY OF DISPARITY

      There was racial disparity in the American criminal justice system during the antebellum period, but it did not look like most would expect. Crutchfield and Finke examined records of the U.S. Census in the nineteenth century for the Southern states. (8) Until the start of the Great Migration, the massive movement of African Americans out of the rural South into the cities of the South, North, and West, one could only really study race and imprisonment below the Mason-Dixon line. Elsewhere in America there were not enough people of color in the Census to study. Crutchfield and Finke found that prior to the Civil War, very few blacks were sent to Southern prisons. (9) Instead, the prison populations before 1870 were nearly all white. There are two explanations for this pattern. First, antebellum Southern states did not seem to make heavy use of penitentiaries as a form of punishment. (10) This is not surprising. The penitentiary "movement," which began in Pennsylvania and New York in the 1830s, spread slowly to other regions and nations of the world. (11) Prior to the war, it had not made as much of an in-road into the practices of the South as it would later. The second reason that few blacks, compared to whites, were imprisoned in the South was slavery. Most African Americans were not free. To lock up a slave was to "punish" his master by depriving the latter of labor. The Southern economic and social system dictated that when possible, punishment should be meted out by the owner rather than the state. (12) This practice was clearly a result of economic consideration.

      Adamson studied the convict lease systems that emerged in the post-bellum South. (13) He found a system that endeavored, in part, to "replace" slavery. Convicts, disproportionately black, were leased to plantation owners to work the same fields that they had as slaves before emancipation. They were also sent to work for private industries in the particularly dangerous tasks of mining and railroad building. (14) A superficial examination of the numbers of people who were sentenced in this system suggests that it did not "replace" slavery. (15) But if seen as a system that supported the emerging racial order, which was based on share cropping and tenant farming, the convict lease system supported these new quasi-slavery arrangements. Freedmen who walked away from share cropping or tenant farmer arrangements were subject to strict loitering and Black Code laws that, in some circumstances, landed them in prison, workhouses, or convict lease systems. (16)

      Much of the early criminological literature on race focused on racial differences in criminal involvement, (17) but in the 1950s, scholars began to show some interests in race and the criminal justice system. Dobbins and Bass studied the differential effects of unemployment on white and black inmates in Louisiana. (18) They found that unemployment was more related to the imprisonment of whites than of blacks. (19) Early in the 1960s, the first signs that criminologists recognized racial conflict appeared. For example, Rudwick published a paper with recommendations for how police departments might do a better and fairer job when policing "Negros," (20) and he also wrote about the need to have black police officers in Southern cities to make sure that Negro neighborhoods were adequately policed. (21) In 1964, Cross published "Negro, Prejudice, and the Police" calling for police officers to recognize the social circumstances of blacks and for the fair treatment of individuals. That same year, Piliavin and Briar published their now classic paper, reporting that demeanor, which is related to race, was an important factor determining when police exercised the discretion to formally arrest. (22) Black and Reiss followed with their report that demeanor was important, but less so than the wishes of victims, and that there are racial differences in the preferences of those victims; black victims more frequently demanded arrest. (23)

   2. RACE, CRIME, JUSTICE, AND CRIMINOLOGY

      The contemporary debate on racial and ethnic differences in criminal justice processing began with Christianson's state-by-state enumeration of black and white imprisonment rates. (24) He showed that in all states, the proportion of blacks imprisoned exceeded their representation in the general population. He concluded that this disproportionate imprisonment was evidence of disparate treatment in criminal justice processing based on race.

      In contrast, Kleck reviewed a number of studies of individual sentencing. In that review, he found some evidence of modest disparate sentencing in some jurisdictions, but not in others. (25) Kleck's general conclusion was that there is not substantial evidence of unfair racial differences in how defendants are sentenced.

      Critics of Christianson countered his conclusions by arguing that he had not accounted for racial differences in criminal involvement, especially for the crimes most likely to lead to state prison sentences. Blumstein used racial differences in arrest for violent crimes to measure disparate criminal involvement. (26) For the most serious crimes, Blumstein reasoned that there would be less of the discretion in systemic decisionmaking that Piliavin and Briar and Black and Reiss discussed, making the disparities for serious crimes reasonable measures of actual crime differences. Blumstein concluded that 80% of the racial difference in imprisonment rates can be accounted for by African Americans' higher arrest rates for violent crimes. (27)

      Langan avoided the question of whether arrest rates are themselves biased by using responses from the National Crime Survey (NCS). (28) For the surveys, respondents who had been victims of face-to-face victimization were asked, among other things, the race of the perpetrator. Langan compared racial differences in these victim reports to racial distributions in prisons and concluded that Blumstein was essentially correct: about 80% of the racial differences in American prisons can be accounted for by higher rates of black criminality. (29) Crutchfield, Bridges, and Pitchford examined each state using the Blumstein approach. (30) They reported that the 80% estimate was correct as an average, but that it masked gross differences across the states. (31) In some states, all or nearly all of the observed racial disparities in imprisonment could be accounted for using racial differences in violent crime arrests. But in other states, a far lower proportion of the difference could be accounted for accordingly. Other analyses indicated that just as Christianson found in the post-bellum South, state variations in black/white disparities in imprisonment are related to economic, social, and political conditions, and not just to crime. (32)

      These studies (other than Kleck's study and the research he reviewed) are based on aggregate data. They do not look at what happens to individuals in the criminal justice system. They do, however, capture the accumulation of individual decisions from arrest to imprisonment. Wilbanks, like Kleck, focused on individual-level studies. (33) These studies allow for a close examination of the processing of individual defendants.

      After reviewing these studies, Wilbanks wrote:

      [M]any studies of possible discrimination focus on the extent to which the results are statistically significant. However, statistical significance may be confused in the minds of the public (or the researchers) with practical significance. Statistical significance tells us only whether the results found in the sample are likely to have occurred by chance if the...