Overview
Throughout the United States, a disproportionate percentage of racial minorities become caught up in the juvenile and criminal justice systems. It would be easy to simply attribute this large discrepancy to the notion that people of different racial groups commit different types of crimes. Yet data suggests that this is not the case, particularly among young people.
Disproportionate minority confinement (DMC) raises difficult issues for the American criminal justice system. It threatens victim cooperation with police and prosecutors, the participation of minority jurors, and the validity of judicial decisions among members of minority and majority communities alike. Most fundamentally, it challenges the basic American assumption that everyone receives "equal justice under law."
In this unit you will explore and assess two different aspects of disproportionate minority confinement. You will look at the practice of racial profiling which some experts consider as the major cause of disproportionate traffic stops on minorities and a resulting skew in the racial composition of those charged, convicted and incarcerated. You also will examine current trends and controversies relating to juveniles in detention, particularly the disproportionate number of minority youth in confinement despite arrest rates similar to those of white offenders.
Should the police be allowed to consider race when deciding whether to stop someone? If in Chicago or other cities in Illinois a disproportionate number of minorities are arrested and detained, should the City of Chicago or other cities form police/citizen committees to investigate why and to develop a plan based on their findings? Should the transfer provision of the Illinois Juvenile Court Act, which mandates that youth who are 15 or 16 years old that are arrested for violations of the Illinois Controlled Substances Act within 1000 feet of a public housing property be automatically tried in the adult court, be repealed so that any youth arrested for this offense is treated the same as other youth regardless of the community in which it occurs?
Should Illinois be compelled by the federal government to justify any over-representation of minorities at every stage of their juvenile justice systems or lose federal funding for its youth programs?
The Limits of Authority: Racial Profiling
For many years, blacks and other minorities have complained that police often target minority drivers, pulling them over for minor infractions or no reason at all and often subjecting them to humiliating car or body searches. Christopher Darden, an African American and former prosecutor, has been stopped many times by police. He said that "to be pulled over for no good reason is very offensive. But then to be asked for consent to search your vehicle just ratchets things up another notch. And in those situations where you've been forced out at gunpoint or you've been asked to spread out on the street, to lay out on the pavement, makes you boiling with anger."
John Lambeth of Temple University conducted a study to determine whether blacks were being targeted on the New Jersey Turnpike. He found that African Americans made up 13.5 percent of highway users and 15 percent of the speeders, but he found that they represented 35 percent of those stopped by police. They were almost five times more likely to be pulled over as other drivers. Similar results were found in studies conducted in Maryland and Florida.
Other minority community members complain that they too are stopped and questioned by authorities for no good reason. Latinos protest that they are targeted at Border Patrol checkpoints within the United States, and Arab-Americans claim that they are often detained for long periods by airport security, especially after some terrorist scare.
Pulling over a car, or stopping a person, solely on the basis of the driver's race violates the 14th Amendment to the U.S. Constitution, which guarantees equal protection under the law. If proven, it would invalidate an arrest or the use of any evidence seized from the driver. Federal civil rights laws outlaw it and several states have passed laws specifically against this practice. The more difficult question arises over police officer discretion in deciding who to pull over. In the 1996 case of Whren v. U.S. , the U.S. Supreme Court unanimously ruled that police may stop a car for any traffic or equipment violation even if they have a different motivation for making the stop, such as the suspicion of drug trafficking.
Some experts point to "profiling" as the major cause of disproportionate traffic stops on minorities. Profiles are systems used by police to predict criminal behavior. Some use scientific methods and statistics to develop a list of factors that make up a profile of a potential suspect. They might include age, location, type of car, time of day, driving patterns, route of travel, and whether the driver is alone. Profiles can also target white citizens. For example, a police officer might be more likely to pull over a late-model car for a minor traffic violation if it were driven by a white youth at night in an inner-city neighborhood where drug dealing occurs. In this case, the driver might fit a profile of someone who is likely trying to buy drugs.
There are two types of racial profiling—full and partial. A full racial profile is when race is the only factor that causes an officer to stop someone. As mentioned above, this practice is unconstitutional, illegal, and universally condemned. Even so, many minorities complain that it happens all the time. Police officials disagree and say the practice is not widespread.
