The American Legal System

How are minorities treated by the American Legal System? Explain the bias that exists at each step of the process. Apply "Incident at Oglala" (the story of Leonard Peltier) to the steps of the process. How was the treatment of the first two defendants different than the treatment of Peltier? Why do you think the outcomes of the first trial were different than the outcome of the second trial? Why is there such resistance to release Leonard Peltier from federal prison? Defend your answer.

The differential treatment of minorities in the American criminal justice system begins at the very first stage of that system: the investigation of suspected criminal activity by law enforcement agents. Police departments disproportionately target minorities as criminal suspects, skewing at the outset the racial composition of the population ultimately charged, convicted and incarcerated. The racial generalizations that inform policing strategies in America today are subtle, deeply rooted, and difficult to eradicate. Police seek to uncover criminal activity by investigation.

They patrol the streets looking for activity they think is suspicious, they stop cars for traffic violations in the hope of discovering more serious criminality, and they engage in undercover operations in an effort to uncover crimes, like drug trafficking and prostitution, without complaining witnesses. Each of these police tactics involves the exercise of a substantial amount of discretion-the police decide who they consider suspicious, which cars to tail, what conduct warrants further investigation, and which neighborhoods need police enforcement.

Unfortunately, that discretion is routinely exercised through racial ideologies. The practice of racial profiling ("the identification of potential criminal suspects on the basis of skin color or accent" pg. 481) is pervasive. One example of this that we talked about in class is "driving while black syndrome. " Racial profiling is seemingly inconsistent with today's dominant law enforcement philosophy: community policing. But community policing is still a vague and elastic concept. At its best, community policing refers to a more diverse police force working with community institutions to prevent crime before it occurs.

However, it appears that community policing is just a label, a slogan to attract federal grants and favorable headlines. There are many assumptions made about minorities. The first assumption is that minorities commit the majority of crimes and that therefore it is a sensible use of police resources to focus on the behavior of those individuals. Although empirically false, these perceptions cause a disproportionate share of law enforcement attention to be directed at minorities, which in turn leads to more arrests of blacks and Hispanics.

The consequence of a law enforcement culture that encourages suspicion of minorities also contributes to a well-grounded fear among minorities that the police will assume the worst about them. The harms caused by racial profiling extend beyond racial division and distrust. In effect, racial profiling becomes a self-fulfilling prophecy. Racial profiling and other enforcement strategies begin the insidious process by which minorities are disproportionately caught up in the criminal justice system. But such disparities do not end at the point a suspect is arrested.

At every subsequent stage of the criminal process-from the first plea negotiations with a prosecutor to the imposition of a prison sentence by a judge-the subtle biases and stereotypes that cause police officers to rely on racial profiling are compounded by the racially skewed decisions of other key actors, such as prosecutors. Prosecutorial discretion is systematically exercised to the disadvantage of black and Hispanic Americans. Prosecutors are not, by and large, bigoted. But as with police activity, prosecutorial judgment is shaped by a set of self-perpetuation racial assumptions.

One example of this, we talked about in class on 10/23/03. The crack/powder-cocaine sentencing divide remains unresolved. In 1995, the U. S. Sentencing Commission recommended to Congress that the sentencing guidelines be altered to eliminate the differences in crack and cocaine sentencing thresholds, noting both the inequality inherent in these differences and the cynicism they engender in minority communities. Nonetheless, Clinton proposed, and Congress passed, legislation rejecting the Commission's proposed changes.

The Commission has since revisited the issue and has recommended a reduction, not an elimination, in the current 100-to-1 disparity, noting again "the current penalty structure results in a perception of unfairness and inconsistency. " Congress has never acted on this recommendation thought. The extraordinary disparity between black and white incarceration rates reflects in part the fact that black men constitute a disproportionate share (44%) of all felons convicted of the violent crimes that receive long sentences.

But it also reflects the impact of the country's war on drugs. Although drug use and selling cut across all racial, socio-economic, and geographic lines, law enforcement strategies target street-level drug dealers and users from low-income, predominantly minority, urban areas. As a result, the arrest rates for drug offenses are six times higher for blacks than for whites. One in every 143 Americans was incarcerated in 2002, with racial minorities disproportionately affected.

Blacks and Hispanics accounted for 62. 6 percent of all state and federal prisoners even thought they represent only 24 percent of total U. S. residents. Almost 10 percent of black non-Hispanic men age 25 to 29 were in prison in 2000, compared to 1. 1 percent of white men in the same age group. Another turning point in the criminal justice process, one that can mean the difference between freedom and incarceration for criminal defendants, is bail determination.

The very nature of the bail concept is biased. It is known that rich people can produce the necessary bond amounts to gain freedom until trial, while poor people simply do not have the means to produce the money necessary. This thought in mind, we also know that minorities are over-represented in the lower ends of the economy. Put these two factors together, and it is easy to see that if you are a minority, you are more than likely to find yourself at a disadvantage while awaiting trial.