No racism in the justice system - comment on article by John DiIulio in this issue, p.3

Public Interest, Fall, 1994 by Patrick A. Langan

WHETHER OR NOT America's criminal justice system is biased against blacks today, it clearly was in the past. Between 1930 and 1964, for example, six southern jurisdictions--Louisiana, Mississippi, Oklahoma, Virginia, West Virginia, and the District of Columbia--put to death 67 men for the crime of rape. Not one of the 67 was white. All were black. Is it conceivable that not a single white man committed rape in any of these places? Over a 35-year period? Surely not.

The bulk of the evidence amassed since then on justice system bias is far less conclusive. Plenty of studies exist showing no bias in arrest, prosecution, adjudication, and sentencing. While plenty also exist that show possible evidence of bias, the general consensus among criminologists is that the evidence is not strong.

Compared to legitimate factors affecting decisions, such as the defendant's prior record or the seriousness of the offense, race is only weakly related to whether a defendant is arrested, convicted, prosecuted, or sentenced severely. Moreover, criminologists are divided over how to interpret the weak relationship. Some believe it proves the existence of a lingering, small amount of bias in the justice system, while others are not satisfied that the studies rule out the alternative explanation: when blacks and whites are treated differently it is because the races differ on legal factors that legitimately influence the decisions of justice system officials.

Racial bias studies never completely take into account all of the legitimate factors that determine how a case is handled. Consequently, these unmeasured factors might explain a racial disparity if the factors are ones on which the races differ. Given the small disparity in the first place, such unmeasured factors become potentially important.

Existing racial bias studies share another limitation. They do not tell us how all or even most black defendants in the United States are handled at each of the major stages of the justice system. Instead, they tell us how blacks are treated at a single stage, or in one jurisdiction, or for particular offenses.

That limitation is not present in new data from a recently completed survey sponsored by the Justice Department's Bureau of Justice Statistics. For one year, the survey tracked samples of adult felony defendants as their individual cases proceeded across major criminal justice stages, from the filing of state court charges in May 1990, through prosecution, to adjudication, and finally to sentencing. (The survey is based on a sample of 10,226 defendants representing 42,538 defendants in the nation's 75 largest counties. For more details, see Pheny Z. Smith, Felony Defendants in Large Urban Counties, 1990, Washington: Bureau of Justice Statistics, 1993.) Felony charges of all kinds were included--murder, rape, robbery, burglary, theft, drug trafficking, etc. However, what makes the survey especially relevant to black Americans is the places from which defendants were sampled.

THERE ARE OVER three thousand counties in the nation, but to learn how the U.S. justice system treats most black defendants, we need examine only the 75 most populous urban jurisdictions. The 75 are where most black Americans live (59 percent compared to 33 percent of whites). They are also where blacks have the majority of their contact with the criminal justice system as criminal defendants. In 1990, for example, 62 percent of black arrests for violent crime and 67 percent for drug trafficking occurred there.

By design, felony defendants in the Justice Department survey were all from the 75 largest counties. The survey, therefore, gives us a close look at the justice system's treatment of blacks in the places where most of their contacts with the justice system occur. Such information has never before existed.

Here is what the survey reveals, first about whether blacks were prosecuted more vigorously than whites; second, about whether they were convicted more often; and third, about whether they were sentenced more harshly.

Prosecution. Following the filing of felony court charges, 66 percent of black defendants were subsequently prosecuted (the rest were dismissed). Yet that is slightly less, not more, than the 69 percent of whites. Looked at another way, at the stage where felony court charges were filed, black defendants comprised 53 percent of all defendants, but they comprised 51 percent of those actually prosecuted.

Adjudication. Among blacks prosecuted in urban America's courts during the study period, 75 percent were subsequently convicted of a felony offense. Again, this figure is slightly less, not more, than the 78 percent of whites. Despite the small difference, blacks comprised 51 percent of those prosecuted and also 51 percent of those convicted of a felony.

Sentencing. Results at the sentencing stage are mixed. On the one hand, the average state prison sentence received by blacks convicted of a felony was five and one-half years. That is one month longer than what whites received, a small difference not of statistical significance.