In 1999, Connecticut and North Carolina passed laws requiring police to keep track of the race and ethnicity of everyone they stop. The data will be forwarded to experts to analyze whether and to what extent officers are targeting people on the basis of race or ethnicity. These laws are widely supported by minority leaders. Walter Wilson, legislative director of the National Association for the Advancement of Colored People, has stated: "The NAACP believes that comprehensive data collection is critical to the process of ending racial profiling. Without data collection, there is no progress on this issue."
Other states and the federal government are considering such laws. But strong opposition to these laws has come from police groups. They argue that stopping people is already hazardous and forcing officers to ask people about their race and ethnicity will needlessly lengthen stops and inflame the situation. They also don't think the statistics will prove anything because people stopped will probably reflect the racial makeup of the community they are stopped in. They believe that instead of collecting data, all allegations of officers targeting minorities should be thoroughly investigated.
Another set of issues concerns partial racial profiling, where race or ethnicity is one of several factors. Many people support this type of profiling. They argue that it is an effective law-enforcement tool. Bernard Parks, chief of the Los Angeles Police Department, has stated: "We have an issue of violent crime against jewelry salespeople. . . . It's a collection of several hundred Colombians who commit this crime. If you see six in a car in front of the Jewelry Mart, and they're waiting and watching people with briefcases, should we play the percentages and follow them? It's common sense." Parks is an African American. He sees nothing wrong with partial racial profiling.
Randall Kennedy, a law professor at Harvard, opposes using race as a factor in profiles. He doesn't think that police necessarily use this practice because they have racist motives. He thinks they may believe it is an effective law-enforcement tool, and Kennedy believes they may be right. But Kennedy points out that many innocent people get stopped by police using these profiles. And, he says, they often don't just get stopped once, but many times. This, he says, causes great anger and alienation. "Alienation of that sort gives rise to witnesses who fail to cooperate with the police, citizens who view prosecutors as 'the enemy,' . . . and jurors who yearn to 'get even' with a system that has, in their eyes, consistently mistreated them. For the sake of better law enforcement, we need to be mindful of the deep reservoir of anger toward the police that now exists within many racial minority neighborhoods. Racial profiling is a big part of what keeps this pool of accumulated rage filled to the brim."
For Discussion
1. A bank is robbed and the suspect is described as an Asian woman driving a
red sports car. Police start looking for such a suspect. Is this a racial
profile? Explain.
2. What is the difference between partial and full racial profiling?
3. Do you think profiling is an effective law-enforcement tool? If so, are its
benefits worth its costs? Explain.
4. Should police ever be allowed to consider race when deciding whether to stop
someone?
From: Criminal Justice in America, Copyright Ó 2000 Constitutional Rights Foundation (Los Angeles).
What Should Be Done About Profiling?
Overview
To find out more about racial profiling, some states have passed laws requiring police to collect data on the race and ethnicity of everyone they stop. Other states and the federal government are considering doing the same. Opponents of data collection support other measures such as police videotaping every traffic stop or police distributing their card to everyone they stop so that people can easily file complaints. In this activity, students role play advisers to a state governor who is considering introducing legislation on racial profiling.
Instructions
Divide the class into small groups.
Each group should:
From: Criminal Justice in America, Copyright Ó 2000 Constitutional Rights Foundation (Los Angeles).
Responding to Disproportionate Minority Confinement
Focus Question
Should Illinois be compelled by the federal government to justify any over-representation of minorities at every stage of their juvenile justice systems or lose federal funding for its youth programs?
Activity
Distribute to each student 4D, "Juvenile Justice: Current Trends and Controversies." Ask everyone in pairs or small groups. Have groups report out to check for understanding. Explain that the policy above is one proposed response to the problem of disproportionate minority confinement among juveniles.
Distribute 1B, "G R A D E." Ask students, in teams or in pairs, to assess the policy based on their reading of "The Color of Justice" and using G R A D E. Ask groups to report out on the different components of the grade instrument.
To conclude, have the class divide into supporters and opponents of the policy. Ask each group to create a report (not more than 250 words) of recommendations on the proposal. The class report will include both majority and minority recommendations and not exceed 500 words.
Juvenile Justice: Current Trends and Controversies
Over the years, reformers have focused on different issues in the juvenile justice system. During the 1960s and early 1970s, advocates pushed for due-process rights for juveniles. The U.S. Supreme Court responded with its Gault decision, which declared juveniles did have these rights. Subsequent court decisions and much state legislation have further defined juveniles' rights.
