Cycles of Fear and Bias in the Criminal Justice System

BY LAUREN KIRCHNER
from Pacific Standard

Discussions about how to reform the criminal justice system—whether through sentence-reduction proposals for low-level crimes, or limiting the use of data analysis in making sentencing decisions, or fightingvoter disenfranchisement—all have one talking point in common. When an overzealous criminal justice system causes harm, it disproportionately harms minorities, because minorities are disproportionately represented at every stage of the system.

These are oft-cited statistics, and for good reason: Although black and Hispanic Americans make up only 30 percent of the general population, together they make up 58 percent of the prison population. White males in America have a one in 17 chance of going to jail during their lifetimes; for black males, it’s one in three. (Those statistics originally came from The Sentencing Project, which collects and conducts research about many aspects of the criminal justice system; the organization’s “racial disparity” research collection contains an embarrassment of riches.)

A study of criminal prosecutions in Manhattan, put out by the Vera Institute of Justice earlier this year, found a person’s race to be “a statistically significant factor at every stage” of the process, “from setting bail to negotiating a plea deal to sentencing.” The Manhattan District Attorney, who opened the books to the researchers, promised “implicit bias” training for his staff to counteract unconscious prejudices that might be affecting their decisions. Now another study in theCriminal Justice Policy Review has used similar data in order to find patterns in prosecutions nationwide.

Katharine Neill from Rice University’s Baker Institute and two co-authors looked at incarceration data from across the country to try to explain why there are such wide variations in policies of “punitiveness” from state to state. For instance, why are imprisonment rates relatively high in the South and the West, and lower in the Midwest and Northeast? To measure a state’s “punitiveness,” they took many factors into consideration, such as the percentage of a state’s population that was incarcerated, the lengths of sentences, prison conditions, and aspects of juvenile justice.

One interesting correlation they found was that states that have larger African American populations also have higher rates of incarceration, and stricter punishments overall. They also found that “states that have smaller black populations but experience a significant increase over time are also more likely to increase spending on corrections than states that experience an increase in an already high black population.” Neill and her colleagues attributed that pattern to an overreaction from fear.

When facing crime and disorder, the authors pointed out, governments have to decide how to spend money to address it. For instance, they can invest money on education and welfare, or they can put it toward corrections. (The research showed an inverse relationship: states that spend more on education and welfare also spend less on corrections.) Policymakers often make those kinds of financial decisions based on pressure from the public. Being tough on crime can be an easy way to score political points. Neill and her co-authors write:

The very public and salient nature of the political and symbolic punishments allows elected officials to prove to citizens that they are ‘doing something’ about crime. That young black males are particularly associated with crime has been well documented. Thus, political and symbolic punishments may be one mechanism for elected officials to use as evidence of their role in controlling a threatening population.

Harsh words. But if politicians are making these cold calculations, they must know what they’re doing. In fact, a Sentencing Project report that came out last month (“on the heels of the tragic events in Ferguson, Missouri”) showed the pervasiveness of this negative association in the minds of the public. It found both that “white Americans overestimate the proportion of crime committed by people of color,” and that “whites who associate crime with blacks and Latinos are more likely to support punitive policies … than whites with weaker racial associations of crime.”

The author, Nazgol Ghandnoosh, had plenty of blame to spread around for this phenomenon—blame for the media, which over-represent minorities as suspects and whites as victims, and blame for the public policies that reinforce it. The pervasiveness of the bias was the point. “Disparities in police stops, in prosecutorial charging, and in bail and sentencing decisions reveal that implicit racial bias has penetrated all corners of the criminal justice system,” he writes.

The fear and the bias run deep. How can we start to root it out? Common sense would dictate that shining a light on systemic inequity would be an important first step. But there again we find bad news. A study by Stanford psychologists Rebecca Hetey and Jennifer Eberhardt, published this spring in Psychological Science, found that showing people racial disparities in incarceration figures actually makes them more likely to support harsher punishments for crime in general.

In one experiment, the researchers asked random white people on the street to look at a video containing photos of various white and black inmates, and then asked them their opinions about prison policy. The researchers manipulated the proportions of white to black faces throughout, but typically included a higher proportion of black faces than are actually represented in California’s prisons, where the experiment was conducted. They asked everyone to guess the percentage of black inmates in the prison population, and everyone guessed higher than the proportion of black faces they saw, and higher than the proportion actually is in real life. But, the researchers also found, the more black faces they showed the participants, the more likely the participants were to sign a petition in support of the state’s strict “three-strikes” law.

A similar experiment concerning New York’s stop-and-frisk policy had the same results. The more pictures of black inmates that the participants were presented with, the more “concerned” they all said they were about crime, and the less likely to support the end of stop-and-frisk.

In this way, the authors explain, racial bias and disparities can self-perpetuate. “This produces quite a challenge for those striving to create a more equal and just society,” Hetey and Eberhardt write in the paper’s conclusion. “Perhaps motivating the public to work toward an equal society requires something more than the evidence of inequality itself.”

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