Though racial biases are present in many systems, disparity among different racial groups is perhaps most observable within the criminal justice system. While criminals should be judged by the crimes they have committed, research demonstrates that race plays a role in sentencing. In fact, racial bias factors into every stage of the decision-making process, from jury selection to severity of punishment within the justice system. Perhaps most compelling when considering racial bias as it relates to the criminal justice system is the disparity in capital punishment sentences. Years of research looking at capital punishment shows that African American defendants are sentenced to death more often than Caucasian, especially when the victim is Caucasian, and the defendant is African-America. This paper will discuss racial bias as it relates to the sentencing process and especially as a potential determining factor in death penalty sentencing. For the purposes of this paper, racial bias will be discussed primarily as it pertains to African Americans and Caucasians.
Research shows that in all areas of the criminal justice system, African Americans are more likely than Caucasians to be mistreated. Statistically, African Americans have far more contact with law-enforcement than Caucasians and experience more abuse at the hands of law enforcement professionals (Chemerinsky, 1995, p.521). Not only are African Americans experiencing more contact and abuse, they are 10 times more likely to be shot at and five times more likely to be killed by police (Chemerinsky, 1995, p. 521). These numbers alone demonstrate incredible disparity regarding race relations and police contact; however, they also show how racial bias is present from the beginning of the criminal process. After initial contact with law enforcement and arrest, prosecutors involved in cases with African American defendants recommend that blacks be held without bail far more often than their white counterparts, even when defendants of both races have committed similar crimes. Further, statistics have shown that even when Caucasians have prior criminal activity on their records, they are released on bail more often than African-Americans, even in cases where the black defendants do not have prior arrests or convictions (Chemerinsky, 1995, p.522).
Federal court sentencing is determined by rules developed by the United States Sentencing Commission (USSC). The USSC prioritizes honesty, uniformity, and proportionality (Mustard, 2001, p.289). Though the USSC's statutes are detailed and spell out clearly the guidelines for sentencing for different crimes (including changes that can or should be made for factors like a prisoner's good behavior), application of the USSC rules can be dependent on extenuating circumstances or assistance from another offender in getting information pertinent to the crime (Mustard, 2001, p.293). What this means for offenders is that juries and judges have leeway in the decision-making process that may allow for personal biases or racism to influence the process. Dovidio and Gaertner argue that while tolerance is shown to be growing between racial groups, the statistics on tolerance are likely not considering the rise in aversive racism (1998, p.134). Aversive racism refers to the subtle racism occurring with people who do not self-identify as racist. This type of racism is defined by feelings of uneasiness or disgust, which many whites may not be consciously aware they are experiencing. Therefore, when the USSC rules are not applied, aversive racism may play a role in sentencing bias.
The Capital Jury Project (CJP) is a combination of studies from multiple universities that looks at individual juror decision making in capital cases (Hans, 1995, p.1234). The project was started in 1991 and utilizes interview questions to assess how jurors have made the decision to sentence someone to death in capital trials. The findings from the CJP are compelling in that they demonstrate how much individual discretion plays a role in the decision-making process of jurors. Though guided discretion, a set of guidelines that dictate what information can be used by and shared with juries in capital cases, should, in theory, prevent racial biases in sentencing, jurors interviewed for the CJP reported that they had often made decisions regarding innocence or guilt prior to the penalty phase of trial (Hans, 1995, p.1237). Pre-penalty phase decisions vary, however, based on the race of the individual juror. Black jurors are more likely to voice the possibility that the defendant may be innocent while white jurors are more likely to see the defendant as guilty. This difference is most often noted when there is a black defendant and a white victim, however, the reverse does not apply, meaning when there is a white defendant and a black juror, black jurors are still more likely than white jurors to consider the possibility that a defendant is innocent. It is believed that African-American jurors may be more likely to see a defendant as possibly innocent because of the racism they have experienced in their lives, while Caucasian jurors have primarily experienced the benefits of being part of a majority and do not think as much about the potential for personal or systemic bias (Bowers, Sandys & Brewers, 2004, p.1501). Black jurors have reported being victims of the justice system at some time in their lives more often than white jurors. African American jurors also report feeling condescension from Caucasian jurors and note that their expertise and experience are often ignored or downplayed during deliberations. Due to the perception that their views are not valued, black jurors have reported that they have less influence overall, no matter their viewpoints (Davis, 1989, p.1570). Further, many juries include few, if any, black jurors. When making jury selections, whites are often selected instead of blacks. If blacks are selected, they are often the only minority jury member or represent less than half of total jurors (Davis, 1989, p.1566). When on juries, some African American jury members have reported experiencing treatment like that which they experience when walking down city streets. They note that Caucasian jurors may stiffen when they approach or avoid eye contact (Davis, 1989, p. 1569). These situations can lead to minority jurors asking to be excused from further service. Experiencing racial bias while participating as a juror can lead to negative opinions of the criminal justice system and the belief that the system shows preferential treatment to Caucasians.