Beginning in the mid-1970s, reformers turned their focus on detention issues, particularly on restricting who could be in secure lockups. The Juvenile Justice and Delinquency Act of 1974 and its subsequent amendments achieved two major reforms of detention. It outlawed placing status offenders in secure detention, and it mandated separate facilities for adults and juveniles. From the late 1970s to the present, the public in many states has called for getting tough on juvenile offenders. Some jurisdictions have resisted. Many states, however, have locked up juveniles in record numbers. Even in periods when the juvenile arrest rate for violent crimes dropped, the incarceration rate climbed. In the wake of highly publicized, violent juvenile crimes, many have called for even harsher sentences on juveniles. Princeton Professor John DiIluio once warned of a "rising wave of superpredators," caused by the growing teen population. Shay Bilchik, former head of the Office of Juvenile Justice and Delinquency Prevention, dismissed the idea of a growing number of superpredators. "For starters, only about one-half of 1 percent of juveniles ages 10 to 17 were arrested for a violent crime last year, and of all juvenile offenders, just 6 to 8 percent are serious, violent, or chronic offenders. So to talk of a generation of superpredators is not only false but unfair." Bilchik and others believe that getting tough has not and will not prevent violent crimes. They urge a return to the traditional model of rehabilitation for juvenile offenders.
The high detention rates have given rise to another controversy. Today, the overwhelming majority of juveniles in detention are minorities. Although African-Americans constitute only 15 percent of juveniles aged 10–17, they make up about 40 percent of the juveniles in custody. Only 37 percent of those in custody are white. Blacks do not commit more crimes than whites. The number of whites arrested far surpasses the number of blacks arrested. But as they make their way through the juvenile justice system, blacks tend to stay in the system and end up in custody. Whites tend to get out of the system and not be placed in custody. In fact, minority youth make up almost 70 percent of those in secure detention.
So the controversy arises: Does the juvenile justice system unfairly discriminate against minorities, particularly African-American youths?
Many experts believe that racial discrimination does not cause black youth to remain longer in the system. They point to two separate studies which have shown that black judges are more likely than white judges to keep a black juvenile in custody. They believe that social class rather than race explains why blacks stay in the system. Most of the blacks caught in the system come from poor inner-city neighborhoods. Most of the whites come from a middle-class background. If a middle-class white juvenile gets into trouble, the parents may get a lawyer and a psychologist to help. They will come to court with a plan of action. On the other hand, an inner-city juvenile may only have an overworked public defender, who probably will meet the juvenile just before the hearing. This juvenile has limited access to social services, community agencies, or psychologists. And the juvenile's neighborhood may be filled with gangs and drug traffickers. What is the best interest of each child? Given each juvenile's resources, a judge might find it better to let the middle-class juvenile stay at home and better to send the inner-city offender to a detention facility that offers some social services. So social class rather than race may explain the different treatment of whites and blacks.
Other experts disagree. They say that while class may account for some of the disparity, racism also plays a role. The juvenile justice system allows decision makers wide discretion at every stage of the juvenile justice process. Racism, they argue, can easily creep into such a system.
The Office of Juvenile Justice and Delinquency Prevention commissioned a project to examine all the existing research about race in the juvenile justice system. In 1992, the project issued a report concluding that "there is substantial support for the statement that there are race effects in operation within the juvenile justice system, both direct and indirect in nature." By "race effects," the project meant that race explains why blacks remain in the system.
In 1989, Congress amended the Juvenile Justice and Delinquency Act. It required states to examine why so many minorities were in their lockups. States must justify any over-representation of minorities at every stage of their juvenile justice systems. In 1992, Congress further amended the act tying funding to compliance. Since then, about 40 states have started intervention and prevention programs aimed at helping youth who are at risk of engaging in crime.
For Discussion
Do you think the juvenile justice system should focus on rehabilitation or
punishment? Why?
How do you account for the great number of minority youth in detention? What do
you think can be done about it? Explain.
From: Criminal Justice in America, Copyright Ó 2000 Constitutional Rights Foundation (Los Angeles).
Disproportionate Minority Confinement/Racial Profiling: Suggested Service Projects