Discretion exists at every level of the criminal justice system. Discretion begins with a patrol officer’s decision whether to pursue, stop or question an individual; and continues throughout every step of the criminal justice process through sentencing, release and parole. Black’s Law Dictionary defines judicial and legal discretion as: “ …It is a legal discretion to be exercised in discerning the course prescribed by law and is not to give effect to the will of the judge, but to that of the law…” (Black, 1987). Police discretion is defined as : “…whether to arrest, whether to ticket, what to do when faced with any altercation.” (Braswell et al, 1991).
Many believe that where there is discretion there is also a likelihood of racial discrimination. According to the Bureau of Justice Statistics: “At midyear 2007 there were 4,618 black male sentenced prisoners per 100,000 black males in the United States, compared to 773 white male sentenced prisoners per 100,000 white males.” (BJS, 2007). Blacks make up about 48% of the overall prison population, but only about 12% of overall U.S. population.
The question raised is whether blacks simply commit more crimes and that is the reason there is such a high rate of sentencing and incarceration among blacks. Or whether there is a bias against more lenient punishment for blacks. In an effort to present the facts clearly and concisely I have omitted the data concerning the sentencing rate for Hispanics. I also raise the question as to whether there is a correlation between discretion at every level of the criminal justice process; and the disparity in punishment between white and black offenders.
Ethical dilemmas exist for patrol officers when faced with making routine decisions. Suppose an officer is dispatched to a retail store where store security personnel have detained a shoplifter. The officer responds to find that the shoplifter is an 80 year old white woman that has stolen a hearing aid battery. The woman states that she forgot to pay for it. Does the officer arrest? Or in a similar but contrasting scenario the officer responds to a retail store to find that store security detained a young black male for stealing a CD. The black youth refuses to speak to the officer at all. Does the officer arrest? At this juncture, to arrest or not to arrest either of the offenders, is wholly within the officer’s discretion.
An ethical dilemma exists for lawmakers and the courts when sentencing is based on perceptions of the possibility of future crimes being committed. According to Pettersilia (1983), the characteristics of persons receiving severe penalties shows that sentencing decisions are disproportionate. Males, minority group members, young adults and the poor are more likely to receive harsher sentences than females, older adults, whites and the affluent. Laws such as repeat offender laws, and three strikes you’re out laws, include penalties that are based on whether an offender will re-offend. In 1988, it was reported that criminal sentences in California were not based on race; and that instead sentencing was based on criteria such as the seriousness of the offense and prior criminal record of the offender. However, seriousness of the offense and prior criminal record may also relate to gender and race, although the exact data is hidden from those making the sentencing decision. For example, a young black male may have a criminal history that may actually stem from low socio-economic status, such as arrests for crimes such as shoplifting. (Braswell et al, 1998).
The war on drugs also brought about a high degree of racial disparity in sentencing. Crack cocaine was used primarily by blacks; and powder cocaine was used primarily by whites. Criminal sentencing for the sale and distribution of crack cocaine were far harsher than the criminal sentencing for powder cocaine, for the same amount of each form of cocaine. Also, criminal punishment for street sales of illegal drugs was much harsher than for sales elsewhere. Black drug dealers are more likely to sell crack cocaine on the street, than white drug dealers are to sell powder cocaine on the street. (Hancock & Sharp, 2000).
According to California’s Offender Based Transaction Statistics (OBTS) for 1980 white offenders are more likely to be arrested on a warrant than minority offenders. And white offenders are less likely than minority offenders to be released without charges. White offenders are also more likely to be charged with a felony than minority offenders. Both white and minority offenders have about the same chance of being convicted once charged with a felony, although white offenders are more likely to be convicted by plea bargain. Minority offenders are more likely to receive longer sentences than white offenders convicted guilty of the same charge, but that may be because more minority offenders are sentenced after conviction by juries. Minority offenders are less likely to be given probation and more likely to be sentenced to prison. Minority offenders are also more likely than white offenders to receive longer sentence and to serve a greater portion of their sentence. (Hancock & Sharp, 2000).
As conclusions to the research cited in this paper I suggest that there is in fact an element of racial discrimination inherent in the criminal justice system. At the same time there is perception, among decision makers and the public, that minority groups in fact commit disproportionately more crimes and so the disproportionate rate of incarceration of minority group members is warranted. Many of the factors that lead to criminal convictions and incarceration of minority group members stem from socioeconomic factors that mirror society as a whole. Minority group members are much less likely to retain a private attorney once they are arrested due to the cost of legal fees; and so are much more likely to depend upon the legal services of a public defender. Although, I have no doubt that there are many fine criminal defense attorneys among the ranks of public defenders, their case loads are notoriously large in almost all jurisdictions. So large in fact, that public defenders in Miami, Florida this past September, 2008, sued to have the right to refuse to accept new cases because of the size of their caseloads. Their case loads swelled this year, to an average of over 500 per public defense attorney from only 367 last year. The attorneys claim that they cannot deliver a fair and diligent defense with the quantity of cases they are assigned; and that their clients are being denied their constitutional right to a fair trial because of their caseloads. The case was appealed by the state of Florida and is now set to be heard in Florida’s Supreme Court. (AP , 2008).
The decision makers that decide the fate of offenders may be using information to make those decisions that is in itself biased against minority group members. For example, when a probation officer evaluates an offender for probation, he takes into consideration factors such as employment status and family stability. If these factors are linked to socioeconomic factors as well, then a minority group member may have little chance of rising above his circumstances.
Black, Campbell, H. (1987). “Black’s Law Dictionary, Abridged Sixth Edition” St. Paul: West Publishing.
Braswell, Michael C; McCarthy, Belinda R; McCarthy, Bernard J; (1998). “Justice Crime and Ethics”. Cincinnati: Anderson Publishing Co.
Bureau of Justice Statistics (2008). “Prison Statistics” Retrieved December 7, 2008
Center for Disease Control (2008). “Bridged-Race Population Estimates (Vintage 2007)
Results” Retrieved 12/08 http://wonder.cdc.gov/controller/datarequest/D37
Hancock, Barry W. & Sharp, Paul M. ((2000). “Public Policy, Crime, and Criminal Justice”. Upper Saddle River: Prentice Hall
Ocala Star Banner (2008). AP Staff Writer. “Fla. Public defenders rejecting new cases”. Ocala Star Banner, Florida. November 9, 2008. Retrieved December 6, 2008 www. Ocala.com/article/
Petersilia, Joan (1985) “Racial Disparities in the Criminal Justice System: A Summary” Crime and Delinquency. v3 n1