Given the potential for racial bias between whites and blacks when on a jury together, the potential that race will play a role in sentencing is even greater when a primarily white jury is deciding a case with a black defendant. Especially in capital cases, where the decision is so subjective, racial biases have a strong influence on decision making (Bowers, Sandys & Brewer, 2004, p.1498). Due to the potential for bias, potential jurors are questioned on issues of race prior to being selected for juries, however, questioning does not account for unconscious or aversive racism. Research from the CJP has demonstrated that on juries with predominantly white males, black defendants will more often be sentenced to death. Further, when interviewed later, those jurors will be more assertive than their black counterparts regarding the justification for imposing the death sentence (Bowers, Sandys & Brewer, 2004, p.1501). The study also showed that white male jurors viewed black defendants as not remorseful and highly dangerous. When on juries with white defendants, white male jurors were more likely to find defendants as remorseful and were able to relate to them on some level, demonstrating far more empathy than for the black defendants (Bowers, Sandys & Brewer, 2004, p.1503).
Racial bias exists in most areas of life, however, racial disparities and biases in capital cases are especially concerning and dangerous. A large body of research has shown that African American defendants are more likely to be sentenced to death when tried by a jury of Caucasians, especially when the defendant is male and when the jury is primarily white and male. Despite attempts to mitigate the effects of racism on sentencing, jury selection questioning cannot identify unconscious or aversive racism. Therefore, even jury members who do not participate in overt forms of racism may be making decisions based on subconscious beliefs that they are unaware of, especially given the subjective nature of capital punishment decisions. In order to address the issue of racial bias in capital punishment sentencing, race needs to be addressed on multiple levels during jury selection, trial, and deliberations. By openly addressing race issues, some of the biases impacting sentencing could be ameliorated.
Bowers, W. J., Sandys, M., & Brewer, T. W. (2004). Crossing racial boundaries: A closer look at the roots of racial bias in capital sentencing when the defendant is black and the victim is white. De-Paul Law Review, 53, 1497-1538.
Chemerinsky, E. (1995). Eliminating discrimination in administering the death penalty: The need for the racial justice act. Santa Clara Law Review, 35(2), 519-533.
Davis, P. C. (1989). Law as microaggression. Yale Law Review, 98, 1559-1577.
Hans, V. P. (1995). How juries decide death: The contributions of the capital jury project. Indiana Law Journal, 70(4), 1233-1240.
Mustard, D. B. (2001). Racial, ethnic, and gender disparity in sentencing: Evidence from the U.S. federal courts. Journal of Law and Economics, 44(1), 285-314.
Rothenberg, P. S., Dovidio, J. F., & Gaertner, S. L. (2004). On the nature of contemporary prejudice: the causes, consequences, and challenges of aversive racism. In Race, class, and gender in the United States: An integrated study (6th ed., pp. 132-143). New York: St. Martin's Press.